Crimes of Moral Turpitude

(B)

Commission of Only One CMT.  If the government shows, by a preponderance of the evidence, that a noncitizen has committed a second CMT, s/he will no longer be eligible for the petty offense exception to inadmissibility.[97]  Counsel should check the defendant’s entire criminal record to make sure that s/he has committed only one crime involving moral turpitude.  Commission of a second moral turpitude offense, even if the conviction was expunged, or charges were dismissed and there was no second conviction at all, will disqualify the defendant from eligibility for the Petty Offense Exception to inadmissibility for one CMT.[98]  On the other hand, previous non-turpitude convictions (e.g., driving under the influence, simple assault) will not disqualify the defendant from receiving the Petty Offense Exception.[99] 

A court finding that a defendant violated a condition of probation does not constitute a conviction, and therefore does not establish that the defendant committed a second CMT for purposes of disqualifying him or her from the petty offense exception to inadmissibility.  However, if the conduct underlying the violation of probation constitutes CMT conduct (i.e., the commission of a second CMT), the conduct could disqualify a noncitizen from the Petty Offense Exception. Counsel should examine the petition filed in the criminal court alleging a violation of probation, and any attached documents such as police reports, and determine the nature of the conduct resulting in the allegation that the defendant violated probation.

The question of whether a noncitizen has committed a second CMT is a conduct-based factor, and the noncitizen is free to contest it as a factual matter.  The client could testify in removal proceedings s/he did not commit the second CMT, or call other witnesses to prove this.

For example, in the context of determining whether a noncitizen on supervised release from immigration detention had violated the term of the release requiring that he not “commit any crimes, “ the Ninth Circuit has held that a plea of no contest in criminal proceedings is insufficient evidence to show that the noncitizen has committed a crime, since a nolo contendere plea is not an admission of guilt to the underlying crime.[100]  Applied in this context, counsel can argue that a no contest plea cannot be used to establish that a noncitizen has “committed” another CMT, because even though there is a conviction, a no contest plea gives no proof that the offense of conviction was “committed” by the defendant. Other evidence, however, could be used to prove the conduct.

Counsel can also argue (similarly to the single scheme concept applied to the two or more CMT ground of deportability[101]) that a second CMT committed as part of the same criminal act does not disqualify a person from the Petty Offense Exception.[102]

[97] Matter of SF, 7 I. & N. Dec. 495 (BIA 1957) (if the preponderance of the evidence shows the noncitizen committed a second CMT, the petty offense exception to inadmissibility for one CMT conviction or admission does not apply).

[98] In Matter of SR, 7 I. & N. Dec. 495 (BIA 1957), the BIA held that a noncitizen was disqualified from the Petty Offense Exception by reason of having committed a second crime of moral turpitude, even though the second conviction had been expunged and under applicable law at the time, the noncitizen therefore had only one CMT conviction.  The Board also held a person ineligible if the INS shows, by a preponderance of the evidence, that the person committed a second crime of moral turpitude, even if the person was never convicted.

[99] Matter of Garcia-Hernandez, 23 I. & N. Dec. 590 (BIA May 8, 2003) (commission of a second offense does not disqualify a noncitizen from the Petty Offense Exception to inadmissibility for one CMT conviction, under INA § 212(a)(2)(a)(ii)(ii), 8 U.S.C. § 1182(a)(2)(a)(ii)(ii) unless the second offense is also a CMT).  See also Reyes-Morales v. Gonzales, 435 F.3d 937 (8th Cir. Jan. 31, 2006) (since one of two convictions was not a crime of moral turpitude, and the other qualified for the petty offense exception to inadmissibility, respondent was not inadmissible for a CMT under INA § 212(a)(2), 8 U.S.C. § 1182(a)(2)); Cuadra v. Gonzales, 417 F.3d 947, 949 (8th Cir. 2005).

[100] United States v. Nguyen, 465 F.3d 1128 (9th Cir. Oct. 18, 2006) “[A] plea of nolo contendere ... is, first and foremost, not an admission of factual guilt. It merely allows the defendant so pleading to waive a trial and to authorize the court to treat him as if he were guilty. (citation omitted)). By entering a West plea a defendant [does] not admit the specific details about his conduct on the ... counts[to which] he pleaded guilty.  Carty v. Nelson, 426 F.3d 1064, 1068 (9th Cir.2005) (citing In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713, 830 P.2d 747); see also West, 91 Cal.Rptr. 385, 477 P.2d at 420 (explaining that by entering a plea agreement a defendant demonstrates that he ... is prepared to admit each of [the offense]'s elements” but not factual guilt). As a result, unless the record of the plea proceeding reflects that the defendant admitted to facts, a West plea, without more, does not establish the requisite factual predicate to support a sentence enhancement.” (internal quotation marks omitted)).  See also United States v. Vidal, 504 F.3d 1072, 1087-1088 (9th Cir. Oct. 10, 2007) (“The California Supreme Court subsequently characterized a People v. West plea as a plea of nolo contendere that does not establish factual guilt. See In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713, 830 P.2d 747, 752 (1992) (describing a People v. West plea as a ‘plea of nolo contendere, not admitting a factual basis for the plea’”).

[101] See § 5.14, infra.

[102] Matter of Medina-Lopez, 10 I. & N. Dec. 7 (BIA 1962) (the respondent in this case had been convicted, in Mexico, of petty theft and assault arising from a single mugging incident, the BIA determined that because these two offenses arose out of a “single scheme of misconduct” the convictions amounted to an equivalent to a single conviction for robbery, which if prosecuted under the District of Columbia Code, would have been punishable as a felony, and therefore did not qualify for the petty offense exception to inadmissibility). Thanks to Richard Breitman.