Lucio Ivaldo Cabral Fortes Tomar, a lawful permanent resident from Cape Verde, faced deportation after being convicted twice of violating Massachusetts General Laws chapter 272, section 16, which prohibits open and gross lewdness. The government charged Tomar as removable under the Immigration and Nationality Act because he had two convictions for crimes involving moral turpitude. The immigration judge denied Tomar's motion to terminate proceedings, and the Board of Immigration Appeals affirmed, concluding that the Massachusetts statute categorically encompasses morally turpitudinous conduct. Tomar sought review in the First Circuit, arguing that the statute's elements do not necessarily require proof of lewd intent, which is a necessary component of a crime involving moral turpitude.
The court applied the categorical approach, which requires looking only at the statutory definition of the offense rather than the specific facts of the defendant's conduct. Under this framework, a state crime is a crime involving moral turpitude only if it categorically requires proof of conduct that shocks the public conscience as inherently base, vile, or depraved, which includes a culpable mental state of lewd intent. The court analyzed the five elements of the Massachusetts statute as construed by state courts: intentional exposure of private parts, done openly or with reckless disregard, in a manner so as to produce alarm or shock, thereby actually shocking or alarm one or more persons. The court reasoned that the word 'intentionally' modifies only the act of exposure, not the subsequent elements regarding the manner of exposure or the impact on witnesses. Furthermore, the 'openly' element allows for reckless disregard, which is incompatible with a specific intent to shock. The court found that the 'alarm or shock' requirement is an objective standard based on the witness's reaction, not a subjective intent of the defendant to be lewd. The court cited Massachusetts case law, specifically Commonwealth v. Queally, which indicated that no case requires proof of sexual motivation for a conviction under this statute. Consequently, the court concluded there is a realistic probability that Massachusetts would apply the statute to nonsexual conduct, such as intentional public nudity for sunbathing, which lacks the lewd intent required for moral turpitude.
The Board of Immigration Appeals' order of removal is reversed, and Tomar's convictions no longer serve as a basis for deportation under the relevant statute. The case is remanded to the agency for further proceedings consistent with the opinion. This decision clarifies that nonsexual public nudity, even if objectively shocking, does not constitute a crime involving moral turpitude for immigration purposes in the First Circuit.
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