Crimes of Moral Turpitude

 

Unlawfully entering a building under circumstances or in a manner not amounting to burglary, with intent to commit a felony, a larceny, or any malicious mischief has been held to be a crime of moral turpitude.[102]

 

De Bernardo v. Rogers, 254 F.2d 81 (D.C. Cir. 1958), cert. den., 358 U.S. 816, 79 S.Ct. 24, 3 L.Ed.2d 58 (1958) (unlawful entry is a crime involving moral turpitude), citing United States ex rel. Meyer v. Day, 54 F.2d 336 (2d Cir. 1931);

United States ex rel. Cerami v Uhl, 78 F.2d 698 (2d Cir. 1935) (unlawful entry with intent to commit larceny held CMT);

Perkins v. United States, 99 F.2d 255 (3d Cir. 1938) (breaking and entering a building and larceny);

Gomes v. Tillinghast, 37 F.2d 935 (D. Mass. 1930) (breaking and entering and larceny held CMT);

United States ex rel. Griffo v. McCandless, 28 F.2d 287 (D.Pa. 1928) (recognizing rule);

United States ex rel. Sirtie v. Commissioner of Immigration, 6 F.2d 233 (D.N.Y. 1925) (entering a building under circumstances or in a manner not amounting to a burglary, with intent to commit a felony or a larceny, or any malicious mischief, held CMT);

Tahir v. Lehmann, 171 F.Supp 589 (D.Ohio 1959), aff’d, 264 F.2d 892 (6th Cir. 1960), cert. den., 361 U.S. 876, 4 L.Ed.2d 114, 80 S.Ct. 139 (1959) (breaking and entering a building in the nighttime with the intent to commit larceny constituted burglary is a CMT);

United States ex rel. Amato v. Commissioner of Immigration, 18 F.Supp 480 (D.N.Y. 1937) (recognizing rule); 

Matter of Moore, 13 I. & N. Dec. 711 (BIA 1971);

Matter of C, 8 I. & N. Dec. 276 (BIA 1959) (conviction of unlawfully entering a building in violation of New York Penal Code § 405 involves moral turpitude);

Matter of L, 6 I. & N. Dec. 66 (BIA 1955) (Massachusetts conviction of breaking and entering with intent to commit larceny is a crime involving moral turpitude since larceny is a crime involving moral turpitude);

Matter of W, 4 I. & N. Dec. 241 (BIA 1951) (conviction of unlawfully entering a building in violation of New York Penal Code § 405 involves moral turpitude);

Matter of J, 2 I. & N. Dec. 503 (BIA 1946) (it will be presumed, unless there is affirmative evidence to the contrary, that the crime of theft in Canada coupled with the act of breaking and entering, relates to a permanent taking, when determining whether the crime of “breaking and entering and theft” in Canada, committed as a single offense, involves moral turpitude);

Matter of E, 2 I. & N. Dec 134 (BIA 1944) (Ohio conviction of housebreaking with intent to commit larceny).

 

Breaking and entering or unlawful entry do NOT involve moral turpitude, however, where the intent to commit a crime involving moral turpitude (e.g., murder, burglary, rape) is not an essential element of the offense.

 

Petition of Knight, 122 F.Supp. 322 (D.N.Y. 1954) (New York misdemeanor conviction of unlawful entry held not to be a crime involving moral turpitude);

Matter of M, 9 I. & N. Dec. 132 (BIA 1960) (Italian conviction of “violation of domicile” did not involve moral turpitude, where it was defined as including anyone who “arbitrarily introduces himself into, or remains in, another person’s dwelling, or the appurtenances of the same, against the express wish of the individual who has the right to exclude him, or introduces himself therein or remains there secretly or by fraud,” since mens rea and criminal intent were not essential elements required for conviction);

Matter of P, 2 I. & N. Dec. 887 (BIA 1947) (conviction of breaking and entering and theft, committed as a single offense in violation of Canada Criminal Code § 458(a), will not be deemed to involve moral turpitude, when there is affirmative evidence showing that the “theft” did not involve a permanent taking);

Matter of M, 2 I. & N. Dec. 686 (BIA 1946) (conviction of breaking and entering with intent to commit an indictable offense in violation of Canada Criminal Code § 461 is not shown to involve moral turpitude where the offense intended is not shown to involve moral turpitude);

Matter of G, 1 I. & N. Dec. 403 (BIA 1943) (entering a building in violation of New York Penal Law § 405, as amended Sept. 1, 1935, does not involve moral turpitude unless the record of conviction shows that the entry was made with intention to commit a crime involving moral turpitude).

 

Where the record of conviction did not establish the identity of the specific crime the defendant intended to commit by breaking and entering, the conviction will not involve moral turpitude. 

 

Matter of M, 2 I. & N. Dec. 721 (BIA 1946) (conviction of third-degree burglary, in violation of New York Penal Law § 404, is not deemed to be an offense involving moral turpitude, where the conviction record does not indicate the particular crime that accompanied the breaking and entering, since the determinative factor is whether the crime intended to be committed at the time of entry or prior to breaking out involves moral turpitude);

Matter of G, 1 I. & N. Dec. 403 (BIA 1943) (entering a building in violation of New York Penal Law § 405, as amended Sept. 1, 1935, does not involve moral turpitude unless the record of conviction shows that the entry was made with intention to commit a crime involving moral turpitude).

[102] 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, § 3, n.11 (1975).