An Ouroboros of Sorts: Eleventh Circuit Remands to Bia as "moral Turpitude" Continues Creating Division
| Jurisdiction | United States,Federal |
| Citation | Vol. 74 No. 4 |
| Publication year | 2023 |
An Ouroboros of Sorts: Eleventh Circuit Remands to BIA as "Moral Turpitude" Continues Creating Division
Emma Blue
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The blue sky stretches endlessly across the open road, a red pickup coasting down the highway. The truck's cabin is warm from the summer sun. A father holds the steering wheel in a loose grip, relaxed against the plastic bench seat. His daughter sits beside him, staring out the window at the sky ripping by—it's them against the world, and for a breath, the peace is infinite.
But then the deepest pothole snags the back wheel. The pickup veers off road in a chorus of metallic screeching. The father tries to correct, but the tire shudders against the dirt, careening the truck up and down along its axels. The tire is ruined, the pothole leaving its marks in a serrated path against the rubber treads.
The pickup starts to slow, unable to maintain its jarring path along the uneven terrain. The order of removal has done its damage—dragging their world to a halt. But the father's eyes catch the small glint of a green exit sign, signaling him back towards the road to a rest stop. The sign reads "cancellation of removal" in chipped, white lettering, like the cruel taunt of a mirage coaxing up the crush of false hope. When the father
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pushes the truck on, his scuffed boot gently nudging the accelerator, the wheels bounce and groan against the ramp's asphalt. But the truck doesn't stop, and the words don't disappear. Moments later, the rest stop rolls into view.
A life-altering pothole in the field of immigration law can take shape as an order of removal. Removal, formerly known as deportation, may be ordered by the Attorney General of the United States if an alien is found to be within a "deportable class."1 Anyone within the United States who is neither a citizen nor a national of the United States is considered an "alien."2 However, the order of removal is not an insurmountable end.
Under 8 U.S.C. § 1229b(b),3 cancellation of removal can be sought by both permanent and nonpermanent residents.4 For nonpermanent residents, cancellation of removal can be granted by the Attorney General.5 To be eligible for the possibility of a removal order being cancelled, the statute lists four requirements: (1) continuous physical presence in the United States for at least ten years; (2) good moral character throughout these ten years; (3) no convictions of crimes involving moral turpitude; and (4) "extremely unusual hardship" on the alien or his or her spouse, parent, or child, who are either United States citizens or lawful permanent residents, if the removal occurs.6 The focus below centers on a violation of the third requirement. Violation of this requirement occurs when there is a conviction of a crime involving moral turpitude,7 also known as a "CIMT."8 If convicted of a CIMT, an alien is disqualified for cancellation of removal.9
In Zarate v. United States,10 the Eleventh Circuit Court of Appeals was tasked with deciding if a violation of 42 U.S.C. § 408(a)(7)(B)11 would constitute a violation the third requirement of the cancellation of removal statute.12
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Although the question at hand had created a split in the circuit courts,13 the court did not decide whether the specific conviction would classify as a CIMT.14 The court found the Board of Immigration Appeals (BIA) had failed to completely apply its own two-pronged standard in analyzing the violation and the statute.15 To qualify as a CIMT under the two-pronged standard, the conviction had to involve (1) reprehensible conduct and (2) a culpable mental state.16 The court remanded the case to the BIA to apply its two-pronged standard, and this time determine if the particular violation would be considered reprehensible conduct under the BIA's definitions.17
Ruperto Hernandez Zarate needed a job to support his child's surgeries and cleft pallet complications.18 As a citizen and national of Mexico, he did not have a Social Security number to apply for a U.S. job.19 In his effort to overcome this obstacle and help his child,20 he used a Social Security number that was not his own.21
Consequently, Zarate was convicted of violating 42 U.S.C. § 408(a)(7)(B) and was ordered to be removed.22 To rub salt in the wound, Zarate was also denied cancellation of the removal order.23 An immigration judge found Zarate statutorily ineligible for this relief because his particular conviction was considered a CIMT.24 Under 42 U.S.C. § 408(a)(7)(B), a felony is committed when someone falsely represents a Social Security number as his own when it is assigned to another with the intent to deceive "for the purpose of obtaining anything of value from any person, or for any other purpose."25 Zarate appealed
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the decision to the BIA, but the BIA dismissed his appeal on grounds there was a requisite intent to deceive under § 408(a)(7)(B),26 and that requirement made his conviction a CIMT.27
The case then made its way to the United States Court of Appeals for the Eleventh Circuit.28 The court reviewed de novo whether Zarates conviction qualified as a CIMT.29 To analyze Zarate's conviction, the court noted only two possible approaches—the categorical approach or the modified categorical approach.30 The categorical approach applies to indivisible statutes that only set out alternative methods of committing a single offense.31 The modified categorical approach applies to divisible statutes with separate offenses.32 Because the court found the statute Zarate had violated was not divisible, it settled on the categorical approach.33
Applying the categorial approach, the court deferred to the BIA's definition and prior applications of "moral turpitude."34 A crime involved moral turpitude when it satisfied a two-pronged standard: (1) "reprehensible conduct," and (2) "a culpable mental state."35
However, the court found that the BIA had failed to completely apply its own analytical framework to Zarate's case.36 The question of what qualified as a crime involving moral turpitude had caused a circuit split and intra-circuit conflict.37 Consequently, the court decided the earliest precedents should be followed.38 Applying those precedents, the court found the BIA's determination that Zarate's conviction qualified as a CIMT contradicted both prior case law and the BIA's prior decisions.39 The BIA's analysis of Zarate's case further misaligned with its own precedent because it lumped its two-pronged standard for moral
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turpitude into one.40 under this new line of reasoning, satisfying one prong automatically entailed the second prong being satisfied.41 As a result, the court remanded the case to the BIA so it could abide by its own precedent and apply the two-pronged standard to Zarate's conviction and avoid abusing discretion as it did when the BIA failed to do so in its prior determination of Zarate's case.42
III. Legal Background
A. Defining "Moral Turpitude"
As a legal term, "moral turpitude" can be traced back to the nineteenth century.43 Initially, "moral turpitude" thrust its way into legal vocabulary as a result of common-law courts handling defamation cases.44 From there, moral turpitude stumbled into immigration law, which has been tackling the term ever since.45 Despite its fairly long legal history, there are neither federal statutory definitions nor caselaw describing exactly what "moral turpitude" means.46 The term has been hammered and molded in case-by-case fashion,47 although a conviction of a crime involving "moral turpitude" can result in bitter repercussions for immigration cases.48 As a result, "moral turpitude" has snowballed its way into an abominably mixed reception.
At one end of the spectrum, moral turpitude has been characterized as murky and a "nebulous concept."49 The various definitions created by the BIA and the courts in attempt to fit moral turpitude into an easier-to-swallow concept illustrates the hazy grasp on the term. "[A]n evil or malicious intent" is at the core of moral turpitude.50 That is to say, the intrinsic meaning is reprehensibly wrong51 in that such conduct is
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considered a violation of norms, grating against societal rules of morality that are owed to each other and society as a whole.52
1. Judicial attempts at clarity.
When the term is considered in the criminal sphere—crime involving moral turpitude—commentators have argued the constitutionality of the phrase and challenged it as "vague."53 This is because the idea that "crime involving moral turpitude" lacked in clear, defined principles, similarly to how "moral turpitude" on its own has been argued as hazy, both of which have not and cannot be boxed into more specific guidelines.54
In Jordan v. De George,55 the Supreme Court of the United States disagreed that vagueness might taint courts' interpretations of "crime involving moral turpitude," noting that the phrase has been the basis in several cases and the criterion of a number of statutes over the years.56 The Court also pointed to a lack of case history holding the phrasing as vague.57
Despite such assurances, the Court did not see eye-to-eye on its handling of moral turpitude. Justice Black and Justice Frankfurter did not see clarity in the term, let alone justification for the term to guarantee deportation.58 The dissent noted the lack of guidance from Congress, which provided no qualifications as to what sort of crimes entailed moral turpitude and what crimes did not.59 Further, turning to the dictionary offered no assistance even when picking the phrase apart. Turpitude on its own could only be described as "depravity," whereas the expression "moral turpitude" was even more redundant, as the dissent put it, because the dictionary only found that to mean "morally immoral."60 Because the government agreed there was no...
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