Safe Havens

(B)  Crimes of Moral Turpitude.[85]

            Adjudications by court-martial and related military tribunals may not constitute “convictions,” within the meaning of the deportation and inadmissibility statutes.  See § 4.11, supra.  This section therefore concentrates on criminal offenses related to the selective service and the military which are prosecuted in civilian criminal courts, which would result in convictions just as in any other case.

(1)  Absence from military without leave.

United States v. Frazier, 418 F.2d 854 (4th Cir. 1969) (military offense of being absent without leave is not a crime of moral turpitude for purposes of allowing cross-examination of witness about conviction on issue of credibility).

(2)  Joining army of foreign state.

Schware v. Board of Bar Examiners of State of New Mexico, 353 U.S. 232, 242-243, 77 S.Ct. 752 (1957) (violation of Neutrality Act of 1917, 40 Stat. 39, now 18 U.S.C. § 959(a), making it unlawful to join the army of a foreign state, did not constitute a crime involving moral turpitude for state bar purposes).

(3)  Selective Service Offenses. 

Draft evasion and desertion may or may not constitute a CMT, depending on whether fraud is an essential element of the particular offense.[86]

Matter of S, 5 I. & N. Dec. 425 (BIA 1953) (conviction of failure and refusal to report for induction in violation of 50 U.S.C. Appendix § 462, was not an offense involving moral turpitude, since no criminal intent or bad purpose need be shown as an element of the offense).

Matter of SB, 4 I. & N. Dec. 682 (BIA 1952) (conviction of desertion from the armed forces of the United States in time of war is not an offense involving moral turpitude, since it involves no element of fraud).  

[85] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 9.42 (2005).

[86] However, refusing to serve in the military during time of war constitutes an independent basis of excludability.  INA § 212(a)(22), 8 U.S.C. § 1182(a)(22).