Crimes of Moral Turpitude

Attempt to commit an offense constitutes a crime involving moral turpitude if the substantive offense constitutes a CMT.[156]  It is not a CMT if the substantive offense does not constitute a CMT.[157]  At least one court has held that a person cannot “attempt” to commit a “reckless” act, so a conviction for “attempted reckless endangerment,” for example, is not logically possible, and should be vacated.[158]

United States ex rel. Meyer v. Day, 54 F.2d 336 (2d Cir. 1931) (attempted grand larceny);

Matter of Bronsztejn, 15 I. & N. Dec. 281 (BIA 1974) (attempted possession of marijuana);

Matter of Katsanis, 14 I. & N. Dec. 266 (BIA 1973) (Greek conviction of attempted fraud held CMT; an attempt requires specific intent to commit the substantive crime, and if doing so is a CMT, so also is the attempt, for it is in the intent that moral turpitude inheres);

Matter of Awaijane, 14 I. & N. Dec. 117 (BIA 1972) (Lebanese attempted murder conviction; no distinction for this purpose between the commission of the substantive offense and the attempt to commit it);

Matter of Moore, 13 I. & N. Dec. 711 (BIA 1971) (breaking and entering with intent to commit larceny is a CMT; an attempt to commit the same offense would also be a CMT, since there is no distinction for this purpose between the commission of the substantive offense and the attempt to commit it).

[156] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a), N. 2.4(a)(1).

[157] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a), N. 2.4(a)(2). The Manual also says that being an accessory before the fact constitutes a CMT, without limiting this statement to substantive offenses that are CMTs.  Since accessory before the fact and aiding and abetting are equivalent, this was doubtless an error in the Manual.

[158] Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. Sept. 17, 2004) (New York conviction of attempted reckless endangerment in the first degree, in violation of New York Penal Law § 120.25, does not constitute a crime of moral turpitude for deportation purposes, since a person cannot intend to commit a criminally reckless act, and the “crime of attempted reckless endangerment is nonexistent since it is a non-intent offense.”), citing People v. Trepanier, 84 A.D.2d 374, 380, 446 N.Y.S.2d 829 (N.Y.App.Div.1982) (affirming the lower court’s decision to dismiss the indictment as to this charge).