Safe Havens

(B)  Crimes of Moral Turpitude.[212]

            Attempt to commit an offense constitutes a crime involving moral turpitude if the substantive offense constitutes a CMT.[213]  It is not a CMT if the substantive offense does not constitute a CMT.[214]   If a substantive offense requires an intent less than general criminal intent, i.e., negligence, recklessness, or strict liability, then an attempt to commit that offense cannot constitute a crime, and a conviction will not constitute a CMT.

Third Circuit:

Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. Sept. 17, 2004) (New York conviction of attempted reckless endangerment in the first degree, in violation of New York Penal Law § 120.25, does not constitute a crime of moral turpitude for deportation purposes, since a person cannot intend to commit a criminally reckless act, and the “crime of attempted reckless endangerment is nonexistent since it is a non-intent offense.”), citing People v. Trepanier, 84 A.D.2d 374, 380, 446 N.Y.S.2d 829 (N.Y.App.Div.1982) (affirming the lower court’s decision to dismiss the indictment as to this charge).

[212] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 9.81 (2005).

[213] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a), N. 2.4(a)(1).

[214] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a), N. 2.4(a)(2).  The Manual also says that being an accessory before the fact constitutes a CMT, without limiting this statement to substantive offenses that are CMTs.  Since accessory before the fact and aiding and abetting are equivalent, this was doubtless an error in the Manual.