Hamdan v. Immigration and Naturalization Serv., 98 F.3d 183 (5th Cir. 1996)

DENNIS, Circuit Judge:

JORGE M. HAMDAN (“HAMDAN”), a citizen of Nicaragua, entered the United States as a lawful permanent resident. HAMDAN petitions this court for review of the Board of Immigration Appeals’ (“BIA”) determination that the appellant is deporta-ble because he was convicted of two crimes involving moral turpitude pursuant to 8 U.S.C. § 1251(a)(2)(A)®. HAMDAN claims that the BIA erred in finding that his conviction under the Louisiana simple kidnapping statute constitutes a “crime involving moral turpitude” (“CIMT”) for purposes of United States immigration laws.

PROCEDURAL HISTORY

On August 17, 1988, the Immigration and Naturalization Service (“INS”) issued an order to show cause against Hamdan, charging him with deportability for the conviction of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. The convictions considered by the INS were petitioner’s March 22, 1985, conviction for indecent behavior with a juvenile and his May 20, 1987, conviction on two counts of attempted simple kidnapping, the latter of which resulted in a concurrent 2-year sentence. Hamdan did not dispute that his 1985 conviction was a CIMT, but argued that his 1987 conviction record did not support a finding of moral turpitude. In his oral decision on October 24,1990, the immigration judge (“IJ”) found that both convictions were CIMTs and denied petitioner’s applications for asylum and withholding of deportation. The IJ also denied Hamdan’s request for voluntary departure, ordering him to be deported. In its January 5, 1995, order the BIA dismissed Hamdan’s appeal of the LTs order. Hamdan petitions for review of the BIA’s order.

STANDARD OF REVIEW

In reviewing the decision of an administrative agency, we accord substantial deference to the agency’s interpretations of the statutes and regulations it administers. INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987). We must uphold the BLA’s determination of what conduct constitutes moral turpitude for purposes of deportation if it is reasonable. Iredia v. INS, 981 F.2d 847, 848 (5th Cir.), cert. denied, 510 U.S. 872, 114 S.Ct. 203, 126 L.Ed.2d 160 (1993). However, a determination that the elements of a crime constitute moral turpitude for purposes of deportation pursuant to Section 1251(a)(2)(A)(i) is a question of law, which we review de novo. INS v. Cardozar-Fonseca, 480 U.S. 421, 447-48, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987); Cabral v. INS, 15 F.3d 193, 196 n. 5 (1st Cir.1994).

We accord deference to the BIA’s interpretation of questions such as those before us here, applying a two-prong standard of review, as we said in Animashaun v. INS:

Animashaun v. INS, 990 F.2d 234, 237 (5th Cir.1993). See also Carbajal-Gonzalez v. INS, 78 F.3d 194 (5th Cir.1996).

DISCUSSION

Hamdan was found deportable pursuant to 8 U.S.C. § 12511 for having been convicted of two crimes involving moral turpitude. Hamdan’s 1985 conviction for indecent behavior with a juvenile is uncontested. The issue before us is whether Hamdan’s 1987 conviction for attempted simple kidnapping under the Louisiana statute constitutes a crime involving moral turpitude.

I. Moral Turpitude Defined

The INS Act does not define moral turpitude, and legislative history does not reveal Congress’ intent. Cabral v. INS, 15 F.3d 193, 195 (1st Cir.1994). “Congress left the [term] to future administrative and judicial interpretation.” Id. A section of the regulations discussing moral turpitude for purposes of deportation generalizes as follows:

§ 40.21 Crimes involving moral turpitude and controlled substance violators.

(a) Crimes involving moral turpitude—

22 C.F.R. § 40.21 (1996). This broad definition requires that a finding of deportability rest on a determination 1) that the petitioner committed an act considered a crime in the jurisdiction of occurrence and 2) that it is a crime of moral turpitude.

In Hamdan’s case, the BIA aptly summarizes the body of judicial and administrative interpretation of the general definition:

BIA Decision at 4. We find no error in the BIA’s definition of moral turpitude.

II. Louisiana Kidnapping Statute and CIMT Analysis

The petitioner does not argue that a conviction for kidnapping cannot constitute a crime of moral turpitude. Instead, Hamdan argues that the cases relied on by the INS for the premise that kidnapping is a CIMT2 involve the federal kidnapping statute, 18 U.S.C. § 1201,3 which is substantively distinguishable from the Louisiana kidnapping statute. Hamdan does not specify particular sections of the statute; instead, he argues:

All or most of the subsections of the statute here at bar, any one of which Mr. Hamdan may have been convicted under, reach various misdeeds that do not involve moral turpitude, and he therefore may not be deported as charged.

Petitioner’s Brief at 6.

The Louisiana simple kidnapping statute provides for five categories:

by any court of competent jurisdiction in the state, with intent to defeat the jurisdiction of said court over the custody of the child.

14 L.A.Rev.Stat. § 45A (1986). Hamdan correctly notes that, unlike the federal statute, the Louisiana kidnapping statute does not include ransom and expressly includes removal by a parent. Hamdan claims that, since the statute at issue encompasses conduct that does not constitute moral turpitude, a finding of moral turpitude cannot lie unless the evidence shows which section of the statute he was convicted under.

As a general rule, if a statute encompasses both acts that do and do not involve moral turpitude, the BIA cannot sustain a deportability finding on that statute. Matter of Short, Interim Dec. 3125, slip op. at 3 (BIA 1989). An exception to this general rule is made if the statute is divisible into discrete subsections of acts that are and those that are not CIMTs. If a petitioner has been convicted of a subsection that has been determined to be a CIMT, that conviction may be used to sustain a finding of deportability. Id.

At the deportation hearing before the IJ, the petitioner argued that the Louisiana statute is divisible, in contrast to the federal kidnapping statute. The government argued that “the Louisiana kidnapping statute is ample to support a crime involving moral turpitude.” Deportation Hearing Transcript at 11. The IJ stated that his understanding was as follows:

Id. The IJ declined to make his determination applying a divisibility analysis, ruling instead on kidnapping generally:

Id. at 17. In his written decision, the IJ reiterated his conclusion that kidnapping was a CIMT:

the misconduct did not stop but continued again and the respondent again was not a child of 16 when these acts occurred but adult and should fully have realized the consequences of his actions and the trauma and the effect that his misconduct may have had upon the victims and it is noted that these are not drug offenses; that drug offenses where often it is stated that there are no victims, in these particular cases there were three distinct victims.

Id. at 11.

On appeal from the IJ’s decision, the BIA laid out the appropriate divisibility analysis, requiring that if moral turpitude does not necessarily inhere, “it is to be treated as a ‘divisible’ statute and thus, we look to the record of conviction, meaning indictment, plea, verdict, and sentence, to determine the offense for which the respondent was convicted.” Decision of the BIA at 3 (citing Matter of Esfandiary, 16 I & N Dec. (BIA 1979); Matter ofGhunaim, 15 I & N Dec. 269 (BIA 1975); Matter of Lopez, 13 I & N Dec. 725 (BIA 1971)).

In addressing this argument, the BIA noted that the Louisiana statute “provides for several alternative bases for conviction of simple kidnapping.” Id. The BIA also defined the scope of its inquiry as that required for a divisible statute:

Id. As to petitioner’s argument that it was unclear what section of the kidnapping statute Hamdan violated, the BIA responded that “the respondent’s conviction does not fall within the custodial provisions.” Id. The BIA based this finding on two facts: 1. the names of the victims as set forth in the indictment did not match Iiamdan’s name, and; 2. that Hamdan did not claim to have custody or be the parent of the victims. Finally, the BIA found: “Even if we accept the respondent’s argument that this statute is broad enough to cover offenses which do not involve moral turpitude, we find that his conviction did not fall under those provisions.” Id. at 4.

The BIA also stated that the absence of ransom did not preclude a finding that the Louisiana statute was a CIMT:

Id. Further, in finding that the Louisiana simple kidnapping statute is a CIMT, the BIA stated its rationale:

Id. at 5.

The BIA’s conclusion that the statute’s requirement of intent in order to commit the crime is dispositive is erroneous. The BIA has previously held that the intent to commit a crime is not the equivalent of the evil intent of a CIMT. Goldeshtein v. INS, 8 F.3d 645, 648 (9th Cir.1993) (conviction of willful conduct does not establish evil intent for a CIMT); In Matter of Short, Interim Dec. 3125 (BIA 1989) (“[T]here must be a finding that the felony intended ... involves moral turpitude”). And, while kidnapping has been found to be a crime of moral turpitude, such findings did not involve each type of conduct encompassed in the Louisiana kid

napping statute. We do not agree with the BIA that because Hamdan’s name differs from those named in the indictment and because he did not claim be a parent or custodian,4 that the record demonstrates that his conduct did not fall within provisions addressing conduct which may not involve moral turpitude.

In this court, the government argues that the indictment does not allege that Hamdan was a parent or that he was a temporary custodian of a child. However, the BIA did not rely on the lack of specificity in the indictment in its decision. Furthermore, the indictment also does not allege that Ham-dan’s conduct constituted criminal conduct covered by the non-custodial provisions. The indictment simply states that Hamdan “did attempt to commit simple kidnapping” of Molly Van Riesen and Ashley Theobald.

The INS also argues that the indictment contains the term “with force and arms,” necessarily referring to non-custodial provisions of the statute. This use of archaic boilerplate, unnecessarily included in many Louisiana indictment forms, regardless of whether the crime involves a use of force or arms, is virtually irrelevant to whether the charge was brought under any particular section of the simple kidnapping statute.

In its analysis, the BIA applied the divisibility analysis to the statute without specifying in which sections moral turpitude necessarily inheres. We agree that this statute covers conduct that cannot be considered inherently morally turpitudinous, and that the analysis must extend beyond the statute to the record of conviction. We do not make a determination as to which sections of the Louisiana simple kidnapping statute constitute a CIMT. We focus instead on the BIA’s failure to make the requisite factual findings for a determination that Hamdan was convicted under a section involving moral turpitude. The facts elicited from the indictment do not give any reliable indication that Ham-dan was convicted of a particular violation constituting a CIMT. The general rule is that, absent specific evidence to the contrary in the record of conviction, the statute must be read at the minimum criminal conduct necessary to sustain a conviction under the statute. United States ex rel. Guanno v. Uhl, 107 F.2d 399 (2d Cir.1939). Even under the deferential standard of review for factual findings of the BIA, we find that its conclusion was not supported by substantial evidence and was, therefore, unreasonable.

In order to find that Hamdan’s conviction for attempted simple kidnapping constitutes a CIMT, the INS must find by the required standard of proof which section of the Louisiana kidnapping statute Hamdan violated and that that section constitutes a CIMT. Accordingly, further review of the record of conviction is required to determine whether sufficient evidence supports a finding that Hamdan was convicted under one of the sections determined by the BIA to be a CIMT.

CONCLUSION

Based on the above analysis, we GRANT the petition for review. We VACATE the decision of the BIA and REMAND for further proceedings to determine whether the record of conviction clearly reveals that Hamdan was convicted under a section of the simple kidnapping statute criminalizing conduct that involves moral turpitude.