Safe Havens

 

(B)  Crimes of Moral Turpitude.[239]

 

Adultery was formerly held to bar a showing of good moral character, but that provision was repealed.[240]  The court cases to decide the issue have been split on whether adultery constitutes a crime of moral turpitude.  Bastardy is held not to be a crime involving moral turpitude.[241]  Bigamy has been held to involve moral turpitude, except where no knowledge is required to commit the offense.[242]  Incest involves moral turpitude only if it results from an improper sexual relationship.[243]  Where it is a result of a marital status prohibited by law, incest is not considered a crime of moral turpitude.[244]

Abandonment of a minor child involves moral turpitude, but only if the offense requires as essential elements willfulness of the parent and destitution of the child.[245]  Moral turpitude is not involved if these elements are absent.

 

Board of Immigration Appeals:

 

Matter of O, 2 I. & N. Dec. 840 (BIA 1947) (adultery need not constitute a crime of moral turpitude, since a terminated “adulterous” relationship, carried on during the five-year period the noncitizen is required to show good moral character under the provisions of § 199(c) of the Immigration Act of 1917, as amended, need not bar him from making such a showing as to moral character, where such relationship injured no one, no family was broken up, the public was not offended, and the noncitizen had no other blemish on his record).

 

Matter of B, 2 I. & N. Dec. 617 (BIA 1946) (where a noncitizen marries his sister’s daughter in a State which prohibits marriage between uncle and niece of the whole blood (§ 8438, vol. 9, Remington’s Revised Statutes of Washington) and is convicted of incest because of sexual intercourse with her (§ 2455, vol. 4, Remington’s Revised Statutes of Washington), “incest” does not involve moral turpitude).

 

Matter of Y, 1 I. & N. Dec. 137 (BIA 1941) (failure to provide for a minor child in violation of California Penal Code § 270 does not involve moral turpitude, since liability was not avoided even if another person was supporting the child, and the record of conviction did not clarify the nature of the crime committed).

 

Matter of E, 2 I. & N. Dec. 134 (BIA, AG 1944) (conviction of nonsupport, in violation of § 13008 of the Ohio General Code, is not a crime involving moral turpitude, since the statute is so framed that an individual may be convicted thereunder where he has acted in good faith and with honest motives, where the child is not in destitute circumstances, is not in need of the support of the father, has not become and is not likely to become a public charge, and where the health or the life of the child has not been impaired).

Matter of H, 1 I. & N. Dec. 459 (BIA 1943) (failure of a parent to supply necessaries for his minor children in violation of Canada Criminal Code § 242(3) is not a crime involving moral turpitude).

 

Matter of S, 1 I. & N. Dec. 314 (BIA 1942) (polygamy (bigamy) in violation of § 15, Chapter 272, General Laws of Massachusetts, does not involve moral turpitude, since good faith belief the marriage no longer exists is not a defense).

 

Matter of D, 1 I. & N. Dec. 186 (BIA 1941) (bearing a child out of wedlock, or bastardy, in Massachusetts is not a crime involving moral turpitude, since bastardy is not a crime in the criminal sense, but more akin to a private wrong for which there is redress to the party wronged in the form of maintenance, either to the child or mother or both).

 

Second Circuit:

 

United States v. Francioso, 164 F.2d 163 (2d Cir. 1947) (Connecticut incest committed by marriage to niece in Connecticut in 1925, did not require refusal of petition for naturalization on ground of commission of crime involving “moral turpitude,” where husband and wife had always lived together after their marriage in apparent accord and had four children at time of filing of petition for naturalization and marriage had been solemnized by church of which they were members).

 

Sixth Circuit:

 

Talavera v. Pederson, 334 F.2d 52 (6th Cir. 1964) (disapproved on other grounds, Cheng Fan Kwok v. INS, 392 U.S. 206, 88 S.Ct. 1970 (1968), referring to the “administrative policy of long standing.”).

 

Ninth Circuit:

 

Braun v. INS, 992 F.2d 1016 (9th Cir. 1993) (noncitizen who believes first marriage was invalid at time he married second wife could not be found to have committed bigamy).

District Courts:

 

Forbes v. Brownell, 149 F.Supp. 848 (D.D.C. 1957) (Canadian conviction of bigamy under Canadian Criminal Code § 308, did not involve moral turpitude, since statute does not require mens rea as an essential element of offense).

Dickhoff v. Shaughnessy, 142 F.Supp. 535 (D.N.Y. 1956) (Congress could not have intended to authorize the wholesale deportation of noncitizens who, accidentally, artificially, unknowingly, or unconsciously in appearance only, are found to have technically committed adultery), distinguished by In re N, 233 F.Supp. 50 (D.Va. 1964).

 

Application of Barug, 76 F.Supp. 407 (D.Cal. 1948) (adultery not a crime involving moral turpitude so as to prevent a showing of good moral character).

 

Ex parte Rocha, 30 F.2d 823 (S.D.Tex. 1929) (adultery not a CMT).

[239] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § § 9.89-9.95 (2005).

[240] The State Department indicated adultery involves moral turpitude.  9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a).

[241] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(b)(2) (bastardy is defined as “the offense of begetting a bastard child”).

[242] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a).

[243] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a).

[244] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(b)(5).

[245] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a).