Crimes of Moral Turpitude

(A)

Intent to Defraud.  The courts have consistently held offenses with intent to defraud as an essential element to be crimes involving moral turpitude.[83]  The Supreme Court held that an element of fraud has consistently been regarded as such a mark of evil or corrupt intent that American courts invariably consider all such crimes as being offenses involving moral turpitude.[84]  Fraud has ordinarily determined whether crimes not of the gravest character involved moral turpitude, and whatever else the phrase “crime involving moral turpitude” may mean in peripheral cases, crimes in which fraud was an essential element have always been regarded as crimes involving moral turpitude.  In every deportation case where fraud has been proved, federal courts have held that the crime in issue involved moral turpitude.  See also, § 9.55, infra.

            In dictum, and in a concurring opinions part of the decision, Judge Pregerson of the Ninth Circuit challenged the idea that all fraud offenses are crimes of moral turpitude, based on the idea that certain examples of fraud, such as using an older brother’s identification to buy beer, are too minor to be considered “base, vile, and depraved conduct that shocks the conscience and is contrary to the social duties we owe each other.”[3]  On the other hand, the traditional case law in the Ninth Circuit appears to treat fraud offenses separately from all other crimes of moral turpitude.[85]  In response to the dictum, Judge Reinhardt noted United States Supreme Court authority stating that all fraud involves moral turpitude, and that to begin to apply a different test to fraud offenses now would render prior case law meaningless and dilute the meaning of the phrase “base, vile and depraved” to the point where almost any offense could be considered a CMT.[86] 

[87] E.g., Matter of McNaughton, 16 I. & N. Dec. 569, 574 (BIA 1978).

[83] Jordan v. De George, 341 U.S. 223 (1951).

[84] Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1068-1069 (9th Cir. Sept. 19, 2007) (Pregerson, J. concurring).

[85] See Navarro-Lopez v. Gonzales, 503 F.3d at 1079 (Tallman, J. dissenting) (“Our case law plainly establishes two broad and wholly distinct categories of crimes involving moral turpitude: those ‘involving fraud and those involving grave acts of baseness or depravity.’”), citing Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir. 2005).  See also, Matter of Solon, 24 I. & N. Dec. 239, 240-241 (BIA Jul. 25, 2007) (“Fraud is categorized as a crime involving moral turpitude, as are other offenses involving acts of baseness and depravity, even though they have no element of fraud. . . .”).

[86] Navarro-Lopez v. Gonzales, 503 F.3d at 1075 (Reinhardt, J., concurring).