Moral turpitude, it’s time to put a stake in its heart

Sunday, August 28th, 2016
By: Jonathan MontagJ.D.

This week brought two moral turpitude decisions from two courts of appeals, Ortega-Lopez v. Lynch in the Ninth Circuit  and Arias v.  Lynch in the 7th Circuit.

Moral turpitude is important in immigration law. Getting convicted of two crimes involving moral turpitude can lead to deportation. INA § 237(a)(2)(A)(ii). Committing one and being punished with a jail sentence of more than 180 days (even if you don’t actually serve it!) leads to inadmissibility. Admitting to committing one without even being convicted can lead to inadmissibility. INA § 212(a)(2)(A)(i)(I). People applying to get into the country or caught inside the country can be detained for months or years fighting inadmissibility or deportability based on committing crimes of moral turpitude. INA § 236(c). Convictions for crimes of moral turpitude can lead to a finding of a lack of good moral character, INA §101(f)(3), that can render one ineligible to naturalize. INA § 216(a)(3). Finally, having a moral turpitude crime makes one ineligible for the standard relief from removal or persons in the United States without permission, Cancellation of Removal for Certain Nonpermanent Residents. INA §§ 240A(b)(1)(B) and (C).

With such high stakes, it is important to know what moral turpitude is. This is the kicker – no one knows. In Ortega-Lopez, the court provides the modern classic definition provided by the Board of Immigration Appeals:

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.

The court then provided a minor distillation from prior cases ultimately sourced from the BIA:

Crimes [1] involving fraud and [2] those involving grave acts of baseness or depravity.

The Ortega-Lopez court then provided some clarification for baseness and depravity:

[N]on-fraudulent crimes of moral turpitude almost always involve an intent to harm someone, the actual infliction of harm upon someone, or an action that affects a protected class of victim.

In Arias, the Seventh Circuit plucked a different definition from the BIA’s oeuvre:

Conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.

Armed with these definition, the result of decades of judicial clarification, the courts of appeal, as do the immigration judges and BIA below, must make determinations about crimes that lead to lengthy detention, deportation, inadmissibility, and the denial of citizenship. The result is anarchy. Appellate judges are supposed to redeem us from anarchy. That could be the literal definition of the job. Unfortunately, moral turpitude is a term producing such entropy that not even appellate judges can prevent it. The two recent decisions address the impossibility of the task of interpreting moral turpitude. In Ortega-Lopez, the court writes, “We have recognized that whether a crime is a CIMT is a“nebulous question that we are required to answer on the basis of judicially established categories of criminal conduct.”

In another case, Nunez v. Holder, Judge Stephen Reinhardt of the Ninth Circuit wrote:

Once again we face the question of what is moral turpitude: a nebulous question that we are required to answer on the basis of judicially established categories of criminal conduct. Although that may not be a satisfactory basis for answering such a question, it is the role to which we are limited by precedent as a court of law. Furthermore, any answer based on other considerations would in all probability be unacceptable to one or another segment of society and could well divide residents of red states from residents of blue, the old from the young, neighbor from neighbor, and even males from females. There is simply no overall agreement on many issues of morality in contemporary society.        

Morality is not a concept that courts can define by judicial decrees, and even less can it be defined by fiats issued by the Board of Immigration Appeals, to whose decisions the courts must give great deference. Yet, for the purpose of our immigration laws we are required to follow those determinations and to start by applying categories of offenses that the judiciary or the Board members appointed by the Attorney General have deemed morally turpitudinous in all of their applications. We call this the categorical approach. How sensible those decisions are and how close to rational concepts of morality they may come can be seen by considering one of the offenses involved in the case before us. While under our law numerous felonies are deemed not to be morally turpitudinous, all acts of petty theft automatically qualify for that label and the drastic legal consequences that may follow. As some in today’s society might say, and with good reason, “Go figure.”

In Arias, in a concurrence by Judge Richard Posner, he was also quite open about the difficulty of its task – defining moral turpitude. Here are some of his observations about the term:

It is preposterous that that stale, antiquated, and, worse, meaningless phrase should continue to be a part of American law. Its meaninglessness is well illustrated by this case; and even if it is to be retained in immigration law it was misapplied by the Board of Immigration Appeals.

Congress has never defined “moral turpitude,” but courts and the immigration agencies have tended to adopt a slight variant of the definition in Black’s Law Dictionary: an “act of baseness, vileness, or the depravity in private and social duties which man owes to his fellow man, or to society in general … . [An] act or behavior that gravely violates moral sentiment or accepted moral standards of [the] community and is a morally culpable quality held to be present in some criminal offenses as distinguished from others.” Black’s Law Dictionary 1008-09 (6th ed. 1990). Thus Lagunas-Salgado v. Holder, 584 F.3d 707, 710 (7th Cir. 2009), remarked that “the BIA has described a crime of moral turpitude as including ‘conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.'” The most recent edition of Black’s offers a simpler but broader definition: “conduct that is contrary to justice, honesty, or morality; esp., an act that demonstrates depravity.” Black’s Law Dictionary 1163 (10th ed. 2014). It’s difficult to make sense of these definitions, which approach gibberish yet are quoted deferentially in countless modern opinions.

What does “the public conscience” mean? What does “inherently base, vile, or depraved” – ”words that have virtually dropped from the vocabulary of modern Americans – mean and how do any of these terms differ from “contrary to the accepted rules of morality”? How for that matter do the “accepted rules of morality” differ from “the duties owed between persons or to society in general”? And – urgently – what is “depravity”? A partial list of its synonyms, according to a Google search, includes corruption, vice, perversion, deviance, degeneracy, immorality, debauchery, dissipation, profligacy, licentiousness, lechery, prurience, obscenity, indecency, a wicked or morally corrupt act, the innate corruption of human nature due to original sin, moral perversion, bestiality, flagitiousness, and putrefaction.     

The definitions constitute a list of antiquated synonyms for bad character, and why does the legal profession cling to antiquated synonyms? Why are we so backward-looking? The answer lies in the American legal culture – in the fact that law is backward-looking, that the legal profession revels in antiquity, cherishes jargon, and lacks respect for proper English usage – “base or vile” is not an expression used by sophisticated speakers of modern English, or for that matter unsophisticated, and the word “turpitude” has disappeared from the language as spoken and written today. The language I quoted from Black’s – who talks like that? Who needs to talk like that? Lawyers apparently, and they go a step further into the lexical mud by intoning an adjectival form of “turpitude”: “turpitudinous.”

The concept of moral turpitude, in all its vagueness, rife with contradiction, a fossil, an embarrassment to a modern legal system, continues to do its dirty work.

Of course, appellate courts don’t consider moral turpitude cases because they want to, but rather because they have to. The term is in the law, the government deports, excludes, and denies people because of the term in the law and those so ordered appeal to the courts of appeals. And it is not like no one has challenged the term for vagueness. The issue was brought to the Supreme Court in 1951 in Jordan v. De George which found moral turpitude not to be so be vague that it should be voided. Hence, the courts of appeal are stuck dealing with the term until such time as Congress takes it out of the law or the Supreme Court hears a moral turpitude case and voids the term for vagueness.

Earlier in my career, when counseling clients about moral turpitude, I explained that moral turpitude applies to crimes that involve fraud, theft, and things you do without your clothes on. However, these are now antiquated concepts. With adultery, sodomy, miscegenation, visiting a prostitute, public exposure, burglary, and giving a policeman a fake ID no longer morally turpitudinous, my homespun definition is useless.

The newer definitions are equally unhelpful. In Ortega-Lopez, the Ninth Circuit remanded the case to the BIA after the BIA held that being involved in cockfighting, animal cruelty, was a crime of moral turpitude because under the definition it applied – involving an intent to harm someone, the actual infliction of harm upon someone, or an action that affects a protected class of victim – did not appear to apply to chickens.

In Arias, the Seventh Circuit remanded because the definition it applied – conduct that shocks the public conscience as being inherently base, vile, or depraved – did not seem to apply to a woman who gave a fake social security number so she could work and support her two young children. Judge Posner observed:

She does manual work for the company, described by the general manager as “sealer sanding doors, wear thru and working with specialty paints.” It is the kind of work that illegal immigrants typically do, because it is not pleasant work and it is not well paid. To prosecute and deport such a harmless person (to Ecuador, her country of origin)—indeed a productive resident of the United States—would be a waste of taxpayers’ money, but to deport her on the ground that her crime was one of moral turpitude would be downright ridiculous.

Courts have tried to fix the problem. Judge Carlos Bea, in Ortega-Lopez and in numerous earlier cases, has been advocating for a new means of analysis of these crimes, believing under a different mode of analysis, something sensible could be made of the term. Judge Jay Bybee has been advocating a more common sense approach to analysis of criminal statutes and how they fit into definitions in immigration ans sentencing law, particularly in the “things you do without your clothes on” department to put some sense into the phrase, such as here and here. While successful in convincing the Ninth Circuit,  the Supreme Court would have none of what might be considered the Ninth Circuit’s Bybee-inspired tortured mode of analysis.

To rely on Congress to fix this mess is futile as Congress can accomplish nothing these days. Thus, the only hope is the Supreme Court’s revisiting De George. However, this requires that a case get to the Supreme Court. To do that, the courts of appeal need to stop remanding cases, but rather rule on them. Then the aggrieved parties can take these cases back to the Supreme Court where hopefully it will kill this zombie term so it no longer afflicts aliens, the government, lawyers, and judges again. Posted August 28, 2016.


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