Crimes of Moral Turpitude

 

Both felonies and misdemeanors can be considered crimes involving moral turpitude.[161]  The seriousness of the offense is not decisive, as “not all felonies are crimes involving moral turpitude, and not all crimes involving moral turpitude are felonies.”[162]  The BIA recently affirmed that “[n]either the seriousness of a criminal offense, nor the severity of the sentence imposed, is determinative of whether a crime involves moral turpitude,”[163] finding that a New York assault statute was a CMT, even though it was the lowest degree of assault punished under New York state law.[164]

 

The designation of a crime as “infamous” is not dispositive of the issue.[165]  The length of the sentence also is not a criterion in assessing moral turpitude.[166]  Further, the gravity of the sentence does not control the decision whether a conviction constitutes a CMT.[167] 

 

            Nonetheless, the gravity or minor nature of the offense does play a role in the determination whether a crime involves moral turpitude. 

 

Arson is a crime that involves an ‘act of baseness or depravity contrary to accepted moral standards.’  Rodriguez-Herrera v. INS, 52 F.3d 238, 239 (9th Cir. 1995) (citations and internal quotations omitted). Unlike the crime of malicious mischief, arson is not a “relatively minor offense,” see id., but, rather, a felony with a high probability of causing significant property damage, serious injury, and death.[168]

 

If Congress has determined, in effect, that an offense does not involve moral turpitude, the courts will defer to that determination.[169]  Thus, counsel should be alert for other offenses as to which Congress has granted amnesty, since this argument could be extended to cover those offenses as well.

The repetition of an act which is not a CMT does not convert it into a crime of moral turpitude.  In Matter of Torres-Varela, the BIA held that aggravated “driving under the influence” (DUI) under an Arizona statute, defined as a third conviction for simple DUI, is not a crime involving moral turpitude.[170]

[161] Jordan v. De George, 341 U.S. 223 (1951); Tillinghast v. Edmead, 31 F.2d 81 (1st Cir. 1929); United States ex rel. Griffo v. McCandless, 28 F.2d 287 (E.D.Pa. 1928); see also United States ex rel. Mongiovi v. Karnuth, 30 F.2d 825 (W.D.N.Y. 1929); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989), withdrawing from Matter of Baker, 15 I. & N. Dec. 50 (BIA 1974).

[162] United States ex rel. Griffo v. McCandless, 28 F.2d 287 (E.D. Pa. 1928).  See also Tillinghast v. Edmead, 31 F.2d 81 (1st Cir. 1929); United States ex rel. Mongiovi v. Karnuth, 30 F.2d 825 (W.D.N.Y. 1929); Matter of Tran, 21 I. & N. Dec. 291, 292 (BIA 1996); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989), withdrawing from Matter of Baker, 15 I. & N. Dec. 50 (BIA 1974).  But see Guerrero de Nodahl v. INS, 407 F.2d 1405 (9th Cir. 1969) (where the crime is “this heinous,” the court said, “moral turpitude and wilful conduct are synonymous terms.” Conviction of a mother of “willfully” inflicting corporal punishment upon her 9-year-old child in violation of a California statute was held to involve moral turpitude, despite lack of criminal intent as an element of the offense).

[163] Matter of Solon, 24 I. & N. Dec. 239, 240 (BIA Jul. 25, 2007), citing Matter of Serna, 20 I. & N. Dec. Dec. 579, 581 (BIA 1992).

[164] Id. at 246.

[165] Matter of Medina, 15 I. & N. Dec. 611, 614 (BIA 1976).

[166] Gordon, supra, § 71.05[1][d][i], citing United States v. Carrollo, 30 F.Supp. 3 (W.D. Mo. 1939).

[167] Gonzales v. Barber, 207 F.2d 398, 400 (9th Cir. 1953), aff’d, 374 U.S. 637 (1954); United States ex rel. Zaffarano v. Corsi, 63 F.2d 757 (2d Cir. 1933).

[168] Borromeo v. INS, 213 F.3d 641 (9th Cir. 2000) (Table).

[169] Beltran-Tirado v. INS, 213 F.3d 1179, 1185 (9th Cir. 2000) (convictions for making a false statement on an employment verification form and using a false Social Security number did not constitute crimes of moral turpitude since Congress had granted special amnesty for the specific offenses involved).

[170] Matter of Torres-Varela, 23 I. & N. Dec. 78 (BIA 2001) (en banc) (Arizona conviction of aggravated “driving under the influence,” defined as a third conviction for simple DUI, is not a crime involving moral turpitude); see Matter of R.6 I. & N. Dec. 444, 454 (BIA 1954) (repetition of a non-CMT act does not convert it into a CMT).