(B)  Crimes of Moral Turpitude.[61]

 

            Escape has traditionally not been considered a crime of moral turpitude.

Board of Immigration Appeals:

 

Matter of B, 5 I. & N. Dec. 538 (BIA 1953) (conviction of violating § 15-16 of Chapter 268 of the Annotated Laws of Massachusetts (vol. 9) embraces several different types of misconduct, some of which might involve moral turpitude; a conviction of unlawfully aiding one to escape from jail is not a crime involving moral turpitude when there is nothing in the record of conviction which brings the offense within any of the classes of cases which might involve moral turpitude under the statute).

 

Matter of J, 4 I. & N. Dec. 512 (BIA 1951) (conviction of attempt to escape from reformatory in violation of Chapter 268, § 16 of the Annotated Laws of Massachusetts is “malum prohibitum” and does not involve moral turpitude, since “escape” is not defined by statute and the wording of the statute does not require a specific criminal intent).

 

Matter of M, 2 I. & N. Dec. 871 (BIA 1947) (conviction of breaking prison, in violation of § 12, Chapter 94, Laws of New Jersey (1931), does not involve moral turpitude since it does not require the element of force or fraud).

 

Matter of Z, 1 I. & N. Dec. 235 (BIA 1942) (prison breach in violation of § 52-12, New Jersey Compiled Statutes of 1924, does not involve moral turpitude since the offense did not require force or fraud as an essential element).

District Courts:

 

United States ex rel. Manzella v. Zimmerman, 71 F.Supp. 534 (D.Pa. 1947) (in determining whether offense of breaking prison and escaping involved moral turpitude, the fact that such crime was accomplished without force by merely walking through an open door is immaterial).

[61] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 9.35 (2005).

Fourth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESISTING ARREST
United States v. Aparicio-Soria, 740 F.3d 152 (4th Cir. Jan. 14, 2014) (en banc) (Maryland conviction of resisting arrest, in violation of Md. Code, Crim. Law 9"408(b)(1) [[a] person may not intentionally ... resist a lawful arrest.], does not qualify categorically as a "crime of violence" within the meaning of the residual force clause of U.S.S.G. 2L1.2(b)(1)(A), because it does not have as an element the use, attempted use, or threatened use of physical force against the person of another).

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESISTING ARREST
United States v. Aparicio-Soria, 740 F.3d 152 (4th Cir. Jan. 14, 2014) (en banc) (Maryland conviction of resisting arrest, in violation of Md. Code, Crim. Law 9"408(b)(1) [[a] person may not intentionally ... resist a lawful arrest.], does not qualify categorically as a "crime of violence" within the meaning of the residual force clause of U.S.S.G. 2L1.2(b)(1)(A), because it does not have as an element the use, attempted use, or threatened use of physical force against the person of another).

Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT ON OFFICER
United States v. Dominguez-Maroyoqui, 748 F.3d 918 (9th Cir. Apr. 7, 2014) (federal conviction for assaulting a federal officer, in violation of 18 U.S.C. 111(a), is not categorically a crime of violence for illegal re-entry sentencing purposes, since the offense does not require, as an element, proof that defendant used, attempted to use, or threatened to use physical force).

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESISTING OFFICER
Flores-Lopez v. Holder, 685 F.3d 857 (9th Cir. Jul. 9, 2012) (California conviction of resisting an executive officer in violation of Penal Code 69 is not a categorical crime of violence aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because it requires only use of de minimis force; the idea that resisting executive officer would inevitably lead to use of violent, physical force was speculative).

AGGRAVATED FELONY - FAILURE TO APPEAR
Renteria-Morales v. Mukasey, 532 F.3d 949 (9th Cir. Jul. 10, 2008) (federal conviction for failure to appear in court, in violation of 18 U.S.C. 3146 is not categorically an aggravated felony as defined by INA 101(a)(43)(Q) or (T); under the modified categorical approach, court was allowed to look to the record of conviction to determine the maximum punishment allowed for the underlying convictions and to determine whether the failure to appear was pursuant to "service of a sentence" or to "answer to or dispose of a charge of a felony.").

AGGRAVATED FELONY - CRIME OF VIOLENCE - ESCAPE
Penuliar v. Ashcroft, 528 F.3d 603 (9th Cir. Jun. 10, 2008) (California conviction for evading an officer, in violation of California Vehicle Code 2800.2(a) is not categorically an aggravated felony crime of violence for immigration purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ESCAPE
United States v. Savage, 488 F.3d 1232, (9th Cir. Jun. 12, 2007) (Montana conviction of escape, in violation of Montana Code Annotated 45-7-306(2) (escape includes purposeful "fail[ure] to return to official detention following temporary leave granted for a specific purpose or limited time" as well as "knowingly or purposely elud[ing] official detention."), does not categorically constitute a crime of violence because it does "not differentiate between violent and non-violent escapes" and includes escapes from facilities that "run [ ] the gamut from maximum-security facilities to non-secure halfway houses."), quoting United States v. Piccolo, 441 F.3d 1084, 1088 (9th Cir. 2006).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ESCAPE FROM HALFWAY HOUSE NOT CRIME OF VIOLENCE FOR FEDERAL ARMED CAREER OFFENDER ENHANCEMENT PURPOSES
United States v. Piccolo, 441 F.3d 1084 (9th Cir. Apr. 3, 2006) (Escape conviction under 18 U.S.C. 751(a), which includes failure to return to a non-secured halfway house, is not necessarily a crime of violence for federal armed career offender sentencing purposes). http://caselaw.lp.findlaw.com/data2/circs/9th/0410577p.pdf

Lower Courts of Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ESCAPE FROM CUSTODY
United States v. Simmons, 782 F.3d 510 (9th Cir. Apr. 3, 2015) (Hawaii conviction of second-degree escape from custody, in violation of Hawaii Revised Statutes 710"1021, did not categorically constitute a crime of violence, under U.S. Sentencing Guidelines (Sentencing Guidelines or U.S.S.G.) 4B1.1(a), because it includes both active and passive forms of escape); see Chambers v. United States, 555 U.S. 122, 126"27, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009).