Crimes of Moral Turpitude

(D)  CMT Deportation Grounds.  Counsel can also argue that a foreign conviction that occurred after admission to the United States cannot trigger the CMT grounds of deportation,[86] since those grounds (unlike the CMT ground of inadmissibility[87]) do not explicitly include foreign convictions.[3]  Congress knows how to refer to foreign criminal offenses if it wishes to do so.  For example, Congress recently provided, with respect to a specific new statute, that "[t]he term `criminal offense' means a State, local, tribal, foreign, or military offense (to the extent specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. 951 note)) or other criminal offense."[88]   In Small v. United States,[89] the United States Supreme Court held that 18 U.S.C. § 922(g)(1), which prohibits a person who has been "convicted in any court" from possessing a firearm, encompasses only domestic, not foreign, convictions.  This also suggests the argument that Congress excluded foreign convictions from those convictions which trigger deportation, except where it expressly provided otherwise.[90]  Counsel can also argue that because a deportable CMT conviction must occur “after admission” to the United States, there is reason to believe that Congress was considering only convictions suffered within the United States when it defined the CMT grounds of deportation.

[91] INA § § 237(a)(2)(A)(i)(I), (ii), 8 U.S.C. § § 1227(a)(2)(A)(i)(I), (ii).

[86] INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 212(a)(2)(A)(i)(I).

[87] But see 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").

[88] The Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, Pub. L. 109-248, § 111(6) (July 27, 2006)(emphasis supplied).

[89] Small v. United States, 544 U.S. 385 (Apr. 26, 2005).

[90] See, e.g., INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) (including as an aggravated felony “violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years.”); INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i); INA § 237(a)(4)(D), 8 U.S.C. § 1237(a)(4)(D).