Immigration: What’s a Crime Involving Moral Turpitude

Indeed, a person is removable if he or she has been: 1) convicted of a CIMT that was committed within five years after the date they were admitted to the U.S. (or, for people who are permanent residents with “green cards,” within 10 years after the date of admission), for which a sentence of one year or longer may be imposed (regardless of whether the person actually got a lesser sentence); or 2) convicted of two or more CIMTs at “any time after admission. . . not arising out of a single scheme of criminal misconduct,” regardless of the sentences or whether the charges were brought in a single case. 8 U.S.C. § 1227(a)(2)(A). 

The maximum penalty for California misdemeanors is less than a year (364 days). This law is retroactive. Penal Code § 18.5.  It merits mention that immigration officials may use a prior conviction that existed but was not brought up during a previous immigration proceeding to show that a person has two convictions for crimes of moral turpitude. Poblete Mendoza v. Holder (9th Cir. 2010) 606 F. 3d 1137, 1140-1141.

Having a conviction for a CIMTs also may limit the availability of discretionary relief from removal.

But what exactly is a crime involving moral turpitude?  Immigration statutes do not define what convictions are classified as CIMT’s.  Although the U.S. Supreme Court has held that the phrase CIMT is not unconstitutionally vague (Jordan v. De George (1951) 341 U.S. 223, 71 S. Ct. 73; 95 L. Ed. 886), courts struggle with interpreting the term in a way that sets meaningful standards and courts sometimes disagree about which crimes are a CIMT. See, e.g., Arias v. Holder (7th Cir. 2016) 834 F. 3d 823.

Moral turpitude refers generally to conduct which is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” In re Ajami (BIA 1999) 22 I. & N. Dec. 949, 950.

In practice, the two main varieties of CIMTs are those involving fraud and those involving “depraved” or “reprehensible” acts.  Most CIMTs are offenses that includes an element of fraud or larceny, or of aggravated assault due to arming with a weapon, serious injury, or the victim’s vulnerable status. See, e.g., Jordan v. De George (1951) 341 U.S. 223, 71 S. Ct. 73; 95 L. Ed. 886] (fraud or larceny); Matter of Short (BIA 1989) 20 I. & N. Dec. 136 (aggravated assault).

There is extensive federal administrative and judicial case law interpreting and applying the term CIMT.  The immigration law lists general categories of crimes for which a person may be removed from the U.S. 8 U.S.C. § 1227(a)(2); 8 U.S.C. § 1101(a)(43).

The list of removable offenses includes some crimes that California law considers relatively minor and that might result in only misdemeanor conviction. For example, removable offenses include some controlled substance offenses (but not a first-time offense of possession of 30 grams of marijuana or less for personal use) and violating a protective order. 8 U.S.C. § 1227(a)(2)(B)(i) (controlled substances); 8 U.S.C. § 1227(a)(2)(E)(ii) (violating protective order). 

Just knowing the name and number of the California statute under which the person was convicted and the length of their sentence does not always provide enough information to determine how the person’s conviction is classified under immigration law.  Also, in some situations, a person who was convicted under a particular statute might or might not be removable (and might or might not have an aggravated felony or CIMT) depending on how the charge was pled and proven.  

Thus, courts use a series of steps to decide whether a state law crime is a removable offense, aggravated felony, or CIMT.

Courts start by doing a “categorical” comparison of the definition of the crime in the state statute and the definition of the removable offense, aggravated felony, and/or CIMT in the immigration law.  If the immigration law refers to a federal criminal statute, the court will use the federal statute’s definition; otherwise, the court will use a “generic” definition of the offense as commonly understood.  The question is whether the least of the acts criminalized by the state criminal statute falls within the federal crime definition.  Sentencing courts may “look only to the statutory definitions”—i.e., the elements—of a defendant’s offenses, and not “to the particular facts underlying those convictions.”

Sometimes, a state criminal statute describes several alternative ways in which a crime can be committed, some of which meet the federal immigration law criteria for being a removable offense, aggravated felony, or CIMT, and some of which do not.  When such state statues are “divisible,” courts can use a “modified categorical” analysis to decide if they fit an immigration law category. 

The first question is whether the statute is actually divisible.  A criminal statute is divisible only if it (1) lists multiple discrete offenses as separate alternatives or defines a single offense by reference to mutually exclusive sets of “elements,” and (2) at least one (but not all) of those offenses or combinations of elements is a “categorical match” to the relevant generic federal crime. 

“Elements” are the “constituent parts” of a crime’s legal definition -- what the jury must find beyond a reasonable doubt to convict a person and what a person necessarily admits when they plead guilty or no contest.  

On the other hand, a criminal statute is not divisible if the statutory alternatives describe only “brute facts” that are various means or methods by which the offense can be committed.  Facts are real-world circumstances or events that have no “legal effect [or] consequence” and that do not need to be found by a jury or admitted as part of a guilty plea. Mathis v. United States (2016) 579 U.S. 500, 136 S. Ct. 2243; 195 L. Ed.2d 604; Descamps v. United States (2013) 570 U.S. 254, 260-264, 133 S. Ct. 2276, 186 L. Ed. 2d 438; Matter of Chairez (BIA 2016) 26 I. & N. Dec. 819.  

This article would not be possible without reference to the excellent treatise, California Prison and Parole Law Handbook, written by the Prison Law Office in Folsom, California, who we thank.