Waiver of Inadmissibility: Crimes Involving Moral Turpitude

If a person has been convicted of a crime at any time in his or her past, that person may be "inadmissible" to the United States.  "Inadmissible" means that he or she may not be admitted to the United States under current law.  One of the grounds of inadmissibility to the United States applies to persons who have been convicted of a crime involving moral turpitude.


Crimes involving moral turpitude may include (depending on the facts of the case, the statute, and the elements of the statute), assault, sexual assualt/rape, manslaughter/murder convictions, arson, theft, forgery, perjury, prostitution, fraud, and others.  A crime involving moral turpitude refers generally to "conduct which 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 Franklin, 20 I. & N. Dec. 867, 878 (BIA 1994). 


Because of the wide range of convictions that may constitute crimes involving moral turpitude, if you have a criminal conviction, you should consult with an immigration attorney to determine whether it renders you inadmissible to the United States.  If you are inadmissible to the United States because of a crime involving moral turpitude, you may be eligible for a nonimmigrant waiver of inadmissibility, which is granted by the U.S. Department of Homeland Security upon application by the individual.   The Department of Homeland Security will carefully review the application and supporting documentation, and will consider the following factors:  1) the risk of harm to society if the applicant is admitted; 2) the seriousness of the applicant’s criminal law violation; and 3) the nature of the applicant’s reasons for wishing to enter the United States. 


If you have a criminal conviction, and would like to discuss applying for a waiver of inadmissibility, please contact me at (716) 854-1541 for a consultation. 

Eighth Circuit on Crimes Involving Moral Turpitude

The United States Court of Appeals for the Eighth Circuit recently issued a new decision analyzing the methodology used to determine whether a conviction is a crime involving moral turpitude.  Bobadilla v. Holder, 11-1590 (8th Cir. May 29, 2012). 


A crime involving moral turpitude refers generally to "conduct which 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 . . . an act which is per se morally reprehensible and intrinsically wrong, or malum in se so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.”  Matter of Franklin, 20 I. & N. Dec. 867, 878 (BIA 1994). 


In this case, the Petitioner was convicted in Minnesota of giving a false name to a police officer.  The Immigration Judge found that he was convicted of a crime involving moral turpitude, because fraud was "an element of the offense."  The Board of Immigration Appeals affirmed, relying on Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008). 


In Silva-Trevino, the Attorney General set forth a three step framework for the analysis of whether a crime is one that involves moral turpitude.  A court "should engage in a categorial inquiry and look first to the statute of conviction rather than to the specific facts of the alien’s crime."  Id. at 688.  The Attorney General adopted a "realistic probability" standard: "It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime."  Id. at 697.  Where there is a realistic possibility that the crime could be applied to conduct that does not involve moral turpitude, judges “should proceed with a ‘modified categorical’ inquiry," examining "whether the alien’s record of conviction – including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea and the plea transcript – evidences a crime that in fact involved moral turpitude."  If the modified categorical approach is still inconclusive, "judges may, to the extent they deem it necessary and appropriate, consider evidence beyond the formal record of conviction.”  Id. at 690.

The Eighth Circuit found that the Attorney General's analysis in Silva-Trevino is a reasonable construction of the statute, and must be given deference.  The Court found that the BIA failed to follow the methodology set forth in Silva-Trevino, and remanded for further proceedings.