United States Court of Appeals
For the First Circuit
No. 00-1133
JUAN ANTONIO MONTERO-UBRI,
Petitioner, Appellant,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent, Appellee.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Chief Judge,
Lynch and Lipez, Circuit Judges.
William E. Graves, Jr. and Desai & Graves on brief for
appellant.
Joan E. Smiley, Office of Immigration Litigation, Civil
Division, Department of Justice, David W. Ogden, Acting Assistant
Attorney General, Civil Division, and Karen Fletcher Torstenson,
Assistant Director, Civil Division, on brief for appellee.
October 6, 2000
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LYNCH, Circuit Judge. Petitioner seeks review of an
order of deportation that was based on a finding that his
conviction of violating M.G.L. c. 90 § 24B constituted a crime
of moral turpitude. See 8 U.S.C. § 1101 (Supp. 1997). That
section of the Massachusetts criminal law is entitled:
"Stealing, forging, or other falsification of learner's permit,
operator's license, certificate of registration or inspection
sticker; use or possession; penalties; suspension and
reinstatement of license or right to operate motor vehicle."
We have jurisdiction to review whether the conviction
is for a criminal offense which constitutes a crime of moral
turpitude, as the INS concedes. See Maghsoudi v. INS, 181 F.3d
8, 13 n.12 (1st Cir. 1999); see also Sousa v. INS, No. 99-2049,
slip op. at 4-5 (1st Cir. Sep. 2, 2000). As we noted in Nguyen
v. Reno, 211 F. 3d 692 (1st Cir. 2000), the statutory term
"crime of moral turpitude" is generally understood to mean:
conduct . . . contrary to the accepted rules of
morality and the duties owed between persons or to
society in general . . . . an act which is per se
morally reprehensible and intrinsically wrong.
Id. at 695.
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The question here is not whether a particular crime is
a crime of moral turpitude. Rather, the question is whether the
conviction under M.G.L. c. 90 § 24B, a statute which encompasses
a number of offenses, was for mere possession of a fraudulent
driver's license or whether it was for use of a fraudulent
driver's license. The BIA has held that use of a fraudulent
driver's license is a crime of moral turpitude.1 See Matter of
Serna, 20 I. & N. Dec. 579 (BIA l992); cf. Zaitona v. INS, 9
F.3d 432, 437-438 (6th Cir. 1993). The Immigration Judge here
found that the offense was for use of a fraudulent license. The
BIA affirmed. See In re Montero-Ubri, No. A44-877-524-Boston
(BIA Jan. 12, 2000).
Petitioner launches a two-fold attack. He says the
agency is precluded as a matter of law from relying on the
documents and information it did and that in any event those
documents and information do not establish "use," but only
"possession."
1
Montero-Ubri argues that not all "uses" are crimes of moral
turpitude, and that there should be some inquiry into how the fake
license was used. That argument is antithetical to his primary
argument that the agency cannot look beyond the categories in the
statute.
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The agency has said it will not look into the
underlying facts of the particular crime, but will focus first
on the statute of conviction. See Matter of Ajami, Interim
Decision 3405 (BIA 1999); see also Matter of Short; 20 I. & N.
Dec. 136 (BIA 1989). If the statute of conviction, as here,
includes both crimes of moral turpitude and others, then the
agency may look to the indictment, the charging papers, the
conviction documents, and the like to see which type of crime
was involved. Ajami, Interim Decision 3405.
Here, the focus was on exactly those documents. The
sentencing document shows petitioner pled guilty to "using" a
false motor vehicle document. That document shows that there
were related charges, continued without a finding, for illegally
operating a motor vehicle without being duly licensed. From
this, the IJ drew the quite sensible conclusion that petitioner
had used a false license in connection with operating the car.
The attempt at deceit is inherent in this act. There is no
basis to fault this factual conclusion.
Petitioner's other argument is that because he was
never convicted of those of the charged crimes which were
continued without a finding, and per force these non-convictions
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were not the basis of the deportation order, there was error in
considering this information. There was no error. The push in
the law toward categorical approaches to classifying crimes as
either involving moral turpitude or not is largely based on the
policy of not retrying prior criminal convictions in later
deportation hearings. Cf. United States v. Damon, 127 F.3d 139,
145-46 (1997). No such interest is served by precluding
consideration of basic facts stated on the official court
records of the charging and conviction documents. The
categorical approach does not require that blinders be worn.
The petition for review is dismissed and the stay of
deportation is lifted. So ordered.
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