Criminal Defense of Immigrants

Where an offense is committed for the purpose of committing another offense, a conviction will be considered a crime involving moral turpitude if the target offense constitutes a CMT. 

                Assault with intent to commit a felony, for example, does not constitute a crime of moral turpitude unless the underlying felony itself involves moral turpitude.[142]  The fact that the intended offense was a felony does not make it a CMT, nor make another offense committed with intent to commit a felony into a CMT.[143]  Where the offense intended to be committed is not unequivocally an offense of moral turpitude, the DHS may not go beyond the record of conviction to establish whether the underlying felony involves moral turpitude.[144] 

                The classic example of a target offense is burglary.[145]  The basic definition of burglary is the entry of a building or structure with intent to commit a crime.  The entry itself can be completely lawful, and the intended crime may or may not involve moral turpitude.  Preparatory offenses, such a possession of burglary tools, also only become CMTs only upon proof of intent to commit a CMT.[146]

[142] Matter of Short, 20 I. & N. Dec. 136 (BIA 1989), withdrawing from Matter of Baker, 15 I. & N. Dec. 50 (BIA 1974) (assault with intent to commit a felony is a crime involving moral turpitude, regardless whether the intended felony is a CMT); Matter of M, 2 I. & N. Dec. 525 (BIA 1946).

[143] See Tillinghast v. Edmead, 31 F.2d 81 (1st Cir. 1929) (classification of a crime as a felony is not determinative of its character with regard to the presence or absence of moral turpitude).

[144] See, e.g., Matter of Beato, 10 I. & N. Dec. 730 (BIA 1964) (assault in the second degree involves moral turpitude not because it constitutes a felony but because the record revealed that the felonies intended to be committed were carnal abuse and rape). 

[145] Matter of Moore, 13 I. & N. Dec. 711 (BIA 1971) (Michigan conviction of attempted breaking and entering with intent to commit larceny a CMT).  See also Matter of Short, 20 I. & N. Dec. 136 (BIA 1989) (assault with intent to commit a felony is a CMT only if the intended felony is also a CMT).

[146] See, e.g., Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939) (conviction of possession of burglary tools with intent to commit a crime, in violation of New York Penal Law § 408, does not involve moral turpitude unless the record of conviction affirmatively shows that the particular crime the noncitizen intended to commit with the burglary tools found in his possession involves moral turpitude); Matter of S, 6 I. & N. Dec. 769 (BIA 1955) (conviction of possession of burglary tools (with intent to commit any indictable offense) in violation of Canada Criminal Code § 464(b) is not a crime involving moral turpitude unless accompanied by an intent to use the tools to commit a specific crime which is itself a crime involving moral turpitude; since here, the record of conviction omits any reference to the offense intended, the conviction could not be held to involve moral turpitude).