Homosexual conduct or lewd acts have frequently been held to involve moral turpitude.[202]  However, some such convictions may be subject to challenge on constitutional grounds.[203]

 

Hudson v. Esperdy, 290 F.2d 879 (2d Cir. 1961), cert. den., 368 U.S. 918, 7 L.Ed.2d 134, 82 S.Ct. 240 (1961) (disorderly conduct in violation of former New York Penal Law § 722(8), penalizing anyone who “frequents or loiters about any public place soliciting men for the purpose of committing a crime against nature or other lewdness,” was held to be a crime involving moral turpitude, but conviction of other offenses under this very broad “disorderly conduct” statute, such as simple assault, would not necessarily be a ground for deportation under federal law);

Marinelli v. Ryan, 285 F.2d 474, 475-476 (2d Cir. 1961) (Connecticut conviction of homosexual congress, under General Statutes § 53- 216, is a crime that involves moral turpitude, when the advance is made to a juvenile);

Babouris v. Esperdy, 269 F.2d 621 (2d Cir. 1959), cert. den., 362 U.S. 913, 4 L.Ed.2d 620, 80 S.Ct. 662 (1960) (New York conviction under statute providing that one who “Frequents or loiters about any public place soliciting men for the purpose of committing a crime against nature or other lewdness . . . shall be deemed to have committed the offense of disorderly conduct”);

Fitzgerald ex rel. Miceli v. Landon, 238 F.2d 864 (1st Cir. 1956) (Massachusetts violation of “lewdness” statute, Mass. G.L. (Ter. Ed. 1932), c. 272, § 53, held CMT, where charge stated that noncitizen “during the three months next before the making of this complaint was a lewd, wanton and lascivious person in speech and behavior”);

United States v. Flores-Rodriguez, 237 F.2d 405 (2d Cir. 1956) (same statute, same result);

Lane ex rel. Cronin v Tillinghast, 38 F.2d 231 (1st Cir. 1930) (Massachusetts conviction of being a “lewd, wanton and lascivious person in speech and behavior” in violation of Mass G.L., c. 272 § 53, held to involve moral turpitude, citing in support of its position a Massachusetts definition of “lewdness” as “the irregular indulgence of lust, whether public or private,” and the Bouvier Law Dictionary definition of the term as “that form of immorality which has relation to sexual impurity”);

Wyngaard v. Rogers, 187 F.Supp. 527 (D.D.C. 1960), aff’d, 111 App. D.C. 197, 295 F.2d 184 (D.C. Cir. 1960), cert. den., 368 U.S. 926, 7 L.Ed.2d 190, 82 S.Ct. 362 (1961) (disorderly conduct in the form of loitering about a public place “soliciting men for the purposes of committing a crime against nature or other lewdness” under former New York Penal Law § 722(8), was a crime involving moral turpitude);

Matter of Alfonso-Bermudez, 12 I. & N. Dec. 225 (BIA 1967) (conviction of disorderly conduct in violation of California Penal Code § 647(a), soliciting of a person or persons to engage in, and the engaging in lewd and dissolute conduct in a public place, referring to overt and public homosexual activity, is a crime involving moral turpitude), distinguishing Matter of GR, 5 I. & N. Dec. 18 (BIA 1952); citing United States v. Flores-Rodriguez, 237 F.2d 405 (2d Cir. 1956); Babouris v. Esperdy, 269 F.2d 621 (2d Cir. 1959), cert. den., 362 U.S. 913 (1960);

Matter of G, 7 I. & N. Dec. 520 (BIA 1957) (disorderly conduct in violation of former New York Penal Law § 722(8) was a crime involving moral turpitude);

Matter of H, 7 I. & N. Dec. 359 (BIA 1956) (Canadian conviction of “gross indecency” was a crime involving moral turpitude; while “gross indecency” was not defined in the statute and the record of conviction did not specify the misconduct, reported cases in Canada involving this statute failed to show any instance where a conviction occurred under a set of facts which would not have involved moral turpitude);

Matter of C, 3 I. & N. Dec. 790 (BIA 1949) (New Jersey conviction of  “open lewdness” involved moral turpitude, where indictment did not allege lewdness in the sense of indecent exposure in public or perverted sex acts, but merely charged that the noncitizen had unlawfully cohabited with a woman not his wife, openly and notoriously, so that the community knew about it);

Matter of A, 3 I. & N. Dec. 168 (BIA 1948) (Massachusetts conviction of lewdness involved moral turpitude, where the noncitizen had been convicted on a complaint charging that she “was a lewd, wanton and lascivious person in behavior”); 

Matter of J, 2 I. & N. Dec. 533 (BIA 1946) (Massachusetts conviction of “open and gross lewdness and lascivious behavior in the presence of two males” and of committing “an unnatural and lascivious act with a male person” involved moral turpitude).

 

Sodomy.  Sodomy, usually referring to homosexual sexual relations, is commonly held to be CMT.[204]

 

Velez-Lozano v. INS, 463 F.2d 1305 (D.C. Cir. 1972) (per curiam) (consensual sodomy is a crime of moral turpitude); but see United States v. Sanchez-Guzman, 744 F.Supp. 997 (E.D.Wash. 1990) (holding Velez-Lozano statement to be dictum);

In re Longstaff, 538 F.Supp. 589, 591 (D.Tex. 1982), aff’d, 716 F.2d 1439, 77 A.L.R. Fed. 803 (5th Cir. 1983), cert. den., 467 U.S. 1219, 104 S.Ct. 2668, 81 L.Ed.2d 373 (1984) (English sodomy offense held a crime involving moral turpitude), citing Velez-Lozano v. INS, 463 F.2d 1305 (D.C. Cir. 1972);

Matter of Leyva, 16 I. & N. Dec. 118 (BIA 1977) (California conviction for oral sex perversion held CMT);

Matter of S, 8 I. & N. Dec. 409 (BIA 1959) (admission of Michigan offense of committing acts of “gross indecency and sodomy,” that is, homosexual practices, involved moral turpitude);

Matter of J, 2 I. & N. Dec. 533 (BIA 1946) (Massachusetts conviction of committing an unnatural and lascivious act with a male person held CMT).

 

Lewdness. 

 

Wyngaard v. Kennedy, 295 F.2d 184 (D.C. Cir. 1961);

Babouris v. Esperdy, 269 F.2d 621 (2d Cir. 1959), cert. den., 362 U.S. 913 (1960) (conviction of solicitation of men to commit an offense against nature held CMT, even if offense was labeled disorderly conduct);

Fitzgerald v. Landon, 238 F.2d 864 (1st Cir. 1956) (Massachusetts conviction for “lewdness” statute, Mass. G.L. (Ter. Ed. 1932) c. 272, § 53,  held CMT, where charge stated that noncitizen “during the three months next before the making of this complaint was a lewd, wanton and lascivious person in speech and behavior”);

Lane ex rel. Cronin v. Tillinghast, 38 F.2d 231 (C.C.A. 1, 1930) (Massachusetts conviction of being a “lewd, wanton and lascivious person in speech and behavior” in violation of Mass. G. L., c. 272 § 53, held to involve moral turpitude, citing in support of its position a Massachusetts definition of “lewdness” as “the irregular indulgence of lust, whether public or private,” and the Bouvier Law Dictionary definition of the term as “that form of immorality which has relation to sexual impurity”);

Matter of Lambert, 11 I. & N. Dec. 340 (BIA 1965) (conviction for letting or renting rooms with knowledge that the rooms were to be used for the purpose of lewdness, assignation or prostitution in violation of § 26-42 of the City of Tampa Code is conviction of a crime involving moral turpitude);

Matter of P, 8 I. & N. Dec. 424 (BIA 1959) (Massachusetts conviction of committing an unnatural and lascivious act with a male person held CMT), citing Matter of J, 2 I. & N. Dec. 533 (BIA 1946).

 

            Cf. Fitzgerald ex rel. Miceli v. Landon, 238 F.2d 864 (1956);

Matter of Mueller, 11 I. & N. Dec. 268, 269 (BIA 1965) (Wisconsin conviction of lewd and lascivious conduct by unlawfully, publicly and indecently exposing sex organ held not a crime of moral turpitude: “Moral turpitude is dependent upon the depraved or vicious motive of the alien. It is in the intent that moral turpitude inheres . . . . The crime under consideration . . . does not require a specific intent and it does not appear that it is essential that the defendant have a vicious motive or a corrupt mind. All that appears to be necessary for conviction . . . is that the act be done consciously”).

Matter of H, 7 I. & N. Dec. 616 (BIA 1957);

Matter of C, 3 I. & N. Dec. 790 (BIA 1949) (conviction of open lewdness in violation of New Jersey Revised Statutes 2: 140-1 (1942) involves moral turpitude);

Matter of A, 3 I. & N. Dec. 168 (BIA 1948) (conviction of lewdness as defined by § 53, Chapter 272, Laws of Massachusetts, connotes moral turpitude);

Matter of J, 2 I. & N. Dec. 533 (BIA 1946) (conviction of open and gross lewdness and lascivious behavior in the presence of two males in violation of § 16, Chapter 272, Mass.G.L., involves moral turpitude).

 

Solicitation of lewd act.

 

Wyngaard v. Rogers, 187 F.Supp. 527 (D.D.C. 1960), aff’d, 295 F.2d 184, 111 U.S.App.D.C. 197 (D.C. Cir. 1961), cert. den., 368 U.S. 926, 82 S.Ct. 362, 7 L.Ed.2d 190 (1961) (conviction under New York Penal Law § 722, of frequenting or loitering about a public place and soliciting men for purpose of committing crime against nature or other lewdness, was a conviction for crime involving moral turpitude);

Matter of Alfonso-Bermudez, 12 I. & N. Dec. 225 (BIA 1967) (conviction of disorderly conduct in violation of California Penal Code § 647(a), soliciting of a person or persons to engage in, and the engaging in lewd and dissolute conduct in a public place, referring to overt and public homosexual activity, is a crime involving moral turpitude), distinguishing Matter of GR, 5 I. & N. Dec. 18 (BIA 1952); citing United States v. Flores-Rodriguez, 237 F.2d 405 (2d Cir. 1956); Babouris v. Esperdy, 269 F.2d 621 (2d Cir. 1959), cert. den., 362 U.S. 913 (1960).

 

Lewd and lascivious cohabitation

 

Matter of M, 2 I. & N. Dec. 530 (BIA 1946) (conviction of the crime of “lewd and lascivious cohabitation” (ch. 272, § 16, Mass.G.L.) involves moral turpitude).

 

Lasciviousness

 

Matter of H, 7 I. & N. Dec. 616 (BIA 1957) (Connecticut conviction of lascivious carriage, under § 8553 of the General Statutes of Connecticut (Revision of 1949), which is not defined by statute or judicial decision, does not involve moral turpitude);

Matter of J, 2 I. & N. Dec. 533 (BIA 1946) (conviction of committing an unnatural and lascivious act with a male person in violation of § 35, Chapter 272 of the General Laws of Massachusetts, involves moral turpitude).

 

Loitering with sexual intent

 

United States v. Flores-Rodriguez, 237 F.2d 405 (2d Cir. 1956) (conviction of loitering about a public place soliciting men for the purpose of committing a crime against nature, constituted a crime involving moral turpitude for admissibility purposes);

Ganduxe y Marino v. Murff, 183 F.Supp. 565, 567 (D.N.Y. 1959), aff’d, 278 F.2d 330 (2d Cir. 1960), cert. den., 364 U.S. 824, 81 S.Ct. 61, 5 L.Ed.2d 53 (1960) (New York conviction for loitering for purpose of inducing men to commit acts against nature or other lewdness held a crime involving moral turpitude), citing United States v. Flores-Rodriguez, 237 F.2d 405 (2d Cir. 1956);

Babouris v. Murff, 175 F.Supp. 503, 504 (D.N.Y. 1958), aff’d, 269 F.2d 621 (2d Cir. 1959), cert. den., 362 U.S. 913, 80 S.Ct. 662, 4 L.Ed.2d 620 (1960) (New York conviction of disorderly conduct, in violation of New York Penal Law § 722(8), penalizing one who loiters about a public place soliciting men for the purpose of committing a crime against nature or other lewdness, held a crime involving moral turpitude), following United States v. Flores-Rodriguez, 237 F.2d 405 (2d Cir. 1956)).

 

            Divisible Statutes and the Record of Conviction.  Convictions, however, under divisible statutes prohibiting “lewdness” or “indecency,” where the charge does not specify the conduct leading to the charges, have frequently been held NOT to involve moral turpitude. 

 

Matter of Mueller, 11 I. & N. Dec. 268 (BIA 1965) (the offense of “lewd and lascivious conduct” by “publicly and indecently exposing a sex organ” did not involve moral turpitude because the statute in question did not require “a specific intent, a criminal intent, or any intent whatsoever,” and because there was nothing in the charge indicating the circumstances under which the indecent exposure was made and thus the conviction might result from doing the forbidden act through physical necessity, even in the presence of “natural physical forces” which caused the actor reasonably to believe his act was “the only means of preventing imminent public disaster or imminent death or great bodily harm to himself or another”);

Matter of H, 7 I. & N. Dec. 616 (BIA 1957) (Connecticut crime of “lascivious carriage” did not involve moral turpitude, where the crime, not defined in the statutes but coupled with the offense of fornication, had been held not to be an “infamous crime” by the state courts and the court decisions were not so clear or unambiguous as to enable a finding free from doubt that it involved moral turpitude, and upon the record before it, the offense of which the noncitizen was convicted might in some instances embrace conduct which did involve moral turpitude, but that lesser acts might also come within its scope);

Matter of H, 7 I. & N. Dec. 301 (BIA 1956) (Michigan conviction for violation of statute penalizing “any person who shall knowingly make any open or indecent exposure of his or her person” was not an act of “baseness, vileness or depravity,” and thus did not involve moral turpitude, overruling Matter of R, 2 I. & N. Dec. 633 (BIA 1946));

Matter of S, 5 I. & N. Dec. 576 (BIA 1953) (Michigan conviction under divisible statute which punished “any male person who, in public or private, commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person” did not involve moral turpitude, where the information charged the general language of the statute and did not specify the acts allegedly committed and where the record added nothing in this respect); 

Matter of Z, 2 I. & N. Dec. 316 (BIA 1945) (Canadian conviction of “gross indecency” under a statute providing for punishment of “every male person” who, in public or private, committed, was a party to the commission of, or procured or attempted to procure the commission by any male person of “any acts of gross indecency with another male person,” held not CMT, since the statute did not indicate the type of conduct which it proscribed, and it was impossible to conclude that every offense under the statute involved moral turpitude; since the record of conviction also failed to disclose the exact act of gross indecency attempted to be committed, the offense of which the noncitizen was convicted was held not to involve moral turpitude).

 

            See Holzapfel v. Wyrsch, 259 F.2d 890 (3d Cir. 1958) (New Jersey conviction of “open lewdness” held not CMT, since statute in question was rehabilitative in purpose, and since the sentence was imposed but suspended in order to assure participation in psychiatric treatment).

[202] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a).

[203] Lawrence v. Texas, 123 S.Ct. 2472 (June 26, 2003) (Texas conviction of “deviate sexual conduct” (oral or anal sex or penetration with an object) between members of the same sex, in violation of Texas Code Ann. § 21.06(a), held in violation of the Due Process Clause of the Fourteenth Amendment, where both partners were adults at the time of the offense which was consensual and occurred in private).

[204] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a)(16).

BIA

CRIMES OF MORAL TURPITUDE " INDECENT EXPOSURE
Matter of Cortes Medina, 26 I. & N. Dec. 79 (BIA 2013) (California conviction of indecent exposure, in violation of Penal Code 314(1), which includes the element of lewd intent, is categorically a crime involving moral turpitude).