By Elliot Weld ·
Law360 (November 4, 2024, 7:14 PM EST) — A divided panel of the Board of Immigration Appeals upheld a removal order for a man convicted of striking an individual dead while driving intoxicated and fleeing the scene, finding that his actions constitute a crime of moral turpitude.
The BIA dismissed Nasir Ali Khan’s appeal Friday, saying the separate crimes of vehicular manslaughter and failure to remain at the scene, taken together, demonstrate a culpable mental state and reprehensible conduct — factors that go into determining if moral turpitude exists.
“To constitute a crime involving moral turpitude, the perpetrator must have the requisite level of scienter for the specific actus reus that constitutes the reprehensible conduct, and ‘both the actus reus and the mens rea must be considered in concert to determine whether the behavior they describe is sufficiently culpable to be labeled morally turpitudinous,’” Appellate Immigration Judge Stephanie E. Gorman wrote for the majority, while quoting from the Ninth Circuit.
Fleeing the scene of the accident while knowing that someone had likely been injured was reprehensible conduct under the law, Judge Gorman said, quoting from a 2017 Ninth Circuit case in which judges opined that “the failure to stop and render aid after being involved in an automobile accident is the type of base behavior that reflects moral turpitude.”
Moral turpitude does not arise from a combination of distinct offenses but from building elements of criminalized conduct that deviates further away from the duties that people owe one another in a society, Judge Gorman said.
She also agreed with an immigration court’s decision that Khan was not eligible for cancelation of his removal proceedings under section 240A(a) of the Immigration and Nationality Act, which allows lawful permanent residents to cancel such proceedings. Khan had not resided in the U.S. for seven uninterrupted years as required under the statue, she noted.
According to the order, Khan entered the U.S. in September 1997 and stayed for six years and eight months before departing and living abroad for three years and four months, returning in 2007.
Khan said he maintained his residence in the U.S. while he lived abroad but Judge Gorman said his “lengthy” departure interrupted the accrual of seven years of residency.
Appellate Immigration Judge Andrea Saenz dissented, saying that under a traditional analysis, Khan’s conduct did not involve either an “evil” or “vicious” intent.
“I do not see what role the base offense plays in the conclusion that the respondent’s offense is a crime involving moral turpitude,” Judge Saenz said. “The driver may commit the actions in the sentencing enhancement — the failure to stop — without knowledge that his negligent conduct has caused a death.”
Judge Saenz acknowledged the “tragic nature of the criminal conduct” and added that Khan was duly punished.
A representative for the government did not immediately respond to requests for comment.
Khan’s attorney Zachary Nightingale of Van Der Hout LLP said the panel’s decision was “outcome driven, and not logically thought out.”
“The difficulty that even a government agency like the BIA has in determining whether a particular conviction is a [crime involving moral turpitude] indicates that it is unconstitutionally vague as a concept at least in cases such as this, since the average non-citizen cannot be expected to know how to determine whether their actions would amount to a deportable crime,” Nightingale said in a statement.
Khan is represented by Zachary Nightingale of Van Der Hout LLP.
The government is represented by Jennifer L. Castro Chavez of the U.S. Department of Homeland Security.
The case is Matter of Nasir Ali Khan, case number 28 I&N Dec. 850, before the Board of Immigration Appeals.
–Editing by Stephen Berg.