Crimes of Moral Turpitude

(A)

In General.  As a general rule, if a statute encompasses both acts that do and do not involve moral turpitude, the BIA cannot sustain a deportability finding on the basis of a conviction of violating that statute.[1]  Thus, to decide whether a crime is a CMT by its nature, the BIA considers whether the minimum conduct necessary to violate the statute always involves moral turpitude. [2]  

            The same holds true where the reviewing court has found the statute divisible, but cannot determine the set of elements to which the defendant entered his or her plea from the record of conviction.  In this case, the court must look at the minimum conduct punishable under any of the sets of elements.[99]  In Malta-Espinoza v. Gonzalez,[100] for example, the Ninth Circuit found that where a noncitizen was charged with a divisible statute in the conjunctive (e.g., defendant intentionally and negligently committed an offense),[101] “[a]ll that we can gather from the charge and the bare record of a plea of guilty, therefore, is that Malta-Espinoza was guilty of either following or harassing or both.  This fact need not affect our analysis, however, because under a categorical analysis we must determine whether the ‘full range of conduct’ covered by the statute falls within the definition of ‘crime of violence.’”[102] 

[103] Jeune v. Attorney General, 476 F.3d 199 (3d Cir. Feb. 20, 2007) (“Moreover, this Court has indicated that we must assume that Jeune’s conduct was only the minimum necessary to comport with the statute and record. Partyka v. Att’y Gen. of U.S., 417 F.3d 408, 411 (3d Cir. 2005) (“Under this categorical approach, we read the applicable statute to ascertain the least culpable conduct necessary to sustain a conviction under the statute.”); Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003) (“Because the state statute under which Wilson pleaded guilty does not contain sale for remuneration as an element, we cannot determine from the state court judgment that Wilson’s conviction necessarily entails a finding of remuneration.”); Steele v. Blackman, 236 F.3d 130, 136 (3d Cir. 2001) (limiting the inquiry to what the state court must necessarily have found). To conform with these precedents, we must conclude that Jeune’s conduct was the bare minimum necessary to trigger 35 Pa. Cons.Stat. Ann. § 780-113(a)(30) and therefore does not constitute an aggravated felony.”); United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) (“[t]he crime defined by [California Penal Code § 261.5(c)] qualifies as ‘sexual abuse of a minor’ and hence an aggravated felony if and only if the full range of conduct covered by it falls within the meaning of that term.”) (internal quotations and citation omitted); Michel v. INS, 206 F.3d 253, 270 (2d Cir. 2000) (opinion of Sotomayor, J.); Matter of Baker, 15 I. & N. Dec. 50 (BIA 1974) (“It often happens that one statute includes both crimes which do involve moral turpitude and crimes which do not. When that occurs, since the burden to prove deportability is upon the Service, we must take the case in the light most favorable to the respondent and assume that he was convicted of a crime that does not involve moral turpitude, Matter of Lopez, supra, at 727; Matter of Espinosa, 10 I. & N. Dec. 98, 100 (BIA 1962).”).

[104] Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir. Apr. 16, 2003) (Arizona conviction of “theft of a means of transportation,” in violation of Arizona Revised Statute § 13-1814, did not constitute a theft offense aggravated felony, under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), where the record of conviction did not establish that the noncitizen had been convicted of violating a portion of the statute of conviction that required intent); Hamdan v. INS, 98 F.3d 183, 187 (5th Cir. 1996) (“if a statute encompasses both acts that do and do not involve moral turpitude, the BIA cannot sustain a deportability finding on that statute”); Robinson v. Day, 51 F.2d 1022 (2d Cir. 1931); Forbes v. Brownell, 149 F.Supp. 848 (D.D.C. 1957); Vidal y Planas v. Landon, 104 F.Supp. 384 (S.D. Cal 1952); Matter of Reyes-Torres, File No. A91-406-680 (BIA 1999) (Texas DUI conviction does not constitute crime involving moral turpitude because it does not necessarily involve conduct that is morally blameworthy); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989); Matter of N, 8 I. & N. Dec. 466 (BIA 1959) (malicious mischief).  See also Chiaramonte v. INS, 626 F.2d 1093, 1098 (2d Cir. 1980); Ablett v. Brownell, 240 F.2d 625 (D.C. Cir. 1957); Rassano v. INS, 377 F.2d 971 (7th Cir. 1966); Wadman v. INS, 329 F.2d 812 (9th Cir. 1964); Bisaillon v. Hogan, 257 F.2d 435 (9th Cir.), cert. den. sub nom. Bisaillon v. Sureck, 358 U.S. 872, 3 L. Ed.2d 104, 79 S.Ct. 112 (1958); Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir.), cert. den., 355 U.S. 892, 2 L. Ed.2d 190, 78 S.Ct. 265 (1957); United States ex rel. Giglio v. Neelly, 208 F.2d 337 (7th Cir. 1953); United States ex rel. McKenzie v. Savoretti, 200 F.2d 546 (5th Cir. 1952); United States ex rel. Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939); United States ex rel. Zaffarano v. Corsi, 63 F.2d 757 (2d Cir. 1933); United States ex rel. Robinson v. Day, 51 F.2d 1022 (2d Cir. 1931); United States ex rel. Mongiovi v. Karnuth, 30 F.2d 825 (W.D.N.Y. 1929); United States ex rel. Griffo v. McCandless, 28 F.2d 287 (D. Pa. 1928); Forbes v. Brownell, 149 F.Supp. 848 (D.D.C. 1957); Vidal y Planas v. Landon, 104 F.Supp. 384 (S.D. Cal. 1952); United States ex rel. Manzella v. Zimmerman, 71 F.Supp. 534 (E.D. Pa. 1947); Matter of Esfandiary, 16 I. & N. Dec. 659 (BIA 1979); Matter of Farinas, 12 I. & N. Dec. 467 (BIA 1967); Matter of Marchena, 12 I. & N. Dec. 355 (BIA 1967); Matter of Espinosa, 10 I. & N. Dec. 98 (BIA 1962); Matter of B, 6 I. & N. Dec. 98 (BIA 1954); Matter of Tat Nau Cheung, A 36 700 432 (BIA 1986) (a conviction of violating Canadian Criminal Code § 312 – knowing possession of stolen goods – may contain a rebuttable presumption of guilty knowledge but specifically requires knowledge to convict, and is therefore a CMT); Matter of P, 2 I. & N. Dec. 117 (BIA 1944) (“contributing to the delinquency of minors” by making an “indecent exposure” of the person in the presence of children was held not to involve moral turpitude, since no evil intent was required to constitute the offense, because the noncitizen’s conduct, taken at its minimum under the statute and information, could have been the mere act of relieving himself, which while perhaps showing poor timing or judgment, could hardly be held necessarily to involve moral turpitude).

[99] See, e.g., Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1168 (9th Cir. Nov. 15, 2006) (“The record does not specify under which subsection [the defendant] was convicted in 2002.  Accordingly, if any of the three subsections . . . does not involve moral turpitude, then his 2002 conviction does not qualify as a crime of that nature.”).

[100] Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1083 (9th Cir. Mar. 2, 2007) (“It is common to charge conjunctively when an underlying statute proscribes more than one act disjunctively; such a charge permits conviction upon proof that the defendant committed either of the conjunctively charged acts.  See, e.g., United States v. Bonanno, 852 F.2d 434, 441 (9th Cir. 1988) (“Where a statute specifies two or more ways in which an offense may be committed, all may be alleged in the conjunctive in one count and proof of any one of those acts conjunctively charged may establish guilt.”)). 

[101] See § 7.4, infra.

[102] Malta-Espinoza v. Gonzales, 478 F.3d at 1083-1084 (emphasis added).