Crimes of Moral Turpitude

(A)

Selective Service Offenses.  Draft evasion may or may not constitute a CMT, depending on whether fraud is an essential element of the particular offense.

Matter of S, 5 I. & N. Dec. 425 (BIA 1953) (conviction of failure and refusal to report for induction in violation of 50 U.S.C. Appendix § 462, was not an offense involving moral turpitude, since no criminal intent or bad purpose need be shown as an element of the offense);

Matter of R, 5 I. & N. Dec. 29 (BIA, AG 1952) (conviction of draft evasion by departing from the United States with the intention of evading the Selective Training and Service Act of 1940 in violation of part of § 11 of the act involves moral turpitude);

Matter of S, 4 I. & N. Dec. 509 (BIA 1951) (conviction of falsification of a Selective Service questionnaire for the purpose of evading military service, in violation of § 11, Selective Training and Service Act of 1940 (50 U.S.C. § 311) is an offense involving moral turpitude);

Matter of M, 1 I. & N. Dec. 619 (BIA 1943) (knowingly and deliberately making a false statement as to citizenship in a Selective Service questionnaire for the purpose of evading military service in violation of the Selective Training and Service Act of 1940, 50 U.S.C. § 311, is a crime involving moral turpitude, since fraud is an element).

Refusing to serve in the military during time of war constitutes an independent basis of excludability.[84]  Yet, a conviction for desertion under such circumstances has been held NOT to involve moral turpitude.

Matter of SB, 4 I. & N. Dec. 682 (BIA 1952) (conviction of desertion from the armed forces of the United States in time of war is not an offense involving moral turpitude, since it involves no element of fraud).  

The distinction among these provisions appears to rest on the statutory section under which a noncitizen is indicted and convicted. If fraud is an element of the crime as defined, a conviction may trigger excludable or deportable consequences.[85]

[84] INA § 212(a)(22), 8 U.S.C. § 1182(a)(22).

[85] See INA § § 241(a)(2)(A)(i) and (ii), 8 U.S.C. § § 1251(a)(2)(A)(i) and (ii); INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I).