Crimes of Moral Turpitude and Aggravated Felonies in Massachusetts Criminal Cases: Immigration Consequences

Scope of representation. Serpa Law Office represents non-citizen defendants on the criminal side of Massachusetts court proceedings only. Attorney Serpa does not represent clients in immigration court, before the Board of Immigration Appeals, or in removal proceedings. For representation in removal proceedings or before USCIS, clients should retain experienced immigration counsel. For complex matters requiring coordination between criminal defense and immigration counsel, Attorney Serpa works with the client’s immigration attorney to ensure that the criminal defense strategy accounts for all immigration consequences at every stage of the case.

The Categorical Approach: Elements, Not Facts

Whether a Massachusetts criminal conviction triggers immigration consequences as a crime of moral turpitude (CIMT) or an aggravated felony depends not on what the defendant actually did, but on the elements of the Massachusetts criminal statute and whether those elements match the generic federal definition of the immigration-triggering category. This is the categorical approach, established in Taylor v. United States (495 U.S. 575, 1990) and refined in Descamps v. United States (570 U.S. 254, 2013) and Mathis v. United States (579 U.S. 500, 2016).

Under the categorical approach, the immigration court looks only at the statutory elements of the Massachusetts offense, not the conduct of the specific defendant. If the Massachusetts statute is broader than the generic federal definition (i.e., it can be violated in ways that would not constitute the immigration-triggering category), the Massachusetts offense is not categorically a CIMT or an aggravated felony, even if the defendant’s actual conduct would have qualified.

The modified categorical approach applies when the statute is divisible, when it lists alternative elements in the disjunctive. In that case, the immigration court may examine the record of conviction (the charging document, the plea colloquy, the jury instructions, the verdict form) to determine which alternative the defendant was convicted under. The goal is still to identify the elements of the offense of conviction, not the underlying facts.

Crimes Involving Moral Turpitude (CIMT)

A CIMT is a vague category defined by case law rather than statute. Courts have described a CIMT as a crime that is inherently base, vile, or depraved, contrary to the accepted rules of morality, and contrary to the duties owed between persons. The category has been developed through decades of BIA and circuit court decisions and does not map cleanly onto Massachusetts criminal categories.

Deportability grounds. Under 8 U.S.C. § 1227(a)(2)(A)(i), a non-citizen is deportable for a single CIMT committed within five years of admission for which a sentence of one year or longer may be imposed. Under § 1227(a)(2)(A)(ii), a non-citizen is deportable for two or more CIMTs not arising from a single scheme of criminal misconduct, at any time after admission, without any time or sentence limitation.

Inadmissibility. Under 8 U.S.C. § 1182(a)(2)(A)(i), a non-citizen is inadmissible for any CIMT for which a maximum sentence of one year or more may be imposed. The inadmissibility ground is broader than the deportability ground, a misdemeanor CIMT with a one-year maximum penalty triggers inadmissibility even if it does not trigger deportability.

The petty offense exception. Under 8 U.S.C. § 1182(a)(2)(A)(ii)(II), a non-citizen is not inadmissible for a single CIMT if the maximum possible penalty did not exceed one year of imprisonment and the non-citizen was not sentenced to imprisonment for more than six months. This exception to the inadmissibility ground does not apply to the deportability ground.

Massachusetts offenses that generally qualify as CIMTs:

• Larceny and shoplifting under M.G.L. c. 266, §§ 30 and 30A. Larceny and shoplifting involve an element of dishonest intent and are generally treated as CIMTs. The maximum sentence for larceny over $1,200 under M.G.L. c. 266, § 30 is five years in state prison, triggering both deportability and inadmissibility.
• Fraud, forgery, and deceit offenses. All fraud offenses involving an intent to deceive qualify as CIMTs.
• Assault with intent to commit a felony. Offenses involving an intent to cause serious harm generally qualify.
• Robbery under M.G.L. c. 265, § 19. Robbery involves taking property by force with dishonest intent and generally qualifies as a CIMT.

Massachusetts offenses that may not categorically qualify as CIMTs:

• Simple assault and battery under M.G.L. c. 265, § 13A. Massachusetts assault and battery can be committed by an unconsented, offensive touching without any intent to harm. Because the statute does not require intent to cause injury, it is broader than the generic CIMT definition for assault offenses and may not categorically be a CIMT. This is a contested area of law.
• Assault and battery on a family or household member under M.G.L. c. 265, § 13M. The same analysis as simple assault and battery applies to the domestic violence version. However, the § 1227(a)(2)(E)(i) domestic violence deportation ground applies independently of the CIMT analysis. See: Domestic Violence Charges and Immigration.
• OUI under M.G.L. c. 90, § 24. Massachusetts OUI does not categorically qualify as a CIMT under most circuit court analyses, though this depends on the specific offense (OUI drugs has a different analysis). See: OUI and Immigration in Massachusetts.

Aggravated Felonies: 8 U.S.C. § 1101(a)(43)

An aggravated felony conviction results in mandatory deportation with no discretionary relief available, no cancellation of removal, no adjustment of status, no asylum. The aggravated felony category under 8 U.S.C. § 1101(a)(43) is a list of enumerated offenses. The most common categories arising in Massachusetts criminal practice are:

Drug trafficking. Under 8 U.S.C. § 1101(a)(43)(B), illicit trafficking in a controlled substance is an aggravated felony. Under Moncrieffe v. Holder (569 U.S. 184, 2013), a state drug distribution offense is not categorically an aggravated felony drug trafficking crime unless the state offense necessarily punishes conduct that is a felony under the federal Controlled Substances Act. Massachusetts distribution under M.G.L. c. 94C, § 32 may qualify if the specific controlled substance and quantity would be a felony under the federal CSA. Defense counsel must analyze each charge under the categorical approach.

Crime of violence with a sentence of one year or more imposed. Under 8 U.S.C. § 1101(a)(43)(F), a crime of violence (as defined in 18 U.S.C. § 16) for which a sentence of one year or more is imposed is an aggravated felony. Under Borden v. United States (593 U.S. 420, 2021), offenses that can be committed recklessly do not categorically qualify as crimes of violence. Strangulation under M.G.L. c. 265, § 15D and assault with a dangerous weapon under M.G.L. c. 265, § 15A may qualify depending on the elements analysis and the sentence imposed.

Theft offense with a sentence of one year or more imposed. Under 8 U.S.C. § 1101(a)(43)(G), a theft offense for which a sentence of one year or more is imposed is an aggravated felony. Larceny over $1,200 under M.G.L. c. 266, § 30 is a felony with a maximum five-year sentence. If a sentence of one year or more is imposed or suspended, the conviction may qualify as an aggravated felony theft offense.

Sexual abuse of a minor. Under 8 U.S.C. § 1101(a)(43)(A), murder, rape, and sexual abuse of a minor are aggravated felonies regardless of the sentence imposed. A Massachusetts conviction for indecent assault and battery on a child under 14 (M.G.L. c. 265, § 13B) or rape of a child (M.G.L. c. 265, § 22A) qualifies.

Fraud or deceit with loss over $10,000. Under 8 U.S.C. § 1101(a)(43)(M)(i), an offense involving fraud or deceit in which the loss to the victim or victims exceeds $10,000 is an aggravated felony.

Defense Strategy

The categorical and modified categorical approach creates significant opportunities for defense counsel to argue that a Massachusetts offense does not categorically trigger immigration consequences. The analysis must be done charge by charge, statute by statute, before any plea is accepted. When a proposed plea or CWOF would constitute a CIMT or aggravated felony, defense counsel works with the prosecution to identify an immigration-neutral alternative charge or disposition. A not-guilty verdict at trial eliminates all immigration consequences. See: Immigration Consequences of Massachusetts Criminal Charges and Motions for a New Trial Under Padilla v. Kentucky.

Related Pages

• CWOF
• Larceny and Shoplifting Defense in Massachusetts
• Simple Assault and Battery in Massachusetts Domestic Violence Cases
• Assault and Battery on a Family or Household Member (M.G.L. c. 265, § 13M)
• Domestic Violence Charges and Immigration
• OUI Defense in Massachusetts
• OUI and Immigration in Massachusetts
• Drug Possession with Intent to Distribute and Distribution
• Strangulation or Suffocation (M.G.L. c. 265, § 15D)
• Assault and Battery with a Dangerous Weapon (M.G.L. c. 265, § 15A)
• Motions for a New Trial Under Padilla v. Kentucky
• The CWOF and Immigration: Why a CWOF Is a Federal Conviction
• Immigration Consequences of Massachusetts Criminal Charges
• Illegal Searches and Seizures in Massachusetts
• Criminal Defense for Licensed Professionals in Massachusetts
• Immigration Consequences of Massachusetts Criminal Charges

Contact Serpa Law Office at 617.936.0201 for a confidential consultation about the immigration consequences of a Massachusetts criminal charge. Boston office: 20 Park Plaza #400A. Quincy office: 500 Victory Rd., Suite 400A. Available 24 hours a day.