Safe Havens

“[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”).