
USCA1 Opinion

	




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