Criminal Defense of Immigrants

 

(A)  Traditional Definition.  Justice Jackson offered the following insight into the legislative history of the Immigration Act of 1917,[3] the first to authorize deportation of resident noncitizens convicted of a “crime involving moral turpitude”:

 

The uncertainties of this statute do not originate in contrariety of judicial opinion. Congress knowingly conceived it in confusion. During the hearings of the House Committee on Immigration, out of which eventually came the Act of 1917 in controversy, clear warning of its deficiencies was sounded and never denied.  “Mr. SABATH. . . . [Y]ou know that a crime involving moral turpitude has not been defined. No one can really say what is meant by saying a crime involving moral turpitude . . . .”  Despite this notice, Congress did not see fit to state what meaning it attributes to the phrase “crime involving moral turpitude.” Jordan v. De George, 341 U.S. 223, 233-34, 71 S.Ct. 703, 709, 95 L.Ed. 886 (1951) (Jackson, J., dissenting) (quoting from House Committee on Immigration and Naturalization Hearings on H.R.Rep. No. 10384, 64th Cong., 1st Sess. 8 (1916)).  The legislative history leaves no doubt, therefore, that Congress left the term “crime involving moral turpitude” to future administrative and judicial interpretation.[4] 

 

“A Senate subcommittee report accompanying the Immigration Act of 1952 relating to the exclusion of aliens convicted of a CIMT notes that the term ‘moral turpitude’ has not been definitively and conclusively defined by the courts. One INS decision held that ‘moral turpitude’ is a vague term . . . .”[5]  Nevertheless, the Senate subcommittee did not adopt the suggestion that “there be a listing of crimes and circumstances comprehended within the meaning of moral turpitude,” id. at 353, so as to remove some of the interpretive discretion left to those who must apply the term in excluding noncitizens.  Moreover, although the term has been part of our immigration laws for more than 100 years, Congress has never chosen to define it, either in the deportation or exclusion contexts.[6]

 

Courts have held that moral turpitude “refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.”[7]  One common definition  applied by the courts is “an act of baseness, vileness, or depravity.”[8]  Some cases define an act of moral turpitude as one which “grievously offends the moral code of mankind.”[9]

Immigration Law and Procedure state:

 

Some authorities have said that the crime must be accompanied by an evil intent or a depraved nature. One court has declared that under the deportation statute the question is whether “the alien has a criminal heart and a criminal tendency.”  Other courts have declared that the offense must be intrinsically and morally wrong. . . .  It has also been said that the statute contemplates “an act of baseness and depravity contrary to accepted moral standards,” and that in dealing with a patently “heinous” crime “willful conduct and moral turpitude are synonymous terms.”  Courts have also stated that whether or not a crime involves moral turpitude “depends upon the inherent nature of the crime, as defined in the statute concerned, rather than the circumstances surrounding the transgression.” The turpitudinous nature of an offense may not be altered by the fact that it may have been motivated by economic hardship. Some courts have held that crimes of moral turpitude typically involve fraud, but acts of baseness or depravity contrary to accepted moral standards are also included in the category.[10]

 

Black’s Law Dictionary defined the term as follows:

 

an act of baseness, vileness, or the depravity in private and social duties which man owes to his fellow man, or to society in general, contrary to accepted and customary rule of right and duty between man and man. . . .  Act or behavior that gravely violates moral sentiment or accepted moral standards of community and is a morally culpable quality held to be present in some criminal offenses as distinguished from others. . . .  The quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from statutory mala prohibita.[11] 

Generally speaking, court have found that crimes that are merely malum prohibitum, rather than malum in se, are not considered crimes involving moral turpitude.[12]  Some courts have held that all malum in se crimes involve moral turpitude.[13]  Other courts have held that the malum in se or malum prohibitum distinction is not necessarily determinative of the CMT question.[14]

 

                The fact that conduct violates a criminal law, standing alone, is an insufficient basis on which to conclude that the conviction constitutes a CMT.[15]

[3] See S.Rep. No. 352, 64th Cong., 1st Sess. 390 (1916).

[4] Cabral v. INS, 15 F.3d 193, 194-195 (1st Cir. 1994) (footnote omitted).

[5] S.Rep. No. 1515, 81st Cong., 2d Sess. 351 (1950).

[6] See Gordon, supra, § 71.05[1][d].

[7] Medina v. United States, 259 F.3d 220, 227 (4th Cir. 2001), quoting Matter of Danesh, 19 I. & N. Dec. 669, 670 (BIA 1988). 

[8] See United States v. Smith, 420 F.2d 428, 431 (5th Cir. 1970).  Gordon, supra, § 71.05[1][d][i]; Franklin v. INS, 72 F.3d 571(8th Cir. 1995); Wing v. United States, 46 F.2d 755 (7th Cir. 1931); Tutrone v. Shaughnessy, 160 F.Supp. 433 (S.D.N.Y. 1958); Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994), aff’d sub nom., Matter of Mueller, 11 I. & N. Dec. 268 (BIA 1965).  See also Matter of Short, 20 I. & N. Dec. 136, 139(BIA 1989) (“Moral turpitude is a nebulous concept, which refers generally to conduct that shocks the public conscience”).

[9] See Coykendall v. Skrmetta, 22 F.2d 120  (5th Cir. 1927); United States v. Carrollo, 30 F.Supp. 3 (D. Mo. 1931); United States ex rel. De George v. Jordan, 183 F.2d 768 (7th Cir. 1950), rev’d on other grounds, 341 U.S. 223 (1951).

[10] Gordon, supra, § 71.05[1][d][i] (footnotes omitted).

[11] Black’s Law Dictionary 1008-09 (6th ed. 1990) (citations omitted).  This definition originated in Bouvier’s Law Dictionary, Rawles 3d Revision. 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, § 3, n.11 (1975).

[12] Coykendall v. Skrmetta, 22 F.2d 120 (5th Cir. 1927) (ordinarily the phrase “crime involving moral turpitude” does not include conduct which was not generally regarded as morally wrong or corrupt, nor as offensive to the moral sense as ordinarily developed, before it was criminalized); United States ex rel. Andreacchi v. Curran, 38 F.2d 498 (D.N.Y. 1926); Matter of B, 2 I. & N. Dec. 617 (BIA 1946); Matter of H, 1 I. & N. Dec. 394 (BIA 1943).

[13] Matter of Serna, 20 I. & N. Dec. 579 (BIA 1992); Castle v. INS, 541 F.2d 1064, 1066 (4th Cir. 1976).

[14] Mei v. Ashcroft, 393 F.3d 737 (7th Cir. Dec. 29, 2004); United States ex rel. Griffo v. McCandless, 28 F.2d 287 (E.D. Pa. 1928). See also Justice Jackson’s dissent in Jordan v. DeGeorge, 341 U.S. 223, 236, 237 (1951).

[15] Skrmetta v. Coykendall, 16 F.2d 783 (D. Ga.), aff’d, 22 F.2d 120 (5th Cir. 1927); United States v. Carrollo, 30 F.Supp. 3 (D. Mo. 1939).