Criminal Defense of Immigrants

(A)  Generally.  Judicial opinions are somewhat inconsistent concerning the significance to be attached to contemporary moral standards (which may change over time) in assessing the moral turpitude of a offense.  It is sometimes stated that contemporary moral standards govern whether a conviction constitutes a CMT.[115] 

The general rule, however, that the turpitude of an offense depends on the inherent nature of the offense as defined by its essential elements seems to contradict the practice of giving significance to the changing moral standards of society.  The courts, however, acknowledge both concepts, sometimes in the same opinion.[116]

“[T]he words moral turpitude . . . do not refer to conduct which, before it was made punishable as a crime, was not generally regarded as morally wrong or corrupt, as offensive to the moral sense as ordinarily developed.”[117]  The Board held a conviction for simple fornication was not a crime of moral turpitude, stating, “It would seem that moral turpitude should not be attached to the commission of an act which though immoral is not even regarded as a crime in some communities, and . . . would not cause the ‘common conscience’ to strip its perpetrator of good moral character.”[118]

In United States ex rel. Iorio v. Day, a deportation case where the Commissioner of Immigration had held that a violation of the Prohibition Law was ‘a crime involving moral turpitude’, we said that it was ‘impossible to decide at all without some estimate, necessarily based on conjecture, as to what people generally feel.’[119]

A determination that an offense is a crime involving “moral turpitude” depends not upon an individual judgment, but upon the commonly accepted mores, that is, the generally accepted moral conventions current at the time so far as court can ascertain them.[120]

An example of an area in which counsel could argue there has been a change in the “commonly accepted mores” would be statutory rape, where the act was consensual, and the victim was 17 years old.  Traditionally, statutory rape (even of a person one day shy of 17 years old) has been found to be a CMT, even where the statute of conviction required no proof of intent.[121]  However, in the context of determining statutory rape of a 17 year old does not categorically constitute an aggravated felony sexual abuse of a minor offense, the Ninth Circuit found that the act did not necessarily cause either physical or psychological harm, and distinguished between younger and older teens in their ability to understand the nature and ramifications of their actions.[122]  The court also noted that, at least in that case, the statutory rape law was not passed in order to protect minors from harm, but rather to preserve their sexual purity until marriage.[123]  By today’s standards, unmarried sex is not necessarily contrary to the mores of American society.

[115] Pino v. Landon, 349 U.S. 901; Marciano v. INS, 450 F.2d 1022, 23 A.L.R. Fed. 466 (8th Cir. 1971), cert. den., 405 U.S. 997 (1972) (dissenting opinion refers to “the nation’s shifting and often indistinct moral standards”); Guerrero de Nodahl v. INS, 407 F.2d 1405 (9th Cir. 1969); De Lucia v. Flagg, 297 F.2d 58 (7th Cir. 1961), cert. den., 369 U.S. 837 (1962) (the hearing officer should apply the “prevalent standards” of what constitutes moral turpitude to reach his or her conclusion concerning the moral turpitude of a conviction); Marinelli v. Ryan, 285 F.2d 474 (2d Cir. 1961); United States ex rel. Sollazzo v. Esperdy, 285 F.2d 341 (2d Cir.), cert. den., 366 U.S. 905 (1961) (the crime of bribing a participant in an amateur sport is a crime which “in the light of contemporary standards inherently involves moral turpitude.”); Pino v. Nicolls, 215 F.2d 237 (1st Cir. 1954), rev’d on other grounds sub nom. Pino v. Landon, 349 U.S. 901 (1955) (per curiam); United States ex rel. Berlandi v. Reimer, 113 F.2d 429 (2d Cir. 1940); Skrmetta v. Coykendall, 16 F.2d 783 (D.Ga.), aff’d, 22 F.2d 120 (5th Cir. 1927); Portaluppi v. Shell Oil Co., 684 F.Supp. 900, 904 (E.D. Va. 1988) (stating that cocaine offense is profoundly offensive to contemporary moral and ethical values), aff’d, 869 F.2d 245 (4th Cir.  1989); United States ex rel. Manzella v. Zimmerman, 71 F.Supp. 534 (D. Pa. 1947); United States v. Carrollo, 30 F.Supp. 3 (D. Mo. 1939).  But see Rukavina v. INS, 303 F.2d 645 (7th Cir. 1962) (obtaining property through a “confidence game,” because it was an act of cheating or swindling and involved a “fraudulent scheme,” was a crime of moral turpitude, rejecting noncitizen’s argument that in Illinois in 1933 this offense was not generally regarded as an act of baseness or depravity contrary to accepted moral standards).

[116] See, for example, United States ex rel. Sollazzo v. Esperdy, 285 F.2d 341 (2d Cir.), cert. den., 366 U.S. 905 (1961).

[117] Skrmetta v. Coykendall, 22 F.2d 120, 121 (5th Cir. 1927).

[118] Matter of R, 6 I. & N. Dec. 444, 452, 454 (BIA 1954).

[119] Schmidt v. United States, 177 F.2d 450, 451 (2d Cir. 1949) (footnote omitted).

[120] See United States v. Francioso, 164 F.2d 163 (2d Cir. 1947).

[121] 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).

[122] United States v. Lopez-Solis, 447 F.3d 1201, 1207-1210 (9th Cir. May 19, 2006)

[123] Id. at 1208 n.42.