UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1514
ACQUILES LEONIDAS CABRAL,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
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Before
Selya, Cyr and Stahl,
Circuit Judges.
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Randy Olen for petitioner.
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William C. Lengacher, Attorney, Office of Immigration
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Litigation, with whom Frank W. Hunger, Assistant Attorney
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General, and Richard M. Evans, Assistant Director, were on brief
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for respondent.
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January 31, 1994
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CYR, Circuit Judge. After Acquiles Leonidas Cabral was
CYR, Circuit Judge.
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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
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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,
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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
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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
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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
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A. Standard of Review
A. Standard of Review
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As the petition for review presents a pure issue of
statutory construction, we review de novo, according due defer-
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ence to the BIA's interpretation of the deportation statute.
Mosquera-Perez v. INS, 3 F.3d 553, 554 (1st Cir. 1993). See
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Jaramillo v. INS, 1 F.3d 1149, 1153 (11th Cir. 1993); see also
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INS v. Jong Ha Wang, 450 U.S. 139 (1981) (per curiam) (pre-
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Chevron case overturning court of appeals' decision reversing
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"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,
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to see if the legislative intent is clear, Chevron U.S.A., Inc.
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v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842
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(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.,
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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-
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Perez, 3 F.3d at 555; see also Alvares-Flores v. INS, 909 F.2d 1,
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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-
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ron, 467 U.S. at 843 n.9).
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B. The Deportation Statute
B. The Deportation Statute
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(i) The Statutory Language
(i) The Statutory Language
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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
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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);
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4
Charles Gordon, Immigration Law and Practice 71.05[1][a], 71-
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121 (Supp. 1993). Justice Jackson offered the following insight
into the legislative history of the Immigration Act of 1917, see
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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.,
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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,
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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
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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
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Although voluntary murder is universally recognized as
a CIMT, see, e.g., De Lucia v. Flagg, 297 F.2d 58, 61 (7th Cir.
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1961), cert. denied, 369 U.S. 837 (1962), the statutory language
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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.
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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
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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
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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].
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6
have committed the felony aforesaid, did
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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.,
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Fong Haw Tan v. Phelan, 162 F.2d 663, 664 (9th Cir. 1947), rev'd
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on other grounds, 333 U.S. 6 (1948); see also, e.g., In re
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Johnson, 822 P.2d 1317 (Cal. 1992); Burleigh v. State Bar of
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Nevada, 643 P.2d 1201, 1204 (Nev. 1982); State v. Lee, 404 S.W.2d
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740, 748 (Mo. 1966); In re Noble, 423 P.2d 984, 984 (N.M. 1967)
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(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
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Sanchez-Marin, 11 I. & N. Dec. 264 (BIA 1965)." Aquiles Leonidas
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Cabral, Op. Immigr. Judge No. A 38 496 722, at 5-6 (Nov. 18,
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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."
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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
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Lucia, 297 F.2d at 61 ("so long as homicide is voluntary . . . no
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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
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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
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third as an accessory after the fact, see Mass. Gen. L. ch. 274,
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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
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alien, that the "indictment links him to the manslaughter commit-
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ted by the other two aliens," id. at 266-67 (emphasis added).
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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,
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1989), where an alien was charged as an accessory to the crime of
assault with intent to commit an unspecified felony under 18
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U.S.C. 113(b). The IJ determined, from the indictment against
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the principal, that the principal's crime was a CIMT. Thereaf-
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ter, the IJ's ruling that the accessory had been convicted of a
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CIMT was reversed by the BIA. Id. at *11-*12. The BIA distin-
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guished Sanchez-Marin: in "that case, the [BIA] was able to look
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to the principals' conviction records, as we specifically found
that the respondent's (alien's) indictment linked him to the
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crime committed by the two principals. [However], no linkage has
8
been established in this case." Id. at *12 (emphasis added).
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Cabral challenges the Sanchez-Marin rationale itself,
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noting that accessories before the fact under Massachusetts law
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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
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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
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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,
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405 U.S. 997 (1971) (quoting Ng Sui Wing v. United States, 46
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F.2d 755, 756 (7th Cir. 1931)). Although Cabral correctly
asserts that Sanchez-Marin is "presumptive . . . and bereft of
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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.
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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,
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623 (2d Cir. 1959), cert. denied, 362 U.S. 913 (1960); Burr v.
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INS, 350 F.2d 87, 90 (9th Cir. 1965), cert. denied, 383 U.S. 915
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(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
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(BIA 1956).
9
For present purposes, we accept arguendo the premise
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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
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found moral turpitude based on the indictment to which Cabral
pled guilty, not the indictment against John Doe. See supra at
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p. 6; see also Sanchez-Marin, 11 I. & N. Dec. at 266-67. Given
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Cabral's guilty plea to an indictment alleging that he knew that
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the principal intentionally murdered another human being and that
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Cabral intentionally assisted the principal in avoiding deten-
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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
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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
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other grounds sub nom. Pino v. Landon, 349 U.S. 901 (1955) (per
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curiam). Accord Castie v. INS, 541 F.2d 1064, 1066 n.5 (4th Cir.
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1976); see also Chiaramonte v. INS, 626 F.2d 1093, 1098 (2d Cir.
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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.
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7Cabral incorrectly contends that Sanchez-Marin does not
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apply here because the principal has never been convicted,
whereas in Sanchez-Marin the principals pled guilty. First,
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under Massachusetts law, the principal need not have been con-
victed in order to convict an accessory after the fact. See
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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
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(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.
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1970).
11