Crimes of Moral Turpitude

 

(F)

Definitions Outside the Immigration Context.  States use the phrase “moral turpitude” as a statutory or regulatory standard for a variety of nonimmigration purposes, including for the disbarment of attorneys, revocation of medical licenses, and as a criterion in disqualifying and impeaching witnesses.[1] 

 

Arguably, these cases should not be referred to in determining whether a particular offense is a crime of moral turpitude because the question of removability for a crime of moral turpitude is a question of federal law, and because “immigration laws should be applied uniformly across the country, without regard to the nuances of state law.”[2] The consequences a state chooses to place on the conviction in its own courts under its own laws cannot control the consequences given to the conviction in a federal deportation proceeding.[3]  State law is examined only to determine the elements of the crime.[4] 

 

At least two courts have held this to be the case.[47]  Other courts, however, have referred to state cases in the disbarment and other contexts in support of arguments that a particular offense is a CMT for immigration purposes.[48]  The United States Supreme Court has also cited state decisions concerning moral turpitude for their persuasive value.[7] The authors have therefore included CMT – defining cases from all contexts in this work.

 

The Ninth Circuit has recently cited a non-immigration case in at least two different cases. [49]  The dissent in Navarro-Lopez (I) specifically objected to the use of a non-immigration CMT case in the immigration context.[50]  In Navarro-Lopez (II), the dissenting opinions cited again to a state disbarment case holding that accessory after the fact was a CMT.[51]  Judge Reinhardt found such reliance misplaced:

 

The term “moral turpitude” encompasses far more conduct in California state bar disciplinary proceedings than it does in the federal immigration context. The California Supreme Court has explained that “[a]ny crime or misconduct reflecting dishonesty, particularly when committed in the course of his practice, is clearly relevant to the fitness of an attorney to continue to practice law, and thus is conduct involving moral turpitude for purposes of State Bar disciplinary proceedings.” Baker v. State Bar, 49 Cal.3d 804, 263 Cal.Rptr. 798, 781 P.2d 1344, 1350 n. 3 (1989). Indeed, a lawyer's conduct need not even amount to a crime to be considered morally turpitudinous under § 6106. See Martin v. State Bar, 20 Cal.3d 717, 144 Cal.Rptr. 214, 575 P.2d 757, 758 (1978) (“Habitual neglect of client interests, constituting willful or grossly negligent conduct, involves moral turpitude under Business and Professions Code section 6106.”). [52]

 

In Cerezo v. Mukasey, the court arguably examined an impeachment case not for the purpose of directly deciding whether the conviction was a CMT, but rather as an examination of the breadth of the statute of conviction (i.e., the minimum conduct necessary to convict).[53]

 

The Fifth Circuit has also rejected the examination of state bar complaint cases on the basis that these cases do not require more than a conviction to determine moral turpitude – going further to examine the underlying facts of the offense.[54]

[55] Matter of Khourn, 21 I. & N. Dec. 1041 (BIA 1997) (citing Jordan v. De George, 341 U.S. 223, 225, 71 S.Ct. 703, 705-706, 95 L.Ed. 886 (1951)).  Aside from the large body of immigration cases interpreting the phrase, the most coherent body of law interpreting the meaning of “moral turpitude” is federal criminal case law involving the decision which misdemeanor convictions may be used to impeach witnesses.  See Jordan v. De George, 341 U.S. 223, 227, 71 S.Ct. 703, 95 L.Ed. 886 (1951); United States v. Remco, 388 F.2d 783, 786 (3d Cir. 1968).

[56] Ye v. INS, 214 F.3d 1128, 1132 (9th Cir. 2000).  See also Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. Mar. 4, 2003) (label placed upon an offense by the state statutory scheme is not controlling, for purposes of determining whether the offense triggers removal); Nehme v. INS, 252 F.3d 415, 429 (5th Cir. 2001) (“[t]o avoid leaving the requirements for citizenship to state control, the court devised a federal standard to determine whether the petitioner had committed acts constituting a crime of moral turpitude”); Burr v. INS, 350 F.2d 87, 90 (9th Cir. 1965); Wyngaard v. Rogers, 187 F.Supp. 527 (D.D.C. 1960), aff’d, 111 App. D.C. 197, 295 F.2d 184 (D.C. Cir. 1960), cert. denied sub nom. Wyngaard v. Kennedy, 368 U.S. 926, 82 S.Ct. 362 (1961).

[57] See Lisbey v. Gonzalez, 420 F.3d 930, 933 (9th Cir. Aug. 22, 2005) (the fact that California does not list sexual battery as a violent felony for sentencing purposes is not dispositive of whether the offense is a crime of violence for immigration purposes); Franklin v. INS, 72 F.3d 571, 572-573 (8th Cir. 1995), cert. denied, 519 U.S. 834, 117 S.Ct. 105 (1996); Cabral v. INS, 15 F.3d 193, 196 n.5 (1st Cir. 1994); Gonzales v. Barber, 207 F.2d 398, 400 (9th Cir. 1953), aff’d, 374 U.S. 637 (1954); Matter of Medina, 15 I. & N. Dec. 611, 614 (BIA 1976); Matter of H, 7 I. & N. Dec. 359, 360 (BIA 1956).  See also U. S. ex rel. Sollazzo v. Esperdy, 187 F.Supp. 753 (D.N.Y. 1960), aff’d, 285 F.2d 341 (2d Cir.), cert. den., 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).

[58] While the BIA is given substantial deference by reviewing federal courts in interpreting the INA, and defining the phrase “moral turpitude,” de novo review is given to whether the elements of the state or federal crime fit within the BIA definition of crime involving moral turpitude.  See Smalley v. Ashcroft, 354 F.3d 332 (5th Cir. Dec. 15, 2003).

[59] Gonzalez v. Barber, 207 F.2d 398, 400 (9th Cir. 1953) (“A California case is cited in which it was held that an assault with a deadly weapon was not such a crime for purposes of disbarment of an attorney . . . .  However, there the California court was concerned with whether the crime involved such moral turpitude as to reflect upon the attorney’s moral fitness to practice law, a state question. Here we are faced with the federal question of whether the crime involves such moral turpitude as to show that the alien has a criminal heart and a criminal tendency- as to show him to be a confirmed criminal.”), aff’d, 374 U.S. 637 (1954).  See also Franklin v. INS, 72 F.3d 571 (8th Cir. 1995).

[47] See, e.g, Matter of Khourn, 21 I. & N. Dec. 1041 (BIA Oct. 31, 1997); Matter of R, 5 I. & N. Dec. 29 (BIA 1952) (“Nevertheless, we believe that [state crime of moral turpitude] judicial pronouncements cannot be ignored in determining the question before us.”).  See also Jordan v. De George, 341 U.S. 223, 227 (1951) (examining state law decisions in determining that fraud involves moral turpitude).

[48] Jordan v. De George, 341 U.S. 223, 228 and n.13, 71 S.Ct. 703, 705-706, 95 L.Ed. 886 (1951).  But see Gonzales v. Barber, 207 F.2d 398 (9th Cir. 1953), aff’d, 347 U.S. 637, 74 S.Ct. 822 (rejecting argument that the California crime of assault with a deadly weapon was not a CMT per se because a California case had held that assault with a deadly weapon was not a crime involving moral turpitude for purposes of disbarring an attorney).

[49] Cerezo v. Mukasey, 512 F.3d 1163 (9th Cir. Jan. 14, 2008); Navarro-Lopez v. Gonzalez, 455 F.3d 1055, 1058 (9th Cir. Jul. 31, 2006), rev’d en banc 503 F.3d 1063 (9th Cir. Sept. 19, 2007).

[50] Navarro-Lopez v. Gonzalez, 455 F.3d at 1060 n.1.

[51] Navarro-Lopez v. Gonzalez, 455 F.3d at 1079 n.3. (Tallman, J. dissenting) (citing the case as persuasive, but acknowledging CMT for immigration purposes is a question of federal law), 1086 (Bea, J., dissenting).

[52] Navarro-Lopez v. Gonzales, 503 F.3d at 1076 n.1. (Reinhart, J., concurring).

[53] Cerezo v. Mukasey, 512 F.3d 1163 (9th Cir. Jan. 14, 2008)

[54] Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. Jun. 29, 2007).