(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).

CRIME OF MORAL TURPITUDE - DUI + SUSPENDED LICENSE
Marmolejo-Campos v. Gonzales, __ F.3d __, 2007 WL 2610788 (9th Cir. Sept. 12, 2007) (Arizona conviction for violation of A.R.S. 28-1383(A)(1), driving under the influence with knowledge that defendant did not have valid license to drive, is a crime involving moral turpitude for immigration purposes).

Third Circuit

CRIMES OF MORAL TURPITUDE " UNLICENSED DEALING IN FIREARMS
Mayorga v. Attorney General U.S., ___ F.3d ___, 2014 WL 2898528 (3d Cir. Jun. 27, 2014) (federal conviction of unlicensed business of firearms dealing, in violation of 18 U.S.C. 922(a)(1)(A) and (a)(2), did not categorically constitute a crime of moral turpitude, since the offense is a regulatory/licensing offense); see Matter of Abreu"Semino, 12 I. & N. Dec. 775, 776 (BIA 1968) (the violation of a regulatory, or licensing, or revenue provision of a statute is not a crime involving moral turpitude).

CRIMES OF MORAL TURPITUDE " FAILURE TO REGISTER AS A SEX OFFENDER
Totimeh v. Attorney General, 666 F.3d 109 (3d Cir. Jan. 12, 2012) (Minnesota conviction of failure to register as a sex offender, in violation of Minn. Stat. 243.166.5, defined the offense as knowingly violat[ing] any of [the statutes] provisions or intentionally provid[ing] false information, is not a crime of moral turpitude, since it is a regulatory offense designed to assist law enforcement, and does not regulate a crime that of itself is inherently vile or intentionally malicious.); following Efagene v. Holder, 642 F.3d 918 (10th Cir. 2011) (Colorado conviction of failure to register as a sex offender, is not a CIMT).

Fourth Circuit

CRIMES OF MORAL TURPIUTDE " SEX OFFENDER REGISTRATION
Mohamed v. Holder, 769 F.3d 885 (4th Cir. Oct. 17, 2014) (Virgina conviction for violation of VaCodeAnn. 18.2-472.1, failure to register as a sex offender, is not a crime involving moral turpitude for immigration purposes, since it is merely a regulatory offense), disagreeing with Matter of Tobar-Lobo, 24 I&N Dec. 143 (BIA 2007).

Seventh Circuit

CRIMES OF MORAL TURPITUDE " FAILURE TO APPEAR IN COURT
Obi v. Holder, 558 F.3d 609 (7th Cir. Mar. 3, 2009) (federal conviction of failure to appear in court, in violation of 18 U.S.C. 3146, is mentioned in dictum as a crime involving moral turpitude); but see Hussein v. Ashcroft, 2002 WL 31027604 (E.D.N.Y. Sept. 12, 2002) (federal conviction of failure to appear in court, in violation of 18 U.S.C. 3146, was not found to be a crime of moral turpitude, but court denied naturalization based on a conclusion that other convictions showed a lack of good moral character).

Ninth Circuit

CRIMES OF MORAL TURPITUDE " SEX OFFENSES " FAILURE TO REGISTER AS A SEX OFFENDER
Pannu v. Holder, ___ F.3d ___, 2011 WL 1782959 (9th Cir. May 11, 2011) (remand to BIA to review issue of whether California conviction of failure to register as a sex offender, Penal Code 290(g)(1), categorically constituted a crime of moral turpitude), citing Plasencia-Ayala v. Mukasey, 516 F.3d 738, 743 n.2, 747 (9th Cir. 2008) (Nevada conviction for failure to register as a sex offender under a similar law (Nev. Rev. Stat. 179D.550) did not categorically constitute a CMT, since that statute creates strict liability for failing to register or notify of a change of address, so that a defendant could be convicted for forgetting to register or even for accidentally sending his registration forms to the wrong address).

CRIME OF MORAL TURPITUDE - DRIVING UNDER THE INFLUENCE WHILE KNOWING LICENSE HAS BEEN SUSPENDED IS A CMT
Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc) (Arizona conviction of driving under the influence while knowing that that one had a suspended license, in violation of Arizona Revised Statutes 28-1383(A)(1),constitutes a crime of moral turpitude for immigration purposes), deferring to Matter of Lopez-Meza, 22 I. & N. Dec. 1188 (BIA 1999).

CRIMES OF MORAL TURPITUDE - REGULATORY OFFENSES
Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. Feb. 7, 2008) (Nevada conviction of failure to register as a sex offender, in violation of Nev. Rev. Stat. 179D.550, does not constitute a crime involving moral turpitude within the meaning of INA 237(a)(2)(A)(i)(I), 8 U.S.C. 1227(a)(2)(A)(i)(I), because the offense of conviction is a regulatory offense that is not inherently evil, but is an offense solely because a law was passed regulating it), following Fong v. INS, 308 F.2d 191, 195 (9th Cir.1962) (holding that an alien who was deportable for failing to register with the Attorney General had committed "only a minor infraction" and that his record showed "no moral turpitude whatever").

CRIME OF MORAL TURPITUDE - STATUTORY RAPE
Quintero- Salazar v. Keisler, __ F.3d __, 2007 WL 2916162 (9th Cir. Oct. 9, 2007) (California conviction of statutory rape, in violation of California Penal Code 261.5(d), where the victim is under 16 years of age and the actor is over 21, is not a crime involving moral turpitude, since (1) it includes consensual sex between [at minimum] between a high-school junior and a college sophomore, and is not inheritly base, vile, or depraved; court also noted that (2) the statute proscribes at least some malum prohibitum conduct, since the same act would not be illegal at all if the two were married at the time; (3) the same conduct is not illegal in other states; (4) the statute was passed in order to address teenage pregnancy, not to avoid a moral issue; and (5) the offense does not require any element of intent be proven).

Other

CRIMES OF MORAL TURPITUDE " REGULATORY OFFENSES " PRACTICE ADVISORY
Offenses classed as regulatory offenses generally are not considered to involve moral turpitude because although the behavior is illegal, there is nothing inherently wrong, fraudulent or evil about it. If it is not intrinsically wrong, the fact that it is illegal " standing alone -- does not make it turpitudinous. However, there are inconsistencies in the BIA case law. See Quintero-Salazar v. Keisler, 506 F.3d 688, 693 (9th Cir. 2007) (Where an act is only statutorily prohibited, rather than inherently wrong, the act generally will not involve moral turpitude.), citing Beltran-Tirado v. INS, 213 F.3d 1179, 1184 (9th Cir. 2000); Matter of J, 4 I. & N. Dec. 512, 1951 WL 7052 (BIA 1951). For a comprehensive digest of moral turpitude holdings on regulatory cases, see Tooby, Rollin & Foster, Crimes of Moral Turpitude 8.22 (2008 and monthly updates since at nortontooby.com).

CRIMES OF MORAL TURPITUDE"POSSESSION OF A FIREARM BY AN UNDOCUMENTED IMMIGRANT
Possession of a firearm, under 18 U.S.C. 922(g)(5), should not be considered to be a crime involving moral turpitude. Since possessing a firearm is not inherently evil and not malum prohibitum, the fact of being unlawfully undocumented when doing so should not make it a crime of moral turpitude. See Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990) (possessing a sawed-off shotgun not a crime of moral turpitude). See also Matter of Gabryelski, 20 I&N Dec. 750 (1993): [W]e point out that while the respondent's conviction for possession of a firearm establishes his deportability under section 241(a)(2)(C) of the Act, see Matter of Chow, Interim Decision 3199 (BIA 1993), it does not render him inadmissible for purposes of section 245 adjustment, as there is no corresponding exclusion ground. In Matter of Rainford, supra, the Board specifically held that a conviction for criminal possession of weapon did not preclude a finding of admissibility in connection with an application for adjustment of status under section 245 of the Act, because it is not a ground of excludability. (Ibid.) Since it is not a ground of inadmissibility, it is not a crime involving moral turpitude. Thanks to Jonathan Moore.