(A)      Crime of Moral Turpitude Conviction Ground of Inadmissibility.  See N. Tooby, J. Rollin, & J. Foster, Crimes of Moral Turpitude, Chapter 4 (2005).

 

[A]ny 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 . . . is inadmissible.[217]

 

(1)       Exceptions.  There are three exceptions. 

 

(a)  Youthful Offender Exception.  This ground of inadmissibility “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 . . . .”[218]

 

(b)  Petty Offense Exception.  This ground of inadmissibility “shall not apply to an alien who committed only one crime if . . . (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).”[219]  Waiver.  A waiver is available under INA § 212(h), to excuse this ground of inadmissibility.  See § 2.45, infra.[220]

 

(c)  The Political Offense Exception.  The statute provides a CMT conviction triggers inadmissibility unless it is “a purely political offense . . . .”[221]  See § 5.32, infra.

 

(2)       General Definition.  Generally speaking, the immigration courts define a CMT as “an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.”[222] Both felonies and misdemeanors can be CMTs if one or more of the following factors is present:

 

(a)  an intent to defraud or steal is an element,

(b)  great bodily harm is caused or threatened by an intentional, willful, or reckless act;

(c)  “malice” is an element; or

(d)  sex offenses in which some “lewd” intent is an element.

 

See generally N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude, Chapter 8, Definition of Moral Turpitude (2005).  Many offenses that include an intent to commit another offense will be considered CMTs if the intended offense is a CMT, but otherwise not.  These include conspiracy, attempt, burglary, assault with intent to commit another offense, and perhaps accessory after the fact or misprision of a felony.  The immigration and federal courts have held that accessory after the fact to a CMT is itself a CMT, although there is a decent argument that the accessory offense does not take on the character of the target offense, and thus is not a CMT even if the target offense is a CMT.  See § § 2.17(B)(2), 3.49, infra.  One federal court has held that a federal conviction of misprision of a felony constitutes a CMT, without apparent regard for the particular felony involved in the case, although the reasoning of this case is faulty and should not be followed.[223]

(3)                Chart of All Opinions Defining Crimes of Moral Turpitude.  A comprehensive table of cases holding whether particular convictions are or are not CMT has been prepared that can serve as a starting point for research into the actual immigration consequences of a particular conviction.  This table is available — and kept up to date at — http://www.criminalandimmigrationlaw.com.  It has also been published as an Appendix to N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude (2d Ed. 2005), and N. Tooby, Criminal Defense of Immigrants (2003).

 

The table contains summaries of all BIA cases from 1 I. & N. Dec. 1 to the present, and all reported federal cases decided by the U.S. Supreme Court, Circuit Courts of Appeal, and district courts from 1940 to the present, that state what offenses are and are not crimes of moral turpitude.  About 2000 decisions were reviewed for possible inclusion in this table.  The case summaries are organized alphabetically by a brief verbal definition of the crime involved in the case.

 

[217] INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I).

[218] INA § 212(a)(2)(A)(ii)(I), 8 U.S.C. § 1182(a)(2)(A)(ii)(I).

[219] INA § 212(a)(2)(ii)(II), 8 U.S.C. § 1182(a)(2)(ii)(II).

[220]  See 8 C.F.R. § 212.7(d)(eff. 1/27/03) (published as an interim final rule with a further 30‑day comment period); 67 Fed. Reg. 78675 (12/26/02).

[221] INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I).

[222] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § § 8.2, et seq. (2005).

[223] Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. Apr. 22, 2002) (federal conviction for misprision of a felony, in violation of 18 U.S.C. § 4, constitutes a crime of moral turpitude for purposes of triggering deportation).

Other

RELIEF " CONSULAR PROCESSING " PROVISION UNLAWFUL PRESENCE WAIVERS
A practice advisory on provisional waivers of unlawful presence is available here: http://www.aila.org/content/default.aspx?docid=42954