On January 2 of this new year, the Board of Immigration Appeals issued an important decision that signals an increasingly elastic understanding of just what constitutes a crime involving moral turpitude. In Matter of Salad, 27 I & N Dec. 733 (BIA 2020), the Court ruled that a Minnesota statute proscribing the making of terroristic threats is categorically a crime of moral turpitude (“CIMT”), a holding that may have significant ramifications beyond the facts of the case itself. Residents of New Jersey should be especially wary given that the New Jersey terroristic threats statute (NJSA 2C:12-3) generally tracks the language of the Minnesota law.
In determining whether a crime is one that involves moral turpitude, an adjudicator must engage in what is called a “categorical approach” analysis, which may lead, under very limited circumstances, to a “modified categorical approach.” At the risk of oversimplification, the arbiter must determine whether the minimum conduct required to violate the statute necessarily involves moral turpitude, focusing on the elements of the offense, and not the actual facts. At issue here was a Minnesota statute which states the following: “Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another or cause evacuation of a building, place of assembly, vehicle or facility of public transportation or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience may be sentenced….” In examining the statute, the Board found that threatening to commit a crime of violence against another person with the purpose of causing extreme fear was the type of offense that by its nature required a vicious motive or evil intent, the type of scienter that accompanies a crime involving moral turpitude. The very act of communicating the threat to terrorize another is inherently reprehensible, regardless of whether the object of the threat actually felt terrorized. Moreover, the communication is inherently turpitudinous, whether made with specific intent, or with a conscious disregard of a substantial and unjustifiable risk-in other words, recklessly-a state of mind that does not always trigger a CIMT allegation.
If the statute were narrowly confined to threats of violence to terrorize others, this case would not likely not be remarkable. However, the Court goes further and stretches the boundaries of turpitudinious conduct to also cover the making of threats “to cause evacuation of a building, place or assembly…or otherwise to cause serious public inconvenience….” By its plain language-causing an evacuation or causing public inconvenience-this conduct is not something that one ordinarily associates with a traditional understanding of moral turpitude. However, the Court engages in some legal legerdemain and parsing to find that such behavior “categorically violates the accepted rules of morality and duties owed between persons or to society in general, to an extent that necessarily entails reprehensible conduct.” As such, whether making a threat to terrorize another or making a threat to cause an evacuation or serious public inconvenience, the actor has engaged in morally reprehensible behavior.
Within such a context, it is perhaps not too far of a stretch to argue that moral turpitude inheres in any criminal conduct under the logic that the proscribed act violates “accepted rules of morality and the duties owed between persons or to society in general”-otherwise, it would not be criminalized in the first place. This is a frightening prospect indeed, but not as far-fetched as one would think, the more the lines between morally unacceptable behavior and criminal conduct are blurred, and prior caselaw becomes more porous.
The above is general information only. It is not specific legal advice nor intended to create an attorney client relationship. If you need advice, please consult with an attorney.