Virginia Law Criminalizing Gang Activity Not Categorically a CIMT

 On July 19, 2019 the US Fourth Circuit Court of Appeals issued its decision finding that the Virginia offense of participating in criminal street gang activity is not categorically a crime involving moral turpitude.

The Virginia statute,  Va. Code ยง 18.2-46.2(A), which prohibits participation in a criminal street gang, is as follows:

Any person who actively participates in or is a member of a criminal street gang and who knowingly and willfully participates in any predicate criminal act committed for the benefit of, at the direction of, or in association with any criminal street gang shall be guilty of a Class 5 felony. 

The court reasoned that the statute criminalizes acivity which is not the requisite base, vile, and morally depraved conduct which must be found for it to be a crime of moral turpitude, using, as an example, a situation where a person wearing a gang scarf who trespassed onto property could be found guilty under the statute without any further criminal acts being involved.

This means that a simple conviction under this statute cannot be used as a basis for deportation of a person so convicted.

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