“[I]t has been stated that ‘it is in the intent that moral turpitude inheres.’”[964]  Some courts hold that one way to determine whether a crime involves moral turpitude is whether the act is accompanied by a vicious motive or corrupt mind, and that a malicious and mischievous intention, or the equivalent, is the line between right and wrong, between crimes that involve moral turpitude and those that do not: [965]

 

A crime involving moral turpitude may be either a felony or misdemeanor, existing at common law or created by statute, and is an act or omission which is malum in se and not merely malum prohibitum; which is actuated by malice or committed with knowledge and intention and not done innocently or without inadvertence or reflection; which is so far contrary to the moral law, as interpreted by the general moral sense of the community, that the offender is brought to public disgrace, is no longer generally respected, or is deprived of social recognition by good living persons; but which is not the outcome merely of natural passion, of animal spirits, of infirmity of temper, of weakness of character, of mistaken principles, unaccompanied by a vicious motive or a corrupt mind.[966]

 

Some courts have held that the presence or absence of a corrupt or vicious mind is not controlling.  On one hand, some offenses may be considered so minor that the courts will find that the offense, even committed with some level of evil intent, is not a CMT.[967]   On the other, even some strict liability offenses have been held to involve moral turpitude.[968]  The malum prohibitum/malum in se and evil intent requirements adhere in most CMT cases, but even this has been challenged recently in the Seventh Circuit.[969]

[964] C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 71.05[1][d][i] (2004), citing Castle v. INS, 541 F.2d 1064, 1066 (4th Cir. 1976) (all crimes malum in se involve moral turpitude); United States ex rel. Mayer v. Day, 54 F.2d 336, 337 (2d Cir. 1931).

[965] Michel v. INS, 206 F.2d 253, 263 (2d Cir. 2000); Matter of Fualaau, 21 I. & N. Dec. 475 (BIA 1996), citing Matter of Serna, 20 I. & N. Dec. 579 (BIA 1992) (“The intent required as an essential element of the offense of conviction is critical to a determination regarding moral turpitude.”).  See also Matter of Khourn, 21 I. & N. Dec. 1041 (BIA 1997) (distribution of a controlled substance is a crime of moral turpitude where knowledge or intent is an element of the offense). 

[966] Matter of D, 1 I. & N. Dec 190 (BIA 1942).

[967] Rodriguez-Herrera v. INS, 52 F.3d 238, 240-241 (9th Cir. 1995) (“While mental state is an important factor, we reject the contention that all crimes requiring some degree of evil intent are necessarily crimes involving moral turpitude.”); Guerrero de Nodahl v. INS, 407 F.2d 1405 (9th Cir.  1969); Matter of Medina, 15 I. & N. Dec. 611, 613-614 (BIA 1976).

[968] Statutory rape is a clear example of this.  See Castle v. INS, supra, at 1066 (inherent nature of statutory rape “is so basically offensive to American ethics and accepted moral standards as to constitute moral turpitude per se”); Marciano v. INS, 450 F.2d 1022 (8th Cir. 1971); Matter of Dingena, 11 I. & N. Dec. 723 (BIA 1966).  See also Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994) (“[a] crime involving the willful commission of a base or depraved act is a crime involving moral turpitude, whether or not the statute requires proof of evil intent”).

[969] Mei v. Ashcroft, 393 F.3d 737 (7th Cir. Dec. 29, 2004) (defining CMT as offenses that are “serious” and “deliberate”, and stating that the distinction between malum prohibitum and malum in se is “paper thin”).

Fourth Circuit

CRIMES OF MORAL TURPITUDE " CONTRIBUTING TO THE DELINQUENCY OF A MINOR
Prudencio v. Holder, 669 F.3d 472 (4th Cir. Jan. 30, 2012) (Virginia misdemeanor conviction of contributing to the delinquency of a minor, in violation of Virginia Code 18.2-371, did not categorically constitute a crime involving moral turpitude applying the modified categorical approach).

Ninth Circuit

CRIMES OF MORAL TURPITUDE " HIT AND RUN
Conejo Bravo v. Sessions, 875 F.3d 890 (9th Cir. Nov.17, 2017) (California conviction of hit and run, under Vehicle Code 20001(a), is under a divisible statute; the record established that noncitizen failed to render aid, which is a crime of moral turpitude); see Garcia-Maldonado v. Gonzales, 491 F.3d 284, 290 (5th Cir. 2007) (holding that Texas hit and run law qualifies as a CIMT, as "the failure to stop and render aid after being involved in an automobile accident is the type of base behavior that reflects moral turpitude").

CRIMES OF MORAL TURPITUDE " ASSAULT WITH A DEADLY WEAPON
Ceron v. Holder, ___ F.3d ___, ___ (9th Cir. Mar. 31, 2014) (en banc) (California conviction of assault with a deadly weapon, in violation of Penal Code 245(a)(1), might no longer constitute a crime of moral turpitude, since: Barber is no longer good law for the proposition that 245(a)(1) categorically describes a CIMT, and that G-R- is unpersuasive and not worthy of deference on the point[, and] Carr v. INS, 86 F.3d 949 (9th Cir. 1996), is no longer good law for its holding that CPC 245(a)(2) is not a categorical CIMT; issue remanded to the BIA); overruling Gonzales v. Barber, 207 F.2d 398 (9th Cir. 1953), and Carr v. INS, 86 F.3d 949 (9th Cir. 1996), and finding Matter of G-R-, 2 I. & N. Dec. 733 (BIA 1946, A.G. 1947) to be unpersuasive.

CRIMES OF MORAL TURPITUDE " ASSAULT WITH A DEADLY WEAPON
Ceron v. Holder, ___ F.3d ___, ___ (9th Cir. Mar. 31, 2014) (en banc) (California conviction of assault with a deadly weapon, in violation of Penal Code 245(a)(1), might no longer constitute a crime of moral turpitude, since: Barber is no longer good law for the proposition that 245(a)(1) categorically describes a CIMT, and that G-R- is unpersuasive and not worthy of deference on the point[, and] Carr v. INS, 86 F.3d 949 (9th Cir. 1996), is no longer good law for its holding that CPC 245(a)(2) is not a categorical CIMT; issue remanded to the BIA); overruling Gonzales v. Barber, 207 F.2d 398 (9th Cir. 1953), and Carr v. INS, 86 F.3d 949 (9th Cir. 1996), and finding Matter of G-R-, 2 I. & N. Dec. 733 (BIA 1946, A.G. 1947) to be unpersuasive.

CRIMES OF MORAL TURPITUDE " FALSE IMPRISONMENT
Saavedra-Figueroa v. Holder, 625 F.3d 621 (9th Cir. Nov. 5, 2010) (California misdemeanor conviction of false imprisonment, in violation of Penal Code 236, was not a categorical crime of moral turpitude, because crime did not require noncitizen to have the intent to harm necessary for the crime to be base, vile or depraved).

Lower Courts of Ninth Circuit

SAFE HAVENS " AGGRAVATED FELONIES " RAPE SAFE HAVENS " CRIMES OF MORAL TURPITUDE " INNOCENT INTENT
People v. Morales, 212 Cal.App.4th 583, 150 Cal.Rptr.3d 920 (2d Dist. Jan. 2, 2013) (reversing conviction of rape of an unconscious person, where under the precise language of the statute, a person who accomplishes sexual intercourse by impersonating someone other than a married victim's spouse is not guilty of the crime of rape of an unconscious person in violation of Penal Code 261(a)(4), but the record did not disclose whether the jury relied on the improper theory, or on the correct theory argued by the prosecutor, that the victim was unconscious because she was asleep, but the trial court did not err in refusing to give instructions that would have allowed the jury to consider his good faith, but mistaken, belief that the victim had consented to sexual intercourse with him).

Other

CRIMES OF MORAL TURPITUDE " VOID FOR VAGUENESS " SAMPLE BRIEFING
Under Johnson, the Term Crime Involving Moral Turpitude Is Void for Vagueness. Several months ago, the Supreme Court held that the residual clause of the Armed Career Criminal Act (ACCA) was unconstitutionally void for vagueness. See Johnson v. United States, 135 S. Ct. 2551 (2015). Because the reasons that led the Supreme Court to strike down that provision are just as present"if not more so"in the CIMT statute, the Court must apply Johnson to find that INA [ 212(a)(2)(A)(i)(I)/ 237(a)(2)(A)(ii)] is also void for vagueness. Courts have long divided CIMTs into two basic types: those involving fraud and those involving grave acts of baseness or depravity. Marmolejo-Campos v. Holder, 558 F.3d 903, 910 (9th Cir. 2009) (en banc) (internal quotations and citation omitted). See also Navarro"Lopez v. Gonzales, 503 F.3d 1063, 1074 (9th Cir. 2007) (en banc) (Reinhardt, J., concurring for the majority) (stating that some offenses are so base, vile, and depraved that they qualify as crimes of moral turpitude even though they have no element of fraud) (citation omitted). In Jordan v. De George, the Supreme Court held that the CIMT statute was not unconstitutionally void for vagueness in regards to fraudulent offenses. 341 U.S. 223, 223-24 (1951). But the Supreme Court was careful to note that its holding only extended to offenses involving fraud. See id. at 232 (Whatever else the phrase crime involving moral turpitude may mean in peripheral cases, the decided cases make it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude.). Because Jordan was limited to fraud offenses, the issue of whether the CIMT statute is unconstitutionally vague in regards to inherently base, vile, or depraved offenses remains an open question. In Johnson, the Supreme Court gave two reasons for finding the ACCA residual clause"which reaches conduct that presents a serious potential risk of physical injury to another"unconstitutionally vague. First, the Court could find no practical methodology for measuring the inherent risk posed by any given statute, holding that there was no reliable way to choose between . . . competing accounts of how much risk a violation of the statute generally entailed. 135 S. Ct. at 2558; see also id. at 2557 (How does one go about deciding what kind of conduct the ordinary case of a crime involves? A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?) (quoting United States v. Mayer, 560 F.3d 948, 952 (9th Cir. 2009) (Kozinski, J., dissenting from the denial of rehearing en banc). Second, even if the Court could discern how much risk a violation of the statute ordinarily entailed, the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony"i.e., it lacked a meaningful gauge for determining when the typical conviction under a particular statute reaches the ACCA threshold of posing a serious potential risk of physical injury. Id. at 2558. In other words, Johnson found that where both the methodology of analyzing a state statute, as well as the degree of severity necessary to meet a generic definition, are unclear, this implicated constitutional concerns of vagueness. Here, the concerns raised in Johnson are just as present"if not more so"in the CIMT statute. In Matter of Silva-Trevino, then-Attorney General Michael Mukasey defined a CIMT as reprehensible conduct"a description substantially more vague than the serious potential risk of physical injury found unconstitutional in Johnson. See 24 I&N Dec. 687, 689 (A.G. 2008). To determine whether an offense is a CIMT, courts thus must look to the conduct falling within a particular state statute and decide in theory whether it is reprehensible. But as the Ninth Circuit has noted, the determination of what constitutes a CIMT may well be unacceptable to one or another segment of society and could well divide residents of red states from residents of blue, the old from the young, neighbor from neighbor, and even males from females. Nunez v. Holder, 594 F.3d 1124, 1127 (9th Cir. 2010). Because [t]here is simply no overall agreement on many issues of morality in contemporary society, courts are equally at a loss to determine whether a conviction under a particular statute renders a noncitizen removable. Id. At this point, courts may as well as resort to the same tongue-in-cheek methodology suggested by Johnson (A survey? Expert evidence? Google? Gut instinct?) to decide whether community standards mandate that an offense qualifies as reprehensible conduct. Simply put, courts have no ability to gauge the degree of severity necessary for an offense to constitute a CIMT. Traditionally, non-fraudulent CIMTs crimes have been defined as offenses that are base, vile, and depraved and shock the public conscience. Navarro"Lopez, 503 F.3d at 1074"75 (internal quotation marks removed). Historically, this means they have been compared to offenses such as murder, rape, and incest. Id. at 1074. But in the last ten years, the BIA has found the state offense at issue to be a CIMT in 19 out 21 published decisions"over 90% of the time. This has led the Ninth Circuit to complain that if courts do not adhere to our precedents limiting the scope of [CIMTs], the category will sooner or later come to mean simply crimes, which would not only would dilute our language, it would also contravene Congresss intent. Navarro-Lopez, 503 F.3d at 1075. And like the residual clause, the vagueness problems of CIMTs are evident in courts ongoing failure to establish a standard for moral turpitude. See Johnson, 135 S. Ct. at 2558 (This Court has acknowledged that the failure of persistent efforts to establish a standard can provide evidence of vagueness.) (internal quotations and citation omitted). Johnson discussed its attempts to adjudicate various applications of the residual clause, finding that this Court's repeated attempts and repeated failures to craft a principled and objective standard out of the residual clause confirm its hopeless indeterminacy. Id. Similarly, the Ninth Circuit has often expressed frustration over the difficulty of adjudicating CIMT cases. See Nunez, 594 F.3d at 1130 (noting the consistent failure of either the BIA or our own court to establish any coherent criteria for determining which crimes fall within that classification and which crimes do not); Marmolejo-Campos, 558 F.3d at 909 (describing case law defining CIMTs as a mess of conflicting authority.) (Berzon, J., dissenting); Nicanor"Romero v. Mukasey, 523 F.3d 992, 997"99 (9th Cir. 2008) (summarizing Ninth Circuit law on moral turpitude and recognizing that [w]e have not relied on a consistent or easily applied set of criteria to identify crimes of moral turpitude). Thus, the perpetual struggle to come up with a workable definition for a CIMT confirm[s] its hopeless indeterminacy. Johnson, 135 S. Ct. at 2558. For these reasons, the CIMT statute"like the ACCA residual clause"is unconstitutionally void for vagueness Thanks to Kara Hartzler.

ARTICLE " CURRENT ELEMENTS OF THE CALIFORNIA OFFENSE OF ASSAULT WITH A DEADLY WEAPON MAY NOT BE A CRIME OF MORAL TURPITUDE
Summary In Ceron v. Holder, the BIA found petitioner deportable, holding his conviction for assault with a deadly weapon, in violation of California Penal Code 245(a)(1), is a removable offense under 8 U.S.C. 1227(a)(2)(A)(i) because it is (I) a crime involving moral turpitude (II) for which a sentence of one year or longer may be imposed. The Ninth Circuit, however, granted the petition for review, and remanded to the BIA to determine in the first instance whether California Penal Code section 245(a)(1) categorically constitutes a crime involving moral turpitude. Ceron v. Holder, ___ F.3d ___, ___ (9th Cir. Mar. 31, 2014) (en banc). Ten of the eleven justices on the en banc court signed the majority opinion, and Judge Bea alone dissented. This en banc court retained jurisdiction over any future petitions for review in this case. The court also found that California felony-misdemeanor convictions, also called wobblers, that can be either felonies (with a three-year state prison maximum) or misdemeanors (with a one-year maximum) constituted convictions for crime[s] for which a sentence of one year or longer may be imposed under 8 U.S.C. 1227(a)(2)(A)(i) since even if they were misdemeanors, the maximum penalty was incarceration for one year. Analysis Petitioner was convicted in California state court of having violated California Penal Code 245(a)(1), which proscribes an assault upon the person of another with a deadly weapon or instrument other than a firearm. The DHS issued Petitioner a notice to appear, alleging that he was removable pursuant to 8 U.S.C. 1227(a)(2)(A)(i) because he had been convicted of a crime involving moral turpitude for which a sentence of one year or longer could have been imposed. The immigration judge sustained the charge of removability and ordered Petitioner removed. The BIA issued its own decision and dismissed Petitioners appeal. The BIA held that a conviction for an assault with a deadly weapon under California Penal Code 245(a)(1) categorically constitutes a crime involving moral turpitude. The court established the proper analysis: The determination whether a conviction under a criminal statute is categorically a crime of moral turpitude involves two steps . . . . Castrijon-Garcia v. Holder, 704 F.3d 1205, 1208 (9th Cir. 2013) (internal quotation marks and brackets omitted). The first step is to identify the elements of the statute of conviction. Id. Because the BIA lacks expertise in identifying the elements of state statutes, we review the first step de novo. Id. The second step is to compare the elements of the statute of conviction to the generic definition of a crime of moral turpitude and decide whether the conviction meets that definition. Id. Because the BIA has expertise in that task, we defer to its conclusion if warranted, following the Chevron framework if the decision is published or directly controlled by a published decision, and otherwise following the Skidmore framework. Id. (Id. at __.) The court then turned to California law to determine, de novo, the essential elements of the offense of assault with a deadly weapon under Penal Code 245(a)(1): California Penal Code section 245(a)(1) prohibits an assault upon the person of another with a deadly weapon or instrument other than a firearm. A deadly weapon or instrument is one that is used in such a manner as to be capable of producing death or great bodily injury. People v. Aguilar, 945 P.2d 1204, 1210 (Cal. 1997) (emphasis omitted). The weapon must be an object extrinsic to the human body. Bare hands or feet, therefore, cannot be deadly weapons . . . . Id. An assault does not require actual harm or even physical contact. See id. at 1207 (One may commit an assault without making actual physical contact with the person of the victim; . . . whether the victim in fact suffers any harm is immaterial.). Assault is a general intent crime. People v. Williams, 29 P.3d 197, 203 (Cal. 2001). An assault requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another. Id. at 204. [A] defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur. Id. at 203. For example, a defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery. Id. at 203 n.3. An assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Id. at 204. (Id. at ___.) Relying on two decisions from the 1950s, the BIA held that this conviction was categorically a crime involving moral turpitude. See Gonzales v. Barber, 207 F.2d 398, 400 (9th Cir. 1953), affd on other grounds, 347 U.S. 637 (1954); Matter of GR-, 2 I & N Dec. 733 (BIA 1946, A.G. 1947). The Ninth Circuit, however, pointed out that: [T]he Supreme Court announced in 1990"decades after Barber and In re G-R- were decided"the now-commonplace categorical approach to determining whether a conviction meets a federal definition. Taylor v. United States, 495 U.S. 575 (1990); see also Nunez v. Holder, 594 F.3d 1124, 1129 (9th Cir. 2010) (To determine if a crime involves moral turpitude, we first apply the categorical approach.). Relevant here, we do not look to the facts of the underlying conviction, but rather to the state statute defining the conviction. United States v. Laurico-Yeno, 590 F.3d 818, 821 (9th Cir. 2010). In order for a violation of the state statute to qualify [under the federal definition], the full range of conduct covered by the state statute must fall within the scope of the federal statutory provision. Id. (internal quotation marks and brackets omitted). (Id. at ___.) The Ninth Circuit concluded: The reasoning in In re G-R- and Barber runs counter to todays categorical analysis. (Id. at ___.) This was because In re G- R- examined the facts of the case concluded those facts involved moral turpitude, contrary to the current Taylor categorical analysis which ignores the facts of the case, and examines whether the full range of conduct prohibited by the statute involves moral turpitude. The earlier Ninth Circuit decision in Barber based its conclusion totally on the basis that four states other than California had concluded that their ADW offenses were crimes involving moral turpitude, but current categorical analysis ignores decisions concerning different statutes in other states. As the Ninth Circuit stated in Ceron: the fact that other state statutes with the same title qualify under the relevant federal definition does not resolve whether the state statute at hand qualifies under the federal definition, see, e.g., United States v. Kelly, 422 F.3d 889, 894"95 (9th Cir. 2005) (holding that, even though eluding statutes in three other states categorically met the federal definition of a crime of violence, the Washington statute did not categorically meet the federal definition). (Id. at ___.) The court continued: State law developments, too, have undermined the reasoning of In re G-R- and Barber. As discussed above, the California courts only recently defined with precision the requisite mental state for assault. Indeed, when In re G-R and Barber were decided, the California cases were unclear, if not contradictory, about that element of the crime. We find it implausible, at best, that the BIA in In re G-R- or we in Barber discerned the nuanced definition of the requisite mental state that the California Supreme Court announced decades later in Williams. (Id. at ___.) In addition, the Ninth Circuit overruled Carr v. INS, 86 F.3d 949 (9th Cir. 1996), which had improperly held, without following the binding Barber decision, that a violation of Penal Code 245(a) could be a crime of moral turpitude, and the later Ninth Circuit decisions following Carr. (Id. at ___ and n.2.) The Ninth Circuit found no other Ninth Circuit or BIA authority on point on this statute. Examining other BIA decisions more generally on other assault with a deadly weapon statutes, the court stated: we find guidance that points in both directions, leaving us uncertain whether a conviction under California Penal Code section 245(a)(1) categorically involves moral turpitude. (Id. at ___.) The BIA had considered a number of factors in deciding those cases, including: (1) The use of a deadly weapon argues in favor of a finding of moral turpitude. (2) The fact that the statute requires no injury at all nor even physical contact argues against a finding of moral turpitude. The BIA has held that the presence of an aggravating factor is not always dispositive. See, e.g., In re Sejas, 24 I. & N. Dec. 236, 238 (BIA 2007) (although the assault statute at issue contained an aggravating factor"assault against a member of ones family or household"the statute nevertheless was not categorically a crime involving moral turpitude because it does not require the actual infliction of physical injury and may include any touching, however slight.). On the question of the mental element required for conviction under this statute " a critical factor in any moral turpitude decision, the court stated: Perhaps most importantly, the need for, and the nature of, any aggravating factor is affected by the mental state required for the conviction. In re Solon, 24 I. & N. Dec. at 245. California Penal Code section 245(a)(1) is a general intent crime and does not require a specific intent to injure. Williams, 29 P.3d at 203. Nor does the statute require that the offender actually perceive the risk created by his or her actions. Id. The offender must commit an intentional act and must have knowledge of the circumstances that would lead a reasonable person to perceive the risk, but the offenders subjective appreciation of the risk is not required. Id. On this point, the BIAs decision in In re Medina, 15 I. & N. Dec. 611 (BIA 1976), which involved an Illinois statute criminalizing assault with a deadly weapon, is instructive. The BIA concluded that, even though the statute permitted a conviction with only a recklessness mental state, the statute nevertheless involved moral turpitude. Id. at 613"14. Crucial to the BIAs analysis, however, was that the person acting recklessly must consciously disregard a substantial and unjustifiable risk. Id. (emphasis added); see also id. at 614 (This definition of recklessness requires an actual awareness of the risk created by the criminal violators action. . . . [T]he violator must show a willingness to commit the act in disregard of the perceived risk. (emphases added)). Neither In re Medina nor any other BIA decision instructs us definitively on how the BIA would assess a statute"like California Penal Code section 245(a)(1)"that requires knowledge of the relevant facts but does not require subjective appreciation of the ordinary consequences of those facts. (Id. at ___.) The Ninth Circuit therefore held: Given the circumstances, the prudent course of action is to remand this case to the BIA to consider the issue in the first instance. (Id. at ___.) The court urged the BIA to decide the question promptly: We note, however, that a prompt decision from the BIA could help to limit the number of individuals who decide to plead guilty without proper guidance as to the immigration consequences of that decision. (Id. at ___.) In dissent, Judge Bea disagreed that the Taylor categorical analysis is applicable to crimes of moral turpitude, and instead would decide " as the BIA did here " under the weight of authority.