What is a Crime Involving Moral Turpitude and When is the I-601 Waiver Required?

Legal Overview of Crimes Involving Moral Turpitude

Section 212(a)(2)(A) of the Immigration and Nationality Act states, in pertinent parts:

(i) Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime … is inadmissible.

There are however three exceptions to the inadmissibility triggered by Section 212(a)(2)(A):

• Purely political offense:
  • Defined in DOS regulations at 22 CFR 20.41(a)(6).
  • Includes offenses that resulted in a conviction obviously based on fabricated charges or predicated on repressive measures against racial, religious, or political minorities.

• INA  212(a)(2)(A)(ii)(I) (also referred to as the “Juvenile Offense Exception”):
  • Only 1 CIMT was committed, and
  • The alien was under age 18 at the time, and
  • The CIMT was committed and the alien was released (if confined) more than 5 years before the date of application for a visa, admission, or adjustment of status.

• INA 212(a)(2)(A)(ii)(II) (also referred to as the “Petty Offense Exception”):
  • Only 1 CIMT was committed, and
  • The maximum penalty possible did not exceed 1 year, and
  • If convicted, the sentence imposed did not exceed 6 months (regardless of the time actually served).

Multiple Convictions under INA Section(a)(2)(B)

It is important to add that under INA 212(a)(2)(B), an alien is inadmissible if he/she has been convicted of 2 or more offenses (other than purely political offenses), regardless of whether the crimes involved moral turpitude, for which the combined sentences were 5 years or more.  Conversely, if an alien has been convicted of two or more crimes that do not involve moral turpitude, prostitution, or controlled substances, and the alien was sentenced to less than 5 years of imprisonment, the alien is not inadmissible based on those convictions.

Convictions and Vacating a Conviction

In 1996, Congress adopted a statutory definition of conviction for immigration purposes.  The definition of conviction was made deliberately broad in scope.  It is set out in INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), as follows:

“The term ‘conviction’ means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where:

(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

Under this definition, a disposition may constitute a conviction either with a formal judgment of guilt or without a formal judgment.

If a court vacates a conviction on the merits or for a constitutional or statutory defect, then there may be no conviction for immigration purposes (though the applicant may still be inadmissible if the applicant admits to having committed acts that constitute inadmissibility grounds).  See Matter of Rodrigues-Ruiz, 22 I&N Dec. 1378 (BIA 2000).  See Matter of Sirhan, 13 I&N Dec. 592.  For example, if a conviction is vacated for ineffective assistance of counsel through a motion for appropriate relief, there is no longer a conviction for immigration purposes.

The conviction is not eliminated for immigration purposes, however, if it was vacated for reasons “solely related to rehabilitation or immigration hardships, rather than on the basis of a procedural or substantive defect in the underlying criminal proceedings.” Matter of Pickering, 23 I&N Dec. 621 (BIA 2003); cf. Yanez-Popp v. INS, 998 F.2d 231, 235 (4th Cir. 1993) (“Unless a conviction is vacated on its merits, a revoked state conviction is still a ‘conviction’ for federal immigration purposes.”).

Waiver for Crime Involving Moral Turpitude

It thus becomes critical to examine your criminal history when applying for admission to the United States  in order to determine whether any of the conviction(s) (or admission to the essential elements of a crime) in your past, subject you to one of the criminal grounds of inadmissibility.  If you are deemed inadmissible because you were convicted (or admitted to the essential elements) of a crime involving moral turpitude, then the I-601 waiver for immigrants, or 212(d)(3) waiver for non-immigrants, is required to waive this ground of inadmissibility.

Section 212(b) of the Act provides, in pertinent part:

The Attorney General [Secretary of Homeland Security] may, in his discretion, waive the application of subparagraph (A)(i)(r) … of subsection (a)(2) … if-

(1) (A) in the case of any immigrant it is established to the satisfaction of the Attorney General [Secretary] that —

(i) … the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application for a visa, admission, or adjustment of status,
(ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and
(iii) the alien has been rehabilitated; or

(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General [Secretary] that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien … ; and

(2) the Attorney General [Secretary], in his discretion, and pursuant to such terms, conditions and procedures as be may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission t o the United States, or adjustment of status.

So What is a Crime Involving Moral Turpitude?

A common question thus asked is: “Is my conviction a crime involving moral turpitude?”

A detailed legal discussion from the Board of Immigration Appeals concerning crimes involving moral turpitude follows below.  At the end of this article, a more comprehensive list of common Crimes Against Property can be found, categorized by whether they are or are not CIMT.

The Board of Immigration Appeals (BIA) held in Matter of Perez-Contreras, 20 I&N Dec. 615, 617-18 (BIA 1992),that:

Moral turpitude is a nebulous concept, which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general….

In determining whether a crime involves moral turpitude, we consider whether the act is accompanied by a vicious motive or corrupt mind. Where knowing or intentional conduct is an element of an offense, we have found moral turpitude to be present. However, where the required mens rea may not be determined from the statute, moral turpitude does not inhere.

Crimes Against Property Found To Involve Moral Turpitude

Please note that this list is provided only for informational purposes.  Precedent decisions change case law over time and I always perform an in-depth analysis of my client’s criminal history to determine the best course of action.

CRIMES AGAINST PROPERTY NOT INVOLVING MORAL TURPITUDE

Please note that this list is provided only for informational purposes.  Precedent decisions change case law over time and I always perform an in-depth analysis of my client’s criminal history to determine the best course of action.

*1. Breaking and Entering/Unlawful Entry.

2. Possession of Stolen Property Without Guilty Knowledge.

*3 (a). Malicious Mischief.

*3(b). Damaging Private Property (Without Intent).

*4. Failure to Pay Ship Fare.

*5. Depositing a Slug in a Coin Box.

6. Passing a Check Without Sufficient Funds (Without Intent to Defraud).

7. Loan Sharking.

*8. Making False Statements to a Federal Agency.

9. Making False Statements (Canadian Law).

10. Conducting an Illegal Lottery.

11. Joyriding.

*12. Possession of Burglary Tools.

13. Juvenile Delinquency.