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Old Sep 3rd 2008, 6:45 pm   #1
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Default Crimes Involving Moral Turpitude, a broad overview

There are so many questions and issues related to crimes involving moral turpitude (CIMT) posted on British Expats, I thought it might be helpful to write an article about CIMT. I assume that British citizens are not interested in CIMT because they are more prone to commit them but rather because the language from the I-94W (visa waiver landing card) makes use of the Visa Waiver Program problematic for persons who have been convicted of, or given police warning about, certain crimes.

Everyone wants to argue or reason their way out of schlepping down to Grosvenor Square to apply for a B-1/B-2 visa. I don't blame anyone for wanting to avoid this ordeal. Still, the law is what it is, and the Visa Waiver Program is not for everyone.

The I-94W Arrival-Departure Control Card asks, in pertinent part, “Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance....” Those seeking to enter with no visa and avoid a stressful and expensive trip to the AmEmb at Grosvenor Square often wonder whether the I-94W’s poorly-written question applies to them.

I have written this little summary to address some of the most common questions. Please note that this discussion is NOT dispositive of all the questions. In “close call” types of cases, the analysis can break down, and readers should NOT rely on this article to become their own lawyers when faced with a rabid border guard. This article does NOT constitute legal advice; it provides an overview of some points of law. No more.

The CIMT Restriction on Entry to the USA. Persons who have been convicted of a CIMT, or who admit to having committed a CIMT, or who admit committing the acts that make up the elements of a CIMT, are all inadmissible to the USA. If an alien has such a conviction or admits to having commited such acts to a US consular officer or Department of Homeland Security official (e.g., border guards), the alien is excludable from entry to the USA. (I will not address here what constitutes a conviction or an admission, but each of these issues could sustain pages of legal scholarship.)

The Petty Offense Exception. There is a “petty offense” exception. If the conviction was for a petty offense, the alien may still be admissible. A petty offense is defined as one in which (a) the maximum possible penalty for the crime did not exceed imprisonment for one year and (b) the alien was not sentenced to a term of imprisonment in excess of six months -- whether the sentence was ultimately executed or served or not. The petty offense exception is not available if more than one CIMT offense was committed or admitted.

Juvenile Crimes Involving Moral Turpitude. Broadly speaking, there is no CIMT restriction on someone whose only crime was a CIMT committed while the perpetrator was under the age of 18 and if the crime was committed more than 5 years prior to the date that the alien applies to enter the USA or apply for a visa. If the perpetrator was imprisoned, s/he must have been released more than 5 years prior to the application for admission to the USA or application for a visa.

So what is a CIMT? A CIMT “refers generally to conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owned between persons and society in general.... Moral turpitude has been defined as an act which is per se morally represensible and intrinsically wrong.” When I was in law school, and it was fun to reduce these things to latin phrases, such crimes were called malum in se, or bad in and of themselves.

Now, before the budding lawyers among you leap to parse the previous paragraph and define your way out of your quandry -- “I’ve done nothing base, vile, or depraved” -- note that a CIMT is malum in se because of the specific nature of the crime. The individual facts and circumstances of a particular case do not affect the classification of a crime as CIMT. Also, the seriousness of the offense and the harshness of the sentence imposed on the offender have nothing to do with whether the crime is CIMT. In other words, it has nothing to do with whether YOU think the crime is “bad enough” to rise to the level of a CIMT. That determination is made by judges.

Crimes against the Person. The following have been found by various courts and at various times to be crimes involving moral turpitude:
assault, second degree or third degree
assault with intent to rob or kill
assault with a deadly weapon
assault on a law enforcement officer
failure to stop and render aid after being involved in an auto accident
battery, aggravated
carrying a concealed weapon with intent to use
child abuse
child pornography
communicating with a minor for immoral purposes
spouse abuse
aggravated stalking
willful infliction of corporal injury on spouse, parent, or perpetrator’s child
disorderly conduct (in certain limited circumstances)
loitering for lewd purposes
soliciting
driving under the influence (aggravated), which includes drunk driving with knowledge that driver is without a valid license
firearms discharge at occupied building or vehicle
kidnapping
mayhem
murder and voluntary manslaughter
manslaughter stemming from assault and battery
accessory after the fact to murder
attempted murder
reckless manslaughter
robbery
threats or terrorists threats
adultery
bigamy
lewdness
oral sex
failure to register as a sex offender
statutory rape

The following have been found by various courts and at various times NOT to be crimes involving moral turpitude:
assault, simple
assault and battery, simple
assault on a police officer
assault with intent to commit a felony
attempted assault, where recklessness is an element
battery, domestic
child abandonment, attempted
“simple” driving under the influence
leaving the scene of an accident
harassing telephone calls
“simple” kidnapping
malicious mischief
manslaughter, involuntary
reckless endangerment, attempted
weapons possession
bastardy
fornication
indecency
mailing an obscene letter
maintaining a nuisance
contributing to the delinquency of a minor
failure to register as a sex offender
statutory rape
vagrancy

Crimes Against Property. The following have been found by various courts and at various times to be crimes involving moral turpitude:
arson
blackmail
burglary
counterfeit goods
embezzlement
extortion
fraud
illegal use of credit cards
larceny
possession of stolen property, with the knowledge it is stolen
receipt of stolen property
shoplifting
stealing cellular air time
theft
securities fraud
trespass (malicious)

The following have been found by various courts and a various times NOT to be crimes involving moral turpitude:
breaking and entering or unlawful entry, with no intent
burglary (third degree), with no intent to deprive victim of property
burglary, possession of tools to commit
entry of goods by means of a false statement
malicious destruction of property
malicious mischief
possession of stolen property, where guilty knowledge not an element
joyriding
theft of services
unauthorized use of a vehicle

There are also categories of crimes against government, crimes involving fraud, misprision of felony, and other crimes.

You will notice upon reviewing those lists is that some crimes are shockingly on one list, instead of another. Even more distressing to me as an attorney who seeks clarity: some crimes are on both. You will also understand why I -- and other attorneys -- are reluctant to address CIMT questions, especially in open forum. The area is a quagmire, and frankly, giving (and accepting) legal advice about what to do in such an unclear area of law is quite beyond the wise use of an excellent website like British Expats.

I will conclude by noting that, rightly or wrongly, well written or not, the I-94W’s language regarding persons who have committed crimes involving moral turpitude can snare many otherwise fine people. If you have run afoul of the law in any of these areas -- of if your offense resonates in these areas -- it might be prudent to seek legal counsel.

A redundant reminder: This article does NOT constitute legal advice; it provides an overview of some points of law. No more.

--J Craig Fong
Los Angeles, CA
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Old Sep 3rd 2008, 7:30 pm   #2
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Default Re: Crimes Involving Moral Turpitude, a broad overview

Hi everybody:

One little detail in J's quick list which tends to show the difficulty lawyers encounter. [It may also appeal to the purient interests of people].

Note that "statutory rape" is on BOTH lists of what is and what is not a crime involving moral turpitude.

And the laws on statutory rape vary widely. For example, in Alaska the age of consent is 16 while in California it is 18. Both Alaska and California criminalize sexual intercourse with a person under the age of consent. Many states prescribe an age difference to constitute statutory rape.

Not only do I put in the rubric of "I may be a lawyer, but I am not your lawyer" -- even if I was your lawyer, I would want to see the conviction records and dig up the statute/ordinance under which the conviction was had.

On top of that, it is not all that uncommon the conviction is for a crime that does not necessarily include the actual act. For example, I had a client many years who told me she had two convictions for prostitution. I asked for the records. Both convictions were for "vagrancy -- when questioned unable to give an account for his self." It seems that the very nice city where my client originated [deliberately unnamed] had no specific ordinance prohibiting working girls from walking the street plying their trade.

The conviction were revealed. No questions raised and green card granted.
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Old Sep 3rd 2008, 7:34 pm   #3
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Default Re: Crimes Involving Moral Turpitude, a broad overview

Mods please sticky this as it will potentially help a lot of new posters and shouldnt get swallowed into the forums.
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Old Sep 3rd 2008, 7:42 pm   #4
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Default Re: Crimes Involving Moral Turpitude, a broad overview

How long ago was "oral sex" considered a crime involving moral turpitude?
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Old Sep 3rd 2008, 7:43 pm   #5
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Default Re: Crimes Involving Moral Turpitude, a broad overview

Quote:
Originally Posted by JCraigFong View Post
The following have been found by various courts and at various times to be crimes involving moral turpitude:

oral sex
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Old Sep 3rd 2008, 7:45 pm   #6
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Default Re: Crimes Involving Moral Turpitude, a broad overview

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Originally Posted by MsElui View Post
shouldnt get swallowed
Definitely not... that's almost certainly a CIMT
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Old Sep 3rd 2008, 8:00 pm   #7
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Default Re: Crimes Involving Moral Turpitude, a broad overview

The Board of Immigration Appeals found in 1977, in Matter of Leyva, 16 I&N Dec. 188 (BIA, 1977), that oral sex was a crime involving moral turpidude. This presupposes that oral sex was a crime at all in the jurisdiction involved. Please note that many states in the Bible Belt of the USA at one time criminalized oral sex, even as between married heterosexual couples.

Thus, if you are one who regularly partakes of this practice, and the jurisdiction in which you do it does NOT consider it to be a crime, then you have NOT committed a CIMT, nor even -- if you are prone to discussing your bedtime practices -- that you have admitted to the elements of the offense, because in YOUR jurisdiction, such activity is NOT a crime.

Have I kept my scholarly, humorless, dead-pan face on?
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Old Sep 3rd 2008, 8:44 pm   #8
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Default Re: Crimes Involving Moral Turpitude, a broad overview

Quote:
Originally Posted by JCraigFong View Post
The Board of Immigration Appeals found in 1977, in Matter of Leyva, 16 I&N Dec. 188 (BIA, 1977), that oral sex was a crime involving moral turpidude. This presupposes that oral sex was a crime at all in the jurisdiction involved. Please note that many states in the Bible Belt of the USA at one time criminalized oral sex, even as between married heterosexual couples.

Thus, if you are one who regularly partakes of this practice, and the jurisdiction in which you do it does NOT consider it to be a crime, then you have NOT committed a CIMT, nor even -- if you are prone to discussing your bedtime practices -- that you have admitted to the elements of the offense, because in YOUR jurisdiction, such activity is NOT a crime.

Have I kept my scholarly, humorless, dead-pan face on?
Excellent thread

But no, I did detect a hint of non-scholarly humor in that last bit
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Old Sep 4th 2008, 2:37 am   #9
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Default Re: Crimes Involving Moral Turpitude, a broad overview

Quote:
Originally Posted by Marocco View Post
How long ago was "oral sex" considered a crime involving moral turpitude?
It should be a crime - it is immoral to expect us to do that!!
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Old Sep 4th 2008, 2:41 am   #10
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Originally Posted by clarissageo View Post
It should be a crime - it is immoral to expect us to do that!!
I don't even know what it means
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Old Sep 4th 2008, 4:28 am   #11
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Default Re: Crimes Involving Moral Turpitude, a broad overview

Quote:
Originally Posted by JCraigFong View Post
There are so many questions and issues related to crimes involving moral turpitude (CIMT) posted on British Expats....
http://britishexpats.com/wiki/Category:USA_Immigration
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Old Sep 4th 2008, 4:31 am   #12
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Default Re: Crimes Involving Moral Turpitude, a broad overview

Quote:
Originally Posted by JCraigFong View Post
Thus, if you are one who regularly partakes of this practice, and the jurisdiction in which you do it does NOT consider it to be a crime, then you have NOT committed a CIMT, nor even -- if you are prone to discussing your bedtime practices -- that you have admitted to the elements of the offense, because in YOUR jurisdiction, such activity is NOT a crime
Smoking weed in NL?
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Old Sep 4th 2008, 5:47 am   #13
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Default Re: Crimes Involving Moral Turpitude, a broad overview

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Smoking weed in NL?
Hi:

The article is about Crimes Involving Moral Turpitude.
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Old Sep 4th 2008, 5:50 am   #14
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Default Re: Crimes Involving Moral Turpitude, a broad overview

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Originally Posted by Folinskyinla View Post
Hi:

The article is about Crimes Involving Moral Turpitude.
Thought the article was about stuff that causes you to be denied entry to the US. But be pedantic if you want.
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Old Sep 4th 2008, 6:17 am   #15
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Default Re: Crimes Involving Moral Turpitude, a broad overview

Quote:
Originally Posted by fatbrit View Post
Thought the article was about stuff that causes you to be denied entry to the US. But be pedantic if you want.
Hi:

Of course I am being pedantic! That is a theme in any discussion about US Immigration law and criminal offenses.

However, in relation to drug related offenses you do make a valid point: J mentioned that if it is not a crime where the act was committed, there is no CIMT. You posited a slightly different situation where an act is a crime, albeit one never prosecuted as a matter of public policy.

I would agree with you that the language of the I-94W would make smoking of week in the NL problematical.
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