St. Juste v. Commissioner of Correction ( 2015 )

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JEAN ST. JUSTE v. COMMISSIONER
OF CORRECTION
(AC 33424)
Alvord, Keller and Schaller, Js.
Argued October 14, 2014—officially released January 27, 2015
(Appeal from Superior Court, judicial district of
Tolland, T. Santos, J.)
Justine F. Miller, assigned counsel, for the appel-
lant (petitioner).
Adam E. Mattei, deputy assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Gerard P. Eisenman, former senior assis-
tant state’s attorney, for the appellee (respondent).
Opinion
KELLER, J. Following a grant of certification to
appeal pursuant to General Statutes § 52-470 (g), the
petitioner, Jean St. Juste, appeals from the judgment
of the habeas court denying his amended petition for
a writ of habeas corpus. The petitioner claims that the
court improperly rejected his claim that his trial counsel
had rendered ineffective assistance by virtue of the fact
that he had failed to inform the petitioner that if he
were convicted of the crime of assault in the second
degree, his conviction would result in his certain depor-
tation. We dismiss the appeal as moot.
The following facts and procedural history are rele-
vant to the present appeal. On July 26, 2010, the peti-
tioner filed an amended petition for a writ of habeas
corpus in which he alleged that, on December 17, 2007,
he pleaded guilty to assault in the second degree in
violation of General Statutes § 53a-60 (a) (2), and guilty
under the Alford doctrine1 to possession of a sawed-
off shotgun in violation of General Statutes § 53a-211.
He was represented by Attorney Howard Ignal. On Janu-
ary 28, 2008, he was sentenced pursuant to a plea
agreement to a total effective sentence of five years
incarceration, execution suspended after eighteen
months, followed by five years of probation. On July 27,
2009, the petitioner, represented by Attorney Anthony
Collins, filed a motion to withdraw his guilty pleas on
the ground that at the time he entered them, he did not
understand their immigration consequences. On
November 17, 2009, the court denied the motion.
In his two count amended petition, the petitioner
alleged that Ignal rendered ineffective assistance of
counsel because, among other deficiencies, he (1) failed
to educate himself about the immigration consequences
of the pleas, (2) misadvised the petitioner with respect
to the immigration consequences of the pleas, and (3)
failed to meaningfully discuss with the petitioner what
immigration consequences could and/or would flow
from the pleas. The petitioner alleged that Ignal’s repre-
sentation was below that displayed by attorneys with
ordinary training and skill in the criminal law, and that
but for such representation, he would not have pleaded
guilty and he would have resolved the case in a way
that would not result in ‘‘deportation consequences.’’
In the second count of his petition, the petitioner alleged
that his pleas were not knowingly, voluntarily, and intel-
ligently made because he made them under the mis-
taken belief that his conviction would not subject him
to deportation. The petitioner alleged that ‘‘[a]s a result
of his conviction, [he] has been ordered removed from
this country by an immigration judge, and the judge’s
order has been affirmed by the Board of Immigration
Appeals.’’ Additionally, the petitioner alleged that ‘‘[t]he
basis for the removal order was the conviction for
assault in the second degree and possession of a sawed-
off shotgun.’’2
Following an evidentiary hearing, the habeas court
orally rendered its decision denying the petition.3 In
relevant part, the court stated that it accepted as true
the testimony of the petitioner’s trial attorney, Ignal.
The court stated: ‘‘[Ignal] clearly saw all of the problems
with this case, and they all spelled the word ‘immigra-
tion.’ From day one, I think, he was alerted to this and
did everything he could, from what I can see, to try to
avert the ultimate result.’’ The court found that Ignal
was well aware of the adverse consequences of the
pleas insofar as they involved deportation, and that he
had thoroughly discussed that issue with the petitioner.
The court rejected the claim of ineffective assistance
of counsel. Later, the court granted the petitioner’s peti-
tion for certification to appeal. The petitioner brought
the present appeal on May 4, 2011. We observe that the
petitioner’s claim on appeal is limited to the representa-
tion afforded him in connection with his guilty plea for
assault in the second degree.
The core argument set forth in the petitioner’s princi-
pal appellate brief is that the judgment of the habeas
court should be overturned because, pursuant to Padi-
lla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L.
Ed. 2d 284 (2010), Ignal was deficient in that he failed
to advise him, prior to entering the plea agreement,
‘‘that his [assault] conviction would make him subject
to automatic deportation.’’ In Padilla, the United States
Supreme Court held that the sixth amendment to the
United States constitution requires an attorney for a
criminal defendant to provide advice about the risk of
deportation arising from a guilty plea. Id., 373–74. The
respondent, the Commissioner of Correction, argues
that Padilla does not apply retroactively to the peti-
tioner, who was convicted well before Padilla was
announced on March 31, 2010. Moreover, the respon-
dent argues that, even if Padilla applies, the petitioner
has misinterpreted its holding, has failed to prove that
Ignal did not meet the standard of representation man-
dated by Padilla, and has failed to prove that he was
prejudiced by Ignal’s performance.
After the parties filed their briefs in this appeal, but
prior to the time of oral argument, the United States
Supreme Court, in Chaidez v. United States, U.S.
, 133 S. Ct. 1103, 1107–13, 185 L. Ed. 2d 149 (2013),
held that Padilla does not apply retroactively to peti-
tioners whose convictions had become final by the time
that it announced its decision in Padilla. See also
Alcena v. Commissioner of Correction, 146 Conn. App.
370, 374–75, 76 A.3d 742, cert. denied, 310 Conn. 948,
80 A.3d 905 (2013) (applying Chaidez). By way of sup-
plemental briefing to address the effect of Chaidez on
the present appeal, the respondent argues that Ignal’s
representation was not deficient when viewed in light of
the law as it existed prior to Padilla. In his supplemental
brief, the petitioner acknowledges that Padilla does
not apply, but argues that, even when evaluated in light
of the law as it existed prior to Padilla, Ignal’s represen-
tation was deficient.
Although Chaidez resolved the issue of whether Pad-
illa applies in an evaluation of the representation that
Ignal afforded the petitioner, we do not turn to an evalu-
ation of Ignal’s representation because we must address
an issue of mootness raised by the respondent. This
issue is related to the petitioner’s prior status as a per-
manent legal resident, his subsequent deportation from
the United States, and his criminal history.
In his brief before this court, the petitioner represents
that he was in the United States as a permanent legal
resident and that, after he served the eighteen month
term of incarceration imposed by the trial court as a
result of his conviction of assault in the second degree
and possession of a sawed-off shotgun, he was detained
in a federal facility pending his removal from the United
States. Further, the petitioner represents, and it is not
in dispute, that on April 15, 2011, he was deported to
Haiti. Relying on the September 2, 2009 decision of the
United States Immigration Court ordering the petition-
er’s deportation to Haiti, the respondent acknowledges
that the petitioner’s assault conviction was a factor in
his deportation.
The respondent argues, however, that there is evi-
dence that, even absent the assault conviction, the
deported petitioner would not be eligible for lawful
readmission into the United States. In this regard, the
respondent draws our attention to the petitioner’s crimi-
nal history involving not only the assault conviction for
assault in the second degree underlying his petition for
a writ of habeas corpus, but the fact that he previously
was convicted of threatening in the second degree. The
fact that this prior conviction occurred is not in dispute.
In support of a finding of mootness, the respondent
argues that threatening in the second degree is a crime
of moral turpitude that, pursuant to federal law, would
preclude the petitioner’s lawful readmission to the
United States. The respondent argues that under the
circumstances, in which the petitioner has been
deported and the present appeal is unrelated to his
conviction of threatening, this court cannot afford the
petitioner any practical relief. The petitioner argues that
the appeal is not moot because the prior conviction of
threatening in the second degree would not bar his
lawful readmission to the United States.
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[this] court’s subject matter jurisdiction. . . . Because
courts are established to resolve actual controversies,
before a claimed controversy is entitled to a resolution
on the merits it must be justiciable . . . . Justiciability
requires (1) that there be an actual controversy between
or among the parties to the dispute . . . (2) that the
interests of the parties be adverse . . . (3) that the
matter in controversy be capable of being adjudicated
by judicial power . . . and (4) that the determination
of the controversy will result in practical relief to the
complainant. . . . A case is considered moot if [the]
. . . court cannot grant the appellant any practical
relief through its disposition of the merits. . . .
Because mootness implicates this court’s subject mat-
ter jurisdiction, it raises a question of law over which
we exercise plenary review.’’ (Internal quotation marks
omitted.) Wyatt Energy, Inc. v. Motiva Enterprises,
LLC, 308 Conn. 719, 736, 66 A.3d 848 (2013). ‘‘It is a
well-settled general rule that the existence of an actual
controversy is an essential requisite to appellate juris-
diction; it is not the province of appellate courts to
decide moot questions, disconnected from the granting
of actual relief or from the determination of which no
practical relief can follow. . . . An actual controversy
must exist not only at the time the appeal is taken,
but also throughout the pendency of the appeal. . . .
When, during the pendency of an appeal, events have
occurred that preclude an appellate court from granting
any practical relief through its disposition of the merits,
a case has become moot.’’ (Emphasis added; internal
quotation marks omitted.) Wells Fargo Bank, NA v.
Cornelius, 131 Conn. App. 216, 219–20, 26 A.3d 700,
cert. denied, 302 Conn. 946, 30 A.3d 1 (2011).
In support of the mootness argument, the respondent
relies on our Supreme Court’s decision in State v.
Aquino, 279 Conn. 293, 901 A.2d 1194 (2006). The defen-
dant in Aquino, who was residing illegally in the United
States, appealed from the judgment of the trial court
denying his motion to withdraw a guilty plea. Id., 294. He
claimed that his plea was not knowingly and voluntarily
made because his trial attorney failed to advise him
that deportation would be the automatic and inevitable
result of his plea. Id., 297. Our Supreme Court deter-
mined that the appeal was moot because the defendant
had been deported during the pendency of the appeal
for reasons that were not specified in the record. Id.,
298–99. The court explained: ‘‘The defendant did not
produce any evidence at the hearing on his motion
to withdraw his guilty plea—indeed, he did not even
claim—that he would be deported solely as the result
of his guilty plea. While this appeal was pending, the
defendant was deported. There is no evidence in the
record as to the reason for his deportation. If it was
not the result of his guilty plea alone, then this court
can grant no practical relief and any decision rendered
by this court would be purely advisory. . . . We con-
clude, therefore, that the appeal must be dismissed on
the ground that the defendant has failed to establish
that his claim is not moot.’’ (Citations omitted; footnotes
omitted; internal quotation marks omitted.) Id. The
court observed that the record suggested that the defen-
dant’s status as an illegal alien could have been the
reason for his deportation. Id., 298 n.2. The court also
stated: ‘‘Just as there is no evidence in the record before
us establishing the reason for the defendant’s deporta-
tion, however, there is no evidence to suggest that, in
the absence of the guilty plea, the defendant would be
allowed to reenter this country or become a citizen.’’
Id., 298–99 n.3.
A recent decision of this court following Aquino,
Quiroga v. Commissioner of Correction, 149 Conn.
App. 168, 87 A.3d 1171, cert. denied, 311 Conn. 950, 91
A.3d 462 (2014), also is instructive. The petitioner in
Quiroga, who had been admitted as a lawful permanent
resident of the United States, was convicted, among
other crimes, of larceny in the first degree following a
plea of nolo contendere to that offense. Id., 170. The
petitioner brought a petition for a writ of habeas corpus
on the ground that his trial counsel rendered ineffective
representation in that, among other things, she failed
to advise him of the risk of deportation that resulted
from his plea. Id., 171. The habeas court denied the
petition and granted certification to appeal, and the
petitioner appealed to this court. Id., 172.
This court in Quiroga dismissed the appeal as moot
because, during the pendency of the appeal, the peti-
tioner was permanently removed to Uruguay. Id., 172–
73. This court observed that the record revealed that
the United States Immigration Court had relied on three
distinct grounds as a basis for deportation, including
the larceny offense underlying the habeas petition. Id.,
172. This court reasoned: ‘‘Aquino is dispositive of the
present appeal. There is no evidence in the record
before us that the petitioner’s guilty plea to larceny in
the first degree was the sole reason for his deportation.
To the contrary, the immigration judge specifically
found that removability on the ground of the petitioner’s
possession of narcotics convictions had been estab-
lished by clear and convincing evidence.’’ (Emphasis
in original; internal quotation marks omitted.) Id., 173.
Moreover, this court observed that ‘‘[e]ven if the immi-
gration court had predicated its deportation order on
the larceny conviction exclusively, the petitioner still
could not prevail’’ because, before the habeas court,
the petitioner acknowledged that once he is removed
from the United States, he would be permanently barred
from reentering the country legally because of his prior
narcotics convictions. Id., 174–75. This court rejected
the petitioner’s invocation of the collateral conse-
quences exception to the mootness doctrine, in the
context of which he argued that Congress possibly
could change the law, thereby leaving the larceny con-
viction as the primary impediment to his lawful return.
Id., 176–77. This court stated: ‘‘We conclude that the
possibility that Congress may, at some point in the
future, amend federal immigration law so as to permit
the petitioner’s reentry into the country despite his nar-
cotics convictions is pure conjecture.’’ Id., 176–77.
We carefully have reviewed the evidence in the record
related to the petitioner’s deportation—the September
2, 2009 decision of the United States Immigration Court
denying a motion filed by the petitioner to defer his
deportation to Haiti, and ordering his deportation. It
appears that the court relied solely on the petitioner’s
conviction of assault in the second degree, finding that
he was subject to removal based on the clear and con-
vincing evidence that he committed that offense, which
it described as ‘‘an aggravated felony crime of vio-
lence.’’4 Also, the court found that the petitioner had
not met his burden of proving that it was more likely
than not that he would be subject to torture upon his
return to Haiti.
The facts of the present case are distinguishable from
Aquino and Quiroga because the record in the present
case suggests that the petitioner’s conviction for assault
in the second degree, following his plea, was the sole
basis for his deportation. Additionally, the petitioner
argued before the habeas court that his removal from
the United States was based solely on his assault convic-
tion. These circumstances lead us to a consideration
of whether, in accordance with the analysis in Aquino
and Quiroga, there is any evidence in the record to
suggest that, in the absence of the guilty plea to the
assault charge, the petitioner would be allowed to reen-
ter this country or become a citizen.
The record reflects, and the petitioner does not dis-
pute, that at the time that he was alleged to have com-
mitted the offenses for which he pleaded guilty—assault
in the second degree and possession of a sawed-off
shotgun—he was serving a period of probation resulting
from an earlier conviction for threatening in the second
degree in violation of General Statutes § 53a-62. Neither
the record nor the parties have shed light on the subdivi-
sion of the statute under which the petitioner was con-
victed. As a result of the threatening conviction, the
petitioner was sentenced to a suspended term of impris-
onment of eleven months, with two years of probation.
The record does not divulge facts concerning the threat-
ening conviction. The parties, however, are in
agreement that the petitioner’s conviction resulted from
a guilty plea, and that the incident underlying the
offense occurred in 2006, when the petitioner was eigh-
teen years of age.
To demonstrate that the plea to assault in the second
degree that was at issue in the present habeas action
was not the only impediment to the petitioner’s lawful
return to the United States, the respondent aptly draws
our attention to provisions in the United States Code
that bar aliens from lawful readmission to the United
States following their conviction of a crime involving
moral turpitude. See 8 U.S.C. § 1182 (a) (2) (A) (i) (l)5
(unless statutory exception applies aliens seeking read-
mission into United States are ineligible for visas or
admission if they have been convicted of crimes involv-
ing moral turpitude); 8 U.S.C. § 1101 (a) (13) (C) (v)
(aliens who have committed crimes of moral turpitude
and attempt to reenter United States are deemed aliens
seeking readmission). Threatening in the second degree
is a class A misdemeanor. General Statutes § 53a-62
(b). As such, it is punishable by a sentence of imprison-
ment of ‘‘a term not to exceed one year . . . .’’ General
Statutes § 53a-36. The respondent and the petitioner are
at odds as to whether the petitioner’s prior conviction of
threatening in the second degree was a conviction of
a crime involving moral turpitude. The respondent
urges us to conclude that the conviction properly may
be so classified. The petitioner argues to the contrary
in an attempt to demonstrate that the prior conviction
would not impede his future readmission to the United
States. In accordance with the mootness analysis in
Aquino, the narrow inquiry before us is whether there
is evidence to suggest that, in the absence of the assault
conviction underlying the present habeas petition, the
petitioner would be allowed to reenter this country or
become a citizen.
The petitioner summarily states that a single convic-
tion of a crime involving moral turpitude is not a bar
under the relevant statutory exception codified in 8
U.S.C. § 1182 (a) (2) (A) (ii) (I) and (II).6 A review of
that exception, however, reflects that neither clause (ii)
(I) nor (II) apply to the petitioner. Clause (ii) (I) does
not apply because the crime at issue was committed
when the petitioner was eighteen years of age. See
footnote 6 of this opinion. Clause (ii) (II) applies only
if the maximum penalty possible for the crime of which
the alien was convicted did not exceed imprisonment
for one year and the alien was not sentenced to a
term of imprisonment in excess of six months. See id.
Although threatening in the second degree is punishable
by a term not to exceed one year; General Statutes
§ 53a-36; following his conviction, the petitioner was
sentenced to a suspended term of imprisonment of
eleven months, with two years of probation. Regardless
of the amount of that sentence that ultimately was exe-
cuted, the petitioner was sentenced to a term of impris-
onment in excess of six months. Therefore, the
exception in clause (ii) (II) does not apply.7
There is no Connecticut authority that resolves the
question of law as to whether the petitioner’s conviction
for threatening in the second degree is evidence of a
crime of moral turpitude under the Immigration and
Nationality Act; see 8 U.S.C § 1101 et seq.8 We consider
the effect of that federal statutory scheme mindful that,
‘‘[o]rdinarily, Connecticut state courts seek guidance
from decisions of the United States Court of Appeals
for the Second Circuit because they carry particularly
persuasive weight in the interpretation of federal stat-
utes.’’ Vazquez v. Buhl, 150 Conn. App. 117, 137, 90
A.3d 331 (2014).
The United States Court of Appeals for the Second
Circuit has adopted a categorical analysis in its evalua-
tion of crimes for the purpose of determining whether
they involve moral turpitude: ‘‘In this Circuit, we have
long endorsed categorical analyses of criminal statutes
in the context of deportation orders for crimes of moral
turpitude. . . . Our decisions in this area stand for the
proposition that the offense, judged from an abstracted
perspective, must inherently involve moral turpitude;
in other words, any conduct falling within the purview
of the statute must by its nature entail moral turpitude.
. . . More recently, we have reaffirmed this approach
. . . [stating] that [a]s a general rule, if a statute encom-
passes both acts that do and do not involve moral turpi-
tude, the [Board of Immigration Appeals] cannot sustain
a deportability finding [predicated on moral turpitude,
based] on that statute.’’ (Citations omitted; internal quo-
tation marks omitted.) Dalton v. Ashcroft, 257 F.3d 200,
204 (2d Cir. 2001).
‘‘The [Board of Immigration Appeals] has defined
moral turpitude generally to encompass conduct 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 to
society in general. . . . Whether a crime is one involv-
ing moral turpitude depends on the offender’s evil intent
or corruption of the mind. . . . [C]rimes in which fraud
was an ingredient have always been regarded as involv-
ing moral turpitude. . . . And generally, where intent
is not an element of a crime, that crime is not one
involving moral turpitude.’’ (Citations omitted; internal
quotation marks omitted.) Mendez v. Mukasey, 547 F.3d
345, 347 (2d Cir. 2008); see also Sui v. Immigration &
Naturalization Service, 250 F.3d 105, 117 n.11 (2d Cir.
2001). ‘‘[A] corrupt scienter is the touchstone of moral
turpitude.’’ Michel v. Immigration & Naturalization
Service, 206 F.3d 253, 263 (2d Cir. 2000); see also Efs-
tathiadis v. Holder, 752 F.3d 591, 597 (2d Cir. 2014).
Additionally, the United States Court of Appeals for
the Fifth Circuit has stated: ‘‘As a general rule, laws
that authorize criminal punishment without proof that
the offender intended or recklessly disregarded the
potential consequences of his act do not define [crimes
involving moral turpitude]. . . . Thus, negligence-
based crimes usually do not amount to [crimes involving
moral turpitude]. . . . Similarly, strict liability crimes
generally are not [crimes involving moral turpitude].
. . . [C]rimes deemed not to involve moral turpitude
. . . are either very minor crimes that are deliberate
or graver crimes committed without a bad intent, most
clearly strict-liability crimes.’’ (Citations omitted;
emphasis added; internal quotation marks omitted.)
Rodriguez-Castro v. Gonzales, 427 F.3d 316, 323 (5th
Cir. 2005). In certain circumstances, offenses commit-
ted with a reckless mental state constitute crimes
involving moral turpitude. See, e.g., Avendano v.
Holder, 770 F.3d 731 (8th Cir. 2014) (scienter underlying
crime involving moral turpitude may include specific
intent, deliberateness, wilfulness, or recklessness); Idy
v. Holder, 674 F.3d 111, 118 (1st Cir. 2012) (‘‘a reckless
state of mind can under some circumstances be suffi-
cient to support a finding of moral turpitude’’).
Also, federal courts have held that offenses that
involve intentionally placing another person in fear of
physical injury constitute crimes involving moral turpi-
tude. See, e.g., Latter-Singh v. Holder, 668 F.3d 1156,
1161–63 (9th Cir. 2012) (intent to instill great fear of
serious bodily injury or death in another constitutes
vicious motive or corrupt mind demonstrative of crime
involving moral turpitude); Chanmouny v. Ashcroft,
376 F.3d 810, 814–15 (8th Cir. 2004) (threatening to
commit crime of violence with purpose to terrorize
another is type of base and depraved behavior that
invokes issues of moral turpitude).9
Having set forth some general principles regarding
crimes involving moral turpitude, we turn to an exami-
nation of § 53a-62 (a), which provides: ‘‘A person is
guilty of threatening in the second degree when: (1)
By physical threat, such person intentionally places or
attempts to place another person in fear of imminent
serious physical injury, (2) such person threatens to
commit any crime of violence with the intent to terrorize
another person, or (3) such person threatens to commit
such crime of violence in reckless disregard of the risk
of causing such terror.’’
Each subdivision of § 53a-62 (a) requires proof of a
particular mental state.10 Under subdivisions (1) and
(2) of § 53a-62 (a), the legislature requires proof of an
intentional mental state. Subdivision (1) requires proof
that an accused intentionally placed another person in
fear of imminent serious physical injury. Subdivision (2)
requires proof that an accused intentionally terrorized
another person. With regard to subdivision (3) of § 53a-
62 (a), the legislature requires proof of a reckless mental
state, namely, proof that an accused recklessly disre-
garded the risk of causing terror in another person.
Significant to our analysis, however, is that all three
subdivisions of § 53a-62 (a) require proof that an
accused made some form of a threat. ‘‘A threat is defined
as an indication of something impending and usu[ally]
undesirable or unpleasant . . . as . . . an expression
of an intention to inflict evil, injury, or damage on
another usu[ally] as retribution or punishment for
something done or left undone . . . .’’ (Emphasis
added; internal quotation marks omitted.) State v. Cook,
287 Conn. 237, 257 n.14, 947 A.2d 307, cert. denied,
555 U.S. 970, 129 S. Ct. 464, 172 L. Ed. 2d 328 (2008).
Regardless of whether an offense is characterized by
the immediacy of the threat posed, any threat is, in and
of itself, ‘‘an expression of an intent to cause some
future harm.’’ Id., 257.11
‘‘[T]he [petitioner] in a habeas corpus proceeding
bears a heavy burden of proof.’’ Myers v. Manson, 192
Conn. 383, 387, 472 A.2d 759 (1984). On the basis of
the record before us, we conclude that there is no evi-
dence to suggest that the guilty plea to assault in the
second degree underlying the present habeas petition
is the only impediment to the petitioner’s reentry into
the United States. The petitioner’s earlier threatening
conviction is evidence to the contrary, for a conviction
of threatening in the second degree necessarily involves
the type of conduct and mental state that is characteris-
tic of crimes involving moral turpitude.12 Accordingly,
we further conclude that the petitioner’s appeal is moot
because any relief we could afford him in connection
with the assault conviction underlying his petition for
a writ of habeas corpus would not have any effect on
his ability lawfully to reenter this country or to become
a citizen. For this reason, we dismiss the appeal. ‘‘The
appellate courts have a duty to dismiss, even on [their]
own initiative, any appeal that [they lack] jurisdiction
to hear.’’ (Internal quotation marks omitted.) Liberty
Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn.
767, 794, 967 A.2d 1 (2009).
The appeal is dismissed.
In this opinion the other judges concurred.
1
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
2
As will be discussed later in this opinion, the record suggests that the
petitioner was deported solely because of his conviction of assault in the
second degree.
3
Subsequently, the court filed a signed transcript of its decision in accor-
dance with Practice Book § 64-1 (a).
4
See 8 U.S.C. § 1227 (a) (2) (A) (iii) (‘‘[a]ny alien who is convicted of an
aggravated felony at any time after admission is deportable’’). We note that,
under relevant law, a conviction of possession of a sawed-off shotgun is a
lawful basis for deportation, as well. See 8 U.S.C. § 1227 (a) (2) (C) (‘‘[a]ny
alien who at any time after admission is convicted under any law of purchas-
ing, selling, offering for sale, exchanging, using, owning, possessing, or
carrying . . . any weapon, part, or accessory which is a firearm or destruc-
tive device . . . in violation of any law is deportable’’).
5
Section 1182 of title 8 of the United States Code, entitled ‘‘Inadmissible
aliens,’’ provides in relevant part: ‘‘(a) Classes of aliens ineligible for visas
or admission—Except as otherwise provided in this chapter, aliens who are
inadmissible under the following paragraphs are ineligible to receive visas
and ineligible to be admitted to the United States . . .
‘‘(2) Criminal and related grounds
‘‘(A) Conviction of certain crimes
‘‘(i) In general—Except as provided in clause (ii), any alien convicted of,
or who admits having committed, or who admits committing acts which
constitute the essential elements of—
‘‘(I) a crime involving moral turpitude (other than a purely political
offense) or an attempt or conspiracy to commit such a crime . . . .’’ 8
U.S.C. § 1182 (a) (2) (A) (i) (I).
6
The exception in 8 U.S.C. § 1182 (a) (2) (A) provides: ‘‘(ii) Exception—
Clause (i) (I) shall not apply to an alien who committed only one crime if—
‘‘(I) the crime was committed when the alien was under 18 years of age,
and the crime was committed (and the alien released from any confinement
to a prison or correctional institution imposed for the crime) more than 5
years before the date of application for a visa or other documentation and
the date of application for admission to the United States, or
‘‘(II) the maximum penalty possible for the crime of which the alien was
convicted (or which the alien admits having committed or of which the acts
that the alien admits having committed constituted the essential elements)
did not exceed imprisonment for one year and, if the alien was convicted
of such crime, the alien was not sentenced to a term of imprisonment in
excess of 6 months (regardless of the extent to which the sentence was
ultimately executed).’’
7
See Laryea v. United States, 300 F. Supp. 404, 406–407 (E.D. Va. 2004)
(concluding that suspended portion of sentence must count toward excep-
tion’s six month limit because suspension of portion of sentence merely
reflects extent to which sentence ultimately was executed).
8
‘‘Moral turpitude, [our Supreme Court has] observed, is a vague and
imprecise term to which no hard and fast definition can be given. . . . A
general definition . . . is that moral turpitude involves an act of inherent
baseness, vileness or depravity in the private and social duties which man
does to his fellow man or to society in general, contrary to the accepted
rule of right and duty between man and law.’’ (Citations omitted.) Moriarty
v. Lippe, 162 Conn. 371, 383, 294 A.2d 326 (1972).
9
The respondent refers to additional authority in this regard, including
Solomon v. Attorney General, 308 Fed. Appx. 644, 647 (3d Cir. 2009) (conclud-
ing that conviction based on intentional transmission of threats is crime
involving moral turpitude); Manzar v. Mukasey, 266 Fed. Appx. 656, 657
(9th Cir. 2008) (concluding that conviction for threatening to kill another
person is crime involving moral turpitude); and Campbell v. Attorney Gen-
eral, 174 Fed. Appx. 89, 91 (3d Cir. 2006) (concluding that conviction based
on intentionally placing another in fear of physical injury is crime involving
moral turpitude).
10
‘‘When the commission of an offense defined in this title, or some
element of an offense, requires a particular mental state, such mental state
is ordinarily designated in the statute defining the offense by use of the
terms ‘intentionally’, ‘knowingly’, ‘recklessly’, or ‘criminal negligence’, or by
use of terms, such as ‘with intent to defraud’ and ‘knowing it to be false’,
describing a specific kind of intent or knowledge. When one and only one
of such terms appears in a statute defining an offense, it is presumed to
apply to every element of the offense unless an intent to limit its application
clearly appears.’’ General Statutes § 53a-5.
11
At least in one Superior Court case, albeit not in a case involving the
Immigration and Nationality Act, the court observed that threatening is a
crime involving moral turpitude. See O’Connor v. Meyer, Superior Court,
judicial district of New Haven, Docket No. CV-06-5006438-S (December 5,
2008) (46 Conn. L. Rptr. 818).
12
We observe that, in applicable circumstances, an alien is subject to
deportation following his conviction of one or more crimes involving moral
turpitude. See 8 U.S.C. § 1227 (a) (2) (A) (i) and (ii).