Matter of Mouafak AL SABSABI, (BIA 2021)

Decided March 29, 2021

For this case, the respondent’s statute of conviction, 18 U.S.C. § 371, reads in pertinent part:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose . . . each shall be fined under this title or imprisoned not more than five years, or both.

As discussed in the recent case of Matter of Nemis, 28 I&N Dec. 250, 252–54 (BIA 2021), this statute is divisible. It can be violated either by conspiring to defraud the United States or one of its agencies (the “defraud clause”) or by conspiring to commit another federal offense (the “offense clause”).

In this case, the BIA sought to determine whether the “offense clause” is itself divisible based on the underlying crime that was the object of the conspiracy or whether, as the Immigration Judge concluded, the object of the conspiracy merely constitutes the means of unlawfully conspiring.

Relying on Mathis v. United States, 136 S. Ct. 2243, 2249 (2016), the BIA vacated the decision of the Immigration Judge, finding that the Mathis analysis supported the conclusion that the identity of the underlying offense—the criminal object of the conspiracy—is an element of a conspiracy conviction.  Therefore, because the substantive offense underlying the respondent’s federal conspiracy conviction—namely, selling counterfeit currency in violation of 18 U.S.C. § 473—was a crime involving moral turpitude, the respondent’s conviction for conspiring to commit this offense was also a CIMT.