Kidnapping Past May Not Lead to Deportation

(CN) - Kidnapping is not necessarily a crime of moral turpitude, the 9th Circuit ruled Wednesday, offering relief to a man who would otherwise be deported to Mexico.

Javier Castrijon-Garcia, whose three children are all U.S. citizens, has lived in the United States since he entered illegally from Mexico in 1989.

His criminal record in the United States reflects two convictions for driving on a suspended license, as well as a plea of guilty in 2007 to attempted kidnapping.

For that crime, Castrijon-Garcia received a suspended sentence and probation in California.

The Department of Homeland Security designated removable in 2007 for being an illegal alien.

When Castrijon-Garcia applied to cancel of removal, he noted that the kidnapping incident occurred while he was with friends and that he did not know the victim.

The immigration judge found nevertheless simple kidnapping qualified as a crime of moral turpitude, making Castrijon-Garcia ineligible for cancelation of removal.

The Board of Immigration Appeals affirmed, but the 9th Circuit reversed Wednesday.

"California courts have in fact applied the simple kidnapping statute to conduct that is clearly not morally turpitudinous," Judge Stephen Reinhardt wrote for a three-judge panel in San Francisco. "This undoubtedly appears to be a difficult question at first glance. Kidnapping is a serious crime, and our instincts may be that it would meet the moral turpitude definition. Even for serious offenses, we must look to the specific elements of the statute of conviction and compare them to the definition of crimes involving moral turpitude."

Precedent dictates that "non-fraudulent crimes of moral turpitude almost always involve an intent to harm someone, the actual infliction of harm upon someone, or an action that affects a protected class of victim," according to the ruling.

Because kidnapping does not necessarily involve such evil intent and harm, it does not rise to the level of moral turpitude.

The court granted the petition for review and sent the issue back to the immigration appeals board.

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