Crimes Involving Moral Turpitude
Exceptions to Inadmissibility
Hybridity and Anaylsis
An alien convicted of, or who admits having committed, or who admits committing acts which constitutes the essential elements of a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime is inadmissible, under INA § 212(a)(2)(A)(i)(I). Additionally, two or more CIMT make a client inadmissible under INA § 212(a)(2)(B), if the aggregate sentence of confinement actually imposed is five years or more. This is the case even if the CIMT arose from the same transaction or occurrence.
CIMT is a broad category without a clear definition but will generally fall into one of the following three categories:
(1) Crime that involves an element of fraud
(2) Serious crime against persons or property
(3) Other crime involving baseness, vileness, or depravity
The final category includes “crimes” that may not initially seem to be self-evident. For example, polygamy and bigamy are included in this category, is as prostitution or procuring prostitution. Even traditionally “white collar” crimes can be considered CIMT– especially when dealing with issues of fraud. However, political offenses do not fall under the CIMT umbrella.
The BIA held in The Matter of Flores that a CIMT “refers generally to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed between man and man, either one’s fellow man or society in general.” 17 I&N Dec. 225, 227 (BIA 1980). Therefore, the CIMT category is not reflective of the severity of the sentence that is imposed. See Matter of Serna, 20 I&N Dec. 579, 582 (BIA 1992). Rather, “it is the nature of the offense itself which determines moral turpitude.” Matter of Short, 20 I&N Dec. 136, 137 (BIA 1989).
There are two notable exceptions in INA § 212(a)(2)(A)(i), an exception for minors and the petty offense exception:
- The ground does not apply where the alien has committed only one crime of moral turpitude, the crime was committed when the alien was under 18 years of age and the crime was committed (and the alien was released from confinement to prison or a 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.
- The ground does not apply where the alien has committed only one crime of moral turpitude, the maximum penalty possible for the crime for which the alien was convicted or to which the alien admits having committed or of which acts the alien admits having committed which constitute the essential elements of the crime did not exceed one year of imprisonment and, if the alien was convicted of the crime, the alien was not sentenced to imprisonment for a term greater than six months, regardless of the extent to which the sentence was ultimately satisfied.
Please keep in mind that these exceptions are to inadmissibility, not removability.
Under INA § 237(a)(2)(A)(i), a non-citizen is removable if s/he is convicted of a CIMT within five years after the date of admission and one or more year of imprisonment may be imposed as a penalty for the crime. Therefore, certain convictions committed within 5 years of admittance are not just crimes involving moral turpitude, but also ground for removal.
Additionally, under INA § 237(a)(2)(A), “Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefore and regardless of whether the convictions were in a single trial, is deportable.”
“Admission” is a term of art, so determining when the five-year clock has begun running may be complicated. A recent BIA case has offered clarity on this issue. Under Matter of Alyazji, “a conviction for a crime involving moral turpitude triggers removeability under section 237(a)(2)(A)(i) only if the crime was committed within 5 years after the date of the admission by virtue of which the alien was then in the United States.” Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011). To re-phrase, one must measure the amount of time from the immigrant’s last admittance into the U.S. until the point at which the crime or crimes were committed. Again, this date, under Matter of Alyazji is the date the crime occurred–not the conviction or citation. Id. at 407. In conclusion, “the alien is not deportable if he committed his offense more than 5 years after the date of the admission pursuant to which he was then in the United States.” Id. at 406. Under this case, adjustment of status (AOS) does not count as “admission” for the purpose of the time stop rule.
Ultimately, by the time you are consulting with a client who has been charged with a crime, her/his last admission to the U.S. is out of your control. However, you can help advise clients that every time they are admitted into the U.S., there is a five-year window in which a conviction of a CIMT may result in removal. For this reason, inter alia, many immigration attorneys err on the side of caution and advise their clients to remain in the U.S. until they have received citizenship.
When analyzing CIMT, it is important to first look at the state statute to determine if the maximum penalty for the crime is one year or more. Next, it is important to determine if a statute is divisible. In other words, some statutes can be interpreted differently based upon the nature of the underlying offense. See Matter of Vargas, 23 I&N Dec. 651 (BIA 2004). It is also advisable to look to binding case law to determine if the offense is considered a CIMT within your circuit. Generally speaking, crimes involving theft, prostitution, and drug offenses will always be considered CIMT. However, many other CIMT, such as assault and battery, are not as straightforward and will require additional research.
Recently, the Attorney General (AG) attempted to clarify the proper analysis for CIMT cases. Matter of Silva-Trevino describes a two-step categorical analysis. First, following the holding in U.S. Supreme Court case Gonzales v. Duenas-Alvarez (549 U.S. 183 ), adjudicators must determine if there is “‘realistic probability, not a theoretical possibility,’ that the State or Federal criminal statute pursuant to which the alien was convicted would be applied to reach conduct that does not involve moral turpitude.” Matter of Silva-Trevino, 24 I&N Dec. 687, 690 (A.G. 2008). In other words, the adjudicator must evaluate the law used to convict the client and determine if it could realistically cover non-CIMT conduct as well as CIMT conduct. Second, if the adjudicator finds that the law does cover both non-CIMT conduct and CIMT conduct, then s/he must determine if the specific facts should be considered a CIMT in the client’s case.
Additionally, the 9th Circuit has held that adjudicates can make this determination based on whether “moral turpitude necessarily inheres in all cases that have a ‘realistic probability of being prosecuted.’” Id., citing Nicanor-Romero v. Mukasey, 523 F.3d 992, 1004-05 (9th Cir. 2008).
In order to naturalize, or become a U.S. citizen, Lawful Permanent Residents must establish Good Moral Character (GMC). Under INA § 101(f)(3), an individual cannot establish GMC if s/he has been convicted for the commission of a CIMT, or if s/he admits to the commission of a CIMT.
For the purposes of immigration law, an admission to the commission of a CIMT is: (1) conduct that fulfills the essential elements of the crime, (2) applicant is provided with a definition of the crime and its elements prior to the admission, and (3) admission must be voluntary. See Matter of K, 7 I&N Dec. 594 (BIA 1957).
Generally, USCIS will look to the five years prior to the submission of the naturalization application for GMC, or three years for spouses of U.S. citizens, under 8 C.F.R. § 316.(a)(1). However, in some cases, GMC before the five-year statutory period is relevant. USCIS may look further back into a client’s history to determine if an applicant has altered or reformed her/his behavior, under INA § 316(e).
If you encounter a client with GMC issues, s/he should speak with an immigration attorney who handles naturalization before applying. Many GMC issues can be overcome with letters of support and documentation of GMC in the applicant’s recent past. However, in many cases, attorneys will caution their clients to wait until GMC issues have passed beyond the five-year window.
Please see the sub-section titled “Naturalization” for more information regarding the requirements.