Safe Havens

 

(B)  Crimes of Moral Turpitude.[268]

 

Prostitution has been held to involve moral turpitude.[269] Offenses involving prostitution have generally been held to be crimes involving moral turpitude.  Pandering has been held to involve moral turpitude.[270]

 

There are relatively few cases ruling directly on the moral turpitude of prostitution for purposes of the statutes under consideration, probably due to the fact that prostitution and related activities are an independent ground for the exclusion or deportation of aliens. 8 U.S.C. § 1182(a)(12) provides for the exclusion of “[a]liens who are prostitutes or who have engaged in prostitution, or aliens coming to the United States solely, principally, or incidentally to engage in prostitution; aliens who directly or indirectly procure or attempt to procure, or who have procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution or for any other immoral purpose; and aliens who are or have been supported by, or receive or have received, in whole or in part, the proceeds of prostitution or aliens coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution”; and 8 U.S.C. § 1251(a)(12) provides for the deportation of any alien who has become a member of any of the above specified classes at any time after entry, as well as any alien who “is or at any time after entry has been the manager, or is or at any time after entry has been connected with the management, of a house of prostitution or any other immoral place.” Since these portions of the immigration statutes appear to be quite definitive on the subject, there would seem to be little need for the courts or the immigration authorities to rule on the moral turpitude of crimes involving prostitution.[271]

 

Engaging in prostitution was formerly an independent ground of deportation under the 1952 Act, but the Immigration Act of 1990 eliminated this ground of deportation.[272]

 

            No published case has yet decided whether solicitation of a prostitute is a crime of moral turpitude for immigration purposes.  There is an argument that even if solicitation is a CMT, the commission of the offense cannot render a noncitizen inadmissible.[273]  An alien is inadmissible if convicted of a crime involving moral turpitude “or an attempt or conspiracy to commit such a crime . . . .”[274]  It could be argued that a solicitation conviction is not a crime of moral turpitude because the statute does not specifically state that solicitation to commit a crime constitutes a crime of moral turpitude.  The plain language of the statute limits inadmissibility to conspiracy and attempt, but not solicitation.

 

Board of Immigration Appeals:

Matter of R, 6 I. & N. Dec 444 (BIA 1954) (violation of the Mann Act was not a crime involving moral turpitude where the conduct giving rise to the noncitizen’s conviction did not involve commercialized sex, but apparently consisted of the mere act of transporting a consenting female across state lines for purposes of indulging in sexual relations with her, which the Board characterized as simple fornication, which has itself been held not to involve moral turpitude).

 

Matter of A, 3 I. & N. Dec 168 (BIA 1948) (conviction held not CMT under Massachusetts nuisance statute imposing criminal liability upon anyone keeping or maintaining a building or part of a building used for prostitution, assignation, or lewdness, since there was no requirement of evil intent or guilty knowledge, the statute was so broadly drawn that the court could not find that a violation in every instance would be accompanied by an evil intent to practice immorality for hire, and the complaint charged the crime only in the words of the statute, and was not “of sufficient detail” to allow a determination that the offense involved moral turpitude).

 

Matter of A, 3 I. & N. Dec. 168 (BIA 1948) (conviction of maintaining a place for purposes of prostitution under Massachusetts General Laws, c. 139, § § 4, 5, held not invariably to require evil intent to practice immorality for hire, and therefore does not invariably involve moral turpitude; record of conviction does not furnish sufficient detail for a determination as to whether this violation is accompanied by such evil intent).

Matter of C, 2 I. & N. Dec. 367 (BIA 1945) (maintaining a disorderly house in violation of the penal ordinance set forth in § 2 of Chapter 9 of the city ordinance of Buffalo, New York, is not a felony or other crime or misdemeanor within the meaning of the Immigration Act).

 

Matter of G, 1 I. & N. Dec. 217 (BIA 1942) (a noncitizen is not deportable as a person who had been found managing a house of prostitution when the only evidence to support the charge was his conviction for keeping a disorderly house under New York Penal Law § 1146).

 

District Courts:

 

Ablett v. Brownell, 240 F.2d 625 (D.C. Cir. 1957) (dictum expressing doubt whether the British offense of “willfully being a party [as a landlord] to the continued use” of leased premises as a brothel was properly to be construed as a crime involving moral turpitude).

           

[268] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 9.102 (2005).

[269] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a)(14).

[270] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a)(12).

[271] Annot., What Constitutes “Crime Involving Moral Turpitude” Within Meaning of § § 212(a)(9) and 241(a)(5) of Immigration and Nationality Act (8 U.S.C. § § 1182(a)(9), 1251(a)(4)), and Similar Predecessor Statutes Providing for Exclusion or Deportation of Aliens Convicted of Such Crime, 23 A.L.R. Fed. 480, § 12[g], n.79 (1975).

[272]  See C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 71.07[1] (2004).

[273] See, e.g. Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997); Matter of Espinoza, 22 I. & N. Dec. 889 (BIA 1999) (en banc) (misprision of felony not listed).

[274] INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I).