Criminal Defense of Immigrants


§ 21.20 (D)

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(D)  Crime of Moral Turpitude.  Whether an offense is a crime of moral turpitude does not turn upon recidivism.  Since a single simple possession conviction is not a crime of moral turpitude, [168] a subsequent conviction will not be a crime of moral turpitude.

[168] Matter of Abreu-Semino, 12 I. & N. Dec. 775 (BIA 1968) (conviction for unlawful possession of LSD under 21 U.S.C. § 331(q)(3) was not crime involving moral turpitude because intent was not an essential element of the offense).  See also Hampton v. Wong Ging, 299 F. 289, 290 (9th Cir. 1924) (possession conviction under the Narcotic Act was not a crime of moral turpitude); Alexander v. Exxon Co., 949 F. Supp. 1248 (M.D.N.C. 1996).  But see Portaluppi v. Shell Oil Co., 684 F. Supp. 900, 904 (E.D. Va. 1988) (simple possession of cocaine a CMT).



Seventh Circuit

United States v. Pacheco-Diaz, __ F.3d __, 2007 WL 3071682 (7th Cir. Oct. 23, 2007) (Illinois conviction for felony simple possession of marijuana, in violation of 720 ILCS 550/4, is an aggravated felony for sentencing purposes where noncitizen has prior possession conviction; court rejected argument that state court must have proven prior conviction as an element of the second conviction, finding that it only needs to be hypothetically possible that the noncitizen could have been subject to the federal recidivist enhancement).