Criminal Defense of Immigrants


§ 20.39 A. Elements of the Deportation Ground

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The elements of this ground of deportation are as follows:


(a) two convictions

(b) after admission

(c) of a crime

(d) of moral turpitude

(e) not arising as part of a single scheme of criminal misconduct.


Conviction of two crimes involving moral turpitude — committed at any time after admission and regardless of sentence — is a basis for deportation unless the offenses arose as part of a “single scheme of criminal misconduct.” [244]  There is no time requirement, and all CMTs trigger this result, regardless of the potential or imposed sentence.[245]  This ground of deportation also does not depend on the degree of moral turpitude.[246]  A 1971 and a 1997 conviction for misdemeanor petty theft, for example, each with a maximum of six months in jail, will combine to make the defendant deportable under this ground.


The statute is generally held to be retroactive.  This provision therefore applies to convictions occurring prior to the revisions of the statute in 1952.[247] 

[244] INA § 237(a)(2)(ii), 8 U.S.C. § 1227(a)(2)(ii).

[245] In 1952, the INA revised the multiple-CMT deportation ground to eliminate the prior requirement that each conviction result in a sentence of one year or more.  S. Rep. No. 82-1137, at 21 (1952); H.R. Rep. No. 82-1365, at 60 (1952), reprinted in 1952 U.S.C.C.A.N. 1653.  The statute now provides that a noncitizen will be deported for two convictions at any time after admission, of crimes involving moral turpitude, regardless what sentence is imposed, and even if the execution or imposition of the sentence was wholly suspended.  Matter of P, 8 I. & N. Dec. 424 (BIA 1959); Matter of O, 7 I. & N. Dec. 539 (BIA 1957). 

[246] Wyngaard v. Kennedy, 295 F.2d 184 (D.C. Cir. 19); Babouris v. Esperdy, 269 F.2d 621 (2d Cir. 1959).

[247] Khan v. Barber, 253 F.2d 547 (9th Cir. 1958).



Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. Nov. 21, 2007) (Arizona conviction for solicitation to possess at least four pounds of marijuana for sale, in violation of Ariz. Rev. Stat. 13-1002(A) and (B)(2), 13-3405(A)(2) and (B)(6), constitutes a crime involving moral turpitude for the purposes of INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a)(2)(A)(i), since this ground does not specifically list "attempt" and "conspiracy," and thus does not impliedly exclude "solicitation").

Note: The court applied a "target offense" style analysis. Under this analysis, solicitation to commit a non-CMT offense should not be considered a CMT. The case also holds that solicitation offenses are included in INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a)(2)(A)(i), because that section does not mention "attempt and conspiracy" to the exclusion of other non-substantive offenses. This case would not apply to the CMT ground of inadmissibility, since INA 212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i)(I) does include the "attempt or conspiracy" language, and thus impliedly excludes solicitation offenses. The same holds true for any other ground of deportation or inadmissibility that lists attempt and conspiracy, but not solicitation, such as the controlled substances ground of inadmissibility, INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II), and the aggravated felony ground of deportation, INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), inter alia.

Second Circuit

Vartelas v. Holder, 620 F.3d 108, 2010 WL 3515503 (2d Cir. Sept. 9, 2010) (the Petty Offense Exception requirement that the maximum penalty possible, under INA 212(a)(2)(A)(ii)(II) and U.S.C 1182 (a)(2)(A)(ii)(II), must be one year or less refers to the statutory maximum period of incarceration, rather than the top of the Guidelines range); accord Mejia-Rodriguez v. Holder, 558 F.3d 46, 48 (1st Cir. 2009); Mendez-Mendez v. Mukasey, 525 F.3d 828, 833 (9th Cir. 2008).

Ninth Circuit

Mendoza v. Holder, 606 F.3d 1137 (9th Cir. Jun. 2, 2010) (no res judicata bar when previously known conviction was paired with a new conviction to trigger removal for multiple crimes of moral turpitude).


Article: Argument Silva-Trevino Applies Only to Crime of Moral Turpitude Ground of Inadmissibility, Not to the Grounds of Deportability

On November 7, 2008, former Attorney General Mukasey decided Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. November 7, 2008), in which he modified the categorical analysis used to determine whether a given conviction constitutes a crime of moral turpitude (CMT) for purposes of inadmissibility under INA 212(a)(2)(A)(i), 8 U.S.C. 1182(a)(2)(A)(i). He reasoned that because the CMT ground of inadmissibility refers to whether the immigrant admitted commission of a CMT, Congress intended that factual question to be relevant.

The relevant provisions contemplate a finding that the particular alien did or did not commit a crime involving moral turpitude before immigration penalties are or are not applied. Section 212(a)(2)(A)(i)(I), the inadmissibility provision at issue in this case, refers to "any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude." (Emphasis added.) Section 237's removability provisions similarly pertain only to "[a]ny alien who is convicted of a crime involving moral turpitude" under certain enumerated circumstances, one of which relates to the alien's date of admissiona fact that would not typically be reflected in a criminal record of conviction. Sections 237(a)(2)(A)(i)-(ii) of the Act. To impose evidentiary limitations with the result that immigration penalties under section 212(a) or section 237 apply to aliens whose crimes did not involve moral turpitude, or with the result that aliens whose crimes did involve moral turpitude escape those penalties, is in tension with the text of those sections.

(Matter of Silva-Trevino, 24 I. & N. Dec. 687, 699-700 (A.G. November 7, 2008).)

The reference to the CMT ground of inadmissibility is apt: that ground of removal does refer to the commission of an offense, or acts constituting an offense. Silva-Trevino was an inadmissibility case, not a deportation case under INA 237(a)(2), 8 U.S.C. 1227(a)(2). The reference to the CMT ground of deportation, however, is dictum. Moreover, the language of the CMT deportation grounds does not refer to the commission of a CMT, or of acts constituting a CMT. It does refer, as Silva-Trevino pointed out, to the date of admission, which would not typically be reflected in a criminal record of conviction. (Id. at 700.) Therefore, the reasoning of Silva-Trevino, and its holding, do not apply to the CMT grounds of deportation. This difference between the two statutes is a distinction sufficient to require a different holding in a deportation case, which is technically not governed by the holding of Silva-Trevino.

This reasoning has begun to be adopted by Immigration Judges. For example, in one case, the immigration judge reasoned as follows:

It is unclear whether the portions [of the] Attorney General's decision allowing a factual inquiry into the nature of the acts engaged in by Respondent applies where, as here, ICE holds the burden of proving a conviction for a CIMT under 237(a)(2)(A)(i). First, the decision in Silva-Trevino rests on a rationale dependent in part upon language contained only in section 212(a)(2)(A)(i)(I), related to "admission" of certain "acts". [Footnote 4.]

[Footnote 4] The Attorney General Finds the statutory language to be ambiguous as to whether a factual inquiry is appropriate, rather than a strictly categorical one, holding that the language "cuts both ways." He finds that the language requiring a conviction cuts in favor of a purely categorical approach, but that language such as "involving" (which appears in both 212(a)(2)(A)(i)(I) and 237(a)(2)(A)(i)) and language such as "admits" the "commission" of certain "acts" (which appears only in 212 cut in favor of a factual inquiry. Thus, the language in 237 may be said to be less ambiguous, or at least less favoring of a factual inquiry, than is that in 212. See Silva-Trevino, supra, at 693 and 699.

Therefore, counsel is free to argue, and Immigration Judges are free to decide, that Silva-Trevino applies only in cases charging CMT inadmissibility, but not in cases charging CMT deportability.