Criminal Defense of Immigrants


§ 21.23 (D)

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(D)  Crime of Moral Turpitude.  Transportation does not necessarily implicate drug trafficking[203] or require any evil intent,[204] and therefore counsel can argue that a conviction should not trigger this ground of removal unless the record of conviction shows the transportation was for sale or distribution.[205] 

[203] See United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir. 1999) (conviction of transportation of marijuana under California Health & Safety Code § 11360 (a) cannot serve as a career offender predicate conviction, and is not an aggravated felony, because it can be committed for personal use).  But see Smalley v. Ashcroft, 354 F.3d 332 (5th Cir. Dec. 15, 2003) (travel in interstate commerce with intent to conceal or disguise nature, location, source, ownership, or control of property believed to be the proceeds of unlawful drug activity is CMT as per se morally reprehensible and contrary to accepted rules of morality).

[204] Cf. 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).  But see Nunez-Payan v. INS, 811 F.2d 264 (5th Cir. 1987) (noncitizen was statutorily precluded from proving good moral character as basis for suspension of deportation by previous Texas conviction for transporting one pound of marijuana).

[205] Even if the noncitizen bears the burden, a conviction of “transportation” should be relatively safe by application of the minimum conduct test.  See § § 16.8-16.14, supra.