Safe Havens

(C)  Malum Prohibitum and Malum in Se.  In determining whether a conviction constitutes a crime of moral turpitude, many courts consider whether the offense is malum in se or malum prohibitum. [950]  Escape without violence or breaking was considered “malum prohibitum,” rather than a crime of moral turpitude.[951]  “While it is generally the case that a crime that is ‘malum in se’ involves moral turpitude and that a ‘malum prohibitum’ offense does not, this categorization is more a general rule than an absolute standard.” [952]  The BIA agreed that “[S]imple DUI is ordinarily a regulatory offense that involves no culpable mental state requirement, such as intent or knowledge.”[953]  “We find that the offense of driving under the influence under Arizona law, does not, without more, reflect conduct that is necessarily morally reprehensible or that indicates such a level of depravity or baseness that it involves moral turpitude.”[954]

            Use of another’s social security card to work and establish credit in the United States[955] did not constitute a crime involving moral turpitude, so as to disqualify the applicant from establishing good moral character on a registry application.  The conduct penalized in these statutes — working and establishing credit under a different name — was malum prohibitum, rather than malum in se.[956] 

[950] Annot., What Constitutes “Crime Involving Moral Turpitude” Within Meaning of § § 212(a)(9) and 241(a)(5) of Immigration and Nationality Act (8 U.S.C. § § 1182(a)(9), 1251(a)(4)), and Similar Predecessor Statutes Providing for Exclusion or Deportation of Aliens Convicted of Such Crime, 23 A.L.R. Fed. 480, § 12[a], n.65 (1975).

[951] Matter of J, 4 I. & N. Dec. 512 (BIA 1951) (conviction of attempt to escape from reformatory in violation of Chapter 268, § 16 of the Annotated Laws of Massachusetts is “malum prohibitum” and does not involve moral turpitude, since “escape” is not defined by statute and the wording of the statute does not require a specific criminal intent). 

[952] Matter of Lopez-Meza, 22 I. & N. Dec. 1188, 1193 (BIA December 21, 1999) (“aggravated” driving under the influence convictions, under Arizona state law, constitute convictions of crimes involving moral turpitude since the statutory elements require that the driver know s/he is prohibited from driving under any circumstances).

[953] Id. at 1194.

[954] Ibid.

[955] 42 U.S.C. § 408(a)(7)(B) (1988); 18 U.S.C. § 1546(b)(3).

[956] Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000).