Crimes of Moral Turpitude

(B)

Application to Crimes of Moral Turpitude.  The principle underlying the Duenas decision – that convictions of aiding and abetting a substantive offense fall within the aggravated felony definition of the substantive offense, arguably applies to all crimes of moral turpitude.  While it is possible to develop an argument that Congress, by specifically listing “aiding and abetting” in some contexts, intentionally excluded others, counsel should probably assume that the reasoning of Duenas will be applied generally to the CMT context.

            A conviction of aiding and abetting the commission of a substantive offense will sometimes be considered a crime involving moral turpitude, and sometimes not.  If the substantive offense is a CMT, a conviction for aiding the commission of that offense will likewise constitute a CMT.[14]  Conversely, a conviction of aiding and abetting the commission of an offense that is not a CMT will not be considered a CMT.[15]

[14] 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.

[15] “Conversely, where an alien has been convicted of, or admits having committed the essential elements of, a criminal attempt, or a criminal act of aiding and abetting, accessory before or after the fact, or conspiracy, and the underlying crime is not deemed to involve moral turpitude, then INA 212(a)(2)(A)(i)(I) would not come into play.” 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a), N. 2.4(b).