Crimes Involving Moral Turpitude

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Crimes involving moral turpitude generally involve theft, fraud or violence. Commission or conviction of a crime involving moral turpitude may have immigration consequences.

 

A US permanent resident who is not a citizen is deportable if convicted of a crime involving moral turpitude (CIMT) committed within five years after the date of admission to the United States if the crime carries a maximum sentence of imprisonment of at least one year.  A permanent resident may also be deported at any time after admission if convicted of two CIMTs not arising out of a single scheme of criminal misconduct regardless of the sentence.  California amended Penal Code section 18.5 to make all California misdemeanors punishable by a maximum sentence of 364 days, but this change appears to be effective only to guilty pleas entered on or after January 1, 2015.

For the conviction to count, the crime must have been committed after the noncitizen was admitted to the United States in some status. Crimes of moral turpitude may render a noncitizen deportable under INA § 212(a)(2)(A) ([(8 USC § 1227(a)(2)(A)], or inadmissible under INA § 237(a)(2)(A) [8 USC 1182(a)(2)(A)].

So what is a crime involving moral turpitude?

A crime involving moral turpitude is defined as a depraved or immoral act, or a violation of the basic duties owed to fellow man, including a “reprehensible act” with a state of mind of at least recklessness.  Matter of Silva-Trevino, 24 I.&N. Dec. 687 (AG 2008).  An offense involving negligence is not a CIMT and drunk driving, even as a repeat offense or with injury is not a CIMT.  Matter of Torres-Varela, 23 I.&N. Dec. 78 (BIA 2001).  Under Silva-Trevino, in some cases an immigration judge holds a hearing on the facts about the defendant’s conduct, to see if the defendant committed a crime involving moral turpitude.  The judge can take testimony from the defendant, review police reports, etc., and consider facts not required to prove an element of the offense.

But the immigration judge may not consider evidence outside of the record of conviction and conduct a fact-based inquiry when the conviction record itself demonstrates whether the noncitizen was convicted of engaging in conduct that constitutes a crime involving moral turpitude.  Matter of Ahortalejo Guzman, 25 I.&N. Dec. 465 (BIA 2011).

A divisible statute is one that describes conduct that is a CIMT and also conduct that is not a CIMT.  If the record of conviction identifies elements that do not involve a CIMT, the immigration judge may not conduct a fact-based inquiry outside of the record of conviction under Silva-TrevinoMatter of Guevara Alfaro, 25 I.&N. Dec. 417 (BIA 2011).

A crime involves moral turpitude if the perpetrator has the intent to cause great bodily harm, defraud, or permanently deprive an owner of property.  In some cases an act with lewd intent or recklessness may be a CIMT.  Some CIMTs are also aggravated felonies, but many are not.

From Blanco v. Mukasey 2008:

A crime involves fraudulent conduct, and thus is a crime involving moral turpitude, if intent to defraud is either “explicit in the statutory definition” of the crime or “implicit in the nature” of the crime.   Goldeshtein v. INS, 8 F.3d 645, 648 (9th Cir.1993) (internal quotation marks omitted).   Intent to defraud is not explicitly required by California Penal Code § 148.9(a), which requires only the knowing provision of false information.   The element of knowing misrepresentation does not itself make fraud an element of the crime, however, because it shows only that “the forbidden act is done deliberately and with knowledge,” and not that the individual acts with evil intent.   See id. (quoting Hirsch v. INS, 308 F.2d 562, 567 (9th Cir.1962)).   Because intent to defraud is not a statutory element of the offense, we must determine whether intent to defraud is part of the crime's “essential nature.”  Goldeshtein at 649.

Our cases hold that intent to defraud is implicit in the nature of the crime when the individual makes false statements in order to procure something of value, either monetary or non-monetary.   See id. (holding that fraud is not inherent where crime “does not involve the use of false statements, nor does the defendant obtain anything” of value);  see also Navarro-Lopez, 503 F.3d at 1076 (Reinhardt, J., concurring);  cf. Notash v. Gonzales, 427 F.3d 693, 698 (9th Cir.2005) (holding fraud not inherent where statute “did not require an intent to deprive the United States of revenue”).   Fraud is not mere dishonesty because fraud requires an attempt to induce another to act to his or her detriment.   See Black's Law Dictionary 685 (8th ed.2004).

One can act dishonestly without seeking to induce reliance.   Cases have recognized fraudulent intent only when the alien used false statements to obtain something tangible. See, e.g., McNaughton v. INS, 612 F.2d 457, 459 (9th Cir.1980) (securities);  Winestock v. INS, 576 F.2d 234, 235 (9th Cir.1978) (securities);  Bisaillon v. Hogan, 257 F.2d 435, 437 (9th Cir.1958) (a passport);  see also Zaitona v. INS, 9 F.3d 432, 437 (6th Cir.1993) (a driver's license);  United States ex rel. Popoff v. Reimer, 79 F.2d 513, 515 (2d Cir.1935) (naturalization papers);  Matter of R-, 5 I. & N. Dec. 29, 38 (BIA 1952) (military deferment).

When the only “benefit” the individual obtains is to impede the enforcement of the law, the crime does not involve moral turpitude.   In Navarro-Lopez, the court held that misprision of a felony does not involve moral turpitude even though a conviction for misprision of a felony under California law requires “knowing interference with the enforcement of the law with the specific intent to help a principal avoid arrest or trial.” 503 F.3d at 1070.   The crime of false identification to a peace officer under California law also punishes the “wrongful interference with the administration of justice,” Robertson, 223 Cal.App.3d at 1282, 273 Cal.Rptr. 209, but does not require a showing of specific intent to avoid arrest or trial.  Id. at 1281-82, 273 Cal.Rptr. 209.   Although giving a false name or date of birth to a police officer clearly “violates a duty owed to society to obey the law and not to impede the investigation of crimes,” this alone does not make the crime one that involves moral turpitude, because “[i]f this were the sole benchmark for a crime involving moral turpitude, every crime would involve moral turpitude.”   Navarro-Lopez, 503 F.3d at 1070-71.4

The crime of false identification to a peace officer does not require fraudulent intent under California law, it is not categorically a crime involving moral turpitude under § 1182(a)(2).

Shoplifting

A California “shoplifting” theft offense is a crime involving moral turpitude.  See Flores Juarez v. Mukasey, 530 F.3d 1020, 1022 (9th Cir. 2008) (petty theft under California law is a crime involving moral turpitude); United States v. Esparza-Ponce, 193 F.3d 1133, 1136-37 (9th Cir. 1999).  California law divides the crime of theft into two degrees, (1) grand theft and (2) petty theft.  See Cal. Penal Code § 486. Petty theft is ordinarily a misdemeanor.  People v. Terry, 54 Cal. Rptr.2d 769, 770-71 (Cal. Ct. App. 1996); see also Cal. Penal Code §§ 484, 486, 488.  Petty theft is “punishable by fine not exceeding $1,000, or by imprisonment in the county jail not exceeding six months, or both.” Cal. Penal Code § 490.  An offense punishable in this manner is by definition a misdemeanor. Cal. Penal Code § 17(a) (“A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.”).  In California, “[e]xcept in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding $1,000, or by both.” Cal. Penal Code § 19.

Solicitation of Prostitution

In California, solicitation of prostitution is a crime defined at Cal. Penal Code Section 647(b).  The Board of Immigration Appeals has held that a conviction under this section is not a "prostitution procurement" crime under INA 212(a)(2)(D)(ii).  Matter of Gonzalez-Zoquiapan, 24 I.&N. 549 (BIA 2008).  INA 212(a)(2)(D)(ii) crimes render a permanent resident inadmissible and can bar a finding of good moral character in an application for cancellation of removal.

The Ninth Circuit Court of Appeals, however, found that Cal. Penal Code Section 647(b) is a crime of moral turpitude.  Rohit v. Holder, 670 F.3d 1085 (9th Cir. 2012).  This means that a single conviction for violating Cal. Penal Code Sec. 647(b) within five years of admission, or a conviction for 647(b) occurring after five years in combination with another CIMT conviction will render a US permanent resident deportable.

DUI with a Suspended License

In a fairly remarkable 2009 case, the Ninth Circuit Court of Appeal decided in a 6-5 dead heat en banc decision that driving under the influence with a suspended license is a crime of moral turpitude. Marmolejo- Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc).

Marmolejo-Campos addressed an Arizona aggravated DUI statute that required that the defendant drove a motor vehicle under the influence of alcohol or drugs knowing  that his license was suspended or revoked. Not all state DUI statutes will match Arizona's and require intent or knowledge, something that DUI statutes generally don't require (they generally resemble strict liability statutes and mention nothing about the defendant's state of mind or knowledge).

California's DUI statute at Vehicle Code § 23152 does not specifically identify knowledge of a suspended or revoked license and DUI as an aggravated offense, so it is unlikely, but not impossible that courts will find a conviction for driving under the influence with a suspended license in California a CIMT.

The Petty Offense Exception

If a noncitizen (a) has committed only one moral turpitude offense ever, (b) the offense carries a potential sentence of a year or less, and (c) the sentence imposed was less than six months, the person qualifies for the petty offense exception and is not inadmissible under the CIMT ground.  8 USC § 1182(a)(2)(A)(ii)(II).

Reducing a felony to a misdemeanor will give the offense a maximum possible sentence of one year for purposes of the petty offense exception.  La Farga v. INS, 170 F.3d 1213 (9th Cir. 1999); Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. 2003).

It is important to remember that the petty offense exception applies only to grounds of inadmissibility and not to grounds of deportability.  So a permanent resident facing removal based on the ground of deportability of having been convicted of a CIMT within five years of admission or two CIMTs at anytime after admission may not use the petty offense exception (but may be eligible for cancellation of removal under INA § 240A(a).

The Youthful Offender Exception

Children under 18 convicted as adults qualify for this exception if she committed only one CIMT ever, committed the crime while under the age of 18 and the conviction or resulting imprisonment occurred at least five years ago.

 
 

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