Ihar Sotnikau v. Lynch (4th Cir., filed 1/24/17), Involuntary Manslaughter NOT a Crime of Moral Turpitude re: Removal Proceedings. Also, Appreciate How the Rule of Law Protects Immigrants in Practice.

January 30th, 2017
Elizabeth Franklin-Best

Sotnikau, a native of Belarus, was a lawful permanent resident of the US.  He was subjected to a removal proceeding because authorities decided that his conviction, for involuntary manslaughter, was a crime of “moral turpitude.”  He sought asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).  After various hearings, he lost these claims, the lower courts finding that involuntary manslaughter, under Virginia statute, was a crime involving moral turpitude.

An alien is subject to removal per 8 USC 1227(a)(2)(A)(i) if he “is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission” and “for which a sentence of one year or longer may be imposed.”  Sotnikau fit the bill here since he was admitted in 2009 and his crime occurred in 2010.  A crime involving moral turpitude “must involve conduct that not only violates a statute but also independently violates a moral norm.”  See Mohamed v. Holder, 769 F.3d 885, 888 (4th Cir. 2014); see also id. (“[W]e have noted that ‘moral turpitude’ refers generally to ‘conduct that shocks the public conscience as being inherently base, vile, or depraved.'” (quoting Medina v. United States, 259 F.3d 220, 227 (4th Cir. 2001).  That is, “to involve moral turpitude, a crime requires two essential elements:  a culpable mental state and reprehensible conduct.”  In re Ortega-Lopez, 26 I.&N. Dec. 99, 100 (BIA 2013).  “Where knowing or intentional conduct is an element of an offense,” the BIA has “found moral turpitude to be present.”  See In re Perez-Contreras, 20 I.&N. Dec. 615, 618 (BIA 1992).  Those circumstances involve criminally reckless conduct, but NOT criminally negligent conduct because “there [is] no intent required for conviction, or any conscious disregard of a substantial and unjustifiable risk.”  Id. at 619.

In Virginia, involuntary manslaughter is “the accidental killing of a person, contrary to the intention of the parties, during the prosecution of an unlawful, but not felonious, act, or during the improper performance of some lawful act.”  See Gooden v. Commonwealth, 311 S.E.2d 780, 784 (Va. 1984).  As the Court found, an involuntary manslaughter conviction could be secured in Virginia without proving a conscious disregard of risks attendant to the offender’s conduct.   Crimes involving criminal negligence are generally excluded from the category of crimes that involve moral turpitude.  See e.g., Rodriguez-Castro v. Gonzales, 427 F.3d 316, 323 (5th Cir. 2005) (collecting decisions and recognizing that “negligence-based crimes usually do not amount to [crimes involving moral turpitude]”).   Finding no reason to depart from that, the Court granted the petition for review, vacated the final BIA order, and remanded for further action.

This is what the Rule of Law looks like under our current immigration law paradigm.  Trump’s recent immigration executive order would allow removal proceedings against persons like Mr. Sotnikau based only on a “belief” that they have committed a crime.  As everyone is currently aghast at the travel ban, please do not forget that this sort of movement against immigrants is also afoot. Remain vigilant.

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