The Fourth Circuit has determined that a Virginia conviction for participation in a criminal street gang is not categorically a crime involving moral turpitude. “Contrary to the BIA’s conclusion, the mere fact that an act was committed ‘in association with’ a gang by someone who “actively participate[d] in” the gang does not necessarily involve moral turpitude. To hold otherwise would allow a statute to be classified as involving depraved conduct based on a characteristic unrelated to that conduct, whether it be the defendant’s identity or that of the individuals with whom he acted.”

In addition, the court found that it had jurisdiction to take an appeal directly from the Immigration Court in this matter. At an earlier stage of proceedings, the Immigration Judge had found that the petitioner was not removable for his conviction, the Department of Homeland Security had appealed, and the Board of Immigration Appeals had reversed. On remand, the Immigration Judge issued a removal order, and the petitioner waived appeal, before filing a petition for review with the Fourth Circuit. The Fourth Circuit found that the petitioner had met his administrative exhaustion requirement.

The full text of Cabrera v. Barr can be found here: