Deportation for a Sin: Why Moral Turpitude Is Void for Vagueness

JurisdictionUnited States,Federal
CitationVol. 90
Publication year2021

90 Nebraska L. Rev. 647. Deportation for a Sin: Why Moral Turpitude Is Void for Vagueness

Deportation for a Sin: Why Moral Turpitude Is Void for Vagueness

Mary Holper(fn*)


I. Introduction .......................................... 648

II. Background ........................................... 649
A. Legislative History of CIMT in Deportation Law . . . 649
B. CIMT Defined by the Courts and BIA .............. 653
C. Padilla v. Kentucky ................................ 658

III. Jordan v. De George .................................. 662

IV. Challenging CIMT as Void for Vagueness .............. 663
A. Scope of the Vagueness Challenge to CIMT ........ 664
1. Facial v. As-Applied Challenge ................. 664
2. Challenging CIMT in the Deportation v. Exclusion Statute .............................. 665
3. Strictness of the Vagueness Test ............... 670
B. Fair Notice ........................................ 672
1. Deportation for a Sin? ......................... 678
2. Failing to Draw Meaning from CIMT in Other Areas of Law .................................. 687
3. Supreme Court Vagueness Challenges to Similar Statutes ....................................... 690
C. Balancing Necessity Against Vagueness ............ 697

V. Conclusion ............................................ 701

Manuel, a lawful permanent resident from El Salvador, is charged with the Virginia offense of being a passenger and leaving the scene of an accident where there was bodily injury. His public defender, wanting to help Manuel avoid deportation, consults a chart, written by a local immigration attorney, which lists the immigration consequences of various Virginia offenses. Happy to see that this offense does not render Manuel deportable for an "aggravated


felony," or many other grounds of deportation, she reads that the offense "possibly" renders him deportable for a "crime involving moral turpitude."


Manuel's fairly typical story is governed by two important Supreme Court cases. In the 1951 case of Jordan v. De George,(fn1) the Supreme Court decided that a statute authorizing deportation for a "crime involving moral turpitude" (CIMT) was not void for vagueness because courts had long held the noncitizen's offense, fraud, to be a CIMT, so he was on notice of his likely deportation. This case left noncitizens like Manuel and their criminal defense attorneys wondering: if the crime charged was not one that courts had held to be a CIMT, would deportation result? Then, the Court held in the 2010 case Padilla v. Kentucky,(fn2) that defense counsel has a Sixth Amendment duty to warn noncitizens only about immigration consequences that are "succinct, clear, and explicit" from a reading of the Immigration and Nationality Act.(fn3) Because the meaning of CIMT is not "succinct, clear, and explicit" in the statute, attorneys like Manuel's criminal defense lawyer have no clear obligation to read case law and warn him about deportability for a CIMT. Thus, the lawyer best situated to give noncitizens like Manuel notice of the meaning of CIMT, thanks to the vagueness of the term CIMT with respect to many offenses, cannot ascertain whether a client's conviction will be a CIMT; thanks to Padilla, she may not even be required to figure it out.

In this Article, I argue that courts should find the term CIMT in deportation law is void for vagueness, notwithstanding the Jordan decision. Courts are bound by Jordan with respect to the "easy" cases such as fraud.(fn4) However, for the world of offenses with no clear case law deciding whether they are CIMTs, the term is vague. Because the definition of CIMT used by the Board of Immigration Appeals (BIA) and courts is an act that is "base, vile, or depraved" and "contrary to the accepted rules of morality,"(fn5) it provides no useful definition. Rather, this ground for deportation casts judges in the role of God,(fn6)


assessing whether the offense offends the "moral standards generally prevailing in the United States."(fn7)

In Part II, I give the background leading up to a situation like Manuel's. I discuss some legislative history of the term CIMT and how it presently is defined by the courts and BIA. I also discuss the Supreme Court's recent holding in Padilla, which left defense counsel representing noncitizens with no clear obligation to read case law and determine whether a given offense will lead to deportation for a CIMT. In Part III, I discuss the Supreme Court's holding in Jordan that the term CIMT is not void for vagueness in a deportation statute. In Part IV, I argue that courts should find the term CIMT is void for vagueness in an as-applied challenge to an offense that is not an "easy" case such as fraud. I discuss examples in which the BIA and courts have sat in judgment of whether certain offenses are CIMTs by applying the "moral standards generally prevailing in the United States"(fn8) to demonstrate how the term CIMT allows judges to apply their own personal opinions of morality. I also discuss several Supreme Court cases, decided both before and after Jordan, which determined whether statutes were void for vagueness and apply this reasoning to the statute authorizing deportation for a CIMT. Finally, I argue that a vague term like CIMT is not necessary in deportation law because Congress has found ways to fulfill its legislative goal of deporting undesirable noncitizens through clearer terms.


A. Legislative History of CIMT in Deportation Law

An 1891 Act introduced the term CIMT into federal immigration law, excluding from the United States "persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude."(fn9) The term was adopted "without comment in the accompanying reports."(fn10) However, it appears the term may have


been a response to joint congressional hearings in 1891, which recommended immigration laws to "separate the desirable from the undesirable immigrants, and to permit only those to land on our shores who have certain physical and moral qualities."(fn11) Acts of 1903 and 1907 included similar language, excluding noncitizens for, among other reasons, CIMTs.(fn12)

While CIMT remained a ground of exclusion, the 1917 Act was the first time that CIMT also became a ground of deportation.(fn13) The 1917 Act authorized deportation for commission of a CIMT within five years after entry for which a sentence of one year or more was imposed; also deportable was someone who committed two CIMTs at any time after entry.(fn14) Professor Daniel Kanstroom wrote about public opinion leading up to the 1917 Act, stating, "The idea of deportation for more types of post-entry crime easily garnered public support,"(fn15) as "there was clearly a general perception at the time of widespread and increasing crime."(fn16) A commission created to study immigration policy in 1911 recommended "a five-year period of deportability of aliens convicted of serious crimes after entry."(fn17) The legislative history indicates that no


one sought to define the term CIMT;(fn18) rather, it appears that Congress deemed CIMT to be the equivalent of a "serious offense."(fn19)

The 1952 Immigration and Nationality Act (INA), which completely revised the immigration laws,(fn20) contained the same CIMT provisions of the 1917 act, rendering a noncitizen inadmissible for a CIMT and deportable for two CIMTs, or a single CIMT committed within five years of admission if a sentence of one year or longer was imposed.(fn21) The 1952 act was passed in another fearful, pro-deportation era; one of the coauthors of the act stated that "thousands of criminals and subversive aliens are roaming our streets, a continuing threat to the safety of our people."(fn22) Even those who opposed the act were "thoroughly in favor of deporting and excluding undesirable aliens."(fn23) The legislative history of the 1952 Act indicates some immigration inspectors and consular officers objected that the term CIMT as used in the exclusion statute was "too broad" and that "a listing of crimes and circumstances comprehended within the meaning of moral turpitude" would be helpful, because "the applicability of the excluding provisions often depends on what the individual officer considers to be baseness, vileness, or depravity."(fn24) However, a Senate report responding to these criticisms explained, "Although it might be desirable to have the crimes specifically set forth, difficulties might be encountered in getting a phrase that would be broad enough to cover the various crimes contemplated with the law and yet easier to comprehend than the present phrase."(fn25)

In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA);(fn26) AEDPA and its counterpart, the Illegal Immigration


Reform and Immigrant Responsibility Act (IIRIRA),(fn27) expanded the criminal grounds of deportability, particularly the "aggravated felony" category,(fn28) and enhanced the consequences of conviction for an aggravated felony.(fn29) IIRIRA also rendered deport-able persons convicted of crimes of domestic violence, stalking, and child abuse, and those who had violated restraining orders.(fn30) The 1996 laws, adopted during the fearful time following the 1995 Oklahoma City bombings,(fn31) were a response to a belief that many noncitizens had committed crimes and thus needed to be deported in order to...

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