When Criminal Activity Derails U.S. Travel Plans-what is a Crime of Moral Turpitude?

Persons who have in the past been arrested, charged or convicted of criminal behaviour can face significant hurdles gaining admission to the United States.  Failing to address this possibility can result in aborted travel plans, cancellations of lucrative business deals or performing tours, and the loss of promised U.S. employment.    The time to deal with this potential roadblock to entry is not when you're standing in line at a U.S. Port of Entry, but well in advance, before you plan to travel to the States and before your visa interview takes place. 

How do U.S. consular and immigration officials evaluate criminal behaviour for purposes of determining admissibility to the United States?   

Under U.S law, persons who have violated laws concerning certain

controlled substances, or who have committed certain other criminal acts, are ineligible for admission to the United States.  Although the grounds of exclusion for violation of drug laws seems relatively straightforward, the question of whether other  specific acts give rise to a finding of inadmissibility is not so easily answered.   The  language of the Immigration and Nationality Act (INA) governing excludable aliens is the culprit, for it contains one of the more curious terms in U.S. jurisprudence-the "crime of moral turpitude". 

A crime involving moral turpitude, or CIMT, is an offense that is, as one court put it, conduct that is "inherently vile or depraved, contrary to the accepted rules of morality...morally reprehensible and intrinsically wrong."  This stirring statement of principle isn't really very helpful, because the absence of any statutory definition of "crime involving moral turpitude" has led to endless arguments about what kinds of acts or conduct should be defined as "morally turpitudinous" within the meaning of the law.    

Confronted with a client with a criminal record, immigration counsel must examine the facts in the case carefully, and, in particular, the language of the criminal statute involved, to determine whether a CIMT has been committed that could result in the client being inadmissible to the United States.  This can be a difficult and murky process, because U.S. courts have been struggling to define CIMTs for years with mixed success.  The courts have generally held that crimes against the person such as assault, rape, murder, involuntary manslaughter, robbery, and other violent crimes, are CIMTs.  However, the absence of recklessness has been held to be a mitigating factor by some courts for acts that might otherwise be seen as CIMTs.  For example the courts  have split on whether simple assault on a law enforcement officer is a CIMT, with some holding the act itself is sufficient to find a CIMT, while others consider the absence of intention to harm removes these offenses from the definition of CIMTs.

The courts also consider many crimes against property to be CIMTs if they can be defined as inherently wrong, such as arson, blackmail, burglary, embezzlement, and, in some jurisdictions, shoplifting.   But some property crimes have been considered by some courts not to be CIMTs, including passing bad checks (in the absence of intent), malicious destruction of property, and "rioting". 

Then there is the matter of sexual offenses.  Society's definition of what is morally reprehensible sexual conduct has changed considerably over the years, which makes determining whether a CIMT has been committed rather challenging.  To illustrate:  adultery has been defined by some courts as being a CIMT, along with bigamy and incest, and at least one decision defines oral sex as a CIMT.  On the other hand, "indecent conduct" is not always defined as a CIMT because intent is sometimes not present, while "lewdness" has been both included and excluded from the list of CIMTs by different courts.    

There does not have to have been an actual criminal charge and conviction in order for an individual to be held to be excludable from the US for having committed a CIMT.  If the individual admits to having committed the elements of a CIMT, and the admission is freely and voluntarily made, then the individual can be found excludable from the U.S. even in the absence of a formal criminal conviction for the conduct. 

This is a troubling area for public figures who have "lived large" in the public eye and in doing so have put themselves as risk for exclusion for having admitted to the elements of a CIMT. 

To complicate matters even further, certain acts that could be defined as being CIMTs may not be considered as such if the person committing the act was under the age of 18 at the time and the act was committed more than five years prior to the application  for entry to the U.S. or for a U.S. visa.  And certain acts by aliens are not subject to the CIMT exclusion if the conviction is for a CIMT that falls under the definition of a "petty offense", that is, offenses involving a maximum penalty of imprisonment not to exceed one year and where an actual sentence of not more than six months was imposed.  However, the "petty offense" exception does not cover drug-related offenses, even when the actual sentence was less than six months or no sentence was imposed at all.

Any reasonable individual would be justified in feeling totally confused at this point as to whether their commission of specific acts places them at risk of exclusion from the U.S. for having committed a CIMT.  U.S. consular officers share this confusion when adjudicating cases where the applicant has a criminal record or admits to the elements of what could be a CIMT.  In such circumstances, access to competent legal advice is crucial to determining if a CIMT has been committed, and if so, on what basis the applicant can still be admitted to the United States. 

The good news in this regard is that there are waivers available under U.S. law that will allow most individuals who have committed CIMTs to enter the U.S. temporarily for legitimate purposes.  However, processing waiver requests take time, so if you or any of your employees have a prior arrest record in any jurisdiction, or have engaged in public behaviour that could give rise to a finding of "moral turpitude", you should consult with counsel in advance of any attempt to obtain U.S. visas or enter the U.S. under the visa waiver program. The alternative is visa denial and the disruption of carefully laid business or tourism plans in the U.S.