Crimes of Moral Turpitude

 

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.