The following is a brief written on behalf of a client currently facing deportation for crimes that the government is considering to be crimes involving moral turpitude.
Respondent in this particular case will try to show that he is not an alien who has been convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude or an attempt or conspiracy to commit such a crime. And thus, respondent is not inadmissible and not subject to removal from the United States.
Respondent was convicted of Bail Jumping on May 2, 1995. Bail Jumping is not a crime involving moral turpitude (CIMT). A CIMT “refers generally to conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general…Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.” Matter of Flores, 17 I&N Dec. 225, 227 (BIA 1980). It is fairly obvious that missing court is not a crime that is inherently base, vile, or deprived and contrary to the accepted rules of morality.
In determining a CIMT, it is the “inherent nature of the crime.” Matter of Short, 20 I&N Dec. 136 (BIA 1989). The crime must be one which is per se morally reprehensible and intrinsically wrong or malum in se. Beltran-Tirado v. INS, 213 F.3d 1179, 1184 (9th Cir. 2000). The crime of bail jumping is not “wrong and evil in itself”. It is not a crime which just the inherent nature of which would shock the general public. Also, before one can be convicted of a CIMT, the statute in question by its terms, must necessarily involve moral turpitude, Matter of L-V-C-, 22 I&N Dec. 594, 603 (BIA 1999). In this case, New York Penal Law Section 215.55 – Bail Jumping in the Third Degree, does not meet this criteria. The statute reads as follows:
“A person is guilty of bail jumping in the third degree when by court order he has been released from custody or allowed to remain at liberty, either upon bail or upon his own recognizance, upon condition that he will subsequently appear personally in connection with a criminal action or proceeding, and when he does not appear personally on the required date or voluntarily within thirty days thereafter. Bail jumping in the third degree is a class A misdemeanor.”
Nothing in that statute involves moral turpitude, or a crime that is morally reprehensible and intrinsically wrong. The general public would not be outraged at an individual committing this crime. And nothing in the statute by its terms involves moral turpitude.
Bail Jumping is also not considered an Aggravated Felony in the immigration context. Bail Jumping only rises to the level of an Aggravated Felony in the eyes of immigration when the underlying offense is punishable by imprisonment for a term of 5 years or more. In this case it is a Class A Misdemeanor, and in New York a Class A Misdemeanor is only punishable by up to one year in jail.
Respondent was also convicted of Petit Larceny in New York on May 2, 2995. While larceny on its face may be considered a CIMT, this particular crime falls under the Petty Offense Exception. The petty offense exception states that an alien is not inadmissible if the CIMT conviction is for a petty offense. A conviction is considered a petty offense where “the maximum penalty possible for the crime of which the alien was convicted did not exceed imprisonment for one year and the alien was not sentenced to a term of imprisonment in excess of six months.” INA §212(a)(2)(A)(ii)(II).
In this case Petit Larceny is a Class A Misdemeanor which is NOT punishable by more than 1 year, and respondent was not sentenced to a term of imprisonment in excess of six months. Respondent received 3 years of Probation which he successfully completed. And an undesignated probationary sentence may not be considered a sentence for the maximum period. LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999).
The petty offense exception is not applicable if more than one CIMT offense has been committed or admitted. Matter of Jurado, 24 I&N Dec. 29, 34-35 (BIA 2007). However, it remains effective where one of the two offenses was not for a CIMT. Matter of Garcia-Hernandez, 23 I&N Dec. 590, 594-95 (BIA 2003). In this case as previously stated, Bail Jumping is not a CIMT, and therefore the petty offense exception is applicable in this case.
Finally, if it is contested that either one of these crimes is in fact a CIMT, the Department of Homeland Security always bears the burden of proving that a crime is a CIMT by clear and convincing evidence. See e.g., Matter of Tobar-Lobo, 24 I&N Dec. 143, 144 (BIA 2007).
Because neither Bail Jumping nor Petit Larceny are considered CIMT, we believe that the respondent is not inadmissible to the United Stated and is not subject to removal. We ask the court to consider Respondents brief and to not sustain the charge of removability under Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act.
