Crimes of Moral Turpitude

 

Where a noncitizen has been convicted of manslaughter in a jurisdiction not following the common-law classification of manslaughter, the reviewing authority frequently examines the elements of the crime as defined by the pertinent statute or set forth in the charges under which the noncitizen was convicted to determine whether the crime would be classified under the common law as voluntary manslaughter.  If the elements of voluntary manslaughter are present, the crime is held to be one involving moral turpitude.[60]

 

United States ex rel. Allessio v Day, 42 F.2d 217 (2d Cir. 1930) (first-degree manslaughter involved moral turpitude, where the offense was defined by statute as a homicide committed without a design to effect death, in the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon);

Matter of Ghunaim, 15 I. & N. Dec. 269 (BIA 1975) (respondent was charged with the crime of murder in the first degree under 29 Ohio Revised Code Annotated § 2901.01 (1954), but pleaded guilty to a charge of first-degree manslaughter, 29 Ohio Revised Code Annotated § 2901.06 (1954), which applies to both voluntary and involuntary manslaughter; the BIA considered the original charge of murder, a voluntary crime, in concluding the conviction record leads to the conclusion that the respondent’s conviction was for voluntary manslaughter, a crime involving moral turpitude);

Matter of Lopez, 13 I. & N. Dec. 725 (BIA 1971) (conviction of manslaughter which did not specify whether it was voluntary manslaughter held not to constitute CMT);

Matter of Ptasi, 12 I. & N. Dec. 790 (BIA 1968) (conviction of manslaughter (by stabbing) in violation of Conn. Gen. Statutes § 53-13 is a conviction of a crime involving moral turpitude);

Matter of R, 5 I. & N. Dec. 463 (BIA 1953) (where there is a conviction upon a plea of guilty to an indictment charging a voluntary killing under a statute which draws no distinction between voluntary and involuntary manslaughter, it is reasonable to conclude that the killing was voluntary in the absence of other evidence in the record of conviction, and that the respondent was convicted of voluntary manslaughter, which is a crime involving moral turpitude);

Matter of D, 3 I. & N. Dec. 51 (BIA 1947) (a conviction of manslaughter, in violation of § 2: 138-5 New Jersey Criminal Statutes, which embraces both voluntary and involuntary manslaughter, was held to be a voluntary killing and therefore a crime of moral turpitude in the absence of evidence to the contrary in the record of conviction, since the indictment provided that the homicide was committed by means of an assault with malice aforethought);

Matter of S, 2 I. & N. Dec. 559 (BIA 1946; AG 1947) (where the Ohio indictment for murder in the second degree charged that the noncitizen unlawfully, purposely, and maliciously killed a human being, and the noncitizen pleaded guilty to the lesser offense of manslaughter, it may be concluded that the homicide committed by the noncitizen was voluntary, and hence that it involved moral turpitude though the Ohio statute defining manslaughter makes no distinction between voluntary and involuntary manslaughter);

Matter of J, 2 I. & N. Dec. 477 (BIA 1946) (conviction of “assault with intent to commit manslaughter” in Florida was held to include only voluntary manslaughter, because it required “an intent to commit” the act, and there could be no intent to commit involuntary manslaughter, so the conviction was therefore held to be a crime involving moral turpitude).

 

            Some cases, however, have concluded that where the degree of the crime is not specified, the immigration authorities cannot meet their burden of proof that it is a CMT.

 

Matter of Lopez, 13 I. & N. Dec. 725 (BIA 1971) (conviction of manslaughter in violation of Alaska Statutes § 11.15.040 “as charged in the indictment,” which stated that respondent “did unlawfully and feloniously kill” another person “by shooting him with a gun,” is not a conviction of a crime involving moral turpitude, since the statute encompassed both voluntary and involuntary manslaughter and the indictment did not distinctly set forth that the offense was voluntary rather than involuntary manslaughter);

Matter of B, 4 I. & N. Dec. 493 (BIA 1951) (conviction of violating § 2: 138-5 of the New Jersey Criminal Statutes, which embraces both voluntary and involuntary manslaughter, could have been based upon either an aggravated assault or a simple assault; since it cannot be determined from the statute or conviction record that the offense was voluntary manslaughter rather than involuntary manslaughter, it cannot be concluded that the offense of which the noncitizen was charged and convicted involves moral turpitude).

 

Manslaughter with Deadly Weapon.  Where a manslaughter conviction was not identified as either voluntary or involuntary, courts have often considered the fact that the killing occurred by means of a dangerous weapon in determining whether the crime involved moral turpitude. 

 

Pillisz v. Smith, 46 F.2d 769 (7th Cir. 1931) (Hungarian conviction, where statute did not separate manslaughter into degrees, found to involve moral turpitude, where the record showed that the noncitizen, during an altercation with another over the destruction of a fence, attacked him with a knife, causing death);

Matter of Ptasi, 12 I. & N. Dec. 790 (BIA 1968) (finding CMT upon Connecticut conviction of manslaughter by stabbing, noting that assault with a deadly or dangerous weapon, which does not result in a homicide, has been held to involve moral turpitude because the conduct is inherently base, and it would be anomalous to hold that the same assault with a dangerous weapon which resulted in a homicide did not involve moral turpitude). 

 

In United States ex rel. Sollano v. Doak,[61] the court held a first-degree manslaughter conviction involved moral turpitude, where the record established that the defendant shot his father-in-law with a revolver in the heat of passion and as the result of a quarrel.  The defendant argued that the offense was not a crime involving moral turpitude because the language of the definition excluded intent, and absence of intent necessarily implied absence of moral turpitude.  The court pointed out:

 

(1)    that the only intent lacking in first-degree manslaughter is the intent to effect death,

(2)    that had there been intent to kill, the crime would not have been manslaughter in the first degree but murder,

(3)    that the lack of intent to kill does not mean lack of an intent to inflict grievous bodily harm or lack of intent to injure, or such lack of intent as to negate moral depravity,

(4)    that if the dangerous weapon was used solely in self-defense without the use of excessive force and under circumstances which justify the use of the weapon, no crime at all would be committed, and

(5)    that the conviction negated all elements of self-defense. The court concluded that one who uses a dangerous weapon like a revolver, not in self-defense but in such a way as to cause the death of another, must be held so lacking in a sense of moral responsibility as to be morally depraved.

 

Original murder charge.  Where the charge was murder, but the conviction was for the reduced charge of manslaughter, the crime has invariably been considered to be voluntary and thus to involve moral turpitude.  This reasoning violates the rule that dismissed charges do not constitute part of the record of conviction.  See § 7.12(A), supra.

 

Matter of Ghunaim, 15 I. & N. Dec. 269 (BIA 1975) (conviction held CMT where defendant pleaded guilty to manslaughter after indictment for first degree murder; where conviction occurred under a statute which punished manslaughter, without distinguishing whether it was voluntary or involuntary, the court held it was reasonable to assume that the conviction was for voluntary killing);

Matter of Sanchez-Marin, 11 I. & N. Dec. 264  (BIA 1965) (where noncitizen indicted for second-degree murder in Massachusetts entered a plea of guilty to the lesser offense of manslaughter under a statute making no distinction between voluntary and involuntary manslaughter, BIA concluded from his plea of guilty that the homicide was voluntary, and was therefore a crime involving moral turpitude);

Matter of R, 5 I. & N. Dec. 463 (BIA 1953);

Matter of HR, 4 I. & N. Dec. 742 (BIA 1952) (information charged murder (willfully, unlawfully, feloniously, and with malice aforethought having killed a human being) and at the time of the commission of the offense being armed with an automatic revolver, but court found the noncitizen guilty of manslaughter in violation of California Penal Code § 192, which defined murder and two kinds of manslaughter; the noncitizen was clearly charged in the information with a voluntary killing, and there was no evidence in the record to support a finding of involuntary manslaughter, so the BIA concluded that the homicide committed was voluntary, and therefore involved moral turpitude);

Matter of D, 3 I. & N. Dec. 51 (BIA 1947) (where noncitizen had been indicted for murder but found guilty of manslaughter under a New Jersey statute which included both voluntary and involuntary manslaughter, BIA pointed out that the charge accused the defendant of committing the homicide by means of an assault with malice aforethought, and held that the killing must be considered voluntary, which is CMT);

Matter of S, 2 I. & N. Dec. 559 (BIA 1946) (where the Ohio indictment for murder in the second degree charged that the noncitizen unlawfully, purposely, and maliciously killed a human being, and the noncitizen pleaded guilty to the lesser offense of manslaughter, it may be concluded that the homicide committed by the noncitizen was voluntary, and hence that it involved moral turpitude).

[60] 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, § 10(a) (1975).

[61] United States ex rel. Sollano v Doak, 5 F.Supp. 561 (D.N.Y. 1933), aff’d without op., 68 F.2d 1019 (2d Cir. 1933).