22 C.F.R. § 40.21

Crimes involving moral turpitude and controlled substance violators

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(a) Crimes involving moral turpitude—(1) Acts must constitute a crime under criminal law of jurisdiction where they occurred. A Consular Officer may make a finding of ineligibility under INA 212(a)(2)(A)(i)(I) based upon an alien's admission of the commission of acts which constitute the essential elements of a crime involving moral turpitude, only if the acts constitute a crime under the criminal law of the jurisdiction where they occurred. However, a Consular Officer must base a determination that a crime involves moral turpitude upon the moral standards generally prevailing in the United States.

(2) Conviction for crime committed under age 18. (i) An alien will not be ineligible to receive a visa under INA 212(a)(2)(A)(i)(I) by reason of any offense committed:

(A) Prior to the alien's fifteenth birthday, or

(B) Between the alien's fifteenth and eighteenth birthdays unless such alien was tried and convicted as an adult for a felony involving violence as defined in section 1(1) and section 16 of Title 18 of the United States Code.

(ii) An alien tried and convicted as an adult for a violent felony offense, as so defined, committed after having attained the age of fifteen years, will be subject to the provisions of INA 212(a)(2)(A)(i)(I) regardless of whether at the time of conviction juvenile courts existed within the convicting jurisdiction.

(3) Two or more crimes committed under age 18. An alien convicted of a crime involving moral turpitude or admitting the commission of acts which constitute the essential elements of such a crime and who has committed an additional crime involving moral turpitude shall be ineligible under INA 212(a)(2)(A)(i)(I), even though the crimes were committed while the alien was under the age of 18 years.

(4) Conviction in absentia. A conviction in absentia of a crime involving moral turpitude does not constitute a conviction within the meaning of INA 212(a)(2)(A)(i)(I).

(5) Effect of pardon by appropriate U.S. authorities/foreign states. An alien shall not be considered ineligible under INA 212(a)(2)(A)(i)(I) by reason of a conviction of a crime involving moral turpitude for which a full and unconditional pardon has been granted by the President of the United States. A legislative pardon, a pardon by the Governor of a State of the United States, or a pardon, amnesty, expungement of penal record or any other act of clemency granted by a foreign state shall not serve to remove a ground of ineligibility under INA 212(a)(2)(A)(i)(I).

(6) Political offenses. The term “purely political offense”, as used in INA 212(a)(2)(A)(i)(I), includes offenses that resulted in convictions obviously based on fabricated charges or predicated upon repressive measures against racial, religious, or political minorities.

(7) Waiver of ineligibility—INA 212(h). If an immigrant visa applicant is ineligible under INA 212(a)(2)(A)(i)(I) but is qualified to seek the benefits of INA 212(h), the consular officer shall inform the alien of the procedure for applying to DHS for relief under that provision of law. A visa may not be issued to the alien until the consular officer has received notification from DHS of the approval of the alien's application under INA 212(h).

(b) Controlled substance violators—(1) Date of conviction not pertinent. An alien shall be ineligible under INA 212(a)(2)(A)(i)(II) irrespective of whether the conviction for a violation of or for conspiracy to violate any law or regulation relating to a controlled substance, as defined in the Controlled Substance Act (21 U.S.C. 802), occurred before, on, or after October 27, 1986.

(2) Waiver of ineligibility—INA 212(h). If an immigrant visa applicant is ineligible under INA 212(a)(2)(A)(i)(II) but is qualified to seek the benefits of INA 212(h), the consular officer shall inform the alien of the procedure for applying to DHS for relief under that provision of law. A visa may not be issued to the alien until the consular officer has received notification from DHS of the approval of the alien's application under INA 212(h).

[56 FR 30422, July 2, 1991, as amended at 64 FR 55418, Oct. 13, 1999; 89 FR 67859, Aug. 22, 2024]

Notes of Decisions

Cited in 11 cases (2 in the last 5 years), 1995–2023 · leading case: Jiang Guan v. William Barr, 925 F.3d 1022 (9th Cir. 2019).

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Jiang Guan v. William Barr, 925 F.3d 1022 (9th Cir. 2019). “See 22 C.F.R. §§ 40.21 (a)(6), 40.22(d) (interpreting “purely political offense” to include “offenses that resulted in convictions obviously based on fabricated charges or predicated upon repressive measures against racial, religious, or political minorities”); In re…”

Rodriguez-Castro v. Gonzales, 427 F.3d 316 (5th Cir. 2005). “” 22 C.F.R. § 40.21 (2005). We have concluded that the BIA, through its administrative decisions, has interpreted and defined “crime involving moral turpitude” as follows: Moral turpitude refers generally to conduct that shocks the public conscience as being inherently base,…”

Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. 2007). “” 22 C.F.R. § 40.21 (a)(1) (2006). Although, the State Department’s Foreign Affairs Manual has a lengthy list of CIMTs, no mention is made of failure to stop and render aid.”

Hamdan v. Immigr. & Naturalization Serv., 98 F.3d 183 (5th Cir. 1996). “*186 22 C.F.R. § 40.21 (1996). This broad definition requires that a finding of deportability rest on a determination 1) that the petitioner committed an act considered a crime in the jurisdiction of occurrence and 2) that it is a crime of moral turpitude.”

Toutounjian v. Immigr. & Naturalization Serv., 959 F. Supp. 598 (W.D.N.Y. 1997). · cites it 2× “Pursuant to 22 C.F.R. § 40.21 (a)(1), whether or not the “requisite moral obloquy” is present is determined by “the moral standards generally prevailing in the United States” *602 But the government took the position at oral argument that the record of conviction contains no…”

Eugeniusz Wojciechowicz v. Merrick B. Garland, 77 F.4th 511 (7th Cir. 2023). · cites it 2× “90 (BIA 1954); 22 C.F.R. § 40.21 (a)(5). He also asserted that his pardon had the effect of voiding his 2011 convictions entirely.”

Ocealleagh, 23 I. & N. Dec. 976 (BIA 2006). · cites it 3× “” 22 C.F.R. § 40.21 (a)(6) (2006). Our reading is confirmed by the Department of State’s Foreign Affairs Manual, which provides: Where there is any indication that the offense for which the alien was convicted was of a political nature, or prosecution therefor was politically…”

Toutounjian v. Immigr. & Naturalization Serv., 2 F. Supp. 2d 374 (W.D.N.Y. 1998). · cites it 3× “The INS notes that petitioner never cited or distinguished the Chiaramonte decision for either the BIA or this court, nor did he cite or rely upon 22 C.F.R. § 40.21 (a)(1), as the court did.”

Reznik v. U.S. Dep't of Just., Immigr. & Naturalization Serv., 901 F. Supp. 188 (E.D. Pa. 1995). “22 C.F.R. § 40.21 (a)(5). 7 . It may be noted that the classes of aliens for whom waiver is expressly barred by § 1157(c)(3), e.”

Eugeniusz Wojciechowicz v. Merrick B. Garland (7th Cir. 2023). · cites it 2× “90 (BIA 1954); 22 C.F.R. § 40.21 (a)(5). He also asserted that his pardon had the effect of voiding his 2011 convictions entirely.”

Eros Baca v. Eric Holder, Jr., 461 F. App'x 555 (9th Cir. 2011). “90 (BIA 1954); 22 C.F.R. § 40.21 (a)(5). The panel retains jurisdiction over this matter.”

— 22 C.F.R. § 40.21(a)(6) — 1 case

Ocealleagh, 23 I. & N. Dec. 976 (BIA 2006). “” 22 C.F.R. § 40.21 (a)(6) (2006). Our reading is confirmed by the Department of State’s Foreign Affairs Manual, which provides: Where there is any indication that the offense for which the alien was convicted was of a political nature, or prosecution therefor was politically…”

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