Crimes of Moral Turpitude

(B)

Full Range of Conduct.  If even the most minimal conduct punished under the statute is considered to be a CMT, then the statute is said to be “categorically” a crime of moral turpitude.[105]  Until recently, however, counsel could argue that if there was any way that a person could be convicted under a given statutory section, without triggering a ground of removal, then no convictions under that statute could be held to trigger removal under that ground.[106]  The “full range of conduct”[107] punishable under the statute (or subdivision) was required to fall within the ground of removal.  Thus:

If a statute includes offenses in which moral turpitude does not necessarily inhere, and if it is not clear from the conviction record under which subsection the respondent was convicted, then the respondent is not deportable, even though in the particular instance his conduct may have been immoral. Ablett v. Brownell, 240 F.2d 625, 627 (D.C.Cir., 1957); U.S. ex rel. Robinson v. Day, 51 F.2d 1022 (C.A. 2, 1931); U.S. ex rel. Mylius v. Uhl, supra, note 2; Forbes v. Brownell, 149 F.Supp. 848, 850-51 (D.D.C. 1957); Matter of N, 8 I. & N. Dec. 466 (BIA 1959).[4]

In other words, if there was any instance possible, in which the offense is in fact committed, yet moral turpitude is not present, the conviction could not be considered to involve moral turpitude:

Consequently, it is well established that an offense must necessarily involve moral turpitude in order for a conviction for that crime to support an order of exclusion. Matter of Serna, Interim Decision 3188 (BIA 1992). Moreover “it is equally clear that any doubts in deciding whether or not the statute proscribed an act involving moral turpitude must be resolved in the alien’s favor.” Id., (citing Fong Haw Tan v. Phelan, 333 U.S. 6, 68 S.Ct. 374, 92 L. Ed. 433 (1948)).[5]

In United States ex rel. Manzella v Zimmerman,[6] for example, the court examined whether an English conviction for prison breach “with force and arms,” accomplished by the least imaginable force involved moral turpitude.  Pointing to English case law holding that a breach has been committed “with force and arms” if a loose brick is pushed from the top of the wall, the court held that the offense in question did not involve moral turpitude under the minimum conduct analysis.  In Ablett v Brownell,[7] a British conviction of “willfully” being a “party to the continued use” of rented premises as a brothel did not necessarily and inevitably constitute a crime involving moral turpitude, since the minimum conduct necessary to violate the statute could include a landlord who had merely failed through negligence or inertia to take prompt action after notice to prevent further use of the premises as a brothel. 

[108] See, e.g., United States v. Ladwig, 432 F.3d 1001, 1004 (9th Cir. Dec. 27, 2005) (Washington statute punishing making of a harassing telephone call, in violation of R.C.W. § 9.61.230(3)(b), “in all cases requires for conviction and felony punishment that there has been a threat to kill, so the minimum elements of this statutory provision necessarily include threatened use of violence.”).

[109] See, e.g., Singh v. Gonzales, 432 F.3d 533 (3d Cir. Jan. 3, 2006) (“We have held that another section of the Pennsylvania simple assault statute, 18 Pa. Cons.Stat. Ann. § 2701(a)(1), which states that “[a] person is guilty of assault if he ... attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another,” requires no more than a mens rea of recklessness, and therefore does not describe a crime of violence within the meaning of § 16(a).  Popal v. Gonzales, 416 F.3d 249, 254-55 (3d Cir. 2005) (citing Tran, 414 F.3d at 472).  It is not dispositive that the crime may be proven by a showing of specific intent – all that is necessary to place it outside § 16(a) is that it could also be established with proof of a lesser mens rea.”); Matter of Esfandiary, 16 I. & N. Dec. 659 (BIA 1979).

[110] United States v. Rivera-Sanchez, 247 F.3d 905, 907-909 (9th Cir. 2001) (en banc).

[111] Matter of Baker, 15 I. & N. Dec. 50, 52 (BIA 1974).

[105] Toutounjian v. INS, 959 F.Supp. 598, 601-602 (W.D.N.Y. 1997).  See also Matter of LVC, 22 I. & N. Dec. 594 (BIA Mar. 25, 1999).

[106] United States ex rel. Manzella v. Zimmerman, 71 F.Supp. 534 (D.Pa. 1947).

[107] Ablett v. Brownell, 240 F.2d 625, 99 App. D.C. 387 (D.C. Cir. 1957).