Criminal Defense of Immigrants

 

(C)  Malum Prohibitum and Malum in Se.  In determining whether a conviction constitutes a crime of moral turpitude, many courts consider whether the offense is malum in se or malum prohibitum. [130]  Escape without violence or breaking was considered “malum prohibitum,” rather than a crime of moral turpitude.[131]  “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.” [132]  The BIA agreed that “[S]imple DUI is ordinarily a regulatory offense that involves no culpable mental state requirement, such as intent or knowledge.”[133]  “We find that the offense of driving under the influence under Arizona law, does not, without more, reflect conduct that is necessarily morally reprehensible or that indicates such a level of depravity or baseness that it involves moral turpitude.”[134]

 

                Use of another’s social security card to work and establish credit in the United States[135] did not constitute a crime involving moral turpitude, so as to disqualify the applicant from establishing Good Moral Character on a registry application.  The conduct penalized in these statutes — working and establishing credit under a different name — was malum prohibitum, rather than malum in se.[136] 

 

                Many firearms offenses, for example, are held not to be crimes involving moral turpitude, either because they have no sufficiently culpable intent or because they are in essence regulatory offenses.  Sometimes, a court holds a firearms offense to be a CMT where the elements require criminal intent or an intent to use the weapon to inflict great injury.  A conviction under a statute that has no such elements and does not require that the defendant have the intent to use the firearm illegally does not constitute a CMT even under Matter of S.[137] 

 

                Violations of financial regulations are also generally considered regulatory in nature, and not crimes of moral turpitude, unless fraud is involved as an essential element of the offense.  For example, the Ninth Circuit found that moral turpitude was not involved in the offense of structuring financial transactions to avoid currency reports,[138] since the statute did not make intent to defraud the government an essential element of the offense, the defendant could have been convicted even if he were not aware his conduct was illegal, and, even if the Supreme Court were to add the element of scienter to the offense, that construction would not of itself convert the crime into one of moral turpitude.[139]  The Board of Immigration Appeals found that, in the absence of any morally reprehensible conduct, convictions under 31 U.S.C. § § 5324(a)(1) and (3) would not be considered CMTs.[140]  The same hold true of violations of certain New York banking laws.[141]

 

[130] Annot., What Constitutes “Crime Involving Moral Turpitude” Within Meaning of § § 212(a)(9) and 241(a)(5) of Immigration and Nationality Act (8 U.S.C. § § 1182(a)(9), 1251(a)(4)), and Similar Predecessor Statutes Providing for Exclusion or Deportation of Aliens Convicted of Such Crime, 23 A.L.R. Fed. 480, § 12[a], n.65 (1975).

[131] Matter of J, 4 I. & N. Dec. 512 (BIA 1951) (conviction of attempt to escape from reformatory in violation of Chapter 268, § 16 of the Annotated Laws of Massachusetts is “malum prohibitum” and does not involve moral turpitude, since “escape” is not defined by statute and the wording of the statute does not require a specific criminal intent). 

[132] Matter of Lopez-Meza, 22 I. & N. Dec. 1188, 1193 (BIA Dec. 21, 1999) (“aggravated” driving under the influence convictions, under Arizona state law, constitute convictions of crimes involving moral turpitude since the statutory elements require that the driver know s/he is prohibited from driving under any circumstances).

[133] Id. at 1194.

[134] Ibid.

[135] 42 U.S.C. § 408(a)(7)(B) (1988); 18 U.S.C. § 1546(b)(3).

[136] Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000).

[137] Matter of S, 8 I. & N. Dec. 344 (BIA 1959) (carrying a concealed weapon is a crime of moral turpitude under a Minnesota law that specifies that carrying a concealed deadly weapon gives rise to the presumption that the person carrying the weapon has the intent to use the weapon against another person).

[138] 31 U.S.C. § § 5322(b), 5324(a)(3).

[139] Goldeshtein v. INS, 8 F.3d 645 (9th Cir. 1993); see also Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 661 (1994) (structuring transactions to avoid reporting requirements “is not inevitably nefarious”).

[140] Matter of LVC, 22 I. & N. Dec. 594 (BIA 1999), overruling Matter of Goldeshtein, 20 I. & N. Dec. 382 (BIA 1991).

[141] See Matter of B, 6 I. & N. Dec. 98 (BIA 1954) (conspiracy to violate New York Banking Law § § 340, 357 is not a CMT, since those sections are merely regulatory enactment; statement in the conspiracy count relating to intimidation and threats was immaterial since it was surplusage and not necessary for conspiracy conviction).