by Norton Tooby

Back to Table of Contents

---

Chapter 8: Definition of Moral Turpitude

§ 8.1  . Definition of Crime of Moral Turpitude

Other

CRIMES OF MORAL TURPITUDE – SILVA-TREVINO WARNING
In the light of the recent published decision by outgoing Attorney General Mukasey, Matter of Silva-Trevino 24 I. & N. Dec. 687 (A.G. November 2008), the question of what is a crime involving moral turpitude (CIMT) and the methodology for deciding it, is currently unsettled. The Ninth Circuit’s recent 7-5 en banc decision in Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009), added to this uncertainty by holding that where the Board of Immigration Appeals (BIA) rules on “moral turpitude” in a precedential decision, the Court will apply the doctrine of administrative deference. The combination of these decisions tends to undermine the analytical framework with which these issues are analyzed, and may call into question some previously settled rulings on which non-citizens could normally rely.

Because this issue is still in flux, non-citizens who have pleaded guilty to criminal offenses should neither travel out of the United States, nor, in some cases, out of the 7 states of the 9th Circuit , nor should they apply to naturalize or for other immigration benefits, until they have consulted with competent immigration counsel. Thanks to Jonathan Moore.

§ 8.2       A. General Definition

CRIMES OF MORAL TURPITUDE – DEFINITION
Nunez v. Holder, 594 F.3d 1124 (9th Cir. Feb. 10, 2010) The Ninth Circuit described the difficult moral turpitude question as follows: Once again we face the question of what is moral turpitude: a nebulous question that we are required to answer on the basis of judicially established categories of criminal conduct. Although that may not be a satisfactory basis for answering such a question, it is the role to which we are limited by precedent as a court of law. Furthermore, any answer based on other considerations would in all probability be unacceptable to one or another segment of society and could well divide residents of red states from residents of blue, the old from the young, neighbor from neighbor, and even males from females. There is simply no overall agreement on many issues of morality in contemporary society. Morality is not a concept that courts can define by judicial decrees, and even less can it be defined by fiats issued by the Board of Immigration Appeals, to whose decisions the courts must give great deference. Yet, for the purpose of our immigration laws we are required to follow those determinations and to start by applying categories of offenses that the judiciary or the Board members appointed by the Attorney General have deemed morally turpitudinous in all of their applications. We call this the categorical approach. How sensible those decisions are and how close to rational concepts of morality they may come can be seen by considering one of the offenses involved in the case before us. While under our law numerous felonies are deemed not to be morally turpitudinous, all acts of petty theft automatically qualify for that label and the drastic legal consequences that may follow. As some in today’s society might say, and with good reason, “Go figure.” (Nunez v. Holder, ___ F.3d ___, ___, 2010 WL 432417 (9th Cir. Feb. 10, 2010).)

Third Circuit

CRIMES OF MORAL TURPITUDE – “INVOLVES”
Jean-Louis v. Att'y Gen., 582 F.3d 462 (3d Cir. Oct. 6, 2009) (the term “crime involving moral turpitude” is a term of art; the use of the term “involving” does not “invite” an examination into the underlying circumstances of the offense). See also, Nijhawan v. Holder, 129 S.Ct. 2294, 2299 (“Thus in James, referring to Taylor, we made clear that courts must use the “categorical method” to determine whether a conviction for “attempted burglary” was a conviction for a crime that, in ACCA's language, “involved conduct that presents a serious potential risk of physical injury to another.”§ 924(e)(2)(B)(ii).”)

Ninth Circuit

CRIMES OF MORAL TURPITUDE – DEFINITION
Nunez v. Holder, 594 F.3d 1124 (9th Cir. Feb. 10, 2010)

The Ninth Circuit described the difficult moral turpitude question as follows:

Once again we face the question of what is moral turpitude: a nebulous question that we are required to answer on the basis of judicially established categories of criminal conduct. Although that may not be a satisfactory basis for answering such a question, it is the role to which we are limited by precedent as a court of law. Furthermore, any answer based on other considerations would in all probability be unacceptable to one or another segment of society and could well divide residents of red states from residents of blue, the old from the young, neighbor from neighbor, and even males from females. There is simply no overall agreement on many issues of morality in contemporary society.

Morality is not a concept that courts can define by judicial decrees, and even less can it be defined by fiats issued by the Board of Immigration Appeals, to whose decisions the courts must give great deference. Yet, for the purpose of our immigration laws we are required to follow those determinations and to start by applying categories of offenses that the judiciary or the Board members appointed by the Attorney General have deemed morally turpitudinous in all of their applications. We call this the categorical approach. How sensible those decisions are and how close to rational concepts of morality they may come can be seen by considering one of the offenses involved in the case before us. While under our law numerous felonies are deemed not to be morally turpitudinous, all acts of petty theft automatically qualify for that label and the drastic legal consequences that may follow. As some in today’s society might say, and with good reason, “Go figure.”

(Nunez v. Holder, ___ F.3d ___, ___, 2010 WL 432417 (9th Cir. Feb. 10, 2010).)

JUDICIAL REVIEW – PETITION FOR REVIEW – MORAL TURPITUDE DETERMINATION
Nunez v. Holder, ___ F.3d ___, ___, 2010 WL 432417 (9th Cir. Feb. 10, 2010) ("The BIA’s conclusion that a particular crime does or does not involve moral turpitude is subject to different standards of review depending on whether the BIA issues or relies on a published decision in coming to its conclusion. If it does either, we accord Chevron deference. Id. If it does neither, we defer to its conclusion to the extent that it has the “power to persuade.” Id. at 909 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).").

JUDICIAL REVIEW – PETITION FOR REVIEW – MORAL TURPITUDE DETERMINATION
Nunez v. Holder, ___ F.3d ___, ___, 2010 WL 432417 (9th Cir. Feb. 10, 2010) ("The BIA’s conclusion that a particular crime does or does not involve moral turpitude is subject to different standards of review depending on whether the BIA issues or relies on a published decision in coming to its conclusion. If it does either, we accord Chevron deference. Id. If it does neither, we defer to its conclusion to the extent that it has the “power to persuade.” Id. at 909 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).").

CRIMES OF MORAL TURPITUDE – DEFERENCE
Uppal v. Holder, 576 F.3d 1014 (9th Cir. Aug. 11, 2009) (BIA's determination a conviction qualifies as a crime of moral turpitude is entitled to Skidmore deference: "The measure of deference due to the BIA's decision under Skidmore varies 'depending upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it the power to persuade, if lacking power to control.' Skidmore, 323 U.S. at 140."); citing Marmolejo-Campos, 558 F.3d at 911.

CRIME OF MORAL TURPITUDE – DEFINITION
Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. Mar. 4, 2009) (en banc) (no deference owed to BIA interpretations of criminal statutes or BIA examination of the record of conviction), citing Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir. 2005). NOTE: Arguably, this may be interpreted to mean that the Ninth Circuit does not owe deference the method of analysis applied in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008). Therefore, prior Ninth Circuit case law applying categorical, divisible statute, minimum conduct, Duenas-Alvarez analysis should still hold in the CMT context despite Silva-Trevino. The Court did not apply the Silva-Trevino analytical method in Marmalejo-Campos, but this was not an issue before the court.

CRIME OF MORAL TURPITUDE – DEFINITION
Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. Mar. 4, 2009) (en banc) (no deference owed to the BIA’s definition of “crime of moral turpitude.”) NOTE: Here the Ninth Circuit declines to give deference to the Matter of Silva-Trevino, 24 I. & N. Dec. 687, 688 (A.G. 2008) (“[a] reprehensible act with some form of scienter.”). Instead the Ninth Circuit continues to consider CMT to be of two types: “those involving fraud and those involving grave acts of baseness or depravity.”);Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir. 2005); Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1074 (9th Cir. 2007) (en banc) (Reinhardt, J., concurring for the majority). The court stated: “we have noted that our understanding does not differ materially from the Board’s.” Marmalejo-Campos v. Holder, 558 F.3d 903 (9th Cir. Mar. 4, 2009), citing Galeana-Mendoza v. Gonzalez, 465 F.3d 1054, 1058 n. 9 (9th Cir. 2006). Arguably, if the BIA’s “understanding” of what is a CMT begins to diverge from that of the Ninth Circuit, counsel may argue that the BIA is owed no deference where the two CMT definitions differ.

Lower Courts of Ninth Circuit

CRIME OF MORAL TURPITUDE – FEDERAL LAW DOES NOT BIND STATES
Donley v. Davi, 180 Cal.App.4th 447, 461 (Dec. 2, 2009), citing, People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3, 36 Cal.Rptr.2d 474, 885 P.2d 887; Howard Contracting, Inc. v. G.A. MacDonald Construction Co. (1998) 71 Cal.App.4th 38, 52, 83 Cal.Rptr.2d 590 [“federal decisional authority is neither binding nor controlling in matters involving state law”].)

Other

CRIME OF MORAL TURPITUDE – DEFINITION
Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 9, 2008) (crimes of moral turpitude are defined as “reprehensible conduct” with some degree of scienter, whether specific intent, deliberateness, willfulness, or recklessness).

See http://www.bibdaily.com/pdfs/Silva%20Trevino%20Amicus%20Brief.pdf, for amici brief outlining many arguments in opposition to this terrible decision. This decision abruptly changes nearly 100 years of CMT law, and should be attacked.

CRIMES OF MORAL TURPITUDE – SILVA-TREVINO WARNING
In the light of the recent published decision by outgoing Attorney General Mukasey, Matter of Silva-Trevino 24 I. & N. Dec. 687 (A.G. November 2008), the question of what is a crime involving moral turpitude (CIMT) and the methodology for deciding it, is currently unsettled. The Ninth Circuit’s recent 7-5 en banc decision in Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009), added to this uncertainty by holding that where the Board of Immigration Appeals (BIA) rules on “moral turpitude” in a precedential decision, the Court will apply the doctrine of administrative deference. The combination of these decisions tends to undermine the analytical framework with which these issues are analyzed, and may call into question some previously settled rulings on which non-citizens could normally rely.

Because this issue is still in flux, non-citizens who have pleaded guilty to criminal offenses should neither travel out of the United States, nor, in some cases, out of the 7 states of the 9th Circuit , nor should they apply to naturalize or for other immigration benefits, until they have consulted with competent immigration counsel. Thanks to Jonathan Moore.

CRIMES OF MORAL TURPITUDE – STATE DEFINITION
(“‘Moral turpitude’ is defined as the ‘general readiness to do evil.’ ( People v. Castro (1985) 38 Cal.3d 301, 313-316, 211 Cal.Rptr. 719, 696 P.2d 111 (Castro).) In deciding whether a criminal conviction involves moral turpitude, the question is whether one can reasonably infer the presence of moral turpitude (a general readiness to do evil) from the ‘least adjudicated elements’ of the offense-without regard to the facts of the particular violation. (People v. Campbell (1994) 23 Cal.App.4th 1488, 1492, 28 Cal.Rptr.2d 716; Castro, supra, at p. 317, 211 Cal.Rptr. 719, 696 P.2d 111.)).

§ 8.3       B. Intent Requirement

Second Circuit

CRIME OF MORAL TURPITUDE – JUDICIAL REVIEW – DEFERENCE – DE NOVO STANDARD OF REVIEW
Mendez v. Mukasey, 547 F.3d 345 (2d Cir. Nov. 6, 2008) ("We afford Chevron deference to the BIA's interpretation of the undefined statutory term “moral turpitude,” but we owe no deference to the BIA's construction of state criminal statutes. Gill v. INS, 420 F.3d 82, 89 (2d Cir.2005). Accordingly, we review de novo the BIA's determination that a particular state crime falls within the definition of moral turpitude. Id.").

Third Circuit

CRIME OF MORAL TURPITUDE – SEX OFFENSES – INDECENT ASSAULT
Mehboob v. Attorney General, 549 F.3d 272 (3d Cir. Nov. 26, 2008) (Pennsylvania conviction of indecent assault, under 18 Pa. Cons.Stat. § 3126(a)(8), for touching the breast of a 15-year-old child, a strict liability offense, is a crime involving moral turpitude, because the offense combines a reprehensible act with deliberate conduct).

§ 8.4            1. Intent to Commit Certain Acts

§ 8.5                 a. Intent to Steal

Seventh Circuit

CRIME OF MORAL TURPITUDE – FALSE STATEMENT – TO FEDERAL OFFICER
Ghani v. Holder, 557 F.3d 836 (7th Cir. Mar. 9, 2009) (federal conviction for making a false statement to an officer, in violation of 18 U.S.C. § 1001, is categorically a crime involving moral turpitude; “Even if the conduct for which Mr. Ghani was convicted did not rise to the level of fraud, however, his conviction necessarily establishes that he ‘knowingly and willfully’ lied to the Government of the United States about a material matter.”) NOTE: In the Seventh Circuit, Ali v. Mukasey, 521 F.3d 737 (7th Cir. 2008) applied Matter of Babaisakov, 24 I. & N. Dec. 306 (BIA 2007), and resulted in the A.G.’s new analytical model in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 9, 2008). The court in this case did not explain how it was determining whether the conviction was a CMT (i.e, under Taylor or Silva-Trevino). The Court’s statement that a violation of 18 U.S.C. § 1001 is a CMT regardless of the defendant’s underlying conduct seems to establish that the new fact-based analysis only runs one way. This is arguably unconstitutional. See Wardius v. Oregon, 412 U.S. 470 (1973) (due process requires procedural rules to be even-handed in their application, striking down a state law requiring the defendant to produce discovery for the prosecution, but not vice versa). Due process also prohibits a tribunal from allowing one party to offer evidence on an issue, but precluding the other party from doing so. Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (per curiam) (reversing sentence because trial court excluded testimony offered by the defense under Georgia's hearsay rules, but allowed the prosecution to introduce the same evidence in a codefendant's trial); Gray v. Klauser, 282 F.3d 633, 644 (9th Cir. 2002) (Idaho deprived petitioner of right to present a defense under Sixth Amendment when trial court used different standard for determining admissibility of hearsay statements from two dead victims. “A state rule or state judge may not without justification impose stricter evidentiary standards on a defendant . . . than it does on the prosecution.”).

Ninth Circuit

CRIMES OF MORAL TURPITUDE – THEFT – RECEIPT OF STOLEN PROPERTY
Castillo-Cruz v. Holder, 581 F.3d 1154 (9th Cir. Sept. 17, 2009) (California "conviction for receipt of stolen property under [Penal Code] § 496(a) is not categorically a crime of moral turpitude because it does not require an intent to permanently deprive the owner of property. Castillo-Cruz's conviction is not a crime of moral turpitude under the modified categorical analysis, as the government conceded at oral argument that there is no evidence in the record establishing that his offense involved an intent to deprive the owner of possession permanently.").

AGGRAVATED FELONY – THEFT OFFENSE – RECEIVING STOLEN PROPERTY CRIME OF MORAL TURPITUDE – RECEIVING STOLEN PROPERTY
Castillo-Cruz v. Holder, 581 F.3d 1154 (9th Cir. Sept. 17, 2009)

There is no inconsistency between Castillo-Cruz v. Holder, 581 F.3d 1154 9th Cir. Sept. 17, 2009), holding a California conviction of receiving stolen property, under Penal Code § 496(a), is not categorically a crime of moral turpitude, and Verdugo-Gonzalez v. Holder, 581 F.3d 1059 (9th Cir. Sept. 14, 2009), holding that a California conviction for receiving stolen property, under Penal Code § 496(a), does qualify as a categorical match as a theft offense aggravated felony under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G)):

In this respect, there is a clear distinction between the standard applied to determine whether a theft offense is an "aggravated felony" and the standard applied to determine whether a theft offense is a "crime of moral turpitude." As we recently held in Verdugo-Gonzalez v. Holder, 06-73733, there is a categorical match between the full range of conduct proscribed by section 496(a) of the California Penal Code and the generic definition of a theft offense aggravated felony. See Gonzalez v. Duenas-Alvarez, 549 U.S. at 189 (defining a generic theft offense as "the taking of property or an exercise of control over property ... even if such deprivation is less than total or permanent.") (emphasis added). There cannot however, be a categorical match between the full range of conduct proscribed by section 496(a) of the California Penal Code and the generic definition of a theft offense crime of moral turpitude. See Matter of Grazley, 14 I. & N. Dec. at 333 ("a conviction for theft is considered to involve moral turpitude only when a permanent taking is intended.") (emphasis added). Thus, there is no inconsistency between Verdugo-Gonzalez and our present decision.

§ 8.6                 b. Fraudulent Intent

Second Circuit

CRIME OF MORAL TURPITUDE – FRAUD – FALSE CLAIM FOR BENEFITS
Mendez v. Mukasey, 547 F.3d 345 (2d Cir. Nov. 6, 2008) (Connecticut conviction for violation of C.G.S §§ 53a-119(6), 53a-122(a)(4), first degree larceny by defrauding a public community, which requires intent to wrongfully deprive another of property by making a knowingly false claim for benefits, is a crime involving moral turpitude).

CRIME OF MORAL TURPITUDE – FRAUD – DEFRAUDING THE PUBLIC
Mendez v. Mukasey, 547 F.3d 345 (2d Cir. Nov. 6, 2008) (Connecticut conviction of first degree larceny in the form of “defrauding a public community,” in violation of Connecticut General Statutes §§ 53a-122(a)(4) and 53a-119(6), is a crime involving moral turpitude for the purposes of INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), " a conviction for defrauding a public community requires proof of an intent to wrongfully deprive another of property by making a knowingly false claim for benefits").

Sixth Circuit

CRIME OF MORAL TURPITUDE – FRAUD OFFENSES – FALSE STATEMENT TO GOVERNMENT AGENT
Kellerman v. Holder, 592 F.3d 700 (6th Cir. Jan. 25, 2010) (applying divisible statute analysis to 18 U.S.C. §§ 371, 1001 [conspiracy to commit crime or defraud United States; false or fraudulent statement to government agent], presumably accepting argument that a conviction for these offenses might not necessarily involve moral turpitude).

Seventh Circuit

CRIMES OF MORAL TURPITUDE – FRAUD – FALSE DOCUMENTS – TRANSFER
Lagunas-Salgado v. Holder, 584 F.3d 707 (7th Cir. Oct. 13, 2009) (federal conviction for violation of 18 U.S.C. § 1028(a)(2) (“knowingly transfers an identification document or a false identification document knowing that such document was stolen or produced without lawful authority”), categorically constituted a crime of moral turpitude, for purposes of triggering inadmissibility; the BIA reasonably concluded that knowingly selling false official identification documents involves inherently deceptive conduct and is, therefore, a crime involving moral turpitude), distinguishing Matter of Serna, 20 I. & N. Dec. 579 (BIA 1992) (possession of altered documents, without use, is not categorically a CMT).

Eighth Circuit

CRIME OF MORAL TURPITUDE – FALSE DOCUMENTS – FALSE SOCIAL SECURITY NUMBER
Lateef v. DHS, 592 F.3d 926 (8th Cir. Jan. 29, 2010) (federal conviction for violation of 42 U.S.C. § 408(a)(7)(A), using unlawfully obtained social security number, is a crime involving moral turpitude for immigration purposes), declining to follow Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000).

Ninth Circuit

SAFE HAVEN – CRIME OF MORAL TURPITUDE
United States v. Youssef, 547 F.3d 1090 (9th Cir. Nov. 5, 2008) (federal conviction for violation of 18 U.S.C. § 1015(a), making a false statement in an immigration document, does not require the false statement to be material; even though prior conviction qualified for the petty offense exception to inadmissibility, and was therefore immaterial to admission, the noncitizen was required to disclose the fact of conviction).

CRIMES OF MORAL TURPITUDE – DRIVING OFFENSES – HIT AND RUN
Latu v. Mukasey, 547 F.3d 1070 (9th Cir. Nov. 3, 2008) (Hawaii conviction for hit & run, in violation of Hawaii Revised Statute § 291C-12.5, is not a crime of moral turpitude), following Cerezo v. Mukasey, 512 F.3d 1163 (9th Cir. 2008).

§ 8.7                 c. Intent to Inflict Bodily Hard

Fourth Circuit

CRIME OF MORAL TURPITUDE – INTENT TO CAUSE INJURY – NORMAL PREGNANCY FALLS WITHIN MEANING OF GREAT BODILY INJURY
People v. Cross, 45 Cal.4th 58, 190 P.3d 706 (Aug. 28, 2008)(great bodily injury enhancement of sentence for committing a lewd act on a child under the age of 14, affirmed where pregnancy without medical complications is sufficient to find great bodily injury).

Eighth Circuit

CRIME OF MORAL TURPITUDE – ASSAULT – RECKLESS
Godinez-Arroyo v. Mukasey, 540 F.3d 848, 2008 WL 3927229 (8th Cir. Aug. 28, 2008) (Missouri conviction for second degree assault, recklessly causing serious physical injury, in violation of V.A.M.S. § 565.060(3), is a crime of moral turpitude; Missouri law defines recklessness as a “conscious disregard of a substantial and unjustifiable risk”).

Ninth Circuit

CRIMES OF MORAL TURPITUDE – ASSAULT – AGGRAVATED ASSAULT
Uppal v. Holder, 576 F.3d 1014 (9th Cir. Aug. 11, 2009) (Canadian conviction of aggravated assault, in violation of Criminal Code of Canada § 268(2) (“wounds, maims, disfigures, or endangers the life of” another), constituted a crime of moral turpitude, since the mens rea for assault is the intent to apply force intentionally or recklessly or being willfully blind to the fact that the victim does not consent) plus objective foresight of the risk of bodily harm), applying Matter of Solon, 24 I. & N. Dec. 239, 242 (BIA 2007) (“[I]n the context of assault crimes, a finding of moral turpitude involves an assessment of both the state of mind and the level of harm required to complete the offense.”).

Lower Courts of Ninth Circuit

CRIMES OF MORAL TURPITUDE – DOMESTIC VIOLENCE
Donley v. Davi, 180 Cal.App.4th 447, 458 (Dec. 2, 2009) (California conviction for willful infliction of corporal injury on person with listed domestic relationship, under Penal Code § 273.5(a), constituted crime of moral turpitude under California state law for purposes of state real estate licensing).

CAL SAFE HAVENS – ASSAULT – ELEMENTS
People v. Chance, 44 Cal.4th 1164, 189 P.3d 971 (Aug. 18, 2008) (California assault is defined as, “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another;” the term “present ability” includes situations where the “defendant is several steps away from actually inflicting injury, or if the victim is in a protected position so that injury would not be ‘immediate,’ in the strictest sense of that term;” the term “injury” includes “any attempt to apply physical force to the victim, and includes even injury to the victim's feelings.”).

Tenth Circuit

CRIME OFMORAL TURPITUDE – INTENT TO CAUSE BODILY INJURY
Garcia v. Holder, 584 F.3d 1288 (10th Cir. Oct. 27, 2009) (Colorado conviction for third degree assault in violation of Colo.Rev.Stat. § 18-3-204(1)(a) (knowingly or recklessly cause bodily injury) is not necessarily a CMT), following Matter of Solon, 24 I. & N. Dec. 239 (BIA 2007).

§ 8.8                 d. Lewd Intent

Ninth Circuit

MORAL TURPITUDE – SEXUAL INTENT
Nunez v. Holder, ___ F.3d ___, ___, 2010 WL 432417 (9th Cir. Feb. 10, 2010) (acts committed for the purpose of the sexual gratification of the viewer, such as nude dancing, or for the purpose of causing sexual affront, such as mooning, do not necessarily rise to the level of moral turpitude).

MORAL TURPITUDE – SEXUAL INTENT
Nunez v. Holder, ___ F.3d ___, ___, 2010 WL 432417 (9th Cir. Feb. 10, 2010) (acts committed for the purpose of the sexual gratification of the viewer, such as nude dancing, or for the purpose of causing sexual affront, such as mooning, do not necessarily rise to the level of moral turpitude).

CRIMES OF MORAL TURPITUDE – SEX OFFENSES – ANNOYING OR MOLESTING A CHILD
Nicanor-Romero v. Mukasey, 523 F.3d 992 (9th Cir. Apr. 24, 2008) (California misdemeanor conviction of annoying or molesting a child, in violation of Penal Code § 647.6(b) ["annoys or molests any child under the age of 18"], did not constitute a crime of moral turpitude under the categorical approach, or under the modified categorical approach: "After examining the elements of § 47.6(a), as set forth in the statute and as construed by California courts, we conclude that there is a “realistic probability, not a theoretical possibility,” that a misdemeanor conviction under § 647.6(a) can be based on behavior that, while criminal, does not rise to the level of a “crime involving moral turpitude” within the meaning of 8 U.S.C. § 1227(a) (2)(A)(i)(I). ... We conclude that the government has failed to show that Nicanor-Romero committed either an aggravated felony or a crime involving moral turpitude. We therefore grant the petition and vacate the order of removal.").

Other

CRIME OF MORAL TURPITUDE – SEXUAL OFFENSES – INDECENCY WITH A CHILD
Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 9, 2008) (Texas conviction for indecency with a child, in violation of Texas Penal Code § 21.11(a)(1) is a crime involving moral turpitude if the actor, in fact, knew or should have known that the victim was under 18 years old).

Note: this decision is horribly incorrect, changing 100 years of CMT law, and should be attacked. See http://www.bibdaily.com/pdfs/Silva%20Trevino%20Amicus%20Brief.pdf, for amici brief outlining many arguments against this terrible decision.

§ 8.9            2. Variety of Criminal Intent

§ 8.10                 a. Strict Liability ( i.e., No Intent)

Ninth Circuit

CRIMES OF MORAL TURPITUDE – POSSESSION OF CHILD PORNOGRAPHY
United States v. Santacruz, 563 F.3d 894 (9th Cir. Apr. 20, 2009) (per curiam) (federal conviction of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) ("knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography"), constituted a conviction of a crime involving moral turpitude, and supported district court's order granting partial summary judgment in favor of the United States in an action to revoke naturalized citizenship: "The Supreme Court has characterized sexual abuse of a minor as “an act repugnant to the moral instincts of a decent people.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). Moreover, child pornography, as “permanent record of a child's abuse,” causes continuing “injury to the child's reputation and well-being.” Id. at 249. Because possession of child pornography offends conventional morality and visits continuing injury on children, it is “vile, base or depraved and ... violates societal moral standards.” Navarro-Lopez, 503 F.3d at 1074. Therefore, possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B) is a crime involving moral turpitude."); accord In re Olquin-Rufino, 23 I. & N. Dec. 896, 896 (BIA 2006) (Florida conviction of possession of child pornography, under Florida Statute § 827.071(5) (“unlawful for any person to knowingly possess a photograph, motion picture, exhibition, show, representation, or other presentation which ... he or she knows to include any sexual conduct by a child”), constituted conviction of crime involving moral turpitude); See Iowa Supreme Court Attorney Disciplinary Bd. v. Blazek, 739 N.W.2d 67, 69 (Iowa 2007) (possession of child pornography is morally turpitudinous); Chapman v. Gooden, 974 So.2d 972, 977 (Ala.2007) (same); cf. In re Wolff, 490 A.2d 1118, 1120 (D.C.Ct.App.1985), vacated, 494 A.2d 932, aff'd, 511 A.2d 1047 (1986) (en banc) (same) (possession of child pornography is a crime involving moral turpitude).

This decision is incorrect. Museums, law enforcement agencies, court clerks, and academic researchers may possess these items without moral culpability of any kind. The issue of criminality of their possession hinges on whether the possession is unauthorized under law. This offense is therefore malum prohibitum, and should be considered a regulatory offense, rather than a crime of moral turpitude. It is, after all, mere private possession, rather than production or distribution.

CRIMES OF MORAL TURPITUDE – INTENT REQUIREMENT – SPECIFIC INTENT NOT REQUIRED FOR OFFENSE TO CONSTITUTE CMT
United States v. Santacruz, 563 F.3d 894 (9th Cir. Apr. 20, 2009) (per curiam) ("The lack of a specific intent requirement in § 2252A(a)(5)(B) -which ba rs “knowing[ ],” as opposed to willful, possession of child pornography-does not change this result. Specific intent is not required for a crime to involve moral turpitude. See Nicanor-Romero v. Mukasey, 523 F.3d 992, 997 (9th Cir.2008) (recognizing that “a crime may qualify as one of moral turpitude even if the offense is malum prohibitum or does not require the prosecution to establish specific intent”), overruled on other grounds by Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir.2009) (en banc); Navarro-Lopez, 503 F.3d at 1068 (not listing specific intent as an element of a crime of moral turpitude). Willful, evil intent need not be explicit in the statute if, as here, “such intent is implicit in the nature of the crime.” Gonzales-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir.1994) (quotation marks and citation omitted).").

§ 8.11                 b. General Intent ( to Commit an Act)

CRIME INVOLVING MORAL TURPITUDE – GENERAL INTENT
Donley v. Davi, 180 Cal.App.4th 447, 458-459 (Dec. 2, 2009) (“The distinction between specific and general intent crimes is irrelevant to the question of moral turpitude. (People v. Campbell, supra, 23 Cal.App.4th at p. 1493, 28 Cal.Rptr.2d 716.)” And, section 273.5 is a general intent crime. (People v. Thurston (1999) 71 Cal.App.4th 1050, 1055, 84 Cal.Rptr.2d 221; People v. Campbell (1999) 76 Cal.App.4th 305, 308, 90 Cal.Rptr.2d 315.) Further, numerous general intent crimes have been classified as involving moral turpitude. ( People v. Campbell, supra, 23 Cal.App.4th at p. 1493, 28 Cal.Rptr.2d 716, citing, e.g., People v. White (1992) 4 Cal.App.4th 1299, 1301, 6 Cal.Rptr.2d 259 [Pen.Code, § 246 (shooting at inhabited building) ]; People v. Brooks (1992) 3 Cal.App.4th 669, 671, 4 Cal.Rptr.2d 570 [Pen.Code, § 273d (corporal punishment of child resulting in trauma) ]; People v. Zataray (1985) 173 Cal.App.3d 390, 400, 219 Cal.Rptr. 33 [Pen.Code, § 207 (simple kidnapping) ].)”).

Ninth Circuit

CRIME OF MORAL TUPRITUDE – INTENT – GENERAL INTENT CRIMES
Uppal v. Holder, 576 F.3d 1014 (9th Cir. Aug. 11, 2009) (crimes requiring proof of only the general intent to commit an act may be considered crimes involving moral turpitude).

On this point, the court states:

Uppal nonetheless contends that since § 268 only requires the intent to act, not the intent to harm, offenses under this section lack the necessary evil or malicious intent required of crimes of moral turpitude. Yet the BIA has recognized that aggravated assault may involve moral turpitude even in the absence of an “explicit element of evil intent.” In re Lopez-Meza, 22 I. & N. Dec. 1188, 1193 (BIA 1999). We have also questioned the value of the oft-cited “evil intent” requirement:

If the crime is a serious one, the deliberate decision to commit it can certainly be regarded as the manifestation of an evil intent. Conversely, if the crime is trivial, even a deliberate intent to commit it will not demonstrate an intent so ‘evil’ as to make the crime one of moral turpitude.

Galeana-Mendoza, 465 F.3d at 1061 (quoting Mei v. Ashcroft, 393 F.3d 737, 741 (7th Cir.2004)). Intentional conduct can be morally turpitudinous if accompanied by a “meaningful level of harm,” regardless of whether the assault statute contains a general or a specific intent requirement. Solon, 24 I. & N. Dec. at 242. . . .

While some element of intent is a prerequisite to finding a crime involving moral turpitude, an intent to harm, per se, is not necessarily required. Solon, 24 I. & N. Dec. at 242. Section 268 requires an intent to take an action which, objectively viewed, would endanger another's life or result in serious bodily injury. The deliberate intent to take an action with such grave consequences “can certainly be regarded as the manifestation of an evil intent.” Galeana-Mendoza, 465 F.3d at 1061. The fact that the statute does not require a subjective intent to harm does not preclude a § 268 offense from qualifying as a categorical CIMT.

Id. at 1020-1021. This case seems to overrule, sub silentio, Matter of Mueller, (index decision from 2000). That case held that Penal Code § 243(d) was not a CMT because "battery causing serious bodily injury" did not have any intent other than a simple battery (i.e., no intent to harm or cause serious bodily injury). See also Matter of Mueller, 11 I. & N. Dec. 268 (BIA 1965).

§ 8.12                 c. Intent to Break the Law

§ 8.13                 d. Negligence

§ 8.14                 e. Gross Negligence

Ninth Circuit

CRIMES OF MORAL TURPITUDE – INTENT REQUIREMENT – NEGLIGENCE INSUFFICIENT TO CONSTITUTE CMT – "SHOULD HAVE KNOWN" IS NEGLIGENCE STANDARD
Marmolejo-Campos v. Holder, 558 F.3d 903, 912 (9th Cir. 2009) (en banc) (a mens rea of "should have known" is a negligence standard, which is insufficient to support a finding of moral turpitude), citing State v. Hyde, 186 Ariz. 252, 921 P.2d 655, 678 (1996). See also, Matter of Perez-Contreras, 20 I. & N. Dec. 615, 618-19 (BIA 1992).

NOTE: The court in Marmalejo-Campos found that the noncitizen had committed the offense “knowingly.”

§ 8.15                 f. Recklessness

Eighth Circuit

CRIME OF MORAL TURPITUDE – ASSAULT – RECKLESS
Godinez-Arroyo v. Mukasey, 540 F.3d 848, 2008 WL 3927229 (8th Cir. Aug. 28, 2008) (Missouri conviction for second degree assault, recklessly causing serious physical injury, in violation of V.A.M.S. § 565.060(3), is a crime of moral turpitude; Missouri law defines recklessness as a “conscious disregard of a substantial and unjustifiable risk”).

Eleventh Circuit

CRIMES OF MORAL TURPITUDE – ENDANGERMENT – RECKLESS CONDUCT
Keungne v. United States Att’y Gen., 561 F.3d 128 (11th Cir. Mar. 11, 2009) (Georgia conviction for “reckless conduct,” in violation of Ga. Code Ann. 16-5-60(b) [“endanger bodily safety of another by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm”] is categorically a crime of moral turpitude), relying upon Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004).

Note: the court did not address the issue that the offense can be committed through an omission.

CRIMES OF MORAL TURPITUDE – CRIMINAL RECKLESS CONDUCT
Keungne v. U.S. Attorney General, ___ F.3d ___ (11th Cir. Mar. 10, 2009) (Georgia conviction of criminal reckless conduct, under Ga. Code Ann. § 16-5-60(b) ["causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation"], constitutes a crime of moral turpitude for purposes of establishing deportability, pursuant to INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), for one conviction of a CMT within five years of admission, because the minimum conduct for which conviction can be had requires conscious disregard of a substantial risk of serious harm or death to another).
NOTE: This is a bad decision, since it did not consider that not all reckless conduct necessarily involves moral turpitude.

§ 8.16                 g. Malice

§ 8.17                 h. Willfulness or Knowledge

Seventh Circuit

CRIME OF MORAL TURPITUDE – FALSE STATEMENT – TO FEDERAL OFFICER
Ghani v. Holder, 557 F.3d 836 (7th Cir. Mar. 9, 2009) (federal conviction for making a false statement to an officer, in violation of 18 U.S.C. § 1001, is categorically a crime involving moral turpitude; “Even if the conduct for which Mr. Ghani was convicted did not rise to the level of fraud, however, his conviction necessarily establishes that he ‘knowingly and willfully’ lied to the Government of the United States about a material matter.”) NOTE: In the Seventh Circuit, Ali v. Mukasey, 521 F.3d 737 (7th Cir. 2008) applied Matter of Babaisakov, 24 I. & N. Dec. 306 (BIA 2007), and resulted in the A.G.’s new analytical model in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 9, 2008). The court in this case did not explain how it was determining whether the conviction was a CMT (i.e, under Taylor or Silva-Trevino). The Court’s statement that a violation of 18 U.S.C. § 1001 is a CMT regardless of the defendant’s underlying conduct seems to establish that the new fact-based analysis only runs one way. This is arguably unconstitutional. See Wardius v. Oregon, 412 U.S. 470 (1973) (due process requires procedural rules to be even-handed in their application, striking down a state law requiring the defendant to produce discovery for the prosecution, but not vice versa). Due process also prohibits a tribunal from allowing one party to offer evidence on an issue, but precluding the other party from doing so. Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (per curiam) (reversing sentence because trial court excluded testimony offered by the defense under Georgia's hearsay rules, but allowed the prosecution to introduce the same evidence in a codefendant's trial); Gray v. Klauser, 282 F.3d 633, 644 (9th Cir. 2002) (Idaho deprived petitioner of right to present a defense under Sixth Amendment when trial court used different standard for determining admissibility of hearsay statements from two dead victims. “A state rule or state judge may not without justification impose stricter evidentiary standards on a defendant . . . than it does on the prosecution.”).

Ninth Circuit

CRIME INVOLVING MORAL TURPITUDE – INTENT – KNOWINGLY
United States v. Castro, 599 F.3d 1050, 1054-1055 (9th Cir. Mar. 26, 2010) (at least under California law, an act cannot act “willfully” without also acting “knowingly” because California Penal Code § 7(1) defines “willfully” as implying a purpose or willingness to commit an act, and one cannot willing commit an act without also knowing one is committing the act).

CRIME OF MORAL TURPITUDE – DRIVING UNDER THE INFLUENCE WHILE KNOWING LICENSE HAS BEEN SUSPENDED IS A CMT
Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc) (Arizona conviction of driving under the influence while knowing that that one had a suspended license, in violation of Arizona Revised Statutes § 28-1383(A)(1),constitutes a crime of moral turpitude for immigration purposes), deferring to Matter of Lopez-Meza, 22 I. & N. Dec. 1188 (BIA 1999).

Lower Courts of Ninth Circuit

CRIMES OF MORAL TURPTIDE – WILLFULNESS
Donley v. Davi, 180 Cal.App.4th 447, 459 n.4 (Dec. 2, 2009) (“We emphasize that we do not find moral turpitude in the willfulness of the act alone. “ ‘[I]t is well settled that the terms “willful” or “willfully,” when applied in a penal statute, require only that the illegal act or omission occur “intentionally,” without regard to motive or ignorance of the act's prohibited character. [Citations.]’ [Citation.] Willfully implies no evil intent; ‘ “it implies that the person knows what he is doing, intends to do what he is doing and is a free agent.” [Citation.]’ [Citation.]” (People v. Bell (1996) 45 Cal.App.4th 1030, 1042-1043, 53 Cal.Rptr.2d 156.) The use of the word “willfully” in a penal statute usually defines a general criminal intent crime. (People v. Bell, supra, at p. 1043, 53 Cal.Rptr.2d 156.).”).

§ 8.18            3. Differing Definitions of Intent

§ 8.19       C. Requirement of "Crime"

§ 8.20       D. Gravity of Offense or Sentence

§ 8.21       E. Significance of U.S. Contemporary Standards

§ 8.22       F. Regulatory Offenses

§ 8.23       G. Target Offenses

BIA

CRIME OF MORAL TURPITUDE – BURGLARY – OCCUPIED DWELLING
Matter of Louissaint, 24 I. & N. Dec. 754 (BIA Mar. 18, 2009) (Florida conviction of burglary of an occupied dwelling, in violation of Florida Statutes § 810.02(3)(a), is categorically a conviction for a crime involving moral turpitude, because there is no "realistic probability" that it would be applied to reach conduct that does not involve moral turpitude, and the offense, as defined by its statutory elements is one in which moral turpitude necessarily inheres: "We find . . . that moral turpitude is inherent in the act of burglary of an occupied dwelling itself, and that the respondent’s unlawful entry into the dwelling of another with the intent to commit any crime therein is a crime involving moral turpitude."), distinguishing Matter of M, 2 I. & N. Dec. 721 (BIA; A.G. 1946).

§ 8.24       H. Non-Substantive Offenses

First Circuit

MORAL TURPITUDE – ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (the Model Penal Code § 5.01(1) "substantial step" definition of "attempt" is the majority view, having been adopted by 12 circuits plus 26 states, and arguably should be used to define the term for purposes of the Taylor v. United States analysis in the career offender sentence enhancement context of USSG § 4B1.2).

Fifth Circuit

MORAL TURPITUDE – ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (North Carolina conviction of attempted common law robbery, “the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear,” see N.C. Gen. Stat. §§ 14-1.5, 14-87.1 (setting punishments for attempt and robbery without defining them), presents a close question as to whether it qualifies as a “crime of violence” under USSG § 4B1.2 for purposes of imposing a career offender sentence enhancement for a federal robbery conviction, because of the argument that North Carolina defines the term “attempted” more broadly (to require only "slight acts") than the "substantial step" required under the Model Penal Code and the majority of states, as well as 12 circuits; defendant forfeited right to bring this issue by failing to raise it before the district court); cf. United States v. Taylor, 529 F.3d 1232, 1237-38 (9th Cir.2008) (finding that Arizona's attempt statute, which used the phrase “any step,” was broader than the federal definition, but that Arizona courts interpreted the statute to mean “substantial step”); United States v. Sarbia, 367 F.3d 1079, 1086 (9th Cir.2004) (Nevada's attempt statute and case law uses the “slight act” approach, but is coextensive with the federal, “substantial step” approach).

Other

SOLICITATION – "U" VISA STATUTE SPECIFICALLY INCLUDES SOLICITATION, ALONG WITH ATTEMPT AND CONSPIRACY, SO CONGRESS KNEW HOW TO INCLUDE IT WHEN IT WANTED TO
INA § 101(a)(15)(iii), 8 U.S.C. § 1101(a)(15)(iii) reads in relevant part: “the criminal activity referred to in this clause is that involving or more of the following or any similar activity in violation of Federal, State or local criminal law . . . or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes . . . .”

 

Back to Table of Contents