Crimes of Moral Turpitude

 

(C)

Malum Prohibitum and Malum in Se.  In determining whether a conviction constitutes a crime of moral turpitude, many courts consider whether the offense is malum in se (bad in of itself) or malum prohibitum (bad because it is prohibited). [188]   In finding that statutory rape was not a crime of moral turpitude, the Ninth Circuit identified some factors that may be used to determine whether an offense should be considered malum prohibitum: would the act be legal if the defendant’s legal status were different (e.g., if s/he were married to the victim); is the conduct legal in other states; was the legislative purpose in passing the prohibition focused on pragmatic (e.g., controlling teen pregnancy) or moral control; is the prohibition a strict liability offense, or does it require proof of intent?[189]  The court noted in another case that regulatory offenses generally cause “no direct or particularized injury” to others.[190]   “While it is generally the case that a crime that is ‘malum in se’ involves moral turpitude and that a ‘malum prohibitum’ offense does not, this categorization is more a general rule than an absolute standard.” [191]

 

            The BIA has agreed, for example, that “simple DUI is ordinarily a regulatory offense that involves no culpable mental state requirement, such as intent or knowledge.”[5]  “We find that the offense of driving under the influence under Arizona law, does not, without more, reflect conduct that is necessarily morally reprehensible or that indicates such a level of depravity or baseness that it involves moral turpitude.”[6] 

 

            Many firearms offenses are also held not to be crimes involving moral turpitude, either because they have no sufficiently culpable intent or because they are in essence regulatory offenses.  Sometimes, a court holds a firearms offense to be a CMT where the elements require criminal intent or an intent to use the weapon to inflict great injury.  A conviction under a statute that has no such elements and does not require that the defendant have the intent to use the firearm illegally does not constitute a CMT even under Matter of S.[192] 

 

            Violations of financial regulations are also generally considered regulatory in nature, and not crimes of moral turpitude, unless fraud is involved as an essential element of the offense.  For example, the Ninth Circuit found that moral turpitude was not involved in the offense of structuring financial transactions to avoid currency reports,[193] since the statute did not make intent to defraud the government an essential element of the offense, the defendant could have been convicted even if he were not aware his conduct was illegal, and, even if the Supreme Court were to add the element of scienter to the offense, that construction would not of itself convert the crime into one of moral turpitude.[194]  The Board of Immigration Appeals found that, in the absence of any morally reprehensible conduct, these convictions[195] would not be considered CMTs.[196]  The same hold true of violations of certain New York banking laws.[197]

 

            While the Ninth Circuit found that California’s statute punishing failure to stop following an accident, in order to provide pertinent information to the other person involved, was not a CMT because it was a regulatory offense written for the purpose of enforcing a general obligation to provide information, and did not require any evil intent.[13]  On the other hand, the Fifth Circuit found a Texas conviction for failure to stop and render aid where injury or death resulted was a crime of moral turpitude, as the offense required an “intentional attempt to evade responsibility.”[14]

 

            In Plasencia-Ayala v. Mukasey,[15] the Ninth Circuit found that failure to register as a sex offender was a regulatory offense, requiring no intent, and passed for the practical purpose of assisting law enforcement to track recidivist sex offenders.  While in an earlier decision, the BIA did not dispute that the offense was regulatory in nature, it found the crime was nonetheless a CMT.[16]

[198] Annot., What Constitutes “Crime Involving Moral Turpitude” Within Meaning of § § 212(a)(9) and 241(a)(5) of Immigration and Nationality Act (8 U.S.C. § § 1182(a)(9), 1251(a)(4)), and Similar Predecessor Statutes Providing for Exclusion or Deportation of Aliens Convicted of Such Crime, 23 A.L.R. Fed. 480, § 12[a], n.65 (1975).

[199] Quintero-Salazar, 506 F.3d 688, 693-694 (9th Cir. Oct. 9, 2007).

[200] Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. Feb. 7, 2008).

[201] Matter of Lopez-Meza, 22 I. & N. Dec. 1188, 1193 (BIA Dec. 21, 1999) (“aggravated” driving under the influence convictions, under Arizona state law, constitute convictions of crimes involving moral turpitude since the statutory elements require that the driver know s/he is prohibited from driving under any circumstances).  See also, Mei v. Ashcroft, 393 F.3d 737 (7th Cir. Dec. 29, 2004).

[202] Id. at 1194.

[203] Ibid.  But see Marmolejo-Campos v. Gonzales, 503 F.3d 922 (9th Cir. Sep 12, 2007) (Arizona conviction for violation of A.R.S. § 28-1383(A)(1), driving under the influence with knowledge that defendant did not have valid license to drive, is a crime involving moral turpitude for immigration purposes), rehearing en banc granted by, __ F.3d __, 2008 WL 681334 (9th Cir. Mar 14, 2008).

[188] Matter of S, 8 I. & N. Dec. 344 (BIA 1959) (carrying a concealed weapon is a crime of moral turpitude under a Minnesota law that specifies that carrying a concealed deadly weapon gives rise to the presumption that the person carrying the weapon has the intent to use the weapon against another person).

[189] 31 U.S.C. § § 5322(b), 5324(a)(3).

[190] Goldeshtein v. INS, 8 F.3d 645 (9th Cir. 1993); see also Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 661 (1994) (structuring transactions to avoid reporting requirements “is not inevitably nefarious”).

[191] 31 U.S.C. § § 5324(a)(1) and (3).

[192] Matter of LVC, 22 I. & N. Dec. 594 (BIA 1999), overruling Matter of Goldeshtein, 20 I. & N. Dec. 382 (BIA 1991).

[193] See Matter of B, 6 I. & N. Dec. 98 (BIA 1954) (conspiracy to violate New York Banking Law § § 340, 357 is not a CMT, since those sections are merely regulatory enactment; statement in the conspiracy count relating to intimidation and threats was immaterial since it was surplusage and not necessary for conspiracy conviction).

[194] Cerezo v. Mukasey, 512 F.3d 1163 (9th Cir. Jan. 12, 2008).

[195] Garcia-Maldonada v. Gonzales, 491 F.3d 284, 290 (5th Cir. Jun. 29, 2007).

[196] Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. Feb. 7, 2008).

[197] Matter of Tobar-Lobo, 24 I. & N. Dec. 143 (BIA Apr. 23, 2007).