Safe Havens

(B)  Crimes of Moral Turpitude.[123]

Where burglary is defined as entry with intent to commit theft or any felony, the statute is considered divisible.[124]  Where the entry is made with the intent to commit theft, the burglary conviction would be a CMT.  Where the entry is committed for the purpose of committing a non-theft offense that involves CMT, the burglary conviction would be CMT.  Where, however, the burglary is committed for the purpose of committing a non-CMT offense, the burglary conviction is not considered a CMT.  Finally, where the record of conviction does not establish whether the offense intended to be committed upon entry was a CMT offense or not, then the burglary conviction would not be considered a CMT for deportation purposes, since the DHS bears the burden of proving that the conviction falls within the ground of deportation.

Unlawfully entering a building under circumstances or in a manner not amounting to burglary, with intent to commit a felony, a larceny, or any malicious mischief has been held to be a crime of moral turpitude.[125]  Breaking and entering or unlawful entry do not involve moral turpitude, however, where the intent to commit a crime involving moral turpitude (e.g., murder, burglary, rape) is not an essential element of the offense.  Where the record of conviction did not establish the identity of the specific crime the defendant intended to commit by breaking and entering, the conviction will not involve moral turpitude.

(1)    Board of Immigration Appeals:

Matter of M, 9 I. & N. Dec. 132 (BIA 1960) (Italian conviction of “violation of domicile” did not involve moral turpitude, where it was defined as including anyone who “arbitrarily introduces himself into, or remains in, another person’s dwelling, or the appurtenances of the same, against the express wish of the individual who has the right to exclude him, or introduces himself therein or remains there secretly or by fraud,” since mens rea and criminal intent were not essential elements required for conviction).

Matter of S, 6 I. & N. Dec. 769 (BIA 1955) (conviction of possession of burglary tools (with intent to commit any indictable offense) in violation of Canada Criminal Code § 464(b) is not a crime involving moral turpitude unless accompanied by an intent to use the tools to commit a specific crime which is itself a crime involving moral turpitude, since here, the record of conviction omits any reference to the offense intended, the conviction could not be held to involve moral turpitude).

Matter of P, 2 I. & N. Dec. 887 (BIA 1947) (conviction of breaking and entering and theft, committed as a single offense in violation of Canada Criminal Code § 458(a), will not be deemed to involve moral turpitude, when there is affirmative evidence showing that the “theft” did not involve a permanent taking).

Matter of M, 2 I. & N. Dec. 721 (BIA 1946) (conviction of third-degree burglary, in violation of New York Penal Law § 404, is not deemed to be an offense involving moral turpitude, where the conviction record does not indicate the particular crime that accompanied the breaking and entering, since the determinative factor is whether the crime intended to be committed at the time of entry or prior to breaking out involves moral turpitude).

Matter of M, 2 I. & N. Dec. 686 (BIA 1946) (conviction of breaking and entering with intent to commit an indictable offense in violation of Canada Criminal Code § 461 is not shown to involve moral turpitude where the offense intended is not shown to involve moral turpitude).

Matter of G, 1 I. & N. Dec. 403 (BIA 1943) (entering a building in violation of New York Penal Law § 405, as amended September 1, 1935, does not involve moral turpitude unless the record of conviction shows that the entry was made with intention to commit a crime involving moral turpitude).

District Courts:

Petition of Knight, 122 F.Supp. 322 (D.N.Y. 1954) (New York misdemeanor conviction of unlawful entry held not to be a crime involving moral turpitude).

Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939) (conviction of possession of burglary tools with intent to commit a crime, in violation of New York Penal Law § 408, does not involve moral turpitude unless the record of conviction affirmatively shows that the particular crime the noncitizen intended to commit with the burglary tools found in his possession involves moral turpitude).

[123] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 9.51 (2005).

[124] Without analysis, the State Department has stated that “burglary” involves moral turpitude. 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-1(b)(3).  This cannot, however, be taken as contradicting the more detailed analysis the courts have undertaken to determine whether some convictions under a divisible statute involve moral turpitude, while others do not.  See § 7.1, supra.

[125] Annot., What Constitutes “Crime Involving Moral Turpitude” Within Meaning of § § 212(a)(9) and 241(a)(5) 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, § 3, n.11 (1975).