"Crimes Involving Moral Turpitude": The Constitutional and Persistent Immigration Law Doctrine.

• Author: Lerner, Craig S.

Abstract

For over a century, American immigration law has provided that an alien is deportable for "crimes involving moral turpitude" (CIMT). For nearly as long, observers have lamented the persistence of the phrase, complaining of its antiquarianism and imprecision.

These criticisms have ripened in recent years into the argument that the phrase is so vague as to be unconstitutional. Defenders of the phrase are scarce among judges and nonexistent in the scholarly community.

This Article offers a defense of the CIMT provisions, built upon a more thorough understanding of their history. It demonstrates that Congress has acknowledged objections to the CIMT provisions but ultimately rejected these criticisms.

The recent void-for-vagueness precedents cited to support the invalidation of the CIMT provisions are, for the most part, inapposite. Furthermore, the argument that the CIMT provisions are indeterminate, because there is no moral consensus in American contemporary society, is overstated. The Article concludes that the CIMT provisions reflect and highlight the differences between criminal law, which punishes discrete acts, and immigration law, which sets a minimum moral threshold for inclusion in a political community. The CIMT provisions invest executive officials with a measure of discretion, channeled by precedent, that allows them to achieve the goals of immigration law.

Table of Contents Introduction I. Congressional Reliance on "Crimes Involving Moral Turpitude" in Immigration Law A. The 1891 Act: Introduction of the CIMT Language B. The 1917 Act: Expansion of CIMTs to Deportation C. The 1952 Act: Preservation of CIMTs After Elaborate Study D. The 1996 Act: Further Expansion of CIMTs to Crimes Punishable by One Year's Imprisonment II. The New Void-for-Vagueness Challenge to the CIMT Provisions A. The Argument That "Crimes Involving Moral Turpitude" is Unconstitutionally Vague B. The Argument That "Crimes Involving Moral Turpitude" Survives Constitutional Scrutiny III. A Case Study: Cockfighting and the Matter of OrtegaLOPEZ Conclusion: Cockfighting, Manslaughter, and the CIMT Puzzle Resolved Introduction

On what legal and moral grounds can a nation expel an alien? Even among Western nations, the approaches differ greatly. The Swedish highest court recently overturned a deportation order of a convicted rapist, holding that there was no "extraordinary reason" to banish the offender. (1) The court explained that "[t]he idea behind the requirement of 'extraordinary reasons' [if the perpetrator has been in Sweden for over four years] is that there should be a point where a foreigner has the right to feel secure in Sweden." (2) In that case, the court acknowledged that the thirty-three year-old Somali citizen, who had lived in Sweden for eight years, displayed "clear signs of flaws in his social adaptation," including convictions for drug possession, reckless driving, and causing bodily harm. (3) However, when not committing criminal offenses, the court found that he had been engaged in either studies or employment, and he had even learned some Swedish. Thus, the equities weighed in favor of allowing him to remain in Sweden, after he had served his two-year prison sentence for rape. (4)

Australia has adopted a markedly different approach to the issue of deportation. In 2014 its Parliament voted overwhelmingly to expand the grounds for removing an alien. (5) Criminal convictions are no longer necessary predicates for a banishment order. (6) Australia's Attorney General can revoke the visa of an alien upon a finding that the alien belonged to a group that had been involved in criminal activity or simply that the alien did not possess "good moral character." (7) For example, this provision has been invoked to expel a New Zealand citizen who had joined a biker gang associated with drug trafficking. (8)

Over the past century, the American approach to this issue has generally evolved in a direction less congenial to aliens deemed unfit, for whatever reason. Apart from statutorily denominated non-criminal reasons for expulsion, a growing number of criminal offenses can trigger removal from, or foreclose entry into, the United States. The first category of crimes listed in the relevant statute is, outside of the immigration law context, an oddity: "crimes involving moral turpitude (CIMT)."

The phrase entered federal immigration law in 1891. The Act of 1891 provided for the exclusion of "persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude." (9) At the time, the phrase "moral turpitude" was a customary term in the law, arising most often in slander cases and in deciding questions of evidence (relating to the impeachment of a witness). (10) The Immigration Act of 1917 provided that those "convicted" of a "crime involving moral turpitude" were not only inadmissible to the United States but also deportable. (11) Over the ensuing decades, legal grounds for expulsion came and went, but deportation as the result of a "crime involving moral turpitude" persisted. Every reenactment of the federal immigration law preserved the doctrine. The Immigration and Nationality Act of 1952 provided for the deportation of any immigrant who had committed a "crime involving moral turpitude" within five years of admission to the United States, assuming that a prison sentence of at least one year was imposed. (12) The Illegal Immigration Reform and Immigration Responsibility Act of 1996 broadened this criterion, providing that a crime involving moral turpitude was a ground for deportation even if the alien had not been sentenced to any prison time, as long as the crime was punishable by a year in prison. (13)

In recent decades, the phrase has attracted skeptical commentary and blunt criticisms in judicial opinions and academic literature. Questions have been raised about how immigration officials, the Board of Immigration Appeals (BIA), and federal judges have decided whether an alien has committed a crime "involve moral turpitude": Should the adjudicator evaluate the legal elements of the alien's crime of conviction (the "categorical approach") or should it consider the actual, underlying conduct that gave rise to the criminal conviction (the "fact-based approach")? (14) Critics of the CIMT provisions have questioned whether federal courts owe deference to the BIA's conclusion that an alien has committed a crime involving moral turpitude. (15) Some have argued that the concept of "moral turpitude" is outdated and rooted in "gendered honor-culture norms." (16) The most sweeping criticism, raised as long ago as a 1929 Harvard Law Review student note (17) but with mounting fervor in the past decade, is that the CIMT provisions are so indeterminate as to be unconstitutional. (18) This argument has become particularly ripe in light of a trio of Supreme Court opinions that have used the void-for-vagueness doctrine to strike down aspects of federal criminal and immigration law. (19)

This author cannot help but wonder whether the intensifying hostility to the CIMT doctrine arises, in part, from the rejection of any meaningful distinctions between aliens and citizens. (20) Whereas one of the preeminent privileges of citizenship is immunity from banishment, it was for centuries taken for granted that aliens claimed no such immunity; to the contrary, aliens were said to be here on "sufferance." (21) This did not mean, of course, that America was indifferent to the demands of hospitality and to legal and extralegal duties to accord fair treatment to foreigners, particularly those in long residence here. Today, however, it is deemed rude in most law review articles even to use the word "alien," given its exclusionary connotations. (22) From this perspective, the CIMT doctrine not only makes objectionable claims about what morality is but then dares to impose this requirement only on aliens.

This Article offers a different perspective on the CIMT provisions, built upon a more thorough understanding of their history. Part I demonstrates that for over a century Congress has, in a bipartisan spirit, relied on the CIMT provisions in crafting the nation's immigration law. As set out in this Part, Congress has long been aware that these provisions have generated a measure of jurisprudential uncertainty. The puzzle that emerges from this Part is why Congress has remained wedded to these provisions even as simpler-to-administer alternatives are easily imagined.

Part II sketches the argument that courts, which have become increasingly critical of the CIMT provisions, would likely use to strike them down as unconstitutionally vague. This Part argues that the void-for-vagueness precedents cited to support the invalidation of the CIMT provisions are, for the most part, inapposite. These provisions are entrenched in the law and reflect a conscious congressional choice; the fact that alternatives can be imagined does not authorize courts to overturn them. Furthermore, the argument that the CIMT provisions are indeterminate, because there is no moral consensus in American contemporary society, is overstated.

Part III tests this last claim--that there is sufficient moral consensus in the United States that the CIMT doctrine remains viable. This Article considers a case of first impression, litigated over the past decade in the BIA and Ninth Circuit. The principal issue is whether sponsoring an animal in a fighting venture, in violation of federal law, is a crime of moral turpitude. Despite the Ninth Circuit's initial doubts that it is, this Article argues that the BIA's conclusion--that there is an American consensus on this issue--is reasoned and defensible. Furthermore, sponsoring a chicken in a cockfight may not be a grave crime, meriting substantial punishment, but the goals of criminal law and immigration law are not identical. The Article concludes by arguing that the CIMT provisions reflect...