Crimes of Moral Turpitude

 

Prostitution has been held to involve moral turpitude.[205]

 

There are relatively few cases ruling directly on the moral turpitude of prostitution for purposes of the statutes under consideration, probably due to the fact that prostitution and related activities are an independent ground for the exclusion or deportation of aliens. 8 U.S.C. § 1182(a)(12) provides for the exclusion of “[a]liens who are prostitutes or who have engaged in prostitution, or aliens coming to the United States solely, principally, or incidentally to engage in prostitution; aliens who directly or indirectly procure or attempt to procure, or who have procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution or for any other immoral purpose; and aliens who are or have been supported by, or receive or have received, in whole or in part, the proceeds of prostitution or aliens coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution”; and 8 U.S.C. § 1251(a)(12) provides for the deportation of any alien who has become a member of any of the above specified classes at any time after entry, as well as any alien who “is or at any time after entry has been the manager, or is or at any time after entry has been connected with the management, of a house of prostitution or any other immoral place.” Since these portions of the immigration statutes appear to be quite definitive on the subject, there would seem to be little need for the courts or the immigration authorities to rule on the moral turpitude of crimes involving prostitution.[206]

 

Offenses involving prostitution have generally been held to be crimes involving moral turpitude.

 

Lane v. Tillinghast, 38 F.2d 231 (1st Cir. 1930) (CMT found where female noncitizen had been convicted under a “lewdness” statute, but had been charged with “frequenting houses of ill fame,” and had been found to have admitted having promiscuous sexual intercourse with men for money);

Matter of Lambert, 11 I. & N. Dec. 340 (BIA 1965) (conviction for offering to secure another for the purpose of prostitution in violation of § 796.07 of Florida Statutes and § 26-77 of the City of Tampa Code is conviction of a crime involving moral turpitude);

Matter of W, 4 I. & N. Dec. 401 (BIA 1951) (conviction of violation of an ordinance of the city of Seattle, Wash., relating to practicing prostitution, deemed to be a crime involving moral turpitude);

Matter of E, 1 I. & N. Dec. 505 (BIA 1943) (attempted compulsory prostitution of women in violation of New York Penal Law § 2460 is a crime involving moral turpitude).

 

Knowingly maintaining or permitting maintenance of a house of prostitution are also held CMT.

 

Ablett v. Brownell, 240 F.2d 625 (D.C. Cir. 1957) (English conviction for keeping a brothel, under § 13(3) of the Criminal Law Amendment Act of 1885, Part II, held a crime involving moral turpitude);

Matter of Lambert, 11 I. & N. Dec. 340 (BIA 1965) (renting rooms for prostitution; also offering to secure prostitute);

Matter of A, 5 I. & N. Dec. 546 (BIA 1953) (summary conviction for being willfully a party to the continued use of premises as a brothel is a felony or other crime or misdemeanor and is a conviction for a crime involving moral turpitude, since the element of willfulness requires criminal intent);

Matter of W, 3 I. & N. Dec. 231 (BIA 1948) (conviction of keeping a “bawdy house” under Canada Criminal Code § §  229(1), (2) involves moral turpitude);

Matter of A, 3 I. & N. Dec. 168 (BIA 1948) (conviction of maintaining a place for purposes of prostitution under Massachusetts General Laws, c. 139, § § 4, 5, held not invariably to require evil intent to practice immorality for hire, and therefore does not invariably involve moral turpitude; record of conviction does not furnish sufficient detail for a determination as to whether this violation is accompanied by such evil intent);

Matter of P, 3 I. & N. Dec. 20 (BIA 1947) (conviction of keeping a house of ill-fame resorted to for the purposes of prostitution and lewdness in violation of California Penal Code § 315 (1939) involves moral turpitude);

Matter of VS, 2 I. & N. Dec. 703 (BIA 1946) (conviction of keeping a disorderly house, to wit, a common bawdy house, in violation of Canada Criminal Code § 229, involves moral turpitude);

Matter of C, 2 I. & N. Dec. 367 (BIA 1945) (maintaining a disorderly house in violation of the penal ordinance set forth in § 2 of Chapter 9 of the city ordinance of Buffalo, N.Y., is not a felony or other crime or misdemeanor within the meaning of the Immigration Act);

Matter of G, 1 I. & N. Dec. 217 (BIA 1942) (a noncitizen is not deportable as a person who had been found managing a house of prostitution when the only evidence to support the charge was his conviction for keeping a disorderly house under New York Penal Law § 1146).

 

            See also Ablett v. Brownell, 240 F.2d 625 (D.C. Cir. 1957) (dictum expressing doubt whether the British offense of “willfully being a party [as a landlord] to the continued use” of leased premises as a brothel was properly to be construed as a crime involving moral turpitude).

 

Pandering has been held to involve moral turpitude.[207]

 

Matter of Lambert, 11 I. & N. Dec. 340 (BIA 1965) (offering to secure a person for purposes of prostitution in violation of a Florida statute and a city ordinance, and letting or renting rooms with knowledge that the rooms were to be used for the purpose of lewdness, assignation, or prostitution, in violation of the city ordinance, were crimes involving moral turpitude);

Matter of P, 3 I. & N. Dec. 290 (BIA 1949) (“pandering” involved moral turpitude);

Matter of SL, 3 I. & N. Dec. 396 (BIA 1948) (California conviction of pandering, charged as procuring a woman a place as an inmate of a house of prostitution, involves moral turpitude, since it is a crime in which assistance and aid is given to the carrying on of the business of prostitution and therefore partakes of the turpitudinous nature of prostitution).

 

            Some offenses which may be considered as relating to prostitution have been held NOT to be crimes involving moral turpitude. 

 

Matter of R, 6 I. & N. Dec 444 (BIA 1954) (violation of the Mann Act was not a crime involving moral turpitude where the conduct giving rise to the noncitizen’s conviction did not involve commercialized sex, but apparently consisted of the mere act of transporting a consenting female across state lines for purposes of indulging in sexual relations with her, which the Board characterized as simple fornication, which has itself been held not to involve moral turpitude);

Matter of A, 3 I. & N. Dec 168 (BIA 1948) (conviction held not CMT under Massachusetts nuisance statute imposing criminal liability upon anyone keeping or maintaining a building or part of a building used for prostitution, assignation, or lewdness, since there was no requirement of evil intent or guilty knowledge, the statute was so broadly drawn that the court could not find that a violation in every instance would be accompanied by an evil intent to practice immorality for hire, and the complaint charged the crime only in the words of the statute, and was not “of sufficient detail” to allow a determination that the offense involved moral turpitude).

 

            No published case has yet decided whether solicitation of a prostitute is a crime of moral turpitude for immigration purposes.  There is an argument that even if solicitation is a CMT, the commission of the offense cannot render a noncitizen inadmissible.[208]  An alien is inadmissible if convicted of a crime involving moral turpitude “or an attempt or conspiracy to commit such a crime . . . .”[209]  It could be argued that a solicitation conviction is not a crime of moral turpitude because the statute does not specifically state that solicitation to commit a crime constitutes a crime of moral turpitude.  The plain language of the statute limits inadmissibility to conspiracy and attempt, but not solicitation.  See § 9.84, supra.

[205] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a)(14).

[206] 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[g], n.79 (1975).

[207] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a)(12).

[208] Seee.g. Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997); Matter of Espinoza-Gonzalez, 22 I. & N. Dec. 889 (BIA 1999) (en banc) (misprision of felony not listed).

[209] INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I).