Criminal Defense of Immigrants


§ 20.3 A. Intent Requirement

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“[I]t has been stated that ‘it is in the intent that moral turpitude inheres.’”[41]  Some courts hold that one way to determine whether a crime involves moral turpitude is whether the act is accompanied by a vicious motive or corrupt mind, and that a malicious and mischievous intention, or the equivalent, is the line between right and wrong, between crimes that involve moral turpitude and those that do not: [42]

A crime involving moral turpitude may be either a felony or misdemeanor, existing at common law or created by statute, and is an act or omission which is malum in se and not merely malum prohibitum; which is actuated by malice or committed with knowledge and intention and not done innocently or without inadvertence or reflection; which is so far contrary to the moral law, as interpreted by the general moral sense of the community, that the offender is brought to public disgrace, is no longer generally respected, or is deprived of social recognition by good living persons; but which is not the outcome merely of natural passion, of animal spirits, of infirmity of temper, of weakness of character, of mistaken principles, unaccompanied by a vicious motive or a corrupt mind.[43]


Where criminal intent is not an essential element of the offense, it will not be held to be a crime involving moral turpitude.[44]  An offense not malum in se, i.e., which does not include as an essential element of the offense a specific state of mind properly equated with the common-law concept of mens rea, as opposed to an intent to do the act which itself has been proscribed and rendered malum prohibitum, does not qualify as a crime which involves moral turpitude as a matter of law.  This conclusion remains, even though the facts of a given case disclose conduct which involved moral turpitude, since the court may not inquire into the facts of the case to make the CMT determination.[45]


If the definition of the crime eliminates motive or intent, and the defendant may be convicted although the conduct was prompted by innocent motives, then the crime should not involve moral turpitude.[46]


[41] Gordon, supra, § 71.05[1][d][i], citing Castle v. INS, 541 F.2d 1064, 1066 (4th Cir. 1976) (all crimes malum in se involve moral turpitude); United States ex rel. Mayer v. Day, 54 F.2d 336, 337 (2d Cir. 1931).

[42] Michel v. INS, 206 F.2d 253, 263 (2d Cir. 2000); Matter of Fualaau, 21 I. & N. Dec. 475 (BIA 1996), citing Matter of Serna, 20 I. & N. Dec. 579 (BIA 1992) (“The intent required as an essential element of the offense of conviction is critical to a determination regarding moral turpitude.”).  See also Matter of LVC, 22 I. & N. Dec. 594 (BIA 1999) (evading currency reporting requirements does not constitute a crime of moral turpitude since knowledge of illegality is not a required element, the offense is not inherently nefarious, and there is no requirement of defrauding the government); Matter of Khourn, 21 I. & N. Dec. 1041 (BIA 1997) (distribution of a controlled substance is a crime of moral turpitude where knowledge or intent is element of the offense); Matter of Fualaau, 21 I. & N. Dec. 475 (BIA 1996) (assault can be, but is not automatically, a CMT where recklessness is an element of the offense).  When a bigamy statute does not require guilty intent as an essential element, turpitude may be absent.  Braun v. INS, 992 F.2d 1016 (9th Cir. 1993); Forbes v. Brownell, 149 F.Supp. 848 (D.D.C. 1957).  But see Guerrero de Nodahl v. Immigration & Naturalization Service, 407 F.2d 1405 (9th Cir. 1969) (where the crime is “this heinous,” the court said, “moral turpitude and wilful conduct are synonymous terms.” Conviction of a mother of “wilfully” inflicting corporal punishment upon her 9-year-old child in violation of a California statute was held to involve moral turpitude, despite lack of criminal intent as an element of the offense).  The Nodahl decision, however, violates the ordinary rules for determining whether an offense involves moral turpitude.  It is an example of the saying, “Hard cases make bad law,” since the infliction of corporal punishment on a 9-year-old child invited such opprobrium.  For other examples of offenses held to be CMT even in the absence of moral turpitude, see Marciano v. INS, 450 F.2d 1022 (8th Cir. 1971), cert. den., 405 U.S. 997 (1972); Matter of Sloan, 12 I. & N. Dec. 840 (BIA 1968); Matter of E, 2 I. & N. Dec. 328 (BIA 1945).

[43] Matter of D, 1 I. & N. Dec 190 (BIA 1942).

[44] Hirsch v. INS, 308 F.2d 562 (9th Cir. 1962) (setting aside deportation order where offense required a false, but not necessarily fraudulent, statement); 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”). 

[45] Forbes v. Brownell, 149 F.Supp. 848 (D.D.C. 1957).

[46] United States ex rel. Mylius v. Uhl, 203 Fed. 152 (S.D.N.Y. 1913), aff’d sub nom. United States v. Uhl, 210 Fed. 860 (2d Cir. 1914); United States v. Carrollo, 30 F.Supp. 3 (W.D.Mo. 1939); Matter of M, 9 I. & N. Dec. 132 (BIA 1960).



Ninth Circuit

Saavedra-Figueroa v. Holder, 625 F.3d 621 (9th Cir. Nov. 5, 2010) (California misdemeanor conviction of false imprisonment, in violation of Penal Code 236, was not a categorical crime of moral turpitude, because crime did not require noncitizen to have the intent to harm necessary for the crime to be base, vile or depraved).