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").

CAL CRIM DEF " PRACTICE ADVISORY " BURGLARY " TARGET OFFENSE IS NOT AN ELEMENT
Under Descamps and Moncrieffe, arguably no California conviction of burglary, in violation of Penal Code 459, is a crime of moral turpitude, because the specific intended offense is not an "element" of burglary but merely a "means" of committing the offense, since the jury need not agree unanimously as to which specific offense was intended at the time of the entry. Therefore the immigration judge must decide the case on the minimum conduct sufficient to commit burglary, which could include intent to commit a felony which is not a crime of moral turpitude, and the immigration judge may not look to the record of conviction to see which felony was intended, because the statute is not divisible with respect to which felony was intended. For discussion of elements versus means in this context, see Practice Advisory at www.nipnlg.org/legalresources/practice_advisories/cd_pa_Descamps_Practice_Advisory_7-17-2013.pdf. This argument is supported by specific language in California jury instructions for trials involving Penal Code 459 that state that, at least in deciding between intended offenses charged by the prosecution, the jury does not need unanimously to agree as to the identity of the intended offense in order to return a guilty verdict. CALCRIM 1700 (The People allege that the defendant intended to commit (theft/ [or] ). You may not find the defendant guilty of burglary unless you all agree that (he/she) intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes (he/she) intended.]")(emphasis supplied). Thanks to Katherine Brady.

BIA

CRIMES OF MORAL TURPITUDE " ACCESSORY AFTER THE FACT
Matter of Rivens, 25 I&N Dec. 623, 627 n.5 (BIA Oct. 19, 2011) (federal conviction of accessory after the fact, in violation of 18 U.S.C. 3 (2000), is a crime involving moral turpitude, but only if the underlying offense is a crime involving moral turpitude); see Matter of Sanchez-Marin, 11 I&N Dec. 264 (BIA 1965) (an alien convicted of accessory after the fact to manslaughter was convicted of a crime involving moral turpitude because the underlying offense, which was found to be voluntary manslaughter, was a crime involving moral turpitude), modified on other grounds, Matter of Franklin, 20 I&N Dec. 867 (BIA 1994); see also Cabral v. INS, 15 F.3d 193 (1st Cir. 1994). NOTE: The court rejected a powerful argument of respondent, that accessory after the fact does not take on the nature of the underlying offense, as discussed in the controlled substances context, see Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997), and by the United States supreme Court. See Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (accessory after the fact is distinct from the principal offense in all states and under federal law).

CRIME OF MORAL TURPITUDE - BURGLARY - OCCUPIED DWELLING
Matter of Louissaint, 24 I. & N. Dec. 754 (BIA Mar. 18, 2009) (Florida conviction of burglary of an occupied dwelling, in violation of Florida Statutes 810.02(3)(a), is categorically a conviction for a crime involving moral turpitude, because there is no "realistic probability" that it would be applied to reach conduct that does not involve moral turpitude, and the offense, as defined by its statutory elements is one in which moral turpitude necessarily inheres: "We find . . . that moral turpitude is inherent in the act of burglary of an occupied dwelling itself, and that the respondents unlawful entry into the dwelling of another with the intent to commit any crime therein is a crime involving moral turpitude."), distinguishing Matter of M, 2 I. & N. Dec. 721 (BIA; A.G. 1946).

Ninth Circuit

CRIMES OF MORAL TURPITUDE " FELONY COMMITTED TO BENEFIT A STREET GANG
Hernandez-Gonzalez v. Holder, ___ F.3d ___, ___, 2015 WL 618776 (9th Cir. Feb. 13, 2015) (California conviction for a violation of Penal Code 12020(a)(1) for possession of a billy club, with a sentence enhancement under Penal Code 186.22(b)(1), for a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, does not categorically constitute a crime involving moral turpitude, since the predicate felony conviction does not constitute a crime of moral turpitude, and the gang enhancement does not add turpitude to this offense). Note: The gang enhancement, under Penal Code 186.22(b)(1), states that an additional term of punishment may be imposed if (1) an individual is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, and (2) if that felony was committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. The requisite intent applies to any criminal conduct, without a further requirement that the conduct be apart from the criminal conduct underlying the offense of conviction sought to be enhanced. Emery v. Clark, 643 F.3d 1210, 1215 (9th Cir. 2011) (quoting People v. Albillar, 51 Cal.4th 47, 66 (2010)) (internal citations and quotation marks omitted). Additionally, the specific intent need not be to promote, further, or assist a gang-related crime but only to promote, further, or assist criminal conduct by gang members. Id. at 1215 n.3 (quoting Albillar, 51 Cal.4th at 67 (internal quotation marks omitted)). The court in Hernandez-Gonzalez also found much more than a realistic probability that the gang enhancement would be applied to conduct that does not involve moral turpitude. Id. at ___ ( 186.22(b)(1) is regularly applied to weapons possession convictions involving non-turpitudinous conduct. . . . The gang enhancement does not provide a sufficient evil intent to transform an otherwise non-turpitudinous crime into one involving moral turpitude. Stated differently, the specific intent required under the statute to further criminal conduct by gang members does not necessarily establish the evil intent required to make the offense turpitudinous.).

CRIMES OF MORAL TURPITUDE " BURGLARY
Rendon v. Holder, ___ F.3d ___, ___, 2014 WL 4115930 (9th Cir. Aug. 22, 2014) (California conviction of burglary, in violation of Penal Code 459 [entry with intent to commit larceny or any felony], did not constitute a divisible statute, under Descamps; the presence of an or between grand or petit larceny and any felony does not render the statute divisible, because the intended offense, under this statute, is not an element of the offense, but a means of commission, since California law does not require jury unanimity on this point; BIA's use of the modified categorical approach was impermissible); citing People v. Failla, 414 P.2d 39, 44-45 (1966); distinguishing Ngaeth v. Mukasey, 545 F.3d 796, 802 (9th Cir. 2008) (per curiam) (decided prior to Descamps); Hernandez"Cruz v. Holder, 651 F.3d 1094, 1104"05 (9th Cir. 2011) (same). NOTE: The court states: To be clear, it is black-letter law that a statute is divisible only if it contains multiple alternative elements, as opposed to multiple alternative means. Id. at 2285. Thus, when a court encounters a statute that is written in the disjunctive (that is, with an or), that fact alone cannot end the divisibility inquiry. Only when state law requires that in order to convict the defendant the jury must unanimously agree that he committed a particular substantive offense contained within the disjunctively worded statute are we able to conclude that the statute contains alternative elements and not alternative means.

CRIMES OF MORAL TURPITUDE " FELONY FALSE IMPRISONMENT
Turijan v. Holder, 744 F.3d 617 (9th Cir. Mar. 10, 2014) (California conviction of felony false imprisonment, in violation of Penal Code 236, 237 [deprivation of liberty of another by violence or menace], was not a categorical crime of moral turpitude, because it does not require the intent to injure, actual injury, or a protected class of victim, and California courts have applied the statute to conduct that is not morally turpitudinous); following Castrijon"Garcia v. Holder, 704 F.3d 1205, 1218 (9th Cir. 2013) (California conviction of simple kidnapping under Penal Code 207(a) is not categorically a crime of moral turpitude).

CRIMES OF MORAL TURPITUDE " FELONY FALSE IMPRISONMENT
Turijan v. Holder, 744 F.3d 617 (9th Cir. Mar. 10, 2014) (California conviction of felony false imprisonment, in violation of Penal Code 236, 237 [deprivation of liberty of another by violence or menace], was not a categorical crime of moral turpitude, because it does not require the intent to injure, actual injury, or a protected class of victim, and California courts have applied the statute to conduct that is not morally turpitudinous); following Castrijon"Garcia v. Holder, 704 F.3d 1205, 1218 (9th Cir. 2013) (California conviction of simple kidnapping under Penal Code 207(a) is not categorically a crime of moral turpitude).

Other

CRIMES OF MORAL TURPITUDE " COMMITING AN OFFENSE FOR THE BENEFIT OF A STREET GANG
Penal Code 186.22(d), committing a felony or misdemeanor for the benefit of a criminal street gang, is not a crime of moral turpitude. The minimum conduct sufficient to commit this offense would be committing a crime, the least serious of which would be vandalism, in violation of Penal Code 594, in association with members of a criminal street gang with knowledge that its members engage in criminal conduct. Vandalism, aka malicious mischief, however, is not a crime of moral turpitude. Rodriguez-Herrera v. INS, 52 F.3d 238 (9th Cir. 1995). Therefore, committing this offense for the benefit of a street gang is not a crime involving moral turpitude. See Matter of Rivens, 25 I. & N. Dec. 623 (BIA Oct. 19, 2011) (accessory after the fact is not a moral turpitude offense unless the principals crime is a moral turpitude offense). See also Robert L. v. Superior Court, 30 Cal. 4th 894 (June 5, 2003)(Penal Code 186.22(d) applies to all felonies and all misdemeanors, allowing for an alternative greater punishment for misdemeanors).

CAL CRIM DEF " PRACTICE ADVISORY " BURGLARY " TARGET OFFENSE IS NOT AN ELEMENT
Under Descamps and Moncrieffe, arguably no California conviction of burglary, in violation of Penal Code 459, is a crime of moral turpitude, because the specific intended offense is not an "element" of burglary but merely a "means" of committing the offense, since the jury need not agree unanimously as to which specific offense was intended at the time of the entry. Therefore the immigration judge must decide the case on the minimum conduct sufficient to commit burglary, which could include intent to commit a felony which is not a crime of moral turpitude, and the immigration judge may not look to the record of conviction to see which felony was intended, because the statute is not divisible with respect to which felony was intended. For discussion of elements versus means in this context, see Practice Advisory at www.nipnlg.org/legalresources/practice_advisories/cd_pa_Descamps_Practice_Advisory_7-17-2013.pdf. This argument is supported by specific language in California jury instructions for trials involving Penal Code 459 that state that, at least in deciding between intended offenses charged by the prosecution, the jury does not need unanimously to agree as to the identity of the intended offense in order to return a guilty verdict. CALCRIM 1700 (The People allege that the defendant intended to commit (theft/ [or] ). You may not find the defendant guilty of burglary unless you all agree that (he/she) intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes (he/she) intended.]")(emphasis supplied). Thanks to Katherine Brady.

CAL CRIM DEF " PRACTICE ADVISORY " BURGLARY " TARGET OFFENSE IS NOT AN ELEMENT
Under Descamps and Moncrieffe, arguably no California conviction of burglary, in violation of Penal Code 459, is a crime of moral turpitude, because the specific intended offense is not an "element" of burglary but merely a "means" of committing the offense, since the jury need not agree unanimously as to which specific offense was intended at the time of the entry. Therefore the immigration judge must decide the case on the minimum conduct sufficient to commit burglary, which could include intent to commit a felony which is not a crime of moral turpitude, and the immigration judge may not look to the record of conviction to see which felony was intended, because the statute is not divisible with respect to which felony was intended. For discussion of elements versus means in this context, see Practice Advisory at www.nipnlg.org/legalresources/practice_advisories/cd_pa_Descamps_Practice_Advisory_7-17-2013.pdf. This argument is supported by specific language in California jury instructions for trials involving Penal Code 459 that state that, at least in deciding between intended offenses charged by the prosecution, the jury does not need unanimously to agree as to the identity of the intended offense in order to return a guilty verdict. CALCRIM 1700 (The People allege that the defendant intended to commit (theft/ [or] ). You may not find the defendant guilty of burglary unless you all agree that (he/she) intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes (he/she) intended.]")(emphasis supplied). Thanks to Katherine Brady.

CRIMES OF MORAL TURPITUDE " BURGLARY " TARGET OFFENSE CATEGORICAL ANALYSIS " TARGET OFFENSE
In California burglary cases, the jury need not unanimously agree on the identity of the offense that the defendant intended to commit crime at entry. CALCRIM 1700 provides: The People allege that the defendant intended to commit (theft/ [or] ). You may not find the defendant guilty of burglary unless you all agree that (he/she) intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes (he/she) intended.]" (Emphasis supplied.) The jury instructions establish that the target offense for burglary is not an element under California law. The elements are a question of California law, not federal immigration law. Moncrieffe and Descamps hold that the nature of the offense of conviction is limited to the elements (regardless of what is in the Record of Conviction). Therefore, a conviction of violating Penal Code 459 cannot be a crime of moral turpitude for purposes of deportation. The same rules (minimum conduct analysis and ignoring the facts) also apply to inadmissibility and bars to relief. Therefore, a conviction of burglary also did not trigger inadmissibility at entry. There is some slightly contradictory authority. CalCRIM jury instructions provide: Although actual commission of the underlying theft or felony is not an element of burglary (People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042 [31 Cal.Rptr.2d 128, 874 P.2d 903]), the court has a sua sponte duty to instruct that the defendant must have intended to commit a felony and has a sua sponte duty to define the elements of the underlying felony. (People v. Smith (1978) 78 Cal.App.3d 698, 706 [144 Cal.Rptr. 330] ; see also People v. Hughes (2002) 27 Cal.4th 287, 349 [116 Cal.Rptr.2d 401, 39 P.3d 432] .) Give all appropriate instructions on theft or the felony alleged. The courts sua sponte duty to instruct on the elements of the target offense, however, is not the same as a requirement that the jury must unanimously agree on the same offense, just that they must all agree that theft or some felony offense or other was committed.