Matter of Nemis (Conspiracy, CIMT, Modified Categorical Approach; Discretion)

Matter of Nemis, 28 I&N Dec. 250 (BIA 2021)

Headnotes:

(1) Applying the categorical approach, the conspiracy statute, 18 U.S.C. § 371 (2012), is overbroad relative to the generic definition of a crime involving moral turpitude, and divisible between the offense clause, which may or may not involve moral turpitude, and the defraud clause of the statute, which is categorically a crime involving moral turpitude.

(2) To determine whether a conspiracy conviction under the offense clause of 18 U.S.C. § 371 constitutes a crime involving moral turpitude, the underlying statute of conviction should be examined under the categorical, and if applicable, modified categorical approach.

(3) The respondent’s conviction under 18 U.S.C. § 1546(a) (2012), punishing fraud and misuse of visas, permits, and other documents, is overbroad and divisible such that the modified categorical approach is applicable and it was proper to consider the conviction records. Matter of Serna, 20 I&N Dec. 579 (BIA 1992), clarified.

(4) The respondent’s conviction for conspiracy to commit visa fraud in violation of 18 U.S.C. §§ 371 and 1546(a) is a conviction for a crime involving moral turpitude under the modified categorical approach.

"We find here, as we did in Matter of Serna, that possessing with no illegal use or intent to illegally use an altered or counterfeit immigration document is not morally turpitudinous. However, we find the version of the statute under which the respondent was convicted to be divisible, such that the modified categorical analysis must be employed to determine under which statutory phrase he was convicted.5 We hold that a conviction for visa fraud under phrase four of 18 U.S.C. § 1546(a) is a conviction for a crime involving moral turpitude. 6 Consequently, we decline to disturb the Immigration Judge’s conclusion that the respondent is inadmissible under section 212(a)(2)(A)(i)(I) of the Act. ... Upon consideration of the equities before us on de novo review, we agree with the Immigration Judge’s conclusion that the weight to be attributed to the respondent’s positive equities is undercut by his criminal record in this country. As such, we affirm the Immigration Judge’s discretionary denial of the respondent’s application for cancellation of removal under section 240A(a) of the Act. The appeal is dismissed."