Montero-Ubri v. Immigration & Naturalization Service

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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