Safe Havens

The elements of this ground of deportation are as follows:

(a) two convictions

(b) after admission

(c) of a crime

(d) of moral turpitude

(e) not arising as part of a single scheme of criminal misconduct.

Conviction of two crimes involving moral turpitude — committed at any time after admission and regardless of sentence — is a basis for deportation unless the offenses arose as part of a “single scheme of criminal misconduct.” [1042]  There is no time requirement, and all CMTs trigger this result, regardless of the potential or imposed sentence.[1043]  This ground of deportation also does not depend on the degree of moral turpitude.[1044]  A 1971 and a 1997 conviction for misdemeanor petty theft, for example, each with a maximum of six months in jail, will combine to make the defendant deportable.

The statute is generally held to be retroactive.[1045]  This provision therefore applies to convictions occurring prior to the revisions of the statute in 1952.[1046]  This retroactivity does not violate the ex post facto clause of the Constitution, since immigration proceedings are held to be civil, not criminal, in nature.[1047]

[1042] INA § 237(a)(2)(ii), 8 U.S.C. § 1227(a)(2)(ii).

[1043] In 1952, the INA revised the multiple-CMT deportation ground to eliminate the prior requirement that each conviction result in a sentence of one year or more.  S. Rep. No. 82-1137, at 21 (1952); H.R. Rep. No. 82-1365, at 60 (1952), reprinted in 1952 U.S.C.C.A.N. 1653.  The statute now provides that a noncitizen will be deported for two convictions at any time after admission, of crimes involving moral turpitude, regardless what sentence is imposed, and even if the execution or imposition of the sentence was wholly suspended.  Matter of P, 8 I. & N. Dec. 424 (BIA 1959); Matter of O, 7 I. & N. Dec. 539 (BIA 1957). 

[1044] Wyngaard v. Kennedy, 295 F.2d 184 (D.C. Cir. 19); Babouris v. Esperdy, 269 F.2d 621 (2d Cir. 1959).

[1045] See C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § § 71.01[2][a], [b] (2004).

[1046] Khan v. Barber, 253 F.2d 547 (9th Cir. 1958).

[1047] See C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 71.02[3][d] (2004).