Criminal Defense of Immigrants

(B)  Label Not Conclusive.  If a violation is described as an “offense,” to comply with local jurisdictional requirements, that label does not necessarily prevent its classification as a crime for removal purposes, when a crime is actually involved.[66]  The label given to an act by a state or local jurisdiction does not control decision of the question whether the offense constitutes a crime within the meaning of the Immigration and Nationality Act.[67]  In one case, even where the local jurisdiction treated the matter as civil, the BIA held that a guilty finding rendered the conduct a crime for purposes of former 8 U.S.C. § 1251(a)(4)(A).[68]  It is questionable, however, whether the Board would reach such a result today.[69]  Even if a state legislature calls an act an offense, the conduct may be considered a crime for removal purposes when the act in question was a “crime at common law involving an act intrinsically and morally wrong and malum in se.”[70]

[66] Babouris v. Esperdy, 269 F.2d 621 (2d Cir. 1959) (soliciting men to commit a crime against nature or other lewdness; the state’s classification is not controlling since Congress intended to apply uniform federal standard, applicable in all states); United States v. Flores-Rodriquez, 237 F.2d 405 (2d Cir. 1956); Matter of P, 8 I. & N. Dec. 424 (BIA 1959) (Massachusetts conviction of lewdness); Matter of CR, 8 I. & N. Dec. 59 (BIA 1958) (conviction by police court for theft, even though statute designates such prosecution as civil proceeding); Matter of G, 7 I. & N. Dec. 520 (BIA 1957) (disorderly conduct: soliciting a man for an immoral purpose); Matter of W, 4 I. & N. Dec. 401 (BIA 1951) (practicing prostitution) reversed on other grounds by Matter of Turcotte, 12 I. & N. Dec. 206 (BIA 1967).

[67] Wyngaard v. Kennedy, 295 F.2d 184 (D.C. Cir.), cert. den.,  368 U.S. 926 (1961).

[68] Matter of CR, 8 I. & N. Dec. 59, 61 (BIA 1958).

[69] See Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).

[70] Babouris v. Esperdy, 269 F.2d 621 (2d Cir. 1959), cert. den., 362 U.S. 913, 80 S.Ct. 662 (1959) (“disorderly conduct,” consisting of loitering, defined as an “offense” by New York law, was nevertheless a “crime involving moral turpitude”).