Safe Havens

 

(B)  Crimes of Moral Turpitude.[262]

 

Homosexual conduct or lewd acts have frequently been held to involve moral turpitude.[263]  However, some such convictions may be subject to challenge on constitutional grounds.[264]  Sodomy, usually referring to homosexual sexual relations, is commonly held to be CMT.[265]  Convictions, however, under divisible statutes prohibiting “lewdness” or “indecency,” where the charge does not specify the conduct leading to the charges, have frequently been held NOT to involve moral turpitude.

 

Board of Immigration Appeals:

 

Matter of Mueller, 11 I. & N. Dec. 268 (BIA 1965) (the offense of “lewd and lascivious conduct” by “publicly and indecently exposing a sex organ” did not involve moral turpitude because the statute in question did not require “a specific intent, a criminal intent, or any intent whatsoever,” and because there was nothing in the charge indicating the circumstances under which the indecent exposure was made and thus the conviction might result from doing the forbidden act through physical necessity, even in the presence of “natural physical forces” which caused the actor reasonably to believe his act was “the only means of preventing imminent public disaster or imminent death or great bodily harm to himself or another”).

Matter of Mueller, 11 I. & N. Dec. 268, 269 (BIA 1965) (Wisconsin conviction of lewd and lascivious conduct by unlawfully, publicly and indecently exposing sex organ held not a crime of moral turpitude: “Moral turpitude is dependent upon the depraved or vicious motive of the alien. It is in the intent that moral turpitude inheres . . . . The crime under consideration . . . does not require a specific intent and it does not appear that it is essential that the defendant have a vicious motive or a corrupt mind. All that appears to be necessary for conviction . . . is that the act be done consciously”).

 

Matter of H, 7 I. & N. Dec. 616 (BIA 1957) (Connecticut crime of “lascivious carriage,” under § 8553 of the General Statutes of Connecticut (Revision of 1949), did not involve moral turpitude, where the crime, not defined in the statutes but coupled with the offense of fornication, had been held not to be an “infamous crime” by the state courts and the court decisions were not so clear or unambiguous as to enable a finding free from doubt that it involved moral turpitude, and upon the record before it, the offense of which the noncitizen was convicted might in some instances embrace conduct which did involve moral turpitude, but that lesser acts might also come within its scope).

 

Matter of H, 7 I. & N. Dec. 301 (BIA 1956) (Michigan conviction for violation of statute penalizing “any person who shall knowingly make any open or indecent exposure of his or her person” was not an act of “baseness, vileness or depravity,” and thus did not involve moral turpitude, overruling Matter of R, 2 I. & N. Dec. 633 (BIA 1946)).

 

Matter of FR, 6 I. & N. Dec. 813 (BIA 1955) (conviction of a violation of New York Penal Law § 722(8), disorderly conduct by frequenting or loitering about any public place soliciting men for the purpose of committing a crime against nature or other lewdness, not considered crime of moral turpitude).

 

Matter of S, 5 I. & N. Dec. 576 (BIA 1953) (Michigan conviction under divisible statute which punished “any male person who, in public or private, commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person” did not involve moral turpitude, where the information charged the general language of the statute and did not specify the acts allegedly committed and where the record added nothing in this respect).

Matter of Z, 2 I. & N. Dec. 316 (BIA 1945) (Canadian conviction of “gross indecency” under a statute providing for punishment of “every male person” who, in public or private, committed, was a party to the commission of, or procured or attempted to procure the commission by any male person of “any acts of gross indecency with another male person,” held not CMT, since the statute did not indicate the type of conduct which it proscribed, and it was impossible to conclude that every offense under the statute involved moral turpitude; since the record of conviction also failed to disclose the exact act of gross indecency attempted to be committed, the offense of which the noncitizen was convicted was held not to involve moral turpitude).

 

Second Circuit:

 

Hudson v. Esperdy, 290 F.2d 879 (2d Cir. 1961), cert. den., 368 U.S. 918, 82 S.Ct. 240 (1961) (disorderly conduct in violation of former New York Penal Law § 722(8), penalizing anyone who “frequents or loiters about any public place soliciting men for the purpose of committing a crime against nature or other lewdness,” was held to be a crime involving moral turpitude, but conviction of other offenses under this very broad “disorderly conduct” statute, such as simple assault, would not necessarily be a ground for deportation under federal law).

 

Third Circuit:

 

Holzapfel v. Wyrsch, 259 F.2d 890 (3d Cir. 1958) (New Jersey conviction of “open lewdness” held not CMT, since statute in question was rehabilitative in purpose, and since the sentence was imposed but suspended in order to assure participation in psychiatric treatment).

 

[262] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 9.100 (2005).

[263] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a).

[264] Lawrence v. Texas, 123 S.Ct. 2472 (June 26, 2003) (Texas conviction of “deviate sexual conduct” (oral or anal sex or penetration with an object) between members of the same sex, in violation of Texas Code Ann. § 21.06(a), held in violation of the Due Process Clause of the Fourteenth Amendment, where both partners were adults at the time of the offense which was consensual and occurred in private).

[265] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a)(16).