BIA on Categorical Approach, CIMT, Conspiracy: Matter of Al Sabsabi

Matter of Al Sabsabi, 28 I&N Dec. 269 (BIA 2021)

(1) The “offense clause” of the Federal conspiracy statute, 18 U.S.C. § 371 (2012), is divisible and the underlying substantive crime is an element of the offense.

(2) Because the substantive offense underlying the respondent’s Federal conspiracy conviction—namely, selling counterfeit currency in violation of 18 U.S.C. § 473 (2012)—is a crime involving moral turpitude, his conviction for conspiring to commit this offense is likewise one for a crime involving moral turpitude.

"The Department of Homeland Security (“DHS”) appeals from the Immigration Judge’s March 6, 2018, decision concluding that the respondent’s conviction for conspiracy under 18 U.S.C. § 371 (2012) is not one for a crime involving moral turpitude and terminating the removal proceedings against the respondent. We conclude that the Immigration Judge erred by applying the categorical approach to only the conspiracy statute without considering the turpitudinous nature of the underlying offense the respondent conspired to commit. Upon our de novo review, we conclude that the respondent was convicted of a crime involving moral turpitude and that he is removable. Accordingly, the DHS’s appeal will be sustained, the Immigration Judge’s order terminating proceedings will be vacated, and the record will be remanded to the Immigration Judge for further proceedings."