Maghsoudi v. INS

• Court: Court of Appeals for the First Circuit
• Decided: June 10, 1999
• Docket: 98-1264
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1264



                         SASAN MAGHSOUDI,



                      Petitioner, Appellant,



                                v.



             IMMIGRATION AND NATURALIZATION SERVICE,



                      Respondent, Appellee.


APPEAL FROM A DECISION OF THE



                  BOARD OF IMMIGRATION APPEALS


Before



                      Stahl, Circuit Judge,

                                

                 Magill, Senior Circuit Judge,

                                

                   and Lipez, Circuit Judge.


Gary Silbiger, with whom Silbiger & Honig was on brief for

appellant.

     Brenda M. O'Malley, with whom Karen Ann Hunold, Senior

Litigation Counsel, Frank W. Hunger, Assistant Attorney General,

and the Office of Immigration Litigation, Department of Justice,

were on brief for appellee.


June 10, 1999


LIPEZ, Circuit Judge. Sasan Maghsoudi, an alien, seeks

direct judicial review of a final order of deportation from the

Board of Immigration Appeals (BIA). The BIA found Maghsoudi

deportable (under 8 U.S.C.  1227(a)(2)(A)(ii)) because it held

that he had two prior convictions for crimes involving moral

turpitude. If both crimes were indeed crimes of moral turpitude, we

lack jurisdiction to review the deportation order. Finding that

Maghsoudi had been convicted of two such crimes, we conclude that

we lack jurisdiction over his appeal.

I. Background

  Maghsoudi came to the United States from Iran as a high

school student on February 5, 1978, and remained in this country

after the Islamic Revolution. His relevant criminal history for

purposes of this case consists of a 1985 Massachusetts conviction

for assault and robbery (stemming from a fare dispute with a

passenger in his taxi on May 22, 1983, and resulting in a ten year

suspended sentence), and a 1989 Massachusetts conviction for

indecent assault and battery (stemming from his relationship with

a sixteen year old girl, and resulting in a two and one half year

suspended sentence). An immigration judge (IJ) found him

deportable on the ground that both convictions involved moral

turpitude (pursuant to Immigration and Nationality Act (INA)

 241(a)(4)) but granted discretionary relief from deportation

(pursuant to INA  212(c)) on the ground that specific factual

circumstances of the two convictions were mitigating. The INS

noticed and briefed an appeal to the BIA on the ground that

granting relief in these circumstances was an abuse of discretion

by the IJ. For reasons unexplained, the INS's appeal to the BIA

remained pending for six years. In the interim, the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA) was passed, and

the Attorney General issued her opinion in Matter of Soriano,

Interim Decision 3289 (A.G. Feb. 2, 1997), ruling that the AEDPA

retroactively barred relief to any alien deportable for having

committed any of the offenses listed in  212(c). The BIA

subsequently reversed the IJ's grant of  212(c) relief to

Maghsoudi on the sole ground that AEDPA  440(d) made those

convicted of "two crimes of moral turpitude" ineligible

(retroactively) for  212(c) relief. See In re Sasan Maghsoudi,

Order, A 24-581-482 (BIA March 25, 1997).

  On appeal, Maghsoudi contends that the BIA erred in

holding that the AEDPA retroactively barred eligibility for

 212(c) relief, citing Goncalves v. Reno, 144 F.3d 110, 133 (1st

Cir. 1998), cert. denied, 119 S. Ct. 1140 (1999). However,

Maghsoudi must first establish our appellate jurisdiction before we

can reach the merits of that issue on direct appeal. Under

 309(c)(4)(G) of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), we have no jurisdiction to

hear a direct appeal from a decision of the BIA in the case of an

alien who is deportable by reason of having committed two crimes

involving moral turpitude, where each conviction resulted in a

sentence to confinement for one year or longer. On appeal,

Maghsoudi claims that his indecent assault conviction was not in

fact a conviction of a crime involving moral turpitude, and thus

the jurisdictional provisions of IIRIRA  309(c)(4)(G) eliminating

resort to the Courts of Appeals do not apply to the current appeal.

II. Analysis

  The INS claims that Maghsoudi conceded that his indecent

assault conviction was a conviction involving moral turpitude

before the IJ, and therefore should be held to have waived the

issue for purposes of this appeal. Maghsoudi, acting pro se,

initially contested his deportability in preliminary proceedings

before the IJ and essentially protested his innocence of the crimes

notwithstanding his guilty pleas. See C.R. 108-09. However, the

oral decision of the IJ states:

    Respondent [Maghsoudi], through his attorney,

  conceded the truthfulness of the allegation of

  fact contained in the Order to Show Cause and

  conceded that he was subject to deportation on

  the charge contained therein. Based on the

  foregoing and what is contained in the record,

  I find that the respondent is subject to

  deportation on the charge contained in his

  Order to Show Cause by evidence which is

  clear, convincing, and unequivocal.



In the Matter of Maghsoudi, No. A24-581-482 (Feb. 13, 1991), at 2

(emphasis added). The charge contained in the order to show cause

read as follows:

    [O]n the basis of the foregoing allegations,

  it is charged that you are subject to

  deportation pursuant to the following

  provisions of law:



    Section 241(a)(4) of the Immigration and

  Nationality Act, in that you at any time after

  entry have been convicted of two crimes

  involving moral turpitude not arising out of a

  single scheme of criminal misconduct.



Order to Show Cause, C.R. 536, 538. Maghsoudi's current counsel

claims in his brief on appeal that Maghsoudi's counsel in the

proceedings before the IJ "never admitted the allegations or charge

of deportability." Given the significance of the concession of

deportability, the dispute over whether such a concession was made

by Maghsoudi's counsel in proceedings before the IJ, our

discretionary power to resolve issues arguably waived below, see

Poliquin v. Garden Way, Inc., 989 F.2d 527, 531 (1st Cir. 1993);

Singleton v. Wulff, 428 U.S. 106, 121 (1976), and our jurisdiction

to resolve jurisdictional facts to determine whether IIRIRA

 309(c)(4)(G) applies to preclude appellate jurisdiction in this

case, we shall resolve the issue of whether Maghsoudi's indecent

assault conviction was for a crime of moral turpitude.

  There is some uncertainty as to the exact statutory basis

of Maghsoudi's 1989 "indecent assault" conviction. Maghsoudi was

initially charged under Mass. Gen. Laws ch. 265,  13F, "Indecent

assault and battery on mentally retarded person." The docket

reflects a conviction of "INDECENT A&B RETARDED PERSON C265 S13F"

with the word "RETARDED" crossed out by hand. See C.R. 505. We

assume that a conviction under ch. 265,  13H, "Indecent assault

and battery on person fourteen or older," was thereby intended,

and that the retention of the citation "S13F" is a mere clerical

error. Maghsoudi's sentence (two and one half years in a house of

correction, suspended) was consistent with the maximum allowable

under  13H. He was further sentenced to undergo sexual offender

evaluation and treatment, which is inconsistent with his assertion

that his conviction was for simple assault and battery (presumably

under  13A). (The INS describes Maghsoudi's conviction as one for

"indecent assault" under ch. 265, without specifying a section,

which is at least consistent with our interpretation. See C.R.

538.)

  In making our de novo determination of whether or not a

crime involves "moral turpitude" within the terms of 8 U.S.C.

 1227(a)(2)(A)(ii), we accord due deference to the BIA's

interpretation of that statute. See Cabral v. INS, 15 F.3d 193, 194

(1st Cir. 1994). Since clear indications of congressional intent

from the language of the immigration statute or the legislative

history are absent, see id. at 194-95, BIA interpretations are

"entitled to deference unless arbitrary, capricious, or manifestly

contrary to the statute." Id. at 194. The inherent nature of the

crime of conviction, as defined in the criminal statute, is

relevant in this determination; the particular circumstances of

Maghsoudi's acts and convictions are not. See Pichardo v. INS, 104

F.3d 756, 759 (5th Cir. 1997). We may, however, refer to the record

of conviction, meaning the charge (indictment), plea, verdict, and

sentence, in ascertaining exactly the criminal conduct to which

Maghsoudi pled guilty. See Cabral, 15 F.3d at 195; Pichardo, 104

F.3d at 759.

  The general definition of "moral turpitude" has been

summarized by the BIA as follows:

    Moral turpitude refers generally to conduct

  that shocks the public conscience as being

  inherently base, vile, or depraved, and

  contrary to the accepted rules of morality and

  the duties owed between persons or to society

  in general.  Moral turpitude has been defined

  as an act which is per se morally

  reprehensible and intrinsically wrong or malum

  in se, so it is the nature of the act itself

  and not the statutory prohibition of it which

  renders a crime one of moral turpitude.  Among

  the tests to determine if a crime involves

  moral turpitude is whether the act is

  accompanied by a vicious motive or a corrupt

  mind.

Hamdan v. INS, 98 F.3d 183, 186 (5th Cir. 1996) (citations omitted)

(quoting In re Hamdan, at 4 (BIA Jan. 5, 1995)).

  Under the Massachusetts statute, indecent assault refers

to acts "fundamentally offensive to contemporary moral values" and

"there is no particular definition given for what constitutes the

crime." Commonwealth v. Perretti, 477 N.E.2d 1061, 1066 (Mass.

1985) (quoting approved jury instructions). "A touching is indecent

[within the meaning of  13H] when, judged by the normative

standard of societal mores, it is violative of social and

behavioral expectations, in a manner which is fundamentally

offensive to contemporary moral values and which the common sense

of society would regard as immodest, immoral, and improper."

Commonwealth v. Lavigne, 676 N.E.2d 1170, 1172 (Mass. App. Ct.

1997) (citations, alterations and internal quotation marks

omitted). Lack of consent was an element of indecent assault on a

person fourteen or older at the time of Maghsoudi's 1989

conviction. See Commonwealth v. Burke, 457 N.E.2d 622, 624, 625 n.4

(Mass. 1983) (lack of consent an element of nonharmful battery),

partially abrogated by 1986 Mass. Acts ch. 187 (declaring child

under fourteen incapable of giving consent, for purposes of Mass.

Gen. Laws ch. 265,  13B, "Indecent assault and battery on child

under fourteen"); Commonwealth v. Rowe, 465 N.E.2d 1220, 1221

(Mass. App. Ct. 1984) (after Burke, lack of consent clearly an

element of  13H conviction); see also Commonwealth v. Conefrey,

640 N.E.2d 116, 122 n.10 (Mass. App. Ct. 1994) ("Nonconsent is only

an element of indecent assault and battery for victims over

fourteen."), overruled on other grounds, 650 N.E.2d 1268 (Mass.

1995). Maghsoudi's sentence (part of the record of conviction)

included sexual offender evaluation and treatment.

  Based on the foregoing, we have no difficulty in

concluding that Maghsoudi's Massachusetts indecent assault

conviction meets the BIA's general standard for a crime involving

moral turpitude (as expressed in Hamdan, above). Our conclusion is

also consistent with past BIA decisions. In Matter of S-, 5 I. & N.

Dec. 686 (BIA 1954), the BIA held that a conviction under the

Canadian "indecent assault" statute was a crime of moral turpitude.

That statute defined the crime as gaining intimacy through

fraudulent consent or without consent at all.  See id. at 687. In

Matter of Z-, 7 I. & N. Dec. 253 (BIA 1956), the BIA held that

"indecent assault" under the Connecticut code,  6052 (the statute

involving indecent touching regardless of consent, see id. at 255

(citing State v. Chicorelli, 30 A.2d 544, 544-45 (Conn. 1943))), 

was a crime of moral turpitude.  Given that lack of consent was an

element of the crime to which Maghsoudi pleaded guilty, a

determination that the crime involved moral turpitude is consistent

with earlier BIA determinations.

III. Conclusion

  Because we conclude that both of Maghsoudi's convictions

were for crimes involving moral turpitude, and because both

convictions resulted in a sentence to confinement of one year or

greater, we lack jurisdiction over this appeal under IIRIRA

 309(c)(4)(G). Any challenge to the merits of the BIA

determination regarding the retroactive applicability of AEDPA

 440(d) to Maghsoudi's case must be brought via collateral attack

in the district court. See Goncalves, 144 F.3d at 133.



  This appeal is dismissed for lack of jurisdiction.