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Gomez-Gutierrez v. Lynch

Facts

Jose Refugio Gomez-Gutierrez, a native and citizen of Mexico, was admitted to the U.S. as a child and later faced removal proceedings initiated by the Department of Homeland Security due to two convictions involving moral turpitude, including a 2006 conviction for soliciting prostitution under Minnesota law. Gomez-Gutierrez argued that his solicitation conviction should not be classified as a crime involving moral turpitude and filed a motion to terminate the removal proceedings, which was denied by the immigration judge and subsequently upheld by the BIA.

On October 22, 2013, the United States Department of Homeland Security (DHS) initiated removal proceedings against Gomez-Gutierrez as a deportable alien convicted of two separate crimes involving moral turpitude.

Issue

Did the BIA err in determining that Gomez-Gutierrez's conviction for soliciting prostitution constituted a crime involving moral turpitude, and did it abuse its discretion in denying his motion to reconsider or reopen?

Did the BIA err in concluding that Gomez-Gutierrez's solicitation conviction qualified as a crime involving moral turpitude?

Rule

An alien convicted of two or more crimes involving moral turpitude is removable under 8 U.S.C. 1227(a)(2)(A)(ii). The Board employs a categorical approach to determine whether a state offense qualifies as a crime involving moral turpitude, requiring a realistic probability that the state would apply its statute to conduct that does not meet the moral turpitude standard.

An alien convicted of 'two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct' is removable under 8 U.S.C. 1227(a)(2)(A)(ii).

Analysis

The court applied the categorical approach to Gomez-Gutierrez's conviction, concluding that the solicitation statute under Minnesota law categorically constituted a crime involving moral turpitude. The court found that Gomez-Gutierrez failed to establish a realistic probability that the statute would be applied to non-turpitudinous conduct, as the BIA had determined that the statute's language implied an intentional act.

Applying this well-established definition, the Board upheld the IJ's determination that solicitation of prostitution under 609.324, subd. 2, 'categorically constitute[d] a crime involving moral turpitude.'

Conclusion

The Eighth Circuit affirmed the BIA's decision, concluding that Gomez-Gutierrez's conviction for soliciting prostitution was indeed a crime involving moral turpitude and that the BIA did not abuse its discretion in denying his motion to reconsider or reopen.

The Board did not err in deciding Gomez-Gutierrez's solicitation conviction constituted a crime involving moral turpitude.

Who won?

The government prevailed in the case, as the court upheld the BIA's determination that Gomez-Gutierrez was removable due to his conviction for soliciting prostitution, which was classified as a crime involving moral turpitude.

The government prevailed in the case, as the court upheld the BIA's determination that Gomez-Gutierrez was removable due to his conviction for soliciting prostitution.

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