Criminal Defense of Immigrants

The mental state of malice is often considered to constitute a crime of moral turpitude.  In relatively minor offenses, however, the malice requirement may not be sufficient to render the offense to be one involving moral turpitude.  The Ninth Circuit in a malicious mischief case rejected the government’s argument that if a statute requires an “evil intent, wish, or design to vex, annoy, or injure another person,” then the crime necessarily involves moral turpitude.[93]  The court found that “malice” does not always evidence evil intent because:

Here, for example, the Washington statute permits malice (which imports an evil intent) to “be inferred from an act done in willful disregard of the rights of another, or an act wrongfully done without just cause or excuse, or an act or omission of duty betraying a willful disregard of social duty.” RCW § 9A.04.110(12). Under this definition, evil intent may become much too attenuated to imbue the crime with the character of fraud or depravity that we have associated with moral turpitude.[94]

Counsel should examine the definition of “malice” in the jurisdiction in which the conviction occurred to determine whether there is an argument that malicious crimes do not necessarily involve moral turpitude.

[93] Rodriguez-Herrera v. INS, 52 F.3d 238, 240 (9th Cir. 1995).

[94] Ibid.