Immigration Lawyer Discusses Crimes Involving Moral Turpitude in Deportation and Removal
April 7, 2010
In deporation and removal, a Notice to Appear (“NTA”) charges an alien a crime involving moral turpitude (“CIMT”) may not necessarily be removable in deportation and removal proceedings
Prior to deportation or removal, if you are a foreign national and you have been issued a Notice to Appear (“NTA”) subjecting you to deportation and/or removal citing that you are deportable or removable from the U.S. due to the commission of a “crime Involving moral turpitude,” you are probably asking yourself, what is a crime involving moral turpitude? You are probably wondering what – if any – grounds do you have to avoid being removed in deportation? As Columbus, Ohio immigration lawyers, we are asked these questions by our clients frequently. Hence, this article focuses on defining the term “crime involving moral turpitude” as used in deportation and removal proceedings. More importantly, it provides guidance on what is not a CIMT and discusses the common exceptions under current immigration law.What is a Crime Involving Moral Turpitude (“CIMT”)? According to the federal immigration courts, a CIMT is defined as a crime that is “inherently base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons or to society in general.” In determining whether a crime is one involving moral turpitude, “base, vile, or depraved” conduct must be found in the elements of the statute. This means that it is the definition of the criminal statute that determines whether one is removable.
The determination is necessarily driven by the statutory definition or by the nature of the crime not by the specific conduct that resulted in the conviction. When you are charged with having committed a CIMT, you must look at the criminal statute (usually a state law violation) to make the determination. Some conduct resulting in a criminal conviction may be “base, vile, or depraved,” but it is simply not considered a CIMT. Other conduct may seem innocuous; however, it is sufficient to make a finding of having committed a CIMT.CIMT Requires a Conviction
A formal conviction of one CIMT will trigger inadmissibility. Any disposition in criminal court that does not constitute a “conviction” for immigration purposes will not trigger these adverse immigration consequences. A conviction is defined as a “formal judgment of guilt of the alien entered by the court,” and also for less formal dispositions. A conviction can result from a trial or plea of guilty or no contest. A state or federal conviction can trigger this ground. A finding of guilt followed by commitment to a state mental hospital is considered a conviction, as is a finding of guilt followed by commitment to another institution or agency.
A dismissal, diversion (if no plea of guilty has been entered), dispositions entered in juvenile court, and convictions that are still on direct appeal are not “convictions” for immigration purposes. Convictions that have been vacated or voided as a result of post-conviction relief no longer constitute convictions (as long as the order was entered on some ground of legal invalidity of the conviction). Thus, the first step is to determine whether you were truly “convicted” of a crime; if not, you are not subject to deportation on the grounds listed whether or not you committed a CIMT.The Petty Offense Exception to Inadmissibility
Since so many offenses can be classified as involving moral turpitude, many noncitizens risk being excluded even for minor convictions. The Petty Offense Exception excuses the inadmissibility on account of a conviction of one CIMT. Under this exception, a noncitizen is automatically not inadmissible on account of a conviction or admission of a CIMT if (1) she committed only one CIMT, (2) she was not sentenced to a term of imprisonment in excess of six months, and (3) the offense of conviction carries a maximum sentence of one year or less.
This definition seems very simple but it is wrought with traps for the unwary. Each element (1)-(3) above raises legal questions that must be delicately analyzed by experienced legal counsel. For example, the sentences imposed must be of six months or less. The 1996 IIRAIRA established a statutory definition of what constitutes a sentence for immigration purposes. A sentence includes “the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or part.” For immigration purposes, if imposition of sentence has been suspended, there is no sentence (since the court has not ordered any confinement). But, court-ordered confinement of probation now counts as incarceration for this purpose. As you can see, the criminal sentence itself may preclude deportation. An experienced lawyer will be necessary to make this determination.Is my Conviction a Crime Involving Moral Turpitude?
Once you have determined that you have a “conviction” for immigration purposes and that you do not fit within the exceptions, you must determine whether the crime itself involves moral turpitude. The easiest way to make this determination is to analyze crimes that do not involve moral turpitude.
The following are some common convictions that raise CIMT issues. Whether they will be found to involve moral turpitude depend on the statutory language of the offense and whether any of the above exceptions applyTheft is a CIMT
Generally, if you are found guilty of stealing something, a judge will find you inadmissible for having committed a crime involving moral turpitude. For example, if you are caught stealing a pack of gum, you have committed a CIMT! Even petty theft will suffice. These theft offenses have different categories and names under state law. If you are found to have committed an offenses called larceny, larceny by trick, shoplifting, embezzlement. swindling, grand theft, burglary, or stealing, you will be found to have committed a CIMT so long as the theft was permanent. While a non-permanent theft will not suffice, practically speaking it will be extremely difficult to argue to a judge that you did not intend to permanently take something.Miscellaneous Crimes – May or may not be CIMTs
The following is a quick reference guide to determine whether your criminal conviction will be considered a CIMT. Please remember that each case must be analyzed on its merits to make this determination. This list is simply put forth as a quick user’s guide to assess the kinds of crimes that do and do not involve moral turpitude as a general proposition. Again, all these convictions may be defeated under one of the exceptions or a waiver (discussed in another article).
Assault is a CIMT; simple assault is not. Bank fraud and embezzlement are CIMTs. Burglary is generally considered a CIMT. Child abuse is a CIMT. Contributing to the delinquency of a minor is generally not a CIMT but has held to have been in at least one court. Disorderly conduct is generally a CIMT. Domestic violence is a CIMT and is considered a federal crime of violence. Simple DUI (only one DUI) is not a CIMT while driving under the influence on a suspended license is a CIMT. False statements to a U.S. Official is a CIMT. Forgery is a CIMT. Manslaughter and homicide are generally CIMTs so long as not involuntary. Military desertion is not a CIMT. Perjury is only considered a CIMT about half the time. Prostitution is generally considered a CIMT. Receiving stolen goods is also a CIMT along with robbery and many sex offenses. Theft is generally a CIMT.Conclusion
If you have questions about a deportation or removal case, and/or you need help in an immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including deporation and removal cases, Immigration Court Waivers, Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are in deportation or have just been served with a Notice to Appear (“NTA”), The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who are dedicated to representing clients before the Immigration Courts throughout the United States.