Cabral v. INS

• Court: Court of Appeals for the First Circuit
• Decided: January 31, 1994
• Docket: 93-1514
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

          No. 93-1514

                              ACQUILES LEONIDAS CABRAL,

                                     Petitioner,

                                          v.

                       IMMIGRATION AND NATURALIZATION SERVICE,

                                     Respondent.

____________________

ON PETITION FOR REVIEW OF AN ORDER OF

                           THE BOARD OF IMMIGRATION APPEALS

____________________

                                        Before

                                Selya, Cyr and Stahl,

                                   Circuit Judges.
                                   ______________

____________________

Randy Olen for petitioner.
               __________
               William  C.  Lengacher,  Attorney,   Office  of  Immigration
               ______________________
          Litigation,  with  whom  Frank  W.  Hunger,  Assistant   Attorney
                                   _________________
          General,  and Richard M. Evans, Assistant Director, were on brief
                        ________________
          for respondent.

____________________

                                   January 31, 1994
                                                     
                                 ____________________

CYR, Circuit Judge.  After Acquiles Leonidas Cabral was
                    CYR, Circuit Judge.
                         _____________

          convicted by the Commonwealth of Massachusetts as an accessory to

          murder, he was ordered deported for committing a "crime involving

          moral turpitude" within  five years of his lawful  entry into the

          United States.   We  deny his  petition for review  of the  final

          order of deportation.

I
                                          I

                                      BACKGROUND
                                      BACKGROUND
                                      __________

                    A citizen of the Dominican Republic, Cabral was allowed

          to enter  the United States as a resident alien on July 21, 1983.

          On December 14, 1984, he was charged with murder after the Boston

          police  stopped a  van containing  Cabral, two  other men,  and a

          corpse wrapped  in a  carpet.   Cabral later  pled  guilty as  an

          accessory after the fact to murder, see  Mass. Gen. Laws ch. 274,
                                              ___

            4  (1990),  and  received a  four-to-seven  year  prison term.1

          During the deportation  proceedings which  followed, Cabral  con-

          tended,  as he does  now, that the  crime of  accessory after the

          fact to  murder is  not a "crime  involving moral  turpitude" (or

          "CIMT")  within  the meaning  of  8  U.S.C.    1251(a)(4).2    An

          Immigration  Judge  (IJ)  found that  Cabral's  conviction  as an

          accessory after the  fact to the voluntary murder  charged in the
                              
          ____________________

               1No one has been convicted of the murder.

               2This section was redesignated in 1990 as 8 U.S.C.   1251(a)
          (2)(A)(i)  by Pub.  L. No.  101-649   601(a),  104 Stat.  5066-85
          (1990).

                                          2

Massachusetts indictment established that Cabral was an accessory

          to a  CIMT.  See In  re Sanchez-Marin, 11  I. & N. Dec.  264 (BIA
                       ___ ____________________

          1965).   The  IJ accordingly  ordered  deportation under  section

          1251(a)(4).  The Board of Immigration Appeals  (BIA) affirmed the

          order of deportation, and Cabral petitioned for review.

II
                                          II

                                      DISCUSSION
                                      DISCUSSION
                                      __________

          A.   Standard of Review
          A.   Standard of Review
               __________________

                    As  the petition  for review  presents a pure  issue of

          statutory construction, we  review de novo, according  due defer-
                                             __ ____

          ence  to the  BIA's interpretation  of  the deportation  statute.

          Mosquera-Perez v.  INS, 3  F.3d 553,  554 (1st  Cir. 1993).   See
          ______________     ___                                        ___

          Jaramillo  v. INS, 1  F.3d 1149, 1153 (11th  Cir. 1993); see also
          _________     ___                                        ___ ____

          INS v.  Jong Ha  Wang, 450  U.S.  139 (1981)  (per curiam)  (pre-
          ___     _____________

          Chevron case  overturning  court of  appeals' decision  reversing
          _______

          "reasonable" INS interpretation  of statute).   We look first  to

          the language of  the statute itself, employing  traditional tools

          of  statutory construction, see Mosquera-Perez, 3 F.3d at 554-55,
                                      ___ ______________

          to see if  the legislative intent is clear,  Chevron U.S.A., Inc.
                                                       ____________________

          v. Natural  Resources Defense  Council, Inc., 467  U.S. 837,  842
             _________________________________________

          (1984).  We look to the legislative  history only if "the literal

          words of the statute create  ambiguity or lead to an unreasonable

          interpretation."  United  States v. Charles George  Trucking Co.,
                            ______________    ____________________________

          823  F.2d 685,  688 (1st  Cir. 1987)  (citation omitted).   Where

          Congress has not spoken directly to the issue, the interpretation

          given by  the  BIA is  entitled  to deference  unless  arbitrary,

                                          3

capricious, or manifestly contrary to the statute.  See Mosquera-
                                                              ___ _________

          Perez, 3 F.3d at 555; see also Alvares-Flores v. INS, 909 F.2d 1,
          _____                 ___ ____ ______________    ___

          3 (1st Cir.  1990).   In all  events, as the  final authority  in

          matters  of  statutory interpretation,  the courts  "'must reject

          administrative constructions which are contrary to clear congres-

          sional intent.'"  Mosquera-Perez,  3 F.3d. at 555  (quoting Chev-
                            ______________                            _____

          ron, 467 U.S. at 843 n.9).
          ___

B.   The Deportation Statute
          B.   The Deportation Statute
               _______________________

               (i)  The Statutory Language
               (i)  The Statutory Language
                    ______________________

                    Section 1251(a)(4) itself states in relevant part:

                    (a)  General classes.  Any alien in the Unit-
                    (a)  General classes.  
                    ed  States . . . shall, upon the order of the
                    Attorney General, be deported who    
                    . . . .
                    (4)   is convicted of a crime involving moral
                    turpitude committed  within five  years after
                    entry and either  sentenced to confinement or
                    confined therefor in  a prison or  corrective
                    institution, for a year or more. . . .

          8 U.S.C.   1251(a)(4).   All preconditions for  deportation under

          section 1251(a)(4)  are  plainly met  in the  present case,  save

          possibly the CIMT requirement.   As to whether an accessory after

          the fact to murder has committed a CIMT, however, the language of

          the  statute is  silent.   We therefore  look to  its legislative

          history.

(ii)  The Legislative History
               (ii)  The Legislative History
                     _______________________

                    The available legislative history reveals that the term

          "moral  turpitude" first appeared in the federal immigration laws

          in 1891.  See S. Rep. No.  1515, 81st Cong., 2d Sess. 350 (1950);
                    ___

4

Charles Gordon, Immigration Law  and Practice   71.05[1][a],  71-
                          _____________________________

          121 (Supp. 1993).  Justice Jackson offered the  following insight

          into the legislative history of  the Immigration Act of 1917, see
                                                                        ___

          S. Rep.  No. 352, 64th Cong., 1st Sess.  390 (1916), the first to

          authorize  deportation of resident  aliens convicted of  a "crime

          involving moral turpitude":

                         The uncertainties of this statute do not
                    originate in contrariety of judicial opinion.
                    Congress knowingly conceived it in confusion.
                    During the hearings of the House Committee on
                    Immigration, out of which eventually came the
                    Act of 1917 in controversy, clear warning  of
                    its  deficiencies was  sounded and  never de-
                    nied.

                         "Mr. SABATH. . . . [Y]ou  know that
                         a crime  involving moral  turpitude
                         has not  been defined.  No  one can
                         really say what  is meant by saying
                         a  crime  involving   moral  turpi-
                         tude. . . ."

                         Despite  this notice,  Congress did  not
                    see  fit to state  what meaning it attributes
                    to the  phrase "crime involving  moral turpi-
                    tude."

          Jordan v.  De George, 341  U.S. 223, 233-34 (1951)  (Jackson, J.,
          ______     _________

          dissenting)  (quoting  from  House Committee  on  Immigration and

          Naturalization Hearings on H.R.  Rep. No. 10384, 64th  Cong., 1st

          Sess. 8  (1916)).3   The  legislative  history leaves  no  doubt,
                              
          ____________________

               3A Senate  subcommittee report accompanying  the Immigration
          Act of 1952 relating  to the exclusion  of aliens convicted of  a
          CIMT notes that the term  "moral turpitude" "has not been defini-
          tively and conclusively defined by  the courts.  One INS decision
          held that 'moral turpitude' is a  vague term. . . ."  S. Rep. No.
          1515, 81st Cong., 2d Sess.  351 (1950).  Nevertheless, the Senate
          subcommittee  did  not adopt  the  suggestion  that  "there be  a
          listing  of crimes  and  circumstances  comprehended  within  the
          meaning of moral  turpitude," id. at 353, so as to remove some of
                                        ___
          the interpretive discretion left to those who must apply the term

                                          5

therefore, that  Congress left  the term  "crime involving  moral

          turpitude" to future administrative and judicial interpretation.

C.   Reasonableness of Agency Interpretation
          C.   Reasonableness of Agency Interpretation
               _______________________________________

                    Although voluntary murder is  universally recognized as

          a CIMT, see, e.g., De Lucia v.  Flagg, 297 F.2d 58, 61 (7th  Cir.
                  ___  ____  ________     _____

          1961), cert. denied, 369 U.S. 837 (1962), the  statutory language
                 _____ ______

          and the  legislative history  are silent as  to whether  an alien

          convicted as an accessory after  the fact to voluntary murder has

          committed  a  CIMT.   We  therefore  inquire  whether  the agency

          interpretation  was arbitrary, capricious, or clearly contrary to

          the statute.  See Mosquera-Perez, 3 F.3d at 555.
                        ___ ______________

                    We note  first that the  record establishes, as  the IJ

          found,  that  Cabral pled  guilty  as an  accessory  to voluntary

          murder.   The  Massachusetts indictment,  part of  the record  of

          conviction, see United States ex rel. Zaffarano v. Corsi, 63 F.2d
                      ___ _______________________________    _____

          757, 759 (2d Cir. 1933) (per curiam) (on rehearing) (holding that

          "the  record of conviction . . . mean[s] the charge (indictment),

          plea, verdict, and sentence"), alleged:

                         JOHN DOE . . . on  or about December 14,
                    1984,  did assault  and  beat one  Nathan Lee
                    Gales,  with intent to murder him and by such
                    assault and beating  did kill and  murder the
                    said Nathan Lee Gales.  And that,

                                   AQUILES [sic] CABRAL,

                    afterwards, well knowing the said John Doe to
                                ____ _______ ___ ____ ____ ___ __
                              
          ____________________

          in excluding aliens.   Moreover, although the term  has been part
          of our  immigration laws  for more than  100 years,  Congress has
          chosen  not to  define it,  either  in the  deportation or  alien
          exclusion contexts.  See Gordon, at 71-146 supra,   71.05[1][d].
                               ___                   _____

                                          6

have  committed  the  felony  aforesaid,  did
                    ____  _________  ___  ______  _________
                    harbor, conceal, maintain and assist the said
                    John  Doe, with  intent  that  said John  Doe
                    should  avoid and  escape detention,  arrest,
                    trial and punishment.

          (Emphasis added.)  Under Massachusetts law, murder  is defined as

          "the killing of a human  being, with malice aforethought."  Mass.

          Gen. L. ch. 277,    39 (1990).4  As the IJ  noted, federal courts

          uniformly have held  that voluntary murder is a  CIMT, see, e.g.,
                                                                 ___  ____

          Fong Haw Tan  v. Phelan, 162 F.2d 663, 664 (9th Cir. 1947), rev'd
          ____________     ______                                     _____

          on  other grounds,  333  U.S. 6  (1948);  see also,  e.g.,  In re
          _________________                         ___ ____   ____   _____

          Johnson,  822 P.2d  1317 (Cal.  1992); Burleigh  v. State  Bar of
          _______                                ________     _____________

          Nevada, 643 P.2d 1201, 1204 (Nev. 1982); State v. Lee, 404 S.W.2d
          ______                                   _____    ___

          740, 748 (Mo. 1966);  In re Noble, 423 P.2d 984,  984 (N.M. 1967)
                                ___________

          (second  degree murder a  CIMT).   Furthermore, the  IJ reasoned,

          "[i]f the underlying conduct  (assault with intent to murder  and

          murder) is found to be turpitudinous,  then the secondary offense

          (accessory) is  also one  involving moral turpitude.   Matter  of
                                                                 __________

          Sanchez-Marin, 11 I. & N. Dec. 264 (BIA 1965)."  Aquiles Leonidas
          _____________                                    ________________

          Cabral, Op. Immigr.  Judge No.  A 38  496 722, at  5-6 (Nov.  18,
          ______

____________________

               4The  Cabral indictment alleges that Cabral "well [knew] the
          said John  Doe to have"  *** "assault[ed] and beat[en]  [the vic-
          tim], with intent  to murder him and by such  assault and beating
          did kill  and murder the  [victim]."  Massachusetts  law provides
          that "[t]he following words, when used in an indictment, shall be
          sufficient  to convey  the meaning  herein  attached to  them.***
          Murder.--The killing of a human being, with malice aforethought."
          ______
          Mass. Gen.  L.   ch. 277,    39.   The relevant distinction,  for
          purposes of  the CIMT  classification, is  between voluntary  and
          involuntary killing, rather than murder and manslaughter.  See De
                                                                     ___ __
          Lucia, 297 F.2d at 61 ("so long as homicide is voluntary . . . no
          _____
          amount  of justification  can  remove  it from  the  class of  [-
          CIMTs]").   Thus, Cabral  pled guilty as  an accessory  after the
          fact to voluntary murder, a CIMT.

                                          7

1988).

                    In  re Sanchez-Marin,  11  I. &  N. Dec.  264, involved
                    ____________________

          issues and circumstances  similar to those presented here.  Three

          resident  aliens were convicted  under Massachusetts law;  two of

          manslaughter, see  Mass. Gen.  L. ch. 265,    13 (1990),  and the
                        ___

          third as an accessory after the fact,  see Mass. Gen. L. ch. 274,
                                                 ___

            4  (1990), the same "accessory" statute under which Cabral pled

          guilty.  The BIA found it "reasonable to conclude upon the record

          of  conviction  that the  homicide  committed by  the  aliens was

          voluntary and consequently this  crime involves moral turpitude,"

          In re Sanchez-Marin, 11 I. & N. Dec. at 266, and, as to the third
          ___________________

          alien, that the "indictment links him to the manslaughter commit-
                           __________ _____ ___ __ ___ ____________ _______

          ted by the other two aliens," id. at 266-67 (emphasis added).
          ___ __ ___ _____ ___ ______   ___

                    Later, the  BIA  emphasized  the  significance  of  the

          "indictment linkage," between the underlying crime and the acces-

          sory  charge  in In  re Short,  1989 BIA  LEXIS 30  (BIA Nov. 16,
                           ____________

          1989), where an alien was charged as an accessory to the crime of

          assault with  intent to  commit  an unspecified  felony under  18
                                              ___________

          U.S.C.   113(b).  The IJ  determined, from the indictment against
                                                ____ ___ __________ _______

          the principal, that  the principal's crime was a  CIMT.  Thereaf-
          ___ _________            ___________

          ter, the IJ's  ruling that the accessory had been  convicted of a
                                         _________

          CIMT was reversed by  the BIA.  Id. at *11-*12.   The BIA distin-
                                          ___

          guished Sanchez-Marin:  in "that case, the [BIA] was able to look
                  _____________

          to the principals'  conviction records, as we  specifically found

          that the  respondent's (alien's)   indictment linked  him to  the
                    ____________  _______    __________

          crime committed by the two principals.  [However], no linkage has

8

been established in this case."  Id. at *12 (emphasis added).
                                           ___

                    Cabral challenges  the Sanchez-Marin  rationale itself,
                                           _____________

          noting that accessories  before the fact under  Massachusetts law
                                   ______

          are subject to the same  punishment as the principal, whereas the

          legislature has prescribed different punishments for the separate

          crime of accessory after the  fact.5  Therefore, he says, whether
                             _____

          an alien convicted as an accessory after the fact has committed a

          CIMT must be determined without regard to the turpitude associat-

          ed with the primary offense committed by the principal.  Thus, he

          argues,  Sanchez-Marin is  wrongly decided  and the  INS may  not
                   _____________

          ascribe to an alien the  moral turpitude of the principal's crime

          since an accessory after the fact need have committed no "'act of

          baseness, vileness or depravity in the private  and social duties

          which a  man owes to  his fellow men,  or to society  in general,

          contrary to the  accepted and  customary rule  of right. . .  ,'"

          Marciano v.  INS, 450 F.2d  1022, 1025 (8th Cir.),  cert. denied,
          ________     ___                                    ____  ______

          405  U.S. 997 (1971)  (quoting Ng Sui  Wing v. United  States, 46
                                         ____________    ______________

          F.2d  755, 756  (7th  Cir.  1931)).   Although  Cabral  correctly

          asserts  that Sanchez-Marin is  "presumptive . . . and  bereft of
                        _____________

          any  reasoning or analysis" supporting its  conclusion, we do not

          agree that the  BIA's interpretation of section 1251(a)(4) can be

          ruled unreasonable, arbitrary, or contrary to law.
                              
          ____________________

               5Of course, the definition of a CIMT under   1251(a)(4) is a
          matter of  federal law.  See  Babouris v. Esperdy, 269  F.2d 621,
                                   ___  ________    _______
          623  (2d Cir. 1959),  cert. denied, 362 U.S.  913 (1960); Burr v.
                                ____  ______                        ____
          INS, 350 F.2d 87, 90 (9th Cir. 1965), cert. denied, 383  U.S. 915
          ___                                   ____  ______
          (1966).  We look  to state law only to determine  the elements of
          the offense  of conviction.  See In re H, 7 I. & N. Dec. 359, 360
                                       ___ _______
          (BIA 1956).

                                          9

For present  purposes, we  accept arguendo the  premise
                                                      ________

          that the CIMT determination may  take into account only the moral

          turpitude  involved in the criminal  conduct to which Cabral pled

          guilty  as determined from  the record of  conviction,6 including

          the indictment, see  Zaffarano, 63 F.2d at 759.  Even so, the BIA
                          ___  _________

          found moral turpitude  based on  the indictment  to which  Cabral

          pled  guilty, not the indictment against John  Doe.  See supra at
                                                               ___ _____

          p. 6; see also Sanchez-Marin, 11  I. & N. Dec. at 266-67.   Given
                ___ ____ _____________

          Cabral's guilty plea to an  indictment alleging that he knew that
                                                                  ____

          the principal intentionally murdered another human being and that
                        _____________

          Cabral intentionally assisted  the principal  in avoiding  deten-
                 _____________

          tion,  trial  and  punishment,  we  discern   nothing  arbitrary,

          unreasonable, or contrary to law in the  BIA's determination that

          Cabral himself  committed a  "crime  involving moral  turpitude."

          See Marciano, 450  F.2d at 1025.   To state  the question in  the
          ___ ________

____________________

               6We have  explained that  the principal  reason the  INS and
          reviewing courts  do not  go beyond the  record of  conviction is
          administrative workability:

               If  the crime  in its  general nature  is one  which in
               common usage would  be classified as a  [CIMT], neither
               the administrative officials in a deportation  proceed-
               ing nor the  courts on review of  administrative action
               are under the oppressive burden of taking and consider-
               ing  evidence  of  the  circumstances of  a  particular
               offense so as to determine whether there were extenuat-
               ing factors  which might  relieve the  offender of  the
               stigma of moral obliquity.

          Pino v.  Nicholls, 215 F.2d  237, 245  (1st Cir. 1954),  rev'd on
          ____     ________                                        ________
          other grounds sub nom. Pino  v. Landon, 349 U.S. 901 (1955)  (per
          ______________________ ____     ______
          curiam).  Accord Castie v. INS, 541 F.2d 1064, 1066 n.5 (4th Cir.
                    ______ ______    ___
          1976);  see also Chiaramonte v. INS, 626 F.2d 1093, 1098 (2d Cir.
                  ___ ____ ___________    ___
          1980) (unfair to conduct satellite  proceeding in forum which may
          be far removed from original crime scene).

                                          10

context presented  is to answer it:   Is it  unreasonable for the

          executive agency entrusted by Congress with primary responsibili-

          ty  for the administration of  the deportation of resident aliens

          to find that an alien who knowingly assisted the perpetrator of a

          brutal  murder  to  avoid detention,  trial  and  punishment, has

          himself  committed a "crime involving moral turpitude"?  Although

          we recognize  the force  of the countervailing  view, we  are not

          persuaded  that  the  BIA's  interpretation  and  application  of

          section  1251(a)(4) can  be considered  either arbitrary,  unrea-

          sonable or contrary to law.7

                    We therefore conclude that the petition for review must

          be  denied, as the BIA's  interpretation of 8 U.S.C.   1251(a)(4)

          is not  unreasonable, arbitrary, capricious,  or manifestly  con-

          trary to the statute, and its application in the present case was

          not impermissible.

                    So Ordered.
                    So Ordered.
                    __ _______

____________________

               7Cabral  incorrectly contends  that  Sanchez-Marin does  not
                                                    _____________
          apply  here because  the  principal  has  never  been  convicted,
          whereas  in Sanchez-Marin  the principals  pled  guilty.   First,
                      _____________
          under  Massachusetts law, the  principal need not  have been con-
          victed in  order to  convict an  accessory after  the fact.   See
                                                                        ___
          Mass. Gen. L. ch. 274,   5 (1990).   Second, Cabral's guilty plea
          collaterally estops him from denying the essential allegations of
          the  indictment, including not only his intentional assistance to
          the  principal but  his knowledge  that  the principal  committed
          voluntary murder.  See Manzoli v. Commissioner, 904 F.2d 101, 105
                             ___ _______    ____________
          (1st Cir. 1990) (party to civil action collaterally estopped from
          relitigating  material issue resolved against him in prior crimi-
          nal  action).   As the  IJ  observed, proof  that the  underlying
          murder was committed would have been essential had Cabral gone to
          trial.   See  Commonwealth v.  Eagan,  259 N.E.  548, 551  (Mass.
                   ___  ____________     _____
          1970).

                                          11