Crimes Involving Moral Turpitude and Immigration

Crimes Involving Moral Turpitude, a broad overview

Forum Posting - - Sep 3rd 2008

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 (Retired from the practice of law)
Pasadena, CA
"Wisdom is a gift; you can't train for it, inherit it, learn it in a class, or earn it in the workplace — access can foster the acquisition of knowledge, but not wisdom."
--Toni Morrison

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