BIA (2-1) on CIMT: Matter of Khan

Matter of Khan, 28 I&N Dec. 850 (BIA 2024) Interim Decision #4081, Nov. 1, 2024

(1) When the government must prove the elements of a sentencing enhancement beyond a reasonable doubt, those additional elements are combined with the elements of the underlying criminal statute and all the elements are then considered together as one compound crime.

(2) The respondent’s compound conviction under section 191.5(b) of the California Penal Code enhanced by section 20001(c) of the California Vehicle Code is categorically for a crime involving moral turpitude.

Majority: "We therefore affirm the Immigration Judge’s conclusion that the respondent’s compound conviction under section 191.5(b) of the California Penal Code enhanced by section 20001(c) of the California Vehicle Code is categorically for a crime involving moral turpitude rendering him removable under section 237(a)(2)(A)(i) of the INA, 8 U.S.C. § 1227(a)(2)(A)(i)."

Dissent: "This case presents a complex set of criminal statutes raising difficult questions, and I appreciate the majority’s detailed analysis. However, I cannot agree that the elements of the respondent’s conviction under section 191.5(b) of the California Penal Code, as enhanced by section 20001(c) of the California Vehicle Code, constitute a crime involving moral turpitude. ... I would find DHS’ charges of removability are not proven by clear and convincing evidence and would thus not reach the additional relief issues reached by the majority decision. I would grant the respondent’s motion to terminate removal proceedings."