Crime involving moral turpitude is a ground for removal

by Atty. Emmanuel Samonte Tipon

The Immigration and Nationality Act (INA) provides that any “alien convicted, or who admits having committed, or who admits committing acts which constitute the essential elements of . . . a crime involving moral turpitude . . is inadmissible”. 8 U.S.C. Section 1182 (A)(2)(A)(i)(I).

The INA also provides that any alien who is “convicted of a crime involving moral turpitude . . . committed within five years (or in the case of an alien provided lawful permanent resident status . . ) after the date of admission, and is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.” Furthermore, “any alien who at any time after admission is convicted of two or more crimes involving moral turpitude . . . is deportable.” 8 U.S.C. Section 1227(a)(2)(A)(i-ii).

An interpreter translated into Ilocano the term “crime involving moral turpitude” (CIMT) as “crimen iti moralidad nga torpe” (crime of moral stupidity). However, “turpitude” has nothing to do with stupidity, unless one considers committing a crime “stupid”.

As usual, the brilliant (or stupid?) legislators used a term in the Immigration and Nationality Act (INA) without defining it, leaving it to the courts to concoct a definition.

Thus, one court said: "The INA does not define ‘moral turpitude.’  Absent a statutory definition, courts have defined the term as an ‘act of baseness or depravity contrary to accepted moral standards.’ Grageda v. INS, 12 F.3d 919, 921 (9th Cir.1993).

The Board of Immigration Appeals which reviews decisions of Immigration Judges (IJ) defined a "crime involving moral turpitude" in this wise: "As a general rule, a crime involves ‘moral turpitude’ if it is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Matter of Olquin, 23 I&N Dec. 896, 896 (BIA 2006).

The Board also said that “Whether a particular crime involves moral turpitude is determined by reference to the statutory definition of the offense and, if necessary, to authoritative court decisions in the convicting jurisdiction that elucidate the meaning of equivocal statutory language. . .  However, we may not consider the actual conduct underlying the conviction."  Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006).

Last Friday, May 17, 2013, the Court of Appeals for the Ninth Circuit came out with a precedent decision, Olivas-Motta v. Holder, No. 10-72459, CA9, 05/17/2013, saying that “crime involving moral turpitude” is a “ ‘term of art’ describing a generic crime”. The Court said that the term is not ambiguous and that “A ‘crime involving moral turpitude’ is a generic crime whose description is complete unto itself, such that ‘involving moral turpitude’ is an element of the crime. Because it is an element of the crime, the IJ is limited to the record of conviction in determining whether an alien has been ‘convicted of’ a CIMT. . . The IJ and BIA improperly considered evidence beyond the record of conviction in holding that [the alien] was ‘convicted of’ a crime involving moral turpitude.”

RECOMMENDATION: Counsel for an alien charged with removability for having been convicted of a crime involving moral turpitude should object during the removal proceedings to any evidence introduced by the government other than the record of the alien’s conviction, such as police reports and testimony of witnesses describing details of the crime. Furthermore, counsel should move for the termination of the removal proceedings where the statutory provisions under which the alien was convicted do not contain the elements of "baseness or depravity" and "willfulness" that are required in order for the crime to be considered a "crime involving moral turpitude". See  Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. 2006).   “It is the combination of the base or depraved act and the willfulness of the action that makes the crime one of moral turpitude." "[C]orrupt scienter is the touchstone of moral turpitude." Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. 2006).


(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com; www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)