Safe Havens

(A)  Reasoning from One Decision to Another.  We have followed the lead of Dan Kesselbrenner and Lory Rosenberg, in Immigration Law and Crimes, by including in the case summary the specific statute under which the conviction is rendered, wherever that information was given in the text of the decision.[2]  It is important to realize that each decision stating that a given crime is or is not a crime of moral turpitude or aggravated felony is specific to the statute defining the offense under consideration.

            Counsel should resist the urge to generalize from one decision regarding a conviction under one statute to form a conclusion about a conviction rendered under a different statute, or even the same statute at a different time.  If the specific statute has been amended, or if a sister state’s statute is different from the statute defining the crime under consideration, or if a judicial decision has come down since the immigration decision determining whether the conviction falls within the immigration category of offense, the conclusion concerning the instant case may be altered.  Moreover, in many cases, the record of conviction in the specific case under consideration will determine whether a conviction is or is not held to fall within a ground of deportation.  It will thus be necessary to compare the record of conviction in the case under consideration with the record of conviction in the reported decision in order to determine the outcome of the analysis.

It is necessary to compare the elements of the statute in your case to the elements of the statute in a case holding that a certain offense does not fall under a given ground of deportation, to verify that a conviction under your statute does not fall under the ground of deportation.

There is a rich literature concerning which offenses are, and are not, considered to be crimes of moral turpitude, aggravated felonies, or fall within other grounds of deportation.[3]

[2] Sample Determinations on the Issue of Moral Turpitude, Appendix E, in D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes (2004).

[3] A comprehensive list of cases defining crimes involving moral turpitude may be found at Appendix A of N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude (2005).  For other discussions of the application of these principles to specific crimes, see C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 71.05[1][d][3][A] (2004); Manuel D. Vargas, Representing Noncitizen Criminal Defendants in New York State, Appendix D (2d Ed. 2000); Barbara Hines, Selected Issues Relating to Crimes of Moral Turpitude, in 2 American Immigration Lawyers Association, 2000-01 Immigration and Nationality Law Handbook 277, 280 (Randy P. Auerbach, et al., Eds., 2000); K. Brady, California Criminal Law and Immigration (2004); D. Kesselbrenner & L. Rosenberg, Immigration Law & Crimes, Appendix E (2004); Annot., What Constitutes “Crime Involving Moral Turpitude” Within Meaning of § § 212(a)(9) and 241(a)(4) of Immigration and Nationality Act (8 U.S.C. § § 1182(a)(9), 1251(a)(4)), and Similar Predecessor Statutes Providing for Exclusion or Deportation of Aliens Convicted of Such Crime, 23 A.L.R. Fed. 480 (2001).