In March, the Fourth Circuit Court of Appeals granted review of a Board of Immigration Appeals (hereafter “BIA”) decision, which had ordered Mr. Nunez-Vasquez, a citizen of Mexico who had been in the United States since 2002, removed from the United States due to a 2012 conviction for using false identification (identity theft). While the removal proceedings against Mr. Nunez-Vasquez were pending, he obtained a second conviction, which involved leaving the scene of an accident (failure-to-stop). On July 13, 2020, in reversing the BIA’s conclusion that both the identity theft and failure-to-stop convictions were crimes involving moral turpitude, and therefore merited removal, the Fourth Circuit explained that the BIA had failed to provide any analysis as to the categorization of either conviction prior to summarily finding that both were crimes involving moral turpitude.
The Fourth Circuit held that in order for a crime to be categorized as “involving moral turpitude,” it must require two elements: 1) a culpable mental state, and 2) reprehensible conduct. To require a finding of a culpable mental state, the crime must include as an element, an “intent to achieve an immoral result or willful disregard of an inherent and substantial risk that an immoral act will occur.” To meet the “reprehensible conduct” requirement, the crime must involve conduct that not only violates a statute but also independently violates a moral norm. Ultimately, the Fourth Circuit found that the failure-to-stop conviction requires neither of these two elements. It does not require a culpable mental state because the statute permits a conviction based on criminal negligence. Neither does it require the conduct to be “reprehensible,” because an individual can be convicted merely for failing to satisfy reporting requirements, conduct which does not categorically violate a social norm nor “shock the public conscience as being inherently base, vile, or depraved.”
Similarly, the Fourth Circuit found that the subsection of the identity theft statute under which Mr. Nunez-Vasquez was convicted fails to require a showing of reprehensible conduct, as simply misidentifying oneself to a private individual, such as a loss prevention manager at a store, violates that subsection of the statute. Certainly, misidentifying oneself to someone other than a law enforcement officer is not necessarily reprehensible conduct nor “inherently base, vile, or depraved, or contrary to the accepted rules of morality.” Reversing the BIA’s conclusion and determining that neither of these convictions qualified as crimes involving moral turpitude, the Fourth Circuit ordered the Government to return Mr. Nunez-Vasquez to the United States, as he had already been removed back to Mexico while the appeal was pending.
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