The elements of this ground of deportation are as follows:

 

(a) two convictions

(b) after admission

(c) of a crime

(d) of moral turpitude

(e) not arising as part of a single scheme of criminal misconduct.

 

Conviction of two crimes involving moral turpitude — committed at any time after admission and regardless of sentence — is a basis for deportation unless the offenses arose as part of a “single scheme of criminal misconduct.” [1042]  There is no time requirement, and all CMTs trigger this result, regardless of the potential or imposed sentence.[1043]  This ground of deportation also does not depend on the degree of moral turpitude.[1044]  A 1971 and a 1997 conviction for misdemeanor petty theft, for example, each with a maximum of six months in jail, will combine to make the defendant deportable.

 

The statute is generally held to be retroactive.[1045]  This provision therefore applies to convictions occurring prior to the revisions of the statute in 1952.[1046]  This retroactivity does not violate the ex post facto clause of the Constitution, since immigration proceedings are held to be civil, not criminal, in nature.[1047]

 

[1042] INA § 237(a)(2)(ii), 8 U.S.C. § 1227(a)(2)(ii).

[1043] In 1952, the INA revised the multiple-CMT deportation ground to eliminate the prior requirement that each conviction result in a sentence of one year or more.  S. Rep. No. 82-1137, at 21 (1952); H.R. Rep. No. 82-1365, at 60 (1952), reprinted in 1952 U.S.C.C.A.N. 1653.  The statute now provides that a noncitizen will be deported for two convictions at any time after admission, of crimes involving moral turpitude, regardless what sentence is imposed, and even if the execution or imposition of the sentence was wholly suspended.  Matter of P, 8 I. & N. Dec. 424 (BIA 1959); Matter of O, 7 I. & N. Dec. 539 (BIA 1957). 

[1044] Wyngaard v. Kennedy, 295 F.2d 184 (D.C. Cir. 19); Babouris v. Esperdy, 269 F.2d 621 (2d Cir. 1959).

[1045] See C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § § 71.01[2][a], [b] (2004).

[1046] Khan v. Barber, 253 F.2d 547 (9th Cir. 1958).

[1047] See C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 71.02[3][d] (2004).

CRIMES OF MORAL TURPITUDE - SOLICITATION
Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. Nov. 21, 2007) (Arizona conviction for solicitation to possess at least four pounds of marijuana for sale, in violation of Ariz. Rev. Stat. 13-1002(A) and (B)(2), 13-3405(A)(2) and (B)(6), constitutes a crime involving moral turpitude for the purposes of INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a)(2)(A)(i), since this ground does not specifically list "attempt" and "conspiracy," and thus does not impliedly exclude "solicitation").

Note: The court applied a "target offense" style analysis. Under this analysis, solicitation to commit a non-CMT offense should not be considered a CMT. The case also holds that solicitation offenses are included in INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a)(2)(A)(i), because that section does not mention "attempt and conspiracy" to the exclusion of other non-substantive offenses. This case would not apply to the CMT ground of inadmissibility, since INA 212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i)(I) does include the "attempt or conspiracy" language, and thus impliedly excludes solicitation offenses. The same holds true for any other ground of deportation or inadmissibility that lists attempt and conspiracy, but not solicitation, such as the controlled substances ground of inadmissibility, INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II), and the aggravated felony ground of deportation, INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), inter alia.

Sixth Circuit

CRIMES OF MORAL TURPITUDE - DEPORTATION
Zhang v. Mukasey, 509 F.3d 313 (6th Cir. Nov. 29, 2007) (adjustment of status does not constitute an "admission" for purposes of starting the five-year period within which a CMT must be committed to trigger deportation under INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a) (2)(A)(i)), agreeing with Shivaraman v. Ashcroft, 360 F.3d 1142, 1146 (9th Cir. 2004); Abdelqadar v. Gonzales, 413 F.3d 668, 673 (7th Cir. 2005); Aremu v. Dep't of Homeland Sec., 450 F.3d 578, 581 (4th Cir. 2006), vacating Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005), disagreeing with Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005), vacated by Aremu v. Dept. of Homeland Security, 450 F.3d 578 (4th Cir. 2006).

Ninth Circuit

CRIMES OF MORAL TURPITUDE - MULTIPLE CMT DEPORTATION GROUND
Mendoza v. Holder, 606 F.3d 1137 (9th Cir. Jun. 2, 2010) (no res judicata bar when previously known conviction was paired with a new conviction to trigger removal for multiple crimes of moral turpitude).