Attempt to commit an offense constitutes a crime involving moral turpitude if the substantive offense constitutes a CMT.[156]  It is not a CMT if the substantive offense does not constitute a CMT.[157]  At least one court has held that a person cannot “attempt” to commit a “reckless” act, so a conviction for “attempted reckless endangerment,” for example, is not logically possible, and should be vacated.[158]

 

United States ex rel. Meyer v. Day, 54 F.2d 336 (2d Cir. 1931) (attempted grand larceny);

Matter of Bronsztejn, 15 I. & N. Dec. 281 (BIA 1974) (attempted possession of marijuana);

Matter of Katsanis, 14 I. & N. Dec. 266 (BIA 1973) (Greek conviction of attempted fraud held CMT; an attempt requires specific intent to commit the substantive crime, and if doing so is a CMT, so also is the attempt, for it is in the intent that moral turpitude inheres);

Matter of Awaijane, 14 I. & N. Dec. 117 (BIA 1972) (Lebanese attempted murder conviction; no distinction for this purpose between the commission of the substantive offense and the attempt to commit it);

Matter of Moore, 13 I. & N. Dec. 711 (BIA 1971) (breaking and entering with intent to commit larceny is a CMT; an attempt to commit the same offense would also be a CMT, since there is no distinction for this purpose between the commission of the substantive offense and the attempt to commit it).

[156] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a), N. 2.4(a)(1).

[157] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a), N. 2.4(a)(2). The Manual also says that being an accessory before the fact constitutes a CMT, without limiting this statement to substantive offenses that are CMTs.  Since accessory before the fact and aiding and abetting are equivalent, this was doubtless an error in the Manual.

[158] Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. Sept. 17, 2004) (New York conviction of attempted reckless endangerment in the first degree, in violation of New York Penal Law § 120.25, does not constitute a crime of moral turpitude for deportation purposes, since a person cannot intend to commit a criminally reckless act, and the “crime of attempted reckless endangerment is nonexistent since it is a non-intent offense.”), citing People v. Trepanier, 84 A.D.2d 374, 380, 446 N.Y.S.2d 829 (N.Y.App.Div.1982) (affirming the lower court’s decision to dismiss the indictment as to this charge).

 

BIA

CRIMES OF MORAL TURPITUDE " ATTEMPT
Matter of VO, 25 I. & N. Dec. 426 (BIA Mar. 18, 2011) (where the substantive offense underlying a noncitizen's conviction for an attempt offense is a crime involving moral turpitude, the noncitizen is considered to have been convicted of a crime involving moral turpitude for purposes of INA 237(a)(2)(A), even though that section makes no reference to attempt offenses).

CRIMES OF MORAL TURPITUDE " THEFT " ATTEMPT
Matter of VO, 25 I. & N. Dec. 426 (BIA Mar. 18, 2011) (California conviction for grand theft is a crime involving moral turpitude for purposes of triggering deportability under INA 237(a)(2)(A)(ii)).