Etumai Mtoched, a citizen of Malau, was admitted to the Commonwealth of the Northern Mariana Islands (CNMI) before U.S. immigration laws were extended to the CNMI. Mtoched was convicted of assault with a dangerous weapon under CNMI laws in 1994. In 2008, U.S. immigration laws were extended to include CNMI, and shortly thereafter, removal proceedings were initiated against Mtoched based on his conviction, which the Department of Homeland Security alleged qualified as a crime involving moral turpitude (CIMT). The Immigration Judge (IJ) found that the conviction was, in fact, a CIMT, and determined that applying the U.S. immigration laws to Mtoched was not an impermissible retroactive application of law. Mtoched indicated an intention to apply for a waiver under section 212(h) of the Immigration and Nationality Act (INA), but the IJ denied this request, finding that because Mtoched had been admitted to the United States, he needed to apply for the waiver in conjunction with an application for adjustment of status. On appeal, the Board of Immigration Appeals affirmed the IJ's decision regarding whether Mtoched's conviction qualified as a CIMT and whether he was eligible for a waiver under section 212(h) of the INA, but declined to address his retroactivity argument, finding that it was beyond the scope of its authority to address.
On appeal to the Ninth Circuit, the court determined that extending U.S. immigration laws to CNMI did not violate the CNMI's right to self-government. In addition, because Mtoched's conviction would have made him deportable under CNMI's immigration laws in effect at the time of his conviction, extending U.S. immigration law to him did not change his legal position. Since Mtoched did not demonstrate that he would have been eligible for any form of immigration relief under the prior laws, the extension of U.S. laws did not impair of any of his rights.
With regard to whether Mtoched's conviction qualified as a CIMT, the court noted that the statute could be divided into three distinct offenses: (1) threatening to cause injury; (2) attempting to cause injury; or (3) purposely causing injury. Because Mtoched was charged under the third offense, his conviction was a CIMT. In support of this conclusion, the court noted that non-fraudulent CIMTs almost always involve an intent to harm another person.
Finally, the court affirmed prior Board case law indicating that individuals admitted to the United States many not seek a stand-alone waiver under sectino 212(h) of the INA. As Mtoched was considered to have been admitted in nonimmigrant status, he could not seek the stand-alone waiver.
The full text of Mtoched v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/05/22/13-70295.pdf
