Criminal Defense of Immigrants

An offense requiring lewd intent as an essential element is often held to be a crime involving moral turpitude.[68]  However, the existence of this intent is not sufficient, standing alone, to require the offense to be held to be a CMT.[69] At least one offense, statutory rape, has been found to be crime of moral turpitude, even though the statute of conviction required no proof of intent.[70]

[68] See, e.g., Matter of Alfonso-Bermudez, 12 I. & N. Dec. 225 (BIA 1967) (conviction of disorderly conduct in violation of California Penal Code § 647(a), soliciting of a person or persons to engage in, and the engaging in lewd and dissolute conduct in a public place, referring to overt and public homosexual activity, is a crime involving moral turpitude), distinguishing Matter of GR, 5 I. & N. Dec. 18 (BIA 1953), citing United States v. Flores-Rodriguez, 237 F.2d 405 (2d Cir. 1956); Hudson v. Esperdy, 290 F.2d 879 (2d Cir. 1961), cert. den., 368 U.S. 918 (1961) (New York conviction under disorderly conduct statute prohibiting loitering about public place soliciting men for purpose of committing crime against nature or other lewdness held to be crime of moral turpitude); Babouris v. Esperdy, 269 F.2d 621 (2d Cir. 1959), cert. den., 362 U.S. 913 (1960); Lane ex rel. Cronin v. Tillinghast, 38 F.2d 231 (1st Cir. 1930) (criminal lewdness as defined by the statute of Massachusetts has been found to connote moral turpitude); Wyngaard v. Rogers, 187 F.Supp. 527 (D.D.C. 1960), aff’d, 295 F.2d 184, 111 U.S.App.D.C. 197 (D.C.Cir. 1961), cert. den., 368 U.S. 926 (1961) (conviction under New York Penal Law § 722, of frequenting or loitering about a public place and soliciting men for purpose of committing crime against nature or other lewdness, was a conviction for crime involving moral turpitude); Ganduxe y Marino v. Murff, 183 F.Supp. 565, 567 (D.N.Y. 1959), aff’d, 278 F.2d 330 (2d Cir. 1960), cert. den., 364 U.S. 824 (1960) (New York conviction for loitering for purpose of inducing men to commit acts against nature or other lewdness held a crime involving moral turpitude), citing United States v. Flores-Rodriguez, 237 F.2d 405 (2d Cir. 1956); Matter of Lambert, 11 I. & N. Dec. 340 (BIA 1965) (conviction for letting or renting rooms with knowledge that the rooms were to be used for the purpose of lewdness, assignation or prostitution in violation of section 26-42 of the City of Tampa Code is conviction of a crime involving moral turpitude); Matter of C, 3 I. & N. Dec. 790 (BIA 1949) (conviction of open lewdness in violation of New Jersey Revised Statutes 2: 140-1 (1942) involves moral turpitude).

[69] E.g., Matter of FR, 6 I. & N. Dec. 813 (BIA 1955) (conviction of a violation of New York Penal Law § 722(8), disorderly conduct by frequenting or loitering about any public place soliciting men for the purpose of committing a crime against nature or other lewdness, not considered crime of moral turpitude), citing Matter of GR, 5 I. & N. Dec. 18 (BIA 1953).  But see Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472 (June 26, 2003) (Texas conviction of “deviate sexual conduct” [oral or anal sex or penetration with an object] between members of the same sex, in violation of Texas Code Ann. § 21.06(a), held in violation of the Due Process Clause of the Fourteenth Amendment, where both partners were adults at the time of the offense which was consensual and occurred in private).

[70] See, e.g., Rivo v. INS, 262 F.Supp.2d 6 (E.D.N.Y. May 9, 2003); Castle v. INS, 541 F.2d 1064 (4th Cir. Sept. 23, 1976); Marciano v. INS, 450 F.2d 1022 (8th Cir. 1971), cert. denied, 405 U.S. 997 (1972).