Introduction: Matter of Salad, 27 I&N Dec. 733 (BIA 2020)

On January 2, 2020, the Board of Immigration Appeals (BIA) published a precedent decision in the Matter of Salad, 27 I&N Dec. 733 (BIA 2020) [PDF version]. The Board held that a conviction for the offense of making terroristic threats in violation of section 609.713, subdivision I, of the Minnesota Statutes is categorically a crime involving moral turpitude. In this article, we will examine what the Board’s analysis and conclusions mean for adjudicating whether similar offenses are crimes involving moral turpitude.

Factual and Procedural History: 27 I&N Dec. 733, 733-34

The respondent, a native and citizen of Somalia, was admitted to the United States as a refugee in 2001. He subsequently adjusted his status to that of an alien lawfully admitted for permanent residence on October 4, 2005.

On June 15, 2010, the respondent was convicted of the following offenses under Minnesota law:

Burglary in violation of section 609.582, subdivision 3, of the Minnesota Statutes; and
Making terroristic threats in violation of section 609.713, subdivision 1, of the Minnesota Statutes.

On June 29, 2010, the respondent was convicted of giving a false name to a police officer in violation of section 171.22, subdivision 1(8), of the Minnesota Statutes.

The respondent was placed in removal proceedings, charged as deportable under section 237(a)(2)(A)(ii) (2012) of the Immigration and Nationality Act (INA) as an alien who had been convicted of two or more crimes involving moral turpitude, not arising from a single scheme of misconduct.

The Immigration Judge found that the respondent’s convictions for burglary and giving a false name to a police officer were crimes involving moral turpitude, but that his conviction for making terroristic threats was not a crime involving moral turpitude. Thus, the Immigration Judge found that the respondent was removable as charged and denied his applications for relief from removal.

Both the respondent and the Department of Homeland Security appealed from the Immigration Judge’s decision.

The respondent’s appeal was based on his contention that his conviction for making false statements to a police officer was not categorically a crime involving moral turpitude. The DHS argued that the respondent’s conviction for making terroristic threats was categorically a crime involving moral turpitude.

While the appeal was pending, Minnesota criminal courts vacated the respondent’s convictions for burglary and giving a false name to a police officer. Accordingly, the respondent filed a motion to remand and terminate removal proceedings on the basis that the two convictions upon which the Immigration Judge’s decision finding him removable had been vacated. The DHS opposed the respondent’s motion to terminate proceedings, and instead sought remand to allow the Immigration Judge to assess the vacature of the two convictions in the first instance. The DHS also lodged an additional charge of removability against the respondent under INA 237(a)(2)(A)(iii) (aggravated felony) based on a fourth conviction, and also requested remand on that basis.

Issue Before the BIA: 27 I&N Dec. 733, 734

The Board explained that it would consider the one unsettled issue raised by DHS on appeal — whether the respondent’s conviction for making terroristic threats was categorically a crime involving moral turpitude. The Board added that it would remand to the Immigration Judge for consideration of whether the respondent was removable under the additional charge for conviction of two or more crimes involving moral turpitude or the new charge lodged by the DHS along with its opposition to the respondent’s motion to terminate proceedings.

Crimes Involving Moral Turpitude Generally: 27 I&N Dec. 733, 734-35

The Board explained that “[a] crime involves moral turpitude if its elements require reprehensible conduct and a culpable mental state.” See Matter of Silva-Trevino, 26 I&N Dec. 826, 833 (BIA 2016) [PDF version] [see article].

The Board has consistently defined “reprehensible” conduct as conduct that is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Matter of Leal, 26 I&N Dec. 20, 205 (BIA 2012) [PDF version].

The Board has held that a “culpable mental state” requires “some degree of scienter, either specific intent, deliberateness, willfulness, or recklessness.” Matter of Louissaint, 24 I&N Dec. 754, 756-57 (BIA 2009) [PDF version]. The Board has held that crimes with specific intent requirements are more likely to be found to involve moral turpitude than similar crimes without that requirement because an evil or depraved mental state in committing an offense is associated with moral turpitude. See Matter of Ajami, 22 I&N Dec. 949, 950 (BIA 1999) [PDF version]; Matter of J-G-P-, 27 I&N Dec. 642, 650 (BIA 2019) [PDF version] [see article]. Because the Board has held that “[m]oral turpitude may also inhere in criminally reckless conduct,” however, a statute does not necessarily need to require evil intent in order for it to be found to categorically define a crime involving moral turpitude. Matter of Solon, 24 I&N Dec. 239, 240 (BIA 2007) [PDF version].

When considering whether a particular offense defines a crime of moral turpitude, the Board applies the “categorical approach.” Matter of Silva-Trevino, 26 I&N Dec. at 831. This approach requires the Board “to focus on the elements of the offense and the minimum conduct that has a realistic probability of being prosecuted under the statute at issue, rather than the alien’s actual conduct. See Id. A “theoretical possibility” that a statute may be used to prosecuted non-turpitudinous conduct is not sufficient for showing that there is a “realistic probability” that the statute would reach such conduct. See Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) [PDF version]. If the adjudicator determines that the statute does not categorically define a crime of moral turpitude, it must consider whether the statute is divisible, that is, whether the statute sets forth different offenses requiring distinct elements. If the statute is divisible, the adjudicator may apply the “modified categorical approach” to determine which part of the statute the alien was convicted of violating, and whether that violation is a crime involving moral turpitude. See Matter of Mendez, 27 I&N Dec. 219, 221 (BIA 2018) [PDF version] [see article]; see also Matter of Chairez, 26 I&N Dec. 819, 822 (BIA 2016) [PDF version] [see article].

BIA Determines that Minnesota Terroristic Threats Statute Is Categorical Crime Involving Moral Turpitude: 27 I&N Dec. 733, 736-37

The respondent’s statute of conviction, section 609.713, subdivision 1, of the Minnesota Statutes, read as follows:

Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly, vehicle or facility of public transportation or otherwise to cause serious public inconvenience, or in a reckless disregard of the risk of causing such terror or inconvenience may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both. As used in this subdivision, ‘crime of violence’ has the meaning given ‘violent crime’ in section 609.1095, subdivision 1, paragraph (d).

The Board explained that the Minnesota model jury instructions provide that the offense contains the following elements:

1. A direct or indirect threat to commit a crime of violence, which was
2. made with the intent to terrorize another-or in reckless disregard of the risk of causing such terror, or with the purpose to cause evacuation of a building, place of assembly, or facility of public transportation, or to cause serious public inconvenience-or in reckless disregard of the risk of causing such evacuation or inconvenience.
10 Minnesota Practice, CRIMJIG 13.107.

The Board observed that the Minnesota Supreme Court defined the element of a “threat” as a “declaration of an intention to injure another or his property by some unlawful act.” State v. Schweppe, 237 N.W.2d 609, 613 (Minn. 1975) [PDF version]. It also that the threat need not be spoken or written, but may also come in the form of “communication” that, when perceived in context, “would have a reasonable tendency to create apprehension that its originator will act according to its tenor.” Id.

Under Minnesota law, the definition of “crime of violence,” as used in the respondent’s statute of conviction, is coextensive with Minnesota law’s definition of “violent crime,” found at section 609.1095, subdivision 1, paragraph (d), of the Minnesota Statutes. This provision defines “violent crime” as “a violation of or an attempt or conspiracy to violate any of [45 specific] laws of [Minnesota] or any similar laws of the United States or any other state.”

The statute of conviction allows for two possible culpable mental states. The first is “purpose,” defined by the Minnesota Supreme Court as “aim, objective, or intention.” Schweppe, 237 N.W.2d at 614. The second is “recklessness,” defined by the Minnesota courts as “deliberate action in disregard of a known, substantial risk.” State v. Bjergum, 771 N.W.2d 53, 57 (Minn. App. 2009) [PDF version].

The term “terrorize” has been defined as meaning “to cause extreme fear by use of violence or threats.” Schweppe, 237 N.W.2d at 614.

The Board concluded that the respondent’s statute of conviction categorically defined a crime involving moral turpitude under Matter of Silva-Trevino (2018). In the following subsections, we will examine the Board’s reasoning for its conclusion.

Assessment of Controlling Eighth Circuit Precedent: 27 I&N Dec. 733, 737-38

The Board examined the precedents of the United States Court of Appeals for the Eighth Circuit, in whose jurisdiction the instant matter arose [see article]. The Board is bound to follow the precedents of Federal appellate courts for matters arising in the jurisdiction of those courts.

The Board found that the Eighth Circuit had published two precedential decisions finding that in certain instances, convictions for conduct prohibited under section 609.713, subdivision 1, of the Minnesota Statutes, constituted crimes involving moral turpitude. In 2004, the Eighth Circuit held that an offense for a threat made with the purpose of terrorizing a victim was necessarily a crime involving moral turpitude. Chanmouny v. Ashcroft, 376 F.3d 810, 814 (8th Cir. 2004) [PDF version]. In 2014, the Eighth Circuit held that acting with reckless disregard of the risk of terrorizing a victim was “sufficient to satisfy the scienter requirement for turpitudinous offenses.” Avendano v. Holder, 770 F.3d 731, 735 (8th Cir. 2014) [PDF version]. In so doing, the Eighth Circuit in Avendano held that the Board’s determination that recklessness was a sufficient mens rea for a crime involving moral turpitude was reasonable. Id. at 735-36.

The Board interepeted both Chanmouny and Avendano as “stand[ing] for the proposition that threatening to commit a crime of violence is also inherently reprehensible when the purpose or natural tendency of the threat is ‘to terrorize another,’ regardless of whether anyone is actually terrorized by it.” The Board noted, however, that the respondent’s statute of conviction in the instant case covers some conduct outside the ambient of the Eighth Circuit’s rulings Chanmouny and Avendano. First, it noted that “the Avendano court did not address whether threatening a crime of violence with reckless disregard of the risk of causing terror is ‘reprehensible conduct,” because the petitioner waived the issue.” Second, “the Eighth Circuit has left open whether it is necessarily reprehensible to violate that part of the Minnesota statute that prohibits making threats ‘with purpose … to cause evacuation of a building, place of assembly, vehicle or facility of public transportation or otherwise to cause serious public inconvenience, or in a reckless disregard of the risk causing such … inconvenience.”

For the following reasons, the Board held that all provisions of the respondent’s statute of conviction, including those not directly addressed in Eighth Circuit precedents, involve moral turpitude.

Analysis — Threats to Terrorize Another: 27 I&N Dec. 733, 739-41

As an initial matter, the Board held “that the communication of an intent to injure another by use of violence involves sufficiently reprehensible conduct to constitute a crime involving moral turpitude.” The Board noted that this conclusion was in line with over six decades of precedent holding that the intentional transmission of threats entails turpitudinous conduct. See Matter of Ajami, 22 I&N Dec. at 592; see also Matter of C-, 5 I&N Dec. 370, 376 (BIA 1953) (threats to take property by force); Matter of G-T-, 4 I&N Dec. 446, 446 (sending threatening letters with the intent to extort money); Matter of F-, 3 I&N Dec. 361, 362-63 (C.O. 1948; BIA 1949) (mailing menacing letters that demanded property and threatened violence to the recipient).

Next, the Board concluded “that the transmission of threats to commit a crime of violence, made either with the specific intent to ‘terrorize’ another or with a conscious disregard of a substantial and unjustifiable risk of terrorizing another, is reprehensible conduct.” Matter of Ajami, 22 I&N Dec. at 950, 952. The Board held in 2019 that an Oregon menacing statute categorically involved moral turpitude in part because “the level of threatened harm , or magnitude of menace implicit in the threat, is serious and immediate.” Matter of J-G-P-, 27 I&N Dec. 642, 647 (BIA 2019). The Board found that the Minnesota statute of conviction in the instant case was similar in this respect to the statute at issue in Matter of J-G-P- because it “necessarily entails reprehensible conduct, because ‘terrorizing’ has been defined as involving a level of fear that is ‘extreme,’ caused by use of violence or threats.”

The Board held that making a threat to commit a crime of violence under Minnesota’s terroristic threats statute was categorically a crime involving moral turpitude even if the threatened crime itself, if enacted, would not necessarily involve moral turpitude. To this effect, the Board noted that Minnesota’s “crime of violence” statute has been found by the Eighth Circuit to be indivisible for purposes of a Federal sentence enhancement statute, and that the “use of force” is not an element of all offenses covered. United States v. Mcfee, 843 F.3d 572, 574-77 (8th Cir. 2016) [PDF version]. It was on this basis in part that the Immigration Judge concluded that Minnesota’s terroristic threats statute does not categorically define a crime involving moral turpitude. The Board held, however, that this reasoning “overlooks the reprehensibility of a terroristic threat itself, which exists regardless of the particular underlying threatened crime.” The Board cited favorably to a decision of the United States Court of Appeals of the Third Circuit, which stated in a precedent decision that “[o]ur focus in determining whether [a terroristic threat] is categorically a crime involving moral turpitude is not the threatened ‘crime of violence,’ but the communication of the threat and its requisite scienter.” Javier v. Att’y Gen. of U.S., 826 F.3d 127, 131 (3d Cir. 2016) [PDF version]. The Board described the Third Circuit’s reasoning as consistent with its reading of the Eighth Circuit precedents in Chanmouny and Avendano, to the extent that it “rested on the tendency of a threat to terrorize the victim, rather than on the underlying threatened ‘crime of violence.’”

The Board stated that its review of Minnesota case law both supported its conclusion that making terroristic threats categorically involved reprehensible conduct and that there was no realistic probability that the statute would be used to successfully prosecute conduct that is not reprehensible. The Board lists several examples of convictions under the statute to support its reading on at page 740 of its decision:

On appeal, the respondent cited to the facts and circumstances of his own case in order to argue that there was a realistic probability that his statute of conviction would be used to successfully prosecute non-turpitudinous conduct. The Board described the undisputed facts of the respondent’s conduct underlying the conviction: “[T]he respondent jumped the counter at a Walmart and pointed a pair of scissors at a clerk in an attempt to retrieve his identification card from the clerk, who, suspecting that the respondent was using a fraudulent bank card, was taking down information from his identification card.” The respondent suggested on appeal that the clerk was “confiscating” his cards “unlawfully” and that the clerk may have intended to destroy one or both of his cards. The Board first described this assertion as lacking “legal or evidentiary support.” It held that in any event, the claims would “not justify, lessen, or eliminate the reprehensibility of his actions.”

The Board was similarly unpersuaded by several other cases cited to by the Immigration Judge below and the respondent. The three cases noted by the Board, all on page 741 of the decision, involved threats to police officers. The first two cases involved threats made directly to police officers, including in one case in conjunction with a gang sign, and the third case involved threats to “hunt and kill cops” posted on Twitter:

The Board concluded that all of the cited cases by the Immigration Judge and the respondent involved reprehensible conduct, and thus that there was no realistic probability that the respondent’s statute of conviction would be used to successfully prosecute conduct that was not reprehensible.

Analysis — Threats to Cause Evacuation or Serious Public Inconvenience: 27 I&N Dec. 733, 742-44

The Board held that making threats “with purpose … to cause evacuation of a building, please of assembly, vehicle or facility of public transportation or otherwise to cause serious public inconvenience, or in a reckless disregard of causing such inconvenience” is reprehensible conduct. The Board stated that this result was consistent with its long-standing precedent defining the term “moral turpitude” as a violation of the “duties owed between persons or to society in general.” Matter of Leal, 26 I&N Dec. at 25. The Board held that making terroristic threats under Minnesota law with the purpose to causing evacuation or serious public inconvenience was contrary to “the accepted rules of morality and duties owed between persons or to society in general, to an extent that necessarily entails reprehensible conduct.

The Board has held in previous precedent decisions that a conspiracy to defraud the United States by impeding or obstructing lawful Government functions is a crime involving moral turpitude. See Matter of Flores, 17 I&N Dec. 225, 229-30 (BIA 1980) [PDF version]; Matter of E-, 9 I&N Dec. 421, 427 (BIA 1961) [PDF version] (collecting cases). The Board found the respondent’s statute of conviction similar “in that it entails interference with societal public order serious enough to violate the duties owed to society.”

The Board found it significant that the Minnesota’s terroristic threats statute, in the pertinent part, required either “evacuation” or “serious” public inconvenience. This, according to the Board, ensured that the statute did not reach “threats resulting in minor societal interference…” The Board stated that its review of the Minnesota case-law supported the conclusion that the statute was only used to prosecute serious threats. For example, the Board cited to one case wherein the defendant called in a threat that his truck, parked in the middle of a college campus, contained explosives. (Internal citations omitted.) In another case cited to by the Board, the defendant triggered a “standoff” by barricading himself in his house, claiming that he had a hostage, and threatening to shoot police officers if they entered. (Internal citations omitted.)

The Board was not persuaded by cases cited by the Immigration Judge and the respondent purporting to establish that there is a realistic probability that the statute would be used to successfully prosecute non-turpitudinous conduct. To this effect, the Board cited to one case where the juvenile defendant was convicted for telling classmates that he was bringing a gun to school the day after the Columbine shooting. (Internal citation omitted.)

The Board also concluded that neither the Immigration Judge nor the respondent identified a single case wherein the statute of conviction was used to successfully prosecute a case that did not involve a threat made with either the purpose to terrorize or with conscious disregard of a substantial and justifiable risk of terrorizing.” That is, not only did all the cases studied fall under the “evacuation” or “serious public inconvenience” prong of the statute, but they also satisfied the other serious elements of the statute — necessarily implicating moral turpitude. The Board further reasoned that “terrorizing a neighborhood or school community is at least as reprehensible as terrorizing an individual.” See Matter of McNaughton, 16 I&N Dec. 569, 574 (BIA 1978) [PDF version] (“Intent to defraud the investing public, which is an entire segment of society, is at least as heinous as intent to defraud an individual or the Government…”)

The Board noted, as an initial matter, that the respondent sought to rely on several cases that did not result in a successful prosecution. In accordance with its precedents, the Board concluded that cases that did not result in successful prosecution do not establish a realistic probability that the statute in question would be used to successfully prosecute conduct outside the scope of the pertinent immigration provision. See Matter of Mendoz-Osorio, 26 I&N Dec. 703, 707 & nn.3-4 (BIA 2016) [PDF version] [see article].

In light of the foregoing, the Board concluded that it “f[ound] no realistic probability that the Minnesota statute would successfully be used to criminalize conduct that is not reprehensible.”

Remand

Because the Board found that the respondent’s conviction for making terroristic threats was categorically a crime involving moral turpitude, it sustained the DHS’s appeal of the Immigration Judge’s contrary decision. The Board remanded the case for further proceedings to consider the respondent’s removability on the original charges and on other charges.

Conclusion

The Board’s decision in Matter of Salad is significant for a slice of cases involving threats to another. The Board placed the emphasis on the act of making a threat itself and the mental state in making the threat rather than on the specific threatened conduct. Significantly, this means that a statute criminalizing threats may involve moral turpitude even if the threatened conduct itself would not necessarily be a crime involving moral turpitude or another offense listed in the INA. The Board reiterated that “recklessness” can be a culpable mental state in the context of making threats. Finally, the Board held that threats made in order to cause an evacuation or serious public inconvenience may also involve moral turpitude.

While the Board’s precedents will apply broadly, it is important to note that the decision does not necessarily mean that every statute criminalizing threats will be found to categorically involve moral turpitude. For example certain statutes may cover a broader range of conduct than Minnesota’s, thus necessitating a different application of the Board’s precedent in Matter of Salad.

A noncitizen with criminal charges or convictions should obtain counsel from an immigration attorney on how convictions may affect his or her immigration situation. Any noncitizen facing removal proceedings should consult with an experienced immigration attorney immediately.