Criminal Defense of Immigrants

The BIA has long held that a theft-type offense is considered to involve moral turpitude only when an intent to steal, i.e., to permanently deprive the owner of the property, is required as an essential element of the offense.[50]  An intent to deprive the owner only temporarily is insufficient to constitute a crime of moral turpitude.

Criminal acts involving intentional dishonesty for the purpose of personal gain are acts involving moral turpitude.[51]  Receiving stolen property, for example, will constitute a crime involving moral turpitude as long as the recipient knew the property was stolen.[52]

On the other hand, the BIA has held that an intent to permanently deprive the owner of the property is not an essential element of “theft” for aggravated felony purposes.[53]  The BIA made clear, however, that the definition of “theft” for CMT and aggravated felony purposes was not the same: “An offense involving the taking of property need not be a crime involving moral turpitude in order to be considered a ‘theft’ offense [as an aggravated felony].”[54] 

[50] Matter of Grazley, 14 I. & N. Dec. 330, 333 (BIA 1973) (“Ordinarily, a conviction for theft is considered to involve moral turpitude only when a permanent taking is intended”).  But see Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (BIA Sept. 28, 2006) (Pennsylvania conviction of retail theft in violation of title 18, § 3929(a)(1) of the Pennsylvania Consolidated Statutes, is a crime involving moral turpitude, even though there is no element requiring specific intent permanently to deprive the owner of the property, because the BIA found it reasonable to assume that the taking was with the intent to retain the merchandise permanently where the elements of the conviction require taking merchandise offered for sale by a store without paying for it and with the intention of depriving the owner of the goods). 

[51] Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir.), cert. den., 355 U.S. 892, 78 S.Ct. 265 (1957).

[52] De Leon-Reynoso v. Ashcroft, 293 F.3d 633 (3d Cir. June 11, 2002).

[53] Matter of VZS, 22 I. & N. Dec. 1338 (BIA 2000) (a taking of property constitutes a “theft offense” within the definition of an aggravated felony, whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent, and a California conviction for violating Vehicle Code § 10851 constitutes an aggravated felony). 

[54] Id. at n.12 (“We distinguish the present case from our decision in Matter of D, 1 I. & N. Dec. 143 (BIA 1941), where we held that a conviction under a predecessor statute to section 10851 was not a crime involving moral turpitude because the statute in question could include a mere temporary taking, as well as a permanent deprivation of the vehicle. Id. at 145. An offense involving the taking of property need not be a crime involving moral turpitude in order to be considered a “theft” offense. More pertinent to this case, however, is our finding in Matter of Grazley, 14 I. & N. Dec. 330 (BIA 1973), that a taking could constitute “theft” even if it did not include the turpitudinous element of intent to permanently deprive the owner of his or her property.  In Grazley, we reviewed section 283 of the Criminal Code of Canada, which provided for a theft conviction whether the taking was permanent or temporary. Ordinarily, a conviction for theft is considered to involve moral turpitude only when a permanent taking is intended.”).