Crimes of Moral Turpitude

 

(A)

In General.  Beyond examining the language of the statute itself, state[1] case law must also be examined to determine whether the courts have grafted additional elements onto the crime, or have interpreted the statutory criteria in a meaningful way.[78]  Judicial decisions may interpret a criminal statute to require an additional element, that may not be apparent in the language of the statute itself, in order to sustain a conviction.  Judicial decisions may also interpret the statute more broadly than would be apparent from the statute itself, which may mean that the statute, as interpreted, punishes acts that would not be considered to involve moral turpitude.[79]  The judicial decisions may also define terms in the statute in a manner not apparent from the language of the statute itself.[80]  Another occasion where it may be necessary to look to judicial decisions is where the criminal statute does not contain any elements at all.[81]  In making a determination of removability, the immigration courts are bound by the state court’s interpretation of that states’ statutes.[6]

 

            For example, even if a perjury statute does not require that the misstatement be material, a perjury conviction will be found to be a crime of moral turpitude if the local judicial interpretation of the statute declares that materiality of the false statement is a necessary element of the crime.[82]  The Georgia bad check statute prohibits the issuance of a check “knowing that it will not be honored,” but does not require a showing of any level of criminal intent.[83]  However, Georgia case law has found that an intent to defraud is an essential element of the crime.  Therefore, the BIA found that a conviction under that statute was a crime of moral turpitude.[84]  On the other hand, the BIA examined Pennsylvania law to determine that that state’s bad check statute had been interpreted to not require an intent to defraud.[85] 

 

            In the aggravated felony context, the Ninth Circuit found a California conviction for welfare fraud[86] qualified as an aggravated felony fraud offense,[87] since case law had interpreted that statute as invariably requiring an element of intent to defraud, even though the statute itself states that a conviction could be based upon a “false statement or representation or by impersonation or other fraudulent device.”[88]

             

            This analysis, however, does not include relying upon state law to determine whether an offense is a crime of moral turpitude, which is a matter of federal law.[89]  In the aggravated felony context, the Tenth Circuit has stated:

 

This court’s determination of whether solicitation of burglary is a crime of violence under the Guidelines is not dictated by Arizona state law regarding whether solicitation is a crime of communication or a crime of violence.  In Taylor v. United States, the Supreme Court rejected the contention that the term “burglary” in the Armed Career Criminal Act “means ‘burglary’ however a state chooses to define it.” 495 U.S. 575, 579, 592, 110 S.Ct. 2143, 109 L. Ed.2d 607 (1990) (quotation omitted). Instead, the Court concluded Congress intended burglary to mean generic burglary as currently defined in the criminal codes of most states. Id. at 598. The Court reasoned: “[i]t seems to us to be implausible that Congress intended the meaning of ‘burglary’ ... to depend on the definition adopted by the State of conviction”; such a conclusion would lead to “the unfairness of having enhancement [under Federal law] depend upon the label employed by the State of conviction.” Id. at 589-90; cf. Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 119-20, 103 S.Ct. 986, 74 L. Ed.2d 845 (1983) (noting that state law that expunged conviction after completion of probation did not erase conviction for purposes of Gun Control Act because “federal program would be impaired if state law were to control”); United States v. Nardello, 393 U.S. 286, 293-95, 89 S.Ct. 534, 21 L. Ed.2d 487 (1969) (prohibition of extortion in violation of state law in the Travel Act is not limited to only those extortionate activities that a particular state defines as extortion). Similarly, state law characterizations of solicitation are irrelevant to our analysis of whether generic solicitation is a crime of violence under the Guidelines. The purpose of the Sentencing Commission is to provide “certainty and fairness” in sentencing and to avoid “unwarranted sentencing disparities.” 28 U.S.C. §   991(b)(1)(B). Dependence on state law characterizations of what constitutes a crime of violence would inhibit these objectives.[15]

[90] Including Puerto Rico. See Herrera-Inirio v. INS, 208 F.3d 299, 304 n.1 (1st Cir. 2000) (citing 28 U.S.C. § 1738, extending full faith and credit doctrine to Puerto Rico; 48 U.S.C. § 734, providing that, unless otherwise specified, federal statutes applicable to states apply to Puerto Rico); see also Cruz v. Melecio, 204 F.3d 14 (1st Cir. 2000).

[91] See, e.g., Blake v. Gonzales, 481 F.3d 152, 157, n.3 (2d Cir. Mar. 28, 2007) (in determining the elements of the offense of conviction under state law, “we are bound to apply the law as interpreted by a state’s intermediate appellate courts unless we find persuasive evidence that the state’s highest court, which has not ruled on this issue, would reach a different conclusion.  See Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 134 (2d Cir. 1999).”); United States v. Reina-Rodriguez, 468 F.3d 1147 (9th Cir. Nov. 15, 2006) (reviewing court is bound by state court interpretation of statute defining state criminal offense in performing categorical analysis of whether state conviction falls within federal “crime of violence” definition under USSG § 2L1.2(b)(1)(A)(ii)), citing Guaranty Trust Co. v. Blodgett, 287 U.S. 509, 513 (1933); Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. Jun. 15, 2006) (looking to California state law to determine meaning of “force or violence” in California Penal Code § 242); Ferreira v. Ashcroft, 390 F.3d 1091 (9th Cir. Dec. 1, 2004) (California conviction of welfare fraud, in violation of Welf. & Inst. Code § 10980(c)(2), as interpreted by California judicial decisions defining the elements of the offense, invariably requires an element of fraud or deceit, and therefore constitutes an offense involving fraud or deceit for purposes of qualifying as an aggravated felony under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) triggering deportation); United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir. 1997) (although language of Arizona burglary statute met generic definition of burglary for federal sentence enhancement purposes, Arizona judicial decisions had expanded the definition to include a conviction in which the intent to commit the crime had been formed after entry of the structure, so the Arizona offense could be committed by shoplifting in a building, which does not satisfy the Taylor categorical approach for defining a crime of violence); Cabral v. INS, 15 F.3d 193, 196 n.5 (1st Cir. 1994) (“We look to state law only to determine the elements of the offense of conviction.  See Matter of H, 7 I. & N. Dec. 359, 360 (BIA 1956).”); Tutrone v. Shaughnessy, 160 F.Supp. 433 (D.N.Y. 1958) (essential question in determining whether a crime involves moral turpitude is whether the proscribed act, as defined by the law of the state in which it was committed, includes elements which necessarily demonstrate the baseness, vileness and depravity of the perpetrator); Burr v. INS, 350 F.2d 87 (9th Cir. 1965), cert. denied, 383 U.S. 915, 86 S.Ct. 905 (1966) (court considered both the specific language of the California Penal Code section under which the noncitizen had been convicted, and the cases interpreting the statute, and determined that since an intent to defraud was an essential element of the crime of issuing an insufficient funds check, the conviction was a CMT); Matter of H, 7 I. & N. Dec. 359 (BIA 1956); Holzapfel v. Wyrsch, 259 F.2d 890 (3d Cir. 1958) (if a state crime is involved, the courts must look to the law and procedure of the state to interpret what happened in the state court).

[92] United States v. Narvaez-Gomez, 489 F.3d 970 (9th Cir. Jun. 6, 2007) (in determining elements of offense of conviction, under categorical analysis, the court must consider judicial decisions defining the elements of the offense: "The language of section 246 does not expressly include reckless conduct, but we also consider the interpretation of statutory language in judicial opinions to determine categorical reach. See Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir.2006)."); United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir. 1997) (although language of Arizona burglary statute met generic definition of burglary for federal sentence enhancement purposes, Arizona judicial decisions had expanded the definition to include a conviction in which the intent to commit the crime had been formed after entry of the structure, so the Arizona offense could be committed by shoplifting in a building, which does not satisfy the Taylor categorical approach for defining a crime of violence).

[78] For example, California Penal Code § 242 punishes “the willful and unlawful use of force or violence upon the person of another.”  However, California law has determined that the term “force or violence” is a term of art, meaning only a “harmful or offensive touching.”  People v. Page, 123 Cal.App. 4th 1466, 1473 n.1 (2004).

[79] See, e.g., Suazo Perez v. Mukasey, 512 F.3d 1222 (9th Cir. Jan. 22, 2008) (where a criminal statute contains no elements [“any assault other than assault in the 1st, 2nd, 3rd, degree is fourth degree assault”] the reviewing court looks to state caselaw to determine the elements for categorical analysis; where caselaw lays out three ways to commit the offense, as with RCW 9A.39.041, fourth degree assault, the statute will be considered divisible), citing Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir. 2006) (“in determining the categorical reach of a state crime, we consider not only the language of the state statute, but also the interpretation of that language in judicial opinions.”) (citation omitted).

[80] United States v. Reina-Rodriguez, 468 F.3d 1147 (9th Cir. Nov. 15, 2006), citing Guaranty Trust Co. v. Blodgett, 287 U.S. 509, 513 (1933); United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir. 1997) (although language of Arizona burglary statute met generic definition of burglary for federal sentence enhancement purposes, Arizona judicial decisions had expanded the definition to include a conviction in which the intent to commit the crime had been formed after entry of the structure, so the Arizona offense could be committed by shoplifting in a building, which does not satisfy the Taylor categorical approach for defining a crime of violence).

[81] Zaitona v. INS, 9 F.3d 432 (6th Cir. 1993); Matter of Bart, 20 I. & N. Dec. 436 (BIA 1992); Matter of H, 1 I. & N. Dec. 669 (BIA 1943) (Michigan).

[82] Georgia Code § 16-9-20(a) (1989).

[83] Matter of Bart, 20 I. & N. Dec. 436 (BIA 1992) (Georgia conviction of writing bad checks is a CMT).

[84] Matter of Balao, 20 I. & N. Dec. 440 (BIA 1991) (Pennsylvania conviction of writing bad checks, in violation of 18 Penn. Consolidated Stats. 4105(a)(1) is not a CMT).

[85] California Welf. & Inst. Code § 10980(c)(2).

[86] INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).

[87] See, e.g., Lopes v. Keisler, 505 F.3d 58 (1st Cir. Oct. 26, 2007) (Rhode Island conviction for assault and battery, in violation of Gen.Laws 1956, § 11-5-3, is an aggravated felony for immigration purposes, since the statute requires “use of force” as an element; although the statute does not define “assault,” the Rhode Island Supreme Court has defined assault as an attempt to do a bodily harm to another person with “force or violence”; “because section 11-5-3 does not provide a definition of assault, the BIA appropriately looked to Rhode Island case law to determine how the state defines the crime.”); Ferreira v. Ashcroft, 390 F.3d 1091 (9th Cir. Dec. 1, 2004).

[88] See § 8.2, infra.  Cf. United States v. Fazande, 487 F.3d 307 (5th Cir. May 18, 2007) (per curiam) (federal sentence effect of state conviction is a question of federal, not state law, holding Full Faith and Credit Act, 28 U.S.C. § 1738, did not require federal sentencing court to follow state law on whether it constituted a conviction to enhance a federal sentence); see United States v. Morales, 854 F.2d 65, 68 (5th Cir. 1988) (the meaning of the phrase “have become final” in 18 U.S.C. § 841(b)(1)(B) is a question of federal law, not state law).

[89] United States v. Cornelio-Pena, 435 F.3d 1279, 1284 n.4 (10th Cir. Jan. 30, 2006).  See also United States v. Brown, 314 F.3d 1216, 1223-1224 (10th Cir. Jan. 6, 2003); U. S. ex rel. Sollazzo v. Esperdy, 187 F.Supp. 753 (D.N.Y. 1960), aff’d, 285 F.2d 341 (2d Cir.), cert. denied, 366 U.S. 905, 81 S.Ct. 1049 (1961) (state characterizations of a particular offense as involving moral turpitude are not, in and of themselves, conclusive to the application of immigration laws).