The First Circuit Court of Appeals ruled Thursday that Massachusetts' "open and gross lewdness" statute does not automatically qualify as a crime involving moral turpitude under federal immigration law, reversing a removal order against a lawful permanent resident who had lived in the United States for nearly two decades.
In *Cabral Fortes Tomar v. Bondi*, the court held that Massachusetts General Law Chapter 272, Section 16 is not categorically a crime involving moral turpitude under the Immigration and Nationality Act. The decision grants the petition for review filed by Lucio Ivaldo Cabral Fortes Tomar and reverses the Board of Immigration Appeals' order affirming his removal.
Tomar, a citizen of Cape Verde, entered the United States as a lawful permanent resident in 2003. After living in the country for nearly 20 years, he was convicted of two separate violations of Section 16. The government subsequently initiated removal proceedings against him, arguing that the convictions rendered him deportable under federal immigration law.
The case centered on whether repeated convictions under Massachusetts' lewdness statute constitute grounds for removing a lawful permanent resident. Under the Immigration and Nationality Act, non-citizens can be removed if they are convicted of crimes involving moral turpitude, particularly when there are multiple convictions.
The Board of Immigration Appeals initially concluded that Section 16 categorically qualifies as a crime involving moral turpitude and affirmed the immigration judge's removal order. However, the First Circuit disagreed with this categorical analysis.
Under the categorical approach used in immigration law, courts examine whether the elements of a state statute necessarily involve moral turpitude, rather than looking at the specific facts of an individual's case. This approach requires courts to consider the minimum conduct that could result in a conviction under the statute.
The court's analysis focused on the broad scope of Massachusetts' open and gross lewdness statute and whether all conduct that could lead to a conviction under Section 16 necessarily involves moral turpitude. The decision suggests that the statute covers conduct that may not rise to the level of moral turpitude, making it inappropriate to categorically classify all violations as crimes involving moral turpitude.
The case highlights the complex intersection between state criminal law and federal immigration enforcement. State statutes that appear similar on their face can have vastly different immigration consequences depending on how they are drafted and interpreted by federal courts.
For immigration practitioners, the decision provides important guidance on challenging removal proceedings based on state lewdness convictions. It demonstrates that even seemingly morally questionable offenses may not automatically trigger immigration consequences if the underlying statute is drafted broadly enough to encompass conduct that does not involve moral turpitude.
Tomar was represented by Maria S. Hwang from the Committee for Public Counsel Services. The government was represented by Robert D. Tennyson Jr., a trial attorney with the U.S. Department of Justice's Office of Immigration Litigation, along with Acting Assistant Attorney General Yaakov Roth and Acting Assistant Director Nancy E. Friedman.
The case also drew support from the Massachusetts Association of Criminal Defense Lawyers, which filed an amicus brief supporting Tomar. The amicus brief was prepared by attorneys from the Harvard Immigration and Refugee Clinical Program's Crimmigration Clinic and Cloherty & Steinberg LLP.
The three-judge panel consisted of Circuit Judges Rikelman and Aframe, along with District Judge Elliott of the District of New Hampshire, sitting by designation. Judge Elliott authored the opinion for the court.
The decision has broader implications for how immigration courts analyze state criminal statutes in removal proceedings. It reinforces the principle that immigration consequences should not automatically flow from state criminal convictions without careful analysis of whether the statutory elements necessarily involve moral turpitude.
For lawful permanent residents facing removal proceedings based on state criminal convictions, the decision provides a framework for challenging the categorical classification of certain offenses. It emphasizes the importance of examining the specific elements and scope of state statutes rather than making assumptions based on offense names or general descriptions.
The case also reflects ongoing tensions in immigration law between providing due process protections for long-term residents and enforcing immigration consequences for criminal conduct. Tomar had established nearly two decades of life in the United States before facing removal proceedings.
The First Circuit's reversal means that Tomar's removal order is vacated, and he should be able to retain his lawful permanent resident status. The decision may also provide precedent for other individuals facing similar removal proceedings based on Massachusetts lewdness convictions or analogous state statutes in other jurisdictions within the First Circuit.