What is a Crime Involving Moral Turpitude?

No statutory definition exists, but several factors determine whether a crime is a CIMT including:

  • Evil intent of the offender is an element of the crime (i.e. “intent” or “knowingly”)
  • The statute under which the conviction occurred is controlling, and the first step is to determine from the record of conviction what law, or portion of law, was violated. See Matter of Khourn, Int. Dec. 3330 (BIA 1997).
  • Crimes in which bodily harm is caused or threatened by an intentional act, or seriously bodily harm is caused or threatened by a reckless act
  • Most sex offenses qualify as a CIMT

ADVISORY NOTE

Noncitizens may be deportable or inadmissible upon conviction of one or more “crimes involving moral turpitude” (“CIMTs”) depending on their individual circumstances. In Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), former Attorney General Mukasey altered the method immigration authorities must use to determine whether a given state offense qualifies as a CIMT. While virtually every court had previously held that the inquiry was “categorical,” focusing only on the minimum conduct required to offend the elements of the statute and ignoring the particular facts underlying the defendant’s conviction, Silva-Trevino now permits immigration judges in certain cases to examine evidence outside the record of conviction, including items such as police reports or even the defendant’s own testimony, to assess whether the conduct underlying a conviction involved moral turpitude.

In some cases, Silva-Trevino may make it more difficult to predict whether a given criminal offense will later be considered a CIMT, because that analysis may turn on the facts of a particular case, and a plea to a statute the elements of which do not necessarily constitute a CIMT may no longer afford protection against deportability. As of this writing, the methodology created by Silva-Trevino has been rejected by two federal circuit courts of appeals (the Third and Eighth) and affirmed by one (the Seventh). Because its validity remains uncertain, and because it is generally impossible to predict where a non-citizen convicted in New York may eventually be subjected to adverse immigration consequences, as detailed for particular offenses in this Calculator, defense counsel should conservatively assume that immigration authorities might be allowed to consider evidence outside the record of conviction to determine the facts and circumstances underlying a given conviction and should advise clients accordingly.

  • After Silva-Trevino, the inquiry as to some statutes—those which always or never involve moral turpitude---remains purely categorical. Where the “CIMT” entry for a charge appears in the “Yes” column of the Calculator or does not appear at all, it is reasonably safe to assume that immigration authorities may not consider the particular facts underlying the conviction. Where the entry states “Maybe,” or “Probably,” but does not refer the reader to this Note, the analysis is likely to be categorical (that is, based only on the elements of the statute), but cannot predict with certainty what the result of the categorical analysis will be.

  • Where existing CIMT caselaw makes clear that a statute punishes some offenses that are CIMTs and others that are not, it is possible that the particular facts underlying the conviction will be considered. For example, it is generally agreed that theft offenses involving an intent to permanently deprive the owner of property are CIMTs while those that punish an intent to temporarily deprive are not. In the case of a defendant who pleads guilty to a statute that punishes both temporary and permanent takings, authorities might later consult a police report, a gratuitous statement of facts in a plea colloquy, or other evidence to determine which form of intent the defendant was convicted of having. Where the “CIMT” entry for a charge refers to this Note, immigration authorities might consider the particular facts underlying the conviction in jurisdictions that follow Silva-Trevino.

  • Silva-Trevino makes it necessary to proceed with caution in the CIMT context. Where an entry in the Calculator contains a reference to this Note, it is strongly recommended that criminal practitioners consult “Recent Developments in the Categorical Approach: Tips for Criminal Defense Lawyers Representing Immigrant Clients" (Available at: http://www.immigrantdefenseproject.org/docs/09_Oct-9-advisory-date-(final_correctedl).pdf). The Advisory contains a more detailed explanation of Silva-Trevino, steps that defense counsel can take to correctly advise and protect their clients, and tips for protecting clients charged with common categories of offenses that carry a CIMT risk.

Consequences of Crime Involving Moral Turpitude conviction

  • Deportable, if...
    • Convicted of one CIMT and a sentence of one year or longer may be imposed if

      1. Crime committed within 5 years of alien’s lawful admission to United States, or

      2. Crime committed within ten years after the alien’s admission if the alien was provided lawful permanent resident status under INA 245(j) as a criminal or terrorist activity informer.

    [See INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a)(2)(A)(i)]

    WARNING 1: If your client is facing conviction of only one crime involving moral turpitude and the crime was not committed within five years after his or her admission, s/he would not become deportable under this ground of deportation, but consider whether s/he would become deportable under another ground of deportation, e.g., deportability for conviction of an aggravated felony or of a crime of domestic violence.

    WARNING 2: Date of Admission for purposes of deportability may be when lawful permanent resident adjusted his or her status in the United States without leaving the country, regardless of whether individual has been formally

    If your lawful permanent resident client adjusted his or her status in the United States without leaving the country and being formally admitted, the date of adjustment may nevertheless count as the date of “admission” for purposes of this ground of deportability. This is particularly so when the individual has never been formally “admitted,” see Matter of Rosas-Ramirez, 22 I&N Dec. 616 (BIA 1999)(concluding that in such circumstance date of adjustment qualifies as "date of admission"); see also Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1135 (9th Cir. 2001)(same). This is particularly so when the individual has never been formally “admitted,” see Matter of Rosas-Ramirez, 22 I&N Dec. 616 (BIA 1999)(concluding that in such circumstance date of adjustment qualifies as "date of admission"); see also Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1135 (9th Cir. 2001)(same). This may also be the case, however, even if the individual had previously been formally “admitted” in some other status. See Matter of Shanu, 23 I&N Dec. 754 (BIA 2005)(holding that (1) the date of adjustment of status qualifies as "the date of admission" under § 1227(a)(2)(A)(i), and that (2) where there is more than one potential date of admission, any such date qualifies as "the date of admission" under that provision). However, some federal courts have found that the date of “admission”, for purposes of this ground of deportability, is the date of lawful entry to the U.S. upon inspection and authorization by an immigration officer, NOT the subsequent date of one’s adjustment of status to lawful permanent residence. See Shanu v. Department of Homeland Security, F.3d, 2006 U.S. App. LEXIS 14989 (4th Cir. 2006)(BIA impermissibly interpreted "the date of admission" in § 237 (a)(2)(A)(i) to include the date on which Shanu's status was adjusted; however, in so ruling, the Court expressed no opinion on whether adjustment of status may properly be considered "the date of admission" where the alien sought to be removed has never been "admitted" within the meaning of § 101(a)(13)(A)); Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005); Shivaram v. Ashcroft, 360 F.3d 1142 (9th Cir. 2004). Also, if your lawful permanent resident client has traveled outside the United States since his or her original lawful admission to the United States, s/he might have initiated a new running of the five year clock for deportability for one CIMT. This is because, in certain situations, a lawful permanent resident returning from a trip abroad is regarded as seeking a new admission into the United States. Thus, if your client had been absent from the United States for a continuous period in excess of 180 days, or for some other reason was subjected to regular admission procedures upon his or her return (e.g. your client had committed a criminal offense prior to or during the trip), his or her new admission or readmission may have re-started the clock for one CIMT deportability. (See INA 101(a)(13)(C), 8 U.S.C. 1101(a)(13)(C)).]

    • Convicted of Two or more CIMT at any time after the alien’s lawful admission, not arising out of a single scheme of criminal misconduct, regardless of possible sentence

    ADVISAL TO CLIENT: Whether a particular defendant might be ineligible for relief from removal will depend on circumstances such as family ties or length of residence in the United States.

  • Inadmissible, if...
    • Convicted of One CIMT and the maximum possible penalty for the crime exceeds imprisonment for one year (i.e. a felony) OR the alien was convicted and actually sentenced to a term of imprisonment in excess of 6 months [See INA 237(a)(2)(A)(ii)(II), 8 U.S.C. 1227(a)(2)(A)(ii)(II)]

      • JUVENILE OFFENSE EXCEPTION: If alien was under 18 years old when single CIMT committed and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than five years before the date of application for a visa or other documentation and the date of application for admission to the United States
        • [See INA 237(a)(2)(A)(ii)(I), 8 U.S.C. 1227(a)(2)(A)(ii)(I)].
    • Convicted of Two or more CIMT, regardless of the potential or actual sentence and regardless of the alien’s age at the time of commission of the crime.

    ADVISAL TO CLIENT: Whether a particular defendant might be ineligible for relief from removal will depend on circumstances such as family ties or length of residence in the United States.

  • Ineligible for naturalization, if...
    • If CIMT makes you inadmissible, then naturalization is barred for five years (or three years or one year in some cases) because unable to demonstrate good moral character.

    The statutory bars to a finding of good moral character, which are listed in INA 101(f), include a CIMT that makes you inadmissible to the United States (See above “When does a CIMT make your client inadmissible?”)

    NOTE

    As a practical matter, naturalization will not be a viable way to avoid removal for most of your lawful permanent resident clients in criminal proceedings. Many, if not most, criminal convictions or other evidence of present or recent crime-related conduct will cause the Department of Homeland Security (DHS) (formerly the Immigration and Naturalization Service (INS)) to reject an application for naturalization, either by statutory mandate or in the DHS’ discretion. Thus, such a client is better and more realistically served by focusing on avoiding deportability in the first place, or, if deportability is unavoidable, by focusing on avoiding elimination of any possibility of Cancellation of Removal or other waiver or relief that may be available.

    Nevertheless, there may be certain such clients who cannot avoid deportability nor ineligibility for any other relief from removal but who still have some possibility, even if remote, of avoiding removal by preserving eligibility for naturalization. An example is a lawful permanent resident client who was convicted in the past for commission of a crime within seven years of his or her admission to the United States which makes him deportable and ineligible for Cancellation of Removal but the crime was committed more than five, three, or one year(s) ago and therefore does not necessarily bar naturalization.


Disclaimer

This calculator is not designed to provide legal advice over the Internet. Legal advice is dependent upon the specific circumstances of each situation. The information provided here is targeted toward collateral consequences in New York. The law varies from state to state, so that some information provided herein may not be correct outside New York State. In addition, immigration consequences which involve federal law may vary from one federal jurisdiction to another. While every effort is made to keep the content on this site current, the information contained herein is not guaranteed to be up-to-date. Therefore, the information provided herein cannot replace the advice of competent legal counsel licensed in your state.

Also, in the interest of making sure that defendants are aware of all possible risks, the Calculator may warn of probable or possible potential negative consequences even where there may be good arguments that conviction of a particular offense should not trigger these consequences. A skilled advocate may be able to overcome some of the potential consequences. Therefore, the information provided through the Calculator should not be taken as an absolute limitation on what such advocacy might achieve.

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