Tuesday, June 19, 2007

Unlawful Transport Under Tex. Penal Code § 20.05 Is a "Crime Involving Moral Turpitude"

Fuentes-Cruz v. Gonzales, No. 06-60456 (5th Cir. June 18, 2007) (per curiam) (Higginbotham, Davis, Wiener)

This one's not directly applicable to the cases that we handle in federal court. But those of you who represent alien defendants in state court, and who therefore need to be mindful of the possible immigration consequences of state convictions, need to be aware of it.

As you likely know, a conviction for "crime involving moral turpitude" renders an alien deportable under 8 U.S.C. § 1227(a)(2)(A)(i)(I). So what about the offense of "unlawful transport" under Tex. Penal Code § 20.05? Is it a CIMT?

For those of you (like me) who've never heard of this offense, "Sec. 20.05 states that a person commits an unlawful transport if for pecuniary benefit he transports an individual in a manner that:

(1) is designed to conceal the individual from local, state, or federal law enforcement authorities; and
(2) creates a substantial likelihood that the individual will suffer serious bodily injury or death. (emphasis added)

Fuentes argued that an offense cannot be a CIMT "absent a mental state such as evil intent, fraudulent intent, vicious motive, or corrupt mind . . . ." Assuming, for the sake of argument, that there is such a requirement, the court found it in the designed-to-conceal-from-law-enforcement element of § 20.05, which necessarily requires fraudulent intent. That intent makes unlawful transport a CIMT because the Fifth Circuit "has repeatedly held that crimes including an element of intentional deception are crimes involving moral turpitude."



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