Safe Havens

 

(B)  Crimes of Moral Turpitude.[164]

 

Theft has traditionally been found to involve moral turpitude.[165]  This includes theft by deception or false pretenses.

(1)  Minor Offenses.

It has sometimes been suggested that an extremely minor theft, or a theft committed under extenuating circumstances might not involve moral turpitude.[166]  As a general matter, however, petty theft has been found to be CMT, irrespective of the lack of gravity of the offense.[167]

 

District Courts:

 

Diaz v. Haig, 594 F.Supp. 1 (D.Wyo. 1981) (theft of food by hungry child or theft of garments by ill-clothed child does not constitute crime of “moral turpitude”).

 

Quilodran-Brau v. Holland, 232 F.2d 183 (3d Cir. 1956) (court expressly did not decide whether there might be exception in extreme case).

 

(1)     (2) Temporary Taking.

 

Offenses that do not require, as an essential element, an intent to permanently deprive the owner of the property are not classified as theft crimes involving moral turpitude.[168]  Where a theft statute prohibits both temporary and permanent taking, the statute is considered divisible, allowing the conviction record to be examined in order to determine whether the conviction was under the portion of the statute relating to permanent taking, and therefore involved moral turpitude, or under the portion of the statute prohibiting temporary taking, in which case it did not.[169]

 

Board of Immigration Appeals:

 

Matter of N, 3 I. & N. Dec. 723 (BIA 1949) (court examined record of conviction for Canadian conviction where intent to deprive the owner permanently of the property was not clear).

 

Matter of P, 2 I. & N. Dec. 887 (BIA 1947) (conviction of “joy-riding” in violation of Canada Criminal Code § 285(3) does not involve moral turpitude).

Matter of H, 2 I. & N. Dec. 864 (BIA 1947) (joyriding not a CMT).

 

Matter of M, 2 I. & N. Dec. 686 (BIA 1946) (conviction of  “joy-riding” in violation of Canada Criminal Code § 285(3) does not involve moral turpitude because defendant did not intend to effect a permanent taking).

 

Matter of T, 2 I. & N. Dec. 22 (BIA, AG 1944) (court examined record of conviction for Canadian conviction where intent to deprive the owner permanently of the property was not clear).

 

Matter of D, 1 I. & N. Dec. 143 (BIA 1941) (driving an automobile without the consent of the owner in violation of former California Vehicle Code § 503 is not a crime involving moral turpitude).

 

(3) Other theft offenses

 

Board of Immigration Appeals:

 

Matter of Kinney, 10 I. & N. Dec. 548 (BIA 1964) (conviction of obtaining goods under false pretenses in violation of § 8698, General Statutes of Connecticut, 1949 Revision (C.G.S.A. § 53-362), is not a conviction of a crime involving moral turpitude, because intent to defraud was not an element).

 

Matter of MB, 3 I. & N. Dec. 66 (BIA 1947) (where a conviction for taking mail from an authorized depository for mail matter, in violation of 18 U.S.C. § 317, is predicated upon an information which does not shed any light on the circumstances under or the purpose for which the mail was taken, it cannot be found that the crime is one which necessarily involves moral turpitude).

[164] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 9.62 (2005).

[165] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-1(b)(9) (“Larceny (grand or petty)”).

[166] But see, e.g., Matter of Garcia, 11 I. & N. Dec. 521 (BIA 1966) (BIA precluded from going beyond record of conviction to consider mitigating circumstances). 

[167] See, e.g. Pino v. Landon, 349 U.S. 901 (1955) (petty theft of a dozen golf balls held CMT on principle).

[168] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-1(b)(13) (theft is a CMT only “when it involves the intention of permanent taking”).

[169] Matter of Grazley, 14 I. & N. Dec. 330 (BIA 1973).