Crimes of Moral Turpitude

Where an offense is committed for the purpose of committing another offense, a conviction will be considered a crime involving moral turpitude if the target offense constitutes a CMT. 

            Assault with intent to commit a felony, for example, does not constitute a crime of moral turpitude unless the underlying felony itself involves moral turpitude.[204]  The fact that the intended offense was a felony does not make it a CMT, nor make another offense committed with intent to commit a felony into a CMT.[205]  Where the offense intended to be committed is not unequivocally an offense of moral turpitude, the DHS may not go beyond the record of conviction to establish whether the underlying felony involves moral turpitude.[206] 

            The classic example of a target offense is burglary.[207]  Some states define burglary as the entry of a building or structure with intent to commit a crime.  The entry itself can be completely lawful, and the intended crime may or may not involve moral turpitude.  Preparatory offenses, such a possession of burglary tools, also only become CMTs only upon proof of intent to commit a CMT.[208]

            The Ninth Circuit suggested that being an accessory after the fact to a crime may or may not be a CMT depending on whether the underlying offense is a CMT.[209]  See § 8.24, infra.  The same may be true for solicitation offenses.[210]  See § 8.24, infra.

[204] Matter of Short, 20 I. & N. Dec. 136 (BIA 1989), withdrawing from Matter of Baker, 15 I. & N. Dec. 50 (BIA 1974) (assault with intent to commit a felony is a crime involving moral turpitude, regardless whether the intended felony is a CMT); Matter of M, 2 I. & N. Dec. 525 (BIA 1946).

[205] See Tillinghast v. Edmead, 31 F.2d 81 (1st Cir. 1929) (classification of a crime as a felony is not determinative of its character with regard to the presence or absence of moral turpitude).

[206] See, e.g., Matter of Beato, 10 I. & N. Dec. 730 (BIA 1964) (assault in the second degree involves moral turpitude not because it constitutes a felony but because the record revealed that the felonies intended to be committed were carnal abuse and rape). 

[207] Wala v. Mukasey, 511 F.3d 102 (2d Cir. Dec. 12, 2007) (burglary conviction constitutes a crime of moral turpitude only if the target offense the defendant intended to commit when he or she entered the structure itself constituted a CMT); Matter of Moore, 13 I. & N. Dec. 711 (BIA 1971) (Michigan conviction of attempted breaking and entering with intent to commit larceny a CMT); Matter of M, 2 I. & N. Dec. 721, 723 (BIA 1946) (burglary offenses “may or may not involve moral turpitude, the determinative factor being whether the crime intended to be committed at the time of entry or prior to the breaking out involves moral turpitude.”).  See also Matter of Short, 20 I. & N. Dec. 136 (BIA 1989) (assault with intent to commit a felony is a CMT only if the intended felony is also a CMT).

[208] See, e.g., Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939) (conviction of possession of burglary tools with intent to commit a crime, in violation of New York Penal Law § 408, does not involve moral turpitude unless the record of conviction affirmatively shows that the particular crime the noncitizen intended to commit with the burglary tools found in his possession involves moral turpitude); Matter of S, 6 I. & N. Dec. 769 (BIA 1955) (conviction of possession of burglary tools (with intent to commit any indictable offense) in violation of Canada Criminal Code § 464(b) is not a crime involving moral turpitude unless accompanied by an intent to use the tools to commit a specific crime which is itself a crime involving moral turpitude; since here, the record of conviction omits any reference to the offense intended, the conviction could not be held to involve moral turpitude).

[209] Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1071 (9th Cir. Sept. 19, 2007).  See also 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a), N. 2.4(b).

[210] Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. Nov. 21, 2007) (Arizona conviction for solicitation to possess at least four pounds of marijuana for sale, in violation of Ariz. Rev. Stat. § § 13-1002(A) and (B)(2), 13-3405(A)(2) and (B)(6), constitutes a crime involving moral turpitude for the purposes of INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), since this ground does not specifically list "attempt" and "conspiracy," and thus does not impliedly exclude "solicitation").