Crimes of Moral Turpitude


§ 10.1 I. Introduction

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A criminal conviction cannot be eliminated in immigration court.[1]  Collateral attacks on the validity of a criminal conviction are not permitted in immigration court.[2]  The immigration court must accept the conviction as valid, under the Full Faith and Credit Clause and statute, unless the conviction has been set aside on a ground of legal invalidity by the criminal court that rendered it in the first place.[3]  The exception is a conviction that is void on its face under the law of the jurisdiction in which it was rendered; the immigration courts must disregard such a conviction.[4]  The repeal of a statute of conviction after conviction and sentence have occurred may not eliminate the conviction as a ground of deportation.[5]  On the other hand, such a repeal may be grounds for vacating the conviction under state law.[1]


Other Resources.  For a more thorough discussion of post-conviction relief for immigrants, see N. Tooby, Post-Conviction Relief for Immigrants (2004), the chief value of which is that it collects the widest variety of vehicles and grounds on which post-conviction relief may be sought.  More than 40 different federal constitutional grounds to vacate convictions based on guilty pleas have been collected in that book, that can be used in any jurisdiction within the United States.  It also provides a detained analysis of how to evaluate the chances of obtaining post-conviction relief from the immigration effects of a criminal conviction that can be used anywhere, since it depends on practical factors rather than the vagaries of state law.  Post-Conviction Relief for Immigrants also attempts to list all of the possible vehicles that may be used to obtain post-conviction relief for immigrants in state and federal court.  While it has not proven possible to describe the post-conviction procedure in detail in each of the different jurisdictions,[2] the book offers a useful outline of the post-conviction process, together with an understanding of the way in which relief may be obtained. 


There are two state-specific works concentrating on post-conviction relief for immigrants:


California.  See N. Tooby, California Post-Conviction Relief for Immigrants (2001 ed. With 2002 Supp.).  This work collects all California post-conviction vehicles of use to immigrants, and gathers the state and federal grounds for relief, with sample motions and petitions.  It is available on  A briefer 400-page eBook on this subject updates this work as of January, 2008.  N. Tooby, Immigration-Related Post-Conviction Relief in California (2008), which also provides current sample pleadings in electronic form.


Washington.  See Ann Benson, Post-Conviction Relief For Immigrants In Washington State (Washington Defender Association’s Immigration Project, 2004).  This is an excellent book on post-conviction relief for immigrants under Washington State law.  The book is available from the Washington Defenders Immigration Project, 1401 E. Jefferson St. Suite 200, Seattle, WA  98122: Tel: 206-726-3332; Fax: 206-726-3170, Email:


All States.  For an excellent compilation of the law governing post-conviction relief in each state, see Donald E. Wilkes, Jr., State Post-Conviction Remedies and Relief Handbook (2006 ed.), which summarizes the pertinent statutes and caselaw in each jurisdiction.  See also T. O'Toole, Appeal and Post Conviction Review, in L. Friedman Ramirez, Ed., Cultural Issues in Criminal Defense 663 (2d ed. 2007).

[3] See Drakes v. INS, 205 F.3d 385 (3d Cir. June 3, 2003) (district court may not entertain a collateral attack on a state conviction, that serves as a basis for deportation, in a habeas proceeding under 28 U.S.C. § 2241).

[4] Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000); De La Cruz v. INS, 951 F.2d 226 (9th Cir. 1991); Trench v. INS, 783 F.2d 181 (10th Cir. 1986) (no collateral attack on the validity of a state criminal conviction is allowed in a deportation proceeding); United States v. Gavilan, 761 F.2d 226 (5th Cir. 1985) (federal courts do not permit collateral attack on conviction based on claim of ineffective counsel in failing to advise client of immigration consequences of guilty plea); Zinnanti v. INS, 651 F.2d 420 (5th Cir. 1981) (noncitizen may not collaterally attack a conviction in immigration court on the ground criminal counsel failed to advise him or her of the immigration consequences of guilty plea); Chiaramonte v. INS, 626 F.2d 1093, 1098 (2d Cir. 1980) (noncitizen cannot attack validity of foreign conviction in immigration court); Ocon-Perez v. INS, 550 F.2d 1153 (9th Cir. 1977); Cruz-Sanchez v. INS, 438 F.2d 1087 (7th Cir. 1971) (orderly administration of justice precluded examination of validity of a conviction, but case was remanded when sentence vacated); Rassano v. INS, 377 F.2d 971, 974 (7th Cir. 1967); Ordaz-Machado v. Rivkind, 669 F.Supp. 1068, 1070 (S.D. Fla. 1987) (deportation order may be based on conviction unless it is vacated in a post-conviction motion).  But see Durante v. Holton, 228 F.2d 827 (7th Cir. 1956) (federal court reviewing a deportation order can rule on a claim that the state court conviction providing the basis of the deportation order was rendered in violation of due process of law); Marino v. Holton, 227 F.2d 886 (7th Cir. 1955).

[5] Proof of a conviction precludes further inquiry in the immigration court concerning guilt, since the immigration authorities are not required or allowed to retry the criminal case.  Brice v. Pickett, 515 F.2d 153 (9th Cir. 1975);  Mylius v. Uhl, 210 F. 860 (2d Cir. 1914); Matter of Madrigal-Calvo, 21 I. & N. Dec. 323 (BIA 1996); Matter of Reyes, 20 I. & N. Dec. 789, 793 (BIA 1994); Matter of McNaughton, 16 I. & N. Dec. 569 (BIA 1978); Matter of Fortis, 14 I. & N. Dec. 576 (BIA 1974); Matter of Sirhan, 13 I. & N. Dec. 592, 594 (BIA 1970).  See Noell v. Bensinger, 586 F.2d 554 (5th Cir. 1978) (deportability triggered by fact of conviction); Quereshi v. INS, 519 F.2d 1174 (5th Cir. 1975) (same).  See Manzoli v. Commissioner, 904 F.2d 101, 105 (1st Cir. 1990) (party to civil action collaterally estopped from relitigating material issue resolved against him in prior criminal action).”  Cabral v. INS, 15 F.3d 193, 197 n.7 (1st Cir. 1994).

[6] The immigration courts will disregard a conviction which is void on its face under the law of the jurisdiction in which it was rendered.  Freislinger v. Smith, 41 F.2d 707 (7th Cir. 1930); Wilson v. Carr, 41 F.2d 704 (9th Cir. 1930).  But see Sandoval v. INS, 240 F.3d 577 (7th Cir. 2001).  See § 10.9, infra.

[7] Mahler v. Eby, 264 U.S. 32 (1924).

[1] People v. Rossi, 18 Cal.3d 295, 302 (1976).

[2] A wonderful resource for this purpose is the three-volume D. Wilkes, State Postconviction Remedies and Relief Handbook (2007).



Fourth Circuit

Dung Phan v. Holder, 667 F.3d 448 (4th Cir. Feb. 1, 2012) (District of Columbia conviction of distribution of cocaine constituted a conviction of a drug trafficking aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of triggering a permanent statutory bar to showing good moral character, for purposes of naturalization, since the courts order setting aside the conviction, under the District of Columbia Youth Rehabilitation Act, D.C.Code 24"906(e), was done for rehabilitative goals, which do not bar the use of the conviction in the immigration context).

Seventh Circuit

Cordova-Soto v. Holder, 732 F.3d 789 (7th Cir. Oct. 15, 2013) (illegal reentry after 2005 removal, despite several procedural errors, permanently bars reopening that earlier removal order); citing 8 U.S.C. 1231(a)(5).


This practice advisory and a link discuss state by state post-conviction relief statutes. They are also on the website.