Crimes of Moral Turpitude

For many grounds of removal, including the CMT inadmissibility ground,[211] (but not the CMT grounds of deportation)[212], there is an argument that when Congress expressly included the non-substantive offenses of attempt and conspiracy, it in effect excluded all other non-substantive offenses, such as accessory after the fact, misprision of a felony, solicitation, and other non-substantive offenses.  This argument and others regarding specific non-substantive offenses are laid out more fully in N. Tooby, J. Rollin, Criminal Defense of Immigrants § § 19.13-19.20, Appendix G (4th Ed. 2007).

            The CMT grounds of deportation do not expressly list attempt or conspiracy,[213] thus giving rise to an additional argument that a conviction of attempt or conspiracy to commit a CMT cannot form one of the two CMT convictions required to trigger deportation.  However, this has led at least one court to find that solicitation offenses are included within the CMT deportation ground. [4]

[214] INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I).  See Chapter 4, supra.

[211] This argument does not, however, apply to the CMT grounds of deportation, which do not list attempt and conspiracy.  INA § § 237(a)(2)(A)(i)(I), (ii), 8 U.S.C. § § 1227(a)(2)(A)(2)(A)(i)(I), (ii).

[212] INA § § 237(a)(2)(A)(i), (ii).

[213] 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").  Cf. Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1312-13 (9th Cir. 1992) (statutory construction maxim expressio unius est exclusio alterius means when some statutory provisions expressly mention a requirement, the omission of that requirement from other statutory provisions implies that the drafter intended the inclusion of the requirement in the instances in which it was listed but not in others).