Safe Havens

(B)  Crimes of Moral Turpitude.

Conspiracy to commit an offense constitutes a crime involving moral turpitude if the substantive offense constitutes a CMT.[217]  It is not a CMT if the substantive offense does not constitute a CMT. [218]

Board of Immigration Appeals:

Matter of Gaglioti, 10 I. & N. Dec. 719 (BIA 1964) (conspiracy to establish gambling games in violation of 18 Penn. Statutes 4302 is not a CMT since gambling violations ordinarily are not CMT and the gambling conspiracy statute does not require evil or fraudulent intent).

Matter of O, 8 I. & N. Dec. 291 (BIA 1960) (conspiracy to violate the Foreign Agents Registration Act does not involve moral turpitude, since the substantive offense does not involve moral turpitude).

 Matter of G, 7 I. & N. Dec. 114 (BIA 1956) (conviction for violation of 18 U.S.C. § 88 creates two crimes: (1) conspiracy to commit an offense against the United States, and (2) conspiracy to defraud the United States in any manner or for any purpose; violation of the former does not involve moral turpitude while violation of the latter does involve moral turpitude).

Matter of A, 6 I. & N. Dec. 685 (BIA 1955) (conspiracy to operate a still, in violation of 18 U.S.C. § 88, does not involve moral turpitude, since fraud was not charged as an element of the conspiracy and since the substantive offenses are regulatory offenses which do not involve moral turpitude).

Matter of B, 6 I. & N. Dec. 98 (BIA 1954) (conspiracy to violate New York Banking Law § § 340, 357 is not a CMT, since those sections are merely regulatory enactment; statement in the conspiracy count relating to intimidation and threats was immaterial since it was surplusage and not necessary for conspiracy conviction).

Matter of P, 5 I. & N. Dec. 582 (BIA 1953) (conspiracy to illegally transfer and use gasoline ration stamps in violation of ration order No. 5C issued under the Second World War Powers Act of 1942 is not a crime involving moral turpitude, since no fraud required to commit offense).

Matter of B, 5 I. & N. Dec. 255 (BIA 1953) (conspiracy to violate 18 U.S.C. § 80 (now 18 U.S.C. § 1001) includes several crimes, and it is possible that some do not involve moral turpitude, but without the record of conviction and without information as to the precise clause of 18 U.S.C. § 80 the respondent was convicted of violating, the court cannot determine definitely whether the crime, of which he was convicted, involved moral turpitude).

Ninth Circuit:

Hirsch v. INS, 308 F.2d 562 (9th Cir. 1962) (conspiracy to violate 18 U.S.C. §   1001 includes several crimes, and it is possible that some do not involve moral turpitude, but without the record of conviction and without information as to the precise clause of 18 U.S.C. § 80 the respondent was convicted of violating, the court cannot determine definitely whether the crime, of which he was convicted, involved moral turpitude).

[217] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a), N. 2.4(a)(4) Matter of Flores, 17 I. & N. Dec. 225 (BIA 1980) (“in order for a conspiracy offense to be a crime involving moral turpitude, it either must contain the element of fraud, or the underlying substantive offense must involve moral turpitude”).  See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 9.82 (2005).

[218] 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.  See ibid., N. 2.4(b).