While the consequence of inadmissibility resulting from a conviction for a crime of moral turpitude is serious, this class of conviction is not nearly as dangerous as an aggravated felony conviction or controlled substances offense.  Offenses that are only crimes of moral turpitude (and do not trigger other grounds of removal) generally do not disqualify a noncitizen from eligibility for discretionary immigration relief from removal, although there are some exceptions.

 

            Unfortunately any crime of moral turpitude that does not qualify for the Petty Offense[144] or Youthful Offender Exceptions[145] will trigger mandatory detention for a noncitizen who is inadmissible to the United States[146]  unless s/he was released from criminal custody before Oct. 9, 1998.[147]

 

            Circuit Court review of an adverse immigration decision by the BIA is not barred to a noncitizen deportable for a single CMT committed within five years, or for multiple crimes of moral turpitude, unless at least two of the crimes are punishable by a maximum term of imprisonment of one year or more.[148]  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 15.37(B)(1) (4th Ed. 2007).

 

            Where Good Moral Character is required, a CMT conviction will preclude relief unless a waiver is obtained, the offense comes within the Petty Offense, Youthful Offender, or Political Offense Exceptions, or the date of the offense falls outside of the required GMC period. [149]

 

            The category of “crime of moral turpitude” is not one that triggers any sentence enhancement upon illegal re-entry.[150]

 

            The category of “crime of moral turpitude” does not generally bar discretionary forms of relief.  In fact, many forms of relief were specifically created for the purpose of waiving removability on the basis of one or more crimes of moral turpitude.[151]  However, there are exceptions.[152]

 

Counsel must be aware that a crime that involves moral turpitude may often also be an aggravated felony, a controlled substance offense, or otherwise trigger additional grounds of removal.  The offense will then carry the consequences of all categories into which it falls.

 

            A conviction that is vacated on a ground of legal invalidity cannot trigger removal under the crime of moral turpitude grounds.[153]  A presidential or gubernatorial pardon will eliminate a crime of moral turpitude conviction for immigration purposes,[154] as will a properly obtained judicial recommendation against deportation granted prior to Nov. 29, 1990.[155]  “State rehabilitative relief,” such as an expungement or dismissal under statutes such as California Penal Code § 1203.4, will not be effective to eliminate the conviction.[156] 

 

            A noncitizen may become inadmissible simply upon admitting the commission of a crime of moral turpitude, even where there is no criminal conviction.[157]

 

[144] See § 4.5, supra.

[145] See § 4.6, supra.

[146] INA § 236(c)(1)(A), 8 U.S.C. § 1226(c)(1)(A).

[147] See § 3.11, supra.

[148] See § 241(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C).

[149] See § 3.14, supra.

[150] See INA § 276(b), 8 U.S.C. § 1326(b).  See also N. Tooby & J. Rollin, Criminal Defense of Immigrants § 15.39 (4th Ed. 2007).

[151] See, e.g., INA § 212(h), 8 U.S.C. § 1182(h), INA § 212(a)(2)(A)(ii), 8 U.S.C. § 1182(a)(2)(A)(ii).

[152] See Chapter 3, supra.

[153] See § 10.4, supra.

[154] See § 10.21, supra.

[155] See § 10.12-10.20, supra.

[156] See § 10.11, supra.

[157] See § 4.4, supra.

Ninth Circuit

CONVICTION " NON-CONVICTION DISPOSITION " VIOLATION OR INFRACTION " MILITARY NON-JUDICIAL PUNISHMENT
United States v. Reveles, 660 F.3d 1138, No. 10-30313 (9th Cir. Oct. 24, 2011) (the non-judicial punishment (NJP) administered by the Navy for drunk driving was not criminal in nature and therefore the Government did not violate the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution by prosecuting and convicting the defendant for the crime a second time"this time in the U.S. district court"after he had received NJP for the same offense.) NOTE: Applying this to the immigration context, the argument would be that, if even an offense that carries 30 days in custody is not considered to be criminal, offenses that may not meet each of the Matter of Eslamizar requirements might nevertheless fail to constitute a conviction of a crime for immigration purposes as well, as long as it appears they also do not follow a criminal procedure. See Matter of Eslamizar, 23 I. & N. Dec. 684, 687 (BIA 2004) (finding that an Oregon violation was not a conviction, because it carried: (1) no possible jail sentence; (2) no right to appointed counsel; (3) no right to jury trial; and (4) and no right to proof beyond a reasonable doubt).