An offense requiring lewd intent as an essential element is often held to be a crime involving moral turpitude.[106]  However, the existence of this intent is not sufficient, standing alone, to require the offense to be held to be a CMT.[107] At least one offense, statutory rape, has been found to be a crime of moral turpitude, even though the statute of conviction required no proof of intent.[108]  See § § 9.96-9.105, infra.

 

            Although written in 1975, the following still rings true:

 

In the area of sex crimes and crimes involving family relationships, it is particularly difficult to discern a distinguishing principle or set of principles which the courts apply to determine whether the particular offense involved moral turpitude for deportation or exclusion purposes. In some cases, the presence or absence of violence seems to be the important factor; in others, the courts consider whether the offense is malum in se or malum prohibitum; in still others, the presence or absence of criminal intent is considered determinative of the turpitude of the offense; and in still others, there may be a lack of violence, and a lack of criminal intent, in conduct which is neither malum in se nor regarded by society as indicating a “base, vile and depraved mind,” and yet the offense may still be held to involve moral turpitude for deportation purposes. In this area in particular, the results in the cases seem very capricious, lending credence to the criticism that because this section of the statute is an attempt to legislate morality, the courts tend to indulge their own personal moral standards by characterizing conduct of which they personally disapprove as indicating a “base, vile, and depraved mind,” and then giving that characterization as a “reason” for holding that the conduct of which they disapproved necessarily involves moral turpitude.[4]

 

            Sex Registration.  A strong example of this is the BIA’s recent decision holding that failure to register as a sex offender is a CMT.[5]  In Matter of Tobar-Lobo,[109] the BIA held that failure to register as a sex offender, in violation of California Penal Code § 290(g)(1), was a crime of moral turpitude, even though the offense could be committed by merely forgetting to fulfill one of the many requirements of registration.  Looking to contemporary standards, the BIA found that sex offenses were themselves so far against contemporary mores that once convicted of a sex offense (which might include urinating in public park), an offense based upon a failure to fulfill the offender’s duty to register contravenes social mores to such an extent that it is appropriately deemed turpitudinous, even if the offense was accidental in that the offender merely forgot to register.[7] 

 

            The BIA dismissed the argument that no intent was required by stating that failing to register “implicitly involves evil intent, even if the obligation may have been ‘forgotten’.”[8]  The BIA suggested that this offense was similar to child endangerment, which could be committed by “forgetting” to feed one's child (itself forgetting that caselaw requires at least a reckless intent for child endangerment to be a CMT[9]).[10]  The BIA likewise dismissed the argument that the offense was merely regulatory as opposed to malum in se by (incorrectly) pointing out that Ninth Circuit law stated the DUI was a crime of moral turpitude.[11]

 

            The Ninth Circuit rejected this reasoning, finding that a violation of the Nevada sex registration statute was not a CMT because the offense was both regulatory, and lacked a requirement of intent.[12]  The Ninth Circuit noted that it is the sex offense, not the failure to register, that is socially reprehensible.  The court also found that unlike statutory rape and the few other regulatory offenses that have been found to be CMTs, the fact that a person fails to register does not cause any direct or particularized injury to anyone.  Finally, the court noted that commission of any crime runs contrary to some duty owed to society, and this is not enough to establish moral turpitude.  “While a sex offender’s breach of the duty to notify may deprive law enforcement and others of valuable information, it does not demonstrate moral depravity.”[13]

 

[110] See, e.g., Matter of Alfonso-Bermudez, 12 I. & N. Dec. 225 (BIA 1967) (conviction of disorderly conduct in violation of California Penal Code § 647(a), soliciting of a person or persons to engage in, and the engaging in lewd and dissolute conduct in a public place, referring to overt and public homosexual activity, is a crime involving moral turpitude), distinguishing Matter of GR, 5 I. & N. Dec. 18 (BIA 1953), citing United States v. Flores-Rodriguez, 237 F.2d 405 (2d Cir. 1956); Hudson v. Esperdy, 290 F.2d 879 (2d Cir. 1961), cert. den., 368 U.S. 918 (1961) (New York conviction under disorderly conduct statute prohibiting loitering about public place soliciting men for purpose of committing crime against nature or other lewdness held to be crime of moral turpitude); Babouris v. Esperdy, 269 F.2d 621 (2d Cir. 1959), cert. den., 362 U.S. 913 (1960); Lane ex rel. Cronin v. Tillinghast, 38 F.2d 231 (1st Cir. 1930) (criminal lewdness as defined by the statute of Massachusetts has been found to connote moral turpitude); Wyngaard v. Rogers, 187 F.Supp. 527 (D.D.C. 1960), aff’d, 295 F.2d 184, 111 U.S.App.D.C. 197 (D.C.Cir. 1961), cert. den., 368 U.S. 926 (1961) (conviction under New York Penal Law § 722, of frequenting or loitering about a public place and soliciting men for purpose of committing crime against nature or other lewdness, was a conviction for crime involving moral turpitude); Ganduxe y Marino v. Murff, 183 F.Supp. 565, 567 (D.N.Y. 1959), aff’d, 278 F.2d 330 (2d Cir. 1960), cert. den., 364 U.S. 824 (1960) (New York conviction for loitering for purpose of inducing men to commit acts against nature or other lewdness held a crime involving moral turpitude), citing United States v. Flores-Rodriguez, 237 F.2d 405 (2d Cir. 1956); Matter of Lambert, 11 I. & N. Dec. 340 (BIA 1965) (conviction for letting or renting rooms with knowledge that the rooms were to be used for the purpose of lewdness, assignation or prostitution in violation of section 26-42 of the City of Tampa Code is conviction of a crime involving moral turpitude); Matter of C, 3 I. & N. Dec. 790 (BIA 1949) (conviction of open lewdness in violation of New Jersey Revised Statutes 2: 140-1 (1942) involves moral turpitude).

[111] E.g., Matter of FR, 6 I. & N. Dec. 813 (BIA 1955) (conviction of a violation of New York Penal Law § 722(8), disorderly conduct by frequenting or loitering about any public place soliciting men for the purpose of committing a crime against nature or other lewdness, not considered crime of moral turpitude), citing Matter of GR, 5 I. & N. Dec. 18 (BIA 1953).  But see Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472 (June 26, 2003) (Texas conviction of “deviate sexual conduct” [oral or anal sex or penetration with an object] between members of the same sex, in violation of Texas Code Ann. § 21.06(a), held in violation of the Due Process Clause of the Fourteenth Amendment, where both partners were adults at the time of the offense which was consensual and occurred in private).

[112] See, e.g., Rivo v. INS, 262 F.Supp.2d 6 (E.D.N.Y. May 9, 2003); Castle v. INS, 541 F.2d 1064 (4th Cir. Sept. 23, 1976); Marciano v. INS, 450 F.2d 1022 (8th Cir. 1971), cert. denied, 405 U.S. 997 (1972).  But see Quintero- Salazar v. Keisler, 506 F.3d 688 (9th Cir. Oct. 9, 2007) (California conviction of statutory rape, in violation of California Penal Code § 261.5(d), where the victim is under 16 years of age and the actor is over 21, is not a crime involving moral turpitude, since (1) it includes consensual sex between [at minimum] between a high-school junior and a college sophomore, and is not inherently base, vile, or depraved; court also noted that (2) the statute proscribes at least some malum prohibitum conduct, since the same act would not be illegal at all if the two were married at the time; (3) the same conduct is not illegal in other states; (4) the statute was passed in order to address teenage pregnancy, not to avoid a moral issue; and (5) the offense does not require any element of intent be proven).  See § 9.105, infra.

[113] Annot., What Constitutes “Crime Involving Moral Turpitude” Within Meaning of § § 212(a)(9) and 241(a)(5) of Immigration and Nationality Act (8 U.S.C. § § 1182(a)(9), 1251(a)(4)), and Similar Predecessor Statutes Providing for Exclusion or Deportation of Aliens Convicted of Such Crime, 23 A.L.R. Fed. 480, § 12[a] (1975) (footnotes omitted).

[114] Matter of Tobar-Lobo, 24 I. & N. Dec. 143 (BIA 2007) (California conviction of willful failure to register by a sex offender who has been previously apprised of the obligation to register, in violation of Penal Code § 290(g)(1), is a crime involving moral turpitude).

[115] In Matter of Tobar-Lobo, 24 I. & N. Dec. 143 (BIA Apr. 23, 2007).

[116] Id. at 146.

[117] Id. at 147.

[118] Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004).

[106] Matter of Tobar-Lobo, 24 I. & N. Dec. at 146.

[107] Id. at 147, citing Hernandez-Martinez v. Ashcroft, 329 F.3d 1117, 1119 (9th Cir. 2003) (Arizona conviction under former ARS § 28-697A is "divisible" in that the offense can be committed by either driving on a suspended license while under the influence of alcohol [a crime of moral turpitude], or by merely being in actual physical control of a vehicle [not a crime of moral turpitude]), reh’g denied Hernandez-Martinez v. Ashcroft, 343 F.3d 1075 (9th Cir. 2003).   See § 9.87, supra.

[108] Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. Feb. 7, 2008)

[109] Id. at 748.

BIA

CRIMES OF MORAL TURPITUDE " INDECENT EXPOSURE
Matter of Cortes Medina, 26 I. & N. Dec. 79 (BIA 2013) (California conviction of indecent exposure, in violation of Penal Code 314(1), which includes the element of lewd intent, is categorically a crime involving moral turpitude).

Third Circuit

CRIMES OF MORAL TURPITUDE " FAILURE TO REGISTER AS A SEX OFFENDER
Totimeh v. Attorney General, 666 F.3d 109 (3d Cir. Jan. 12, 2012) (Minnesota conviction of failure to register as a sex offender, in violation of Minn. Stat. 243.166.5, defined the offense as knowingly violat[ing] any of [the statutes] provisions or intentionally provid[ing] false information, is not a crime of moral turpitude, since it is a regulatory offense designed to assist law enforcement, and does not regulate a crime that of itself is inherently vile or intentionally malicious.); following Efagene v. Holder, 642 F.3d 918 (10th Cir. 2011) (Colorado conviction of failure to register as a sex offender, is not a CIMT).

Fourth Circuit

CRIMES OF MORAL TURPITUDE " CONTRIBUTING TO THE DELINQUENCY OF A MINOR
Prudencio v. Holder, 669 F.3d 472 (4th Cir. Jan. 30, 2012) (Virginia misdemeanor conviction of contributing to the delinquency of a minor, in violation of Virginia Code 18.2-371, did not categorically constitute a crime involving moral turpitude applying the modified categorical approach).

Ninth Circuit

CRIMES OF MORAL TURPITUDE"PROSTITUTION"SOLICITING AN ACT OF PROSTITUTION AS A CUSTOMER
Rohit v. Holder, 670 F.3d 1085 (9th Cir. Feb. 29, 2012) (California misdemeanor conviction of disorderly conduct [soliciting an act of prostitution], in violation of Penal Code 647(b), categorically constitutes a crime involving moral turpitude, whether or not the defendant is the prostitute or the customer: We hold that soliciting an act of prostitution is not significantly less base, vile, and depraved than engaging in an act of prostitution.). In Rohit v. Holder, 670 F.3d 1085 (9th Cir. Feb. 29, 2012), the court held that a California misdemeanor conviction of disorderly conduct"soliciting an act of prostitution, in violation of Penal Code 647(b), categorically constitutes a crime involving moral turpitude, whether or not the defendant is the prostitute or the customer. It stated: We hold that soliciting an act of prostitution is not significantly less base, vile, and depraved than engaging in an act of prostitution. (Id. at 1089.) The court reasoned that a crime that does not involve moral turpitude does not become a crime involving moral turpitude through repetition. (Id. at 1090; see Matter of Short, 20 I. & N. Dec. 136, 139 (BIA 1989) (Moral turpitude cannot be viewed to arise from some undefined synergism by which two offenses are combined to create a crime involving moral turpitude, where each crime individually does not involve moral turpitude.).) The court rejected an argument that solicitation of prostitution is not analogous to prostitution because prostitution often involves repeated acts. The court felt it owed Chevron deference to the Board's decision in Matter of W, where the BIA held that an ordinance that criminalized a single act of prostitution dealt with a crime involving moral turpitude. 4 I. & N. Dec. at 401-02, 404. Rohit offers no authority for the proposition that acts of prostitution are only morally turpitudinous if repeated. If a single act of prostitution involves moral turpitude, there is no reason why a single act of solicitation of prostitution does not. Id. at 1090. Unfortunately, this decision implies that customers, as well as prostitutes, commit a crime of moral turpitude by soliciting an act of prostitution under this statute. The California courts stated: Thus, the ordinary meaning of the statute [Penal Code 647(b)] is that all persons, customers as well as prostitutes, who solicit an act of prostitution are guilty of disorderly conduct. (Leffel v. Municipal Court 54 Cal.App.3d 569, 575, 126 Cal.Rptr. 773, 777 (1976.) A better analysis would be by analogy to controlled substances: using and selling are both illegal but being a consumer is not a CIMT while being in the business of selling is. Counsel could have argued that this case should not apply to a customer, depending on the facts which are not made clear by the decision. The Board cases cited by the court do not say that merely being a customer one-on-one is a CIMT. Matter of Lambert is basically about renting out rooms for prostitution"i.e. running & profiting from a whorehouse, not merely being a john. Just because prostitution is assumed to be wrong doesnt make being in the business of prostitution and patronizing a prostitute the same. Under the Courts logic, since drug trafficking is immoral, a person who buys a controlled substance is participating in an act of trafficking, since the base act is the result of the base request or offer. Rohit slip op at 2265. Thanks to Jonathan Moore. Appellate counsel may not have argued either the difference between prostitutes and customers, or addressed the congressional intent/statutory interpretation issue, or overbreadth. Congress has specifically chosen to treat prostitution, and the procurement of prostitutes, separately from crimes involving moral turpitude. Compare INA 212(a)(2)(A), with INA 212(a)(2)(D). Commission of a single crime involving moral turpitude renders a noncitizen permanently inadmissible, and in order to qualify for a waiver of inadmissibility the noncitizen must establish extreme hardship to a spouse, parent, or child. INA 212(a)(2)(A)(i)(I), 212(h)(1)(B). However, a person who has committed prostitution, or procurement of prostitutes, is only inadmissible for a period of ten years. INA 212(a)(2)(D). Additionally, such a person is eligible to seek a waiver, under INA 212(h)(1)(A), and need only show rehabilitation. If prostitution, or procuring a prostitute were crimes involving moral turpitude, the ten-year statute of limitations in INA 212(a)(2)(D) would be meaningless. The provisions allowing persons inadmissible under INA 212(a)(2)(D) to obtain a waiver under INA 212(h) without showing hardship would likewise be meaningless. The rules of statutory construction demand, however, that meaning be given to every portion of a statute. Flores-Figueroa v. United States, 129 S.Ct. 1886 (May 4, 2009) ("We should not interpret a statute in a manner that makes some of its language superfluous."). Therefore, the only way to read the statute is to treat prostitution, and the procurement of prostitutes, as acts separate from crimes involving moral turpitude. There is no justifiable basis in the law for treating a person who procures a prostitute less harshly than a person who merely solicits. Additionally, even if soliciting a prostitute, as traditionally understood, constitutes a crime involving moral turpitude, a first conviction does not meet that definition. California Penal Code 647(b) is a divisible statute that reaches both the prostitutes themselves as well as persons seeking to hire a prostitute. It may not be clear from the record of conviction which of the two offenses the defendant was found guilty of. The records from the California case show only that the defendant was charged under the statutory language of Penal Code 647(b), and entered a plea of no contest to that same statute. California Penal Code 647(b) also punishes conduct that is not considered prostitution. While the INA does not specifically define prostitution, the Ninth Circuit has observed that the Department of State has defined the term for immigration purposes as engaging in promiscuous sexual intercourse for hire. 22 C.F.R. 40.24(b). The court found this regulation to be a reasonable interpretation of the statute. Kepilino v. Gonzales, 454 F.3d 1057, 1061 n.2 (9th Cir. 2006). California Penal Code 674(b), however, includes engaging in any lewd act, whether it be sexual intercourse or any other contact that might include a lap-dance or massage. Wooten v. Superior Court, 93 Cal.App.4th 422, 427 (2001). If the record of conviction does not show intercourse, the minimum conduct necessary to violate California Penal Code 647(b) appears to include offering to pay another person for an erotic massage, so the conviction cannot be considered a crime involving moral turpitude. See Hamdan v. INS, 98 F.3d 183, 187 (5th Cir. 1996) (if a statute encompasses both acts that do and do not involve moral turpitude, the BIA cannot sustain a deportability finding on that statute). Thanks to Joseph Justin Rollin.

MORAL TURPITUDE - SEXUAL INTENT
Nunez v. Holder, ___ F.3d ___, ___, 2010 WL 432417 (9th Cir. Feb. 10, 2010) (acts committed for the purpose of the sexual gratification of the viewer, such as nude dancing, or for the purpose of causing sexual affront, such as mooning, do not necessarily rise to the level of moral turpitude).

MORAL TURPITUDE - SEXUAL INTENT
Nunez v. Holder, ___ F.3d ___, ___, 2010 WL 432417 (9th Cir. Feb. 10, 2010) (acts committed for the purpose of the sexual gratification of the viewer, such as nude dancing, or for the purpose of causing sexual affront, such as mooning, do not necessarily rise to the level of moral turpitude).

CRIMES OF MORAL TURPITUDE - SEX OFFENSES - ANNOYING OR MOLESTING A CHILD
Nicanor-Romero v. Mukasey, 523 F.3d 992 (9th Cir. Apr. 24, 2008) (California misdemeanor conviction of annoying or molesting a child, in violation of Penal Code 647.6(b) ["annoys or molests any child under the age of 18"], did not constitute a crime of moral turpitude under the categorical approach, or under the modified categorical approach: "After examining the elements of 47.6(a), as set forth in the statute and as construed by California courts, we conclude that there is a "realistic probability, not a theoretical possibility," that a misdemeanor conviction under 647.6(a) can be based on behavior that, while criminal, does not rise to the level of a "crime involving moral turpitude" within the meaning of 8 U.S.C. 1227(a) (2)(A)(i)(I). ... We conclude that the government has failed to show that Nicanor-Romero committed either an aggravated felony or a crime involving moral turpitude. We therefore grant the petition and vacate the order of removal.").

Lower Courts of Ninth Circuit

CRIMES OF MORAL TURPITUDE " ORAL COPULATION WITH A MINOR
People v. Zuniga, 225 Cal.App.4th 1178, 170 Cal.Rptr.3d 811 (Cal.App. 4 Dist., Apr. 28, 2014) (California conviction of violating Penal Code 288a(b)(1), oral copulation with a minor, is not a crime of moral turpitude since there is no scienter requirement or age gap required and minor could be any person under 18).

Other

CRIME OF MORAL TURPITUDE - SEXUAL OFFENSES - INDECENCY WITH A CHILD
Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 9, 2008) (Texas conviction for indecency with a child, in violation of Texas Penal Code 21.11(a)(1) is a crime involving moral turpitude if the actor, in fact, knew or should have known that the victim was under 18 years old).

Note: this decision is horribly incorrect, changing 100 years of CMT law, and should be attacked. See http://www.bibdaily.com/pdfs/Silva%20Trevino%20Amicus%20Brief.pdf, for amici brief outlining many arguments against this terrible decision.