Crimes of Moral Turpitude

The essential elements of the statute of conviction must be examined in order to determine whether the conviction will trigger removal as a crime of moral turpitude.[56]  The elements of a statute are determined by the statute of conviction, as modified by any judicial decisions defining those elements.[57]

            The conviction cannot trigger removal unless the minimum conduct sufficient to satisfy the elements of the statute defining the offense falls entirely within the elements of the relevant ground of removal.[58]

            Analysis of crimes of moral turpitude can be somewhat more difficult than other grounds of removal since there is no clear statutory definition of moral turpitude.[59]  Rather, counsel must generally compare the conviction against the moral turpitude definition as described in Chapter 8, infra, and compare the criminal statute at issue to other criminal statutes for which a court has already made a moral turpitude definition.  See Chapter 9, and Appendix A, infra for a discussion and chart of specific CMT cases.

            Where a statute punishes more than one offense (i.e., contains more that one set of elements), and only some of those offenses involve moral turpitude, the record of conviction[60] may be consulted to determine the exact set of elements that were required to be proven to convict.  This is known as divisible statute analysis.[6]  No resort should be had to the record of conviction unless the statute is divisible.[7] 

[61] Matter of LVC, 22 I. & N. Dec. 594 (BIA 1999) (en banc); Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994), aff’d, 72 F.3d 571 (8th Cir. 1995), cert. denied, 117 S.Ct. 105 (1996); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989); Matter of Pataki, 15 I. & N. Dec. 324, 325 (BIA 1975) (“The presence or absence of moral turpitude must be determined in the first instance from consideration of the crime as defined by the statute.”).

[62] See § 6.5, infra.

[56] See § 6.6, infra.

[57] Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1068 (9th Cir. Sept. 19, 2007).  Indeed, the dissent in that case suggested that the categorical analysis should not be applied at all in the CMT context.  Id. at 1067 n.4, 1086.

[58] See § § 7.10-7.12, infra.

[59] See § § 7.1-7.9, infra.

[60] See § 7.6, infra.