The First Circuit Court of Appeals case of Da Silva Neto v. Holder, 680 F. 3d 25 (1st Cir. 2012)


 Illustrates the categorical and the modified categorical approaches to determining whether a crime does or doesn’t involve moral turpitude.  A foreign national convicted of a crime of moral turpitude can be denied entry into the United States or removed from the United States.

 Being convicted of a crime of moral turpitude can also bar a foreign national from proving good moral character.  Good moral character is a requirement for naturalization and for applying for cancellation of removal.  

The case of Da Silva Neto v. Holder illustrates the importance of proving good moral character and shows how courts determine whether a crime involves moral turpitude.  Neto went to a New Year’s party at his ex-wife’s house.  He left the party and then tried to return.  When his ex-wife refused him entry, he kicked the door in and, once inside, broke some glass and threw some furniture.

 Neto was arrested and pled to sufficient facts to malicious destruction of property. penalized as M.G.L. c. 266 § 127.  He was sentenced to eleven months probation and an anger management program.  He successfully completed his probation and the court dismissed the charges against him.  Nevertheless, ICE took Neto into custody and placed him in removal proceedings.  

Neto tried to apply for cancellation of removal for non-LPR’s under INA § 240A(b).Cancellation of removal is a form of discretionary relief which allows a removable (deportable) foreign national to remain in the United States.

 Non LPR cancellation of removal is available to foreign nationals who:• Have been physically present in the United States for at least ten (10) years before removal proceedings;• Have been a person of good moral character during the ten (10) year period immediately before applying for cancellation of removal;• Have no disqualifying criminal convictions;• Have an LPR or U.S. citizen spouse, parent or child. 

To be granted cancellation of removal, the applicant must persuade the judge that his removal will cause exceptional and extremely unusual hardship to his LPR or U.S. citizen spouse, parent, or child. The immigration judge decided Neto didn’t qualify for cancellation of removal because his conviction for malicious destruction of property meant he could not demonstrate that he had good moral character.

The conviction, the judge decided, involved moral turpitude.     A crime of moral turpitude is a crime that “shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or society in general.”  A crime of moral turpitude is one that is inherently base, vile, and depraved.”  “per se morally reprehensible and intrinsically wrong” Whether a crime is or is not a crime or moral turpitude is decided on a case-by-case basis. 

Neto appealed to the BIA and then to the First Circuit Court of Appeals. To determine whether malicious destruction of property was a crime of moral turpitude, the BIA  applied the categorical and then modified categorical approaches.    Under the categorical approach, the court looks to the statutory definition of the crime and determines whether or not it describes a crime that is “inherently base, vile, or depraved.”  If it does, then the crime is a crime of moral turpitude. 

If the statute describes both types of crimes- crimes that could involve moral turpitude  and crimes that don’t necessarily involve moral turpitude- then the court will use the modified categorical approach.   Under the modified categorical approach, the court will look to the record of conviction to determine which type of crime the person was convicted of.  The record of conviction is made up of the docket sheet, the plea agreement, and other reliable documents that prove what a person was convicted of.

 The Massachusetts malicious destruction statute, M.G.L. c. 266 § 127, punishes both wanton destruction of property as well as malicious destruction of property.  Under Massachusetts law, wanton destruction of property requires only that the actor’s conduct was indifferent to, or in disregard of, probable consequences.  

Malicious destruction of property requires a state of mind of cruelty, hostility, or revenge.  The BIA held that wanton destruction of property was not a crime of moral turpitude because it could be done with indifference or recklessly.

 The BIA held that malicious destruction of property was a crime of moral turpitude because it required a state-of-mind of cruelty, hostility, or revenge.After looking at the record of conviction, the BIA determined that Neto committed malicious destruction of property, a crime of moral turpitude.  The Court of Appeals upheld the BIA’s reasoning.  This case illustrates the importance to foreign nationals charged with a crime of retaining defense counsel experienced in both immigration and criminal law.

 An experienced and knowledgeable criminal and removal defense lawyer would have known how to create a record of conviction that would have favored Neto. 



Permanent immigration is the main objective of the majority individuals entering or making arrangements to enter the United States. A “Green Card” is an identification card that demonstrates the official permanent resident status of an immigrant (Lawful Permanent Residency) in the United States. Green card also refers to an immigration process of becoming a permanent resident.

The green card serves as proof that its holder, a Lawful Permanent Resident (LPR), has been officially granted immigration benefits, which include permission to reside and take employment in the USA. The holder must maintain permanent resident status, and can be removed from the US if certain conditions of this status are not met.

At the same time as the individual’s green card application is pending, he or she can obtain two important permits while the case is pending. The first is a temporary work permit known as the Employment Authorization Document (EAD), which allows the alien to take employment in the United States. The second is a temporary travel document, advance parole, which allows the alien to re-enter the United States.

Both permits award benefits that are independent of any existing status granted to the alien. For example, the alien might already have permission to work in the United States under an H1-B visa.

U.S. immigration legislation in the Immigration and Nationality Act (INA) stipulates that an alien may obtain permanent resident status only through the course of the following proceedings:

Lawful permanent residency gives individuals a multitude of benefits, including the ability to live as a free person in this country and to live and work permanently in the U.S. Although, Lawful Permanent Residents generally do not have the right to vote, the right to be elected in federal and state elections, the ability to bring family members to the United States (however permanent residents are allowed to sponsor certain family members), or eligibility for certain federal government jobs.

Male permanent residents between the ages of 18 and 26 are subject to registering in the Selective Service System. Permanent residents pay taxes on their worldwide income, like U.S. citizens. Also, certain conditions that may put a permanent resident in deportation proceedings do not apply to U.S. citizens.

A Lawful Permanent Resident can apply for United States citizenship, or naturalization, after five years of residency. This period is shortened to three years if married to a U.S. citizen, or four years if permanent residency was received through political asylum. Lawful Permanent Residents may submit their applications for naturalization as much as 90 days before meeting the residency requirement.

Citizens are entitled to more rights (and obligations) than permanent residents (who are still classified as aliens in this respect). This is just a small portion of information and the extent of complexity of green card issuance. Green Card processing can be extremely difficult and confusing.