Criminal Defense of Immigrants


§ 20.3 (B)

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(B)  If Evil Intent is Lacking, the Offense May Still Involve Moral Turpitude.  Even if the offense does not require evil intent, or its equivalent, as an essential element, the courts may still conclude the conviction involves moral turpitude:


Furthermore, although crimes involving moral turpitude often involve an evil intent, such a specific intent is not a prerequisite to finding that a crime involves moral turpitude. See Rodriguez-Herrera v. INS, supra, at 240 (noting that the United States Court of Appeals for the Ninth Circuit has “held only that without an evil intent, a statute does not necessarily involve moral turpitude”); Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994) (noting that “[a] crime involving the willful commission of a base or depraved act is a crime involving moral turpitude, whether or not the statute requires proof of evil intent”); Guerrero de Nodahl v. INS, supra, at 1406; Matter of Franklin, 20 I&N Dec. 867, 868 (BIA 1994) (“Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.”); Matter of Danesh, supra; Matter of Wojtkow, 18 I&N Dec. 111 (BIA 1981); Matter of Medina, 15 I&N Dec. 611, 614 (BIA 1976) (stating that the “presence or absence of a corrupt or vicious mind is not controlling” and that criminally reckless behavior may be a basis for a finding of moral turpitude), aff’d sub nom. Medina-Luna v. INS, 547 F.2d 1171 (7th Cir. 1977). But see Matter of Khourn, 21 I&N Dec. 1041, 1046 (BIA 1997) (“The Board has held that ‘evil intent’ is a requisite element for a crime involving moral turpitude.”); Matter of Flores, 17 I&N Dec. 225, 227 (BIA 1980) (holding that an “evil or malicious intent is said to be the essence of moral turpitude”); Matter of Abreu-Semino, 12 I&N Dec. 775, 777 (BIA 1968) (finding that “crimes in which evil intent is not an element, no matter how serious the act or harmful the consequences, do not involve moral turpitude”). Certain crimes have been readily categorized as involving moral turpitude. For example, the United States Supreme Court has noted that “fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude.” Jordan v. De George, supra, at 229. Other crimes involving acts of baseness or depravity have been found to be crimes involving moral turpitude even though they have no element of fraud and, in some cases, no explicit element of evil intent (e.g., murder, rape, robbery, kidnapping, voluntary manslaughter, some involuntary manslaughter offenses, aggravated assaults, mayhem, spousal abuse, child abuse, and incest).  See Matter of Lopez-Meza, supra. Statutory rape is notable in that it has been found to involve moral turpitude even though it has no intent element. See Castle v. INS, supra, at 1066 (stating that the “inherent nature” of the offense “is so basically offensive to American ethics and accepted moral standards as to constitute moral turpitude per se”); Marciano v. INS, 450 F.2d 1022 (8th Cir. 1971); Matter of Dingena, 11 I&N Dec. 723 (BIA 1966). While it is generally the case that a crime that is “malum in se” involves moral turpitude and that a “malum prohibitum” offense does not, this categorization is more a general rule than an absolute standard. See Kempe v. United States, 151 F.2d 680, 688 (8th Cir. 1945). Whereas in some areas, such as fraud, the inquiry into moral turpitude may be straightforward, in others, such as the present case, it is not and requires a case-by-case approach.[49]

[49] Matter of Torres-Varela, 23 I. & N. Dec. 78 (BIA 2001) (en banc) (Arizona offense of aggravated driving under the influence, with two or more prior DUI convictions, in violation of sections 28-692(A)(1) and 28-697(A)(2), (D), (F), (H)(1), (I), and (J) of the Arizona Revised Statutes, is not a crime involving moral turpitude, since no culpable mental state is required for conviction), distinguishing Matter of Lopez-Meza, 22 I. & N. Dec. 1188 (BIA 1999).



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).