Read the full article here: http://www.metnews.com/articles/2007/quin101007.htmA person 21 years of age or older who engages in a sexual act with a minor under 16 years of age does not categorically commit a crime of moral turpitude, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
In an opinion by Judge Sidney R. Thomas, the court reversed an order by the Board of Immigration Appeals finding Alberto Rene Quintero-Salazar deportable because his conviction under California Penal Code Sec. 261.5(d) constituted a crime of moral turpitude.
Quintero-Salazar, a Mexican national, entered the United States in 1990, obtained conditional residence in 1992, and became a lawful permanent resident in 1994. His wife, three children and two stepchildren are all U.S. citizens.
In 1998, he pleaded nolo contendere to contributing to the delinquency of a minor, engaging in intercourse with a minor three years his junior, and engaging in intercourse with a minor under 16 years of age while he was 21 years of age or older. He was sentenced to 11 months imprisonment and ordered to attend counseling and other rehabilitation programs.
He was detained on April 2, 2002 by the Immigration and Naturalization Service in San Francisco while attempting to reenter the United States after visiting family in Mexico. Asserting that his conviction involved a crime of moral turpitude, the INS then began removal proceedings and charged him with being an inadmissible alien under Sec. 212 of the Immigration and Nationality Act.
So... a 20 year old record for theft over $1k (for which restitution and rehabilitation can be demonstrated) can still get you denied from entering the United States BUT something as heinous as statutory rape, you are allowed to pass on your marry way...
A lot depends on just how old the young lady was.
ReplyDeleteMy understanding is that a "crime of moral turpitude" is something that virtually all reasonable people agree is a crime--it is a crime everywhere.
The article you posted doesn't reference the exact age of the young lady. If she were a young child of, say, 8 years old, virtually everyone would agree that Mr. Quintero-Salazar is guilty of an unspeakably despicable act. I would hope that the judges, in that case, would have no trouble finding that Mr. Quintero-Salazar is guilty of a crime of moral turpitude of the greatest seriousness. Molesting a child is universally considered to be a vile, repugnant act.
On the other hand, if the young lady was well into her teens, say 15 years old, then laws on the age of consent vary a lot by state. There is by no means universal agreement that sex with a 15 year old is illegal. It may be wrong in California but it might be legal in another state where the age of consent is lower. In Canada the age of consent is 14.
As such, if we are talking about a 15 year old here, it simply doesn't meet the definition of a crime of moral turpitude. The judges ruled correctly.
I would not interpret this ruling as meaning that the judges think statutory rape is somehow less serious than stealing. Both you and Mr. Quintero-Salazar needed to apply for waivers because of past criminal convictions. Your waiver was approved which means your past crime was probably not deemed to be a crime of moral turpitude. Mr. Quintero-Salazar was not so lucky initially--his waiver was initially denied which suggests that USCIS viewed his crime as more serious than yours. However, as he had a green card and was physically present in the US, he did have the right of appeal to the regular court system--a right a nonimmigrant Canadian at the border does not enjoy. Eventually he was able to overturn the USCIS decision.
I may have spoken a bit too soon. The article gives the impression that Mr. Quintero-Salazar was granted a waiver on appeal by the court. However, on reviewing the actual decision (link below) it appears this is not the case.
ReplyDeletehttp://www.ca9.uscourts.gov/ca9/newopinions.nsf/3001EB2A402087478825736F005257D9/$file/0473128.pdf
The judges in the majority actually ruled that, although Mr. Quintero-Salazar had applied for a waiver, he did not need a waiver, because his crime was not a crime of moral turpitude, and therefore he was entitled to enter the US even without a waiver.
However, I would maintain that it is still difficult to directly compare the judge's decision to a decision made at a port of entry involving a Canadian visitor. At the port of entry, a Canadian who has a criminal record can simply be denied entry--which is especially likely post-9/11--and placed in what is known as expedited removal (ER). ER means that one is simply summarily escorted out of the country and the inspectors are not required to give a reasoned explanation as to the legal niceties of what is or is not a crime of moral turpitude. There is no right of appeal in ER cases.
Someone with a green card, like Mr. Quintero-Salazar, cannot be placed in ER so they have access to the full appeals process including, if necessary, the regular courts outside the immigration system. When the case reaches the courts, the judges do have an obligation to provide a bit more explanation of their reasoning that a border inspector does.
I would be interested to know--I don't know--whether a Canadian who applies for, and is denied, an I-194 can then appeal to the Board of Immigration Appeals and then ultimately the regular courts. Whether it would be worth it for a battle that might take years and then only result in a one-year waiver is debatable. But perhaps some lawyer and client would one day take such a case as a test case.
The Canada Pardon & US Waivers Experts provides solutions for Canadian citizens with criminal records who want to obtain a record suspension/pardon, or anyone looking to simplify the process of obtaining a US waiver or other type of travel visa. Our dedicated professional case workers have over 10 years of experience providing these services and more across Canada. Our goal is to provide a superior level of professionalism and service to all our clients, helping them obtain pardons, US waivers and visas in a timely and efficient manner, so they can move on to live fulfilling, productive lives.
ReplyDeleteUS Waiver Form Canada