Justices, Justices, Look Through Your Books, and Make Me a Perfect Match: An Argument for the Realistic Probability Test in CIMT Removal Proceedings

• Author: Evan F. McCarthy
• Position: J.D. Candidate, The University of Iowa College of Law, 2019; B.A. Political Science, The University of Iowa, 2016
• Pages: 2269-2297

2269

Justices, Justices, Look Through Your

Books, and Make Me a Perfect Match:

An Argument for the Realistic Probability

Test in CIMT Removal Proceedings

Evan F. McCarthy*

ABSTRACT: The Immigration and Nationality Act provides a mechanism

for automatic removal of aliens convicted of “crimes involving moral

turpitude.” The problems resulting from trying to make law based on that

phrase led immigration courts to adopt a categorical approach to statutory

interpretation, which attempts to guarantee deportation based on statutes that

cover actually turpitudinous conduct and not on overinclusive or vague

statutory language. The Circuits have split in their methodology when using

the categorical approach, with some favoring a “realistic probability” test that

requires a showing that the statute of conviction has actually been used to

punish the conduct that may trigger deportation, and with others favoring a

more formalistic—and less forgiving—“minimum reading” approach. The

former allows defendants greater flexibility in front of immigration courts and

furthers important procedural goals identified by the Supreme Court’s most

recent decisions involving the categorical approach. The latter approach is

associated with adverse, and sometimes unfair, results for defendants, who

may not have been actually guilty of the conduct proscribed by the statute of

conviction, and is also underinclusive in that its narrow and formulaic

application can sometimes lead to favorable outcomes for defendants whose

conduct was obviously proscribed. This Note advocates for the nationwide

adoption of the “realistic probability” standard. To support this argument,

this Note will assess the history of the approaches, the methodology and

philosophical concerns motivating the use of both tests, and the outcomes

defendants can expect from jurisdictions using one test over the other. This

Note will argue that the realistic probability test is more in line with Supreme

Court precedent, stated goals of procedural fairness, and the principles that

* J.D. Candidate, The University of Iowa College of Law, 2019; B.A. Political Science, The

University of Iowa, 2016. I would like to thank Emily Boylan, Bennett Thompson, Janet Lawler,

Mark Mellecker, and the Iowa Law Review editors and student writers for their support and work

on this Note.

2270 IOWA LAW REVIEW [Vol. 104:2269

motivated the adoption of the categorical approach in the immigration

context.

I.INTRODUCTION ........................................................................... 2270

II.BACKGROUND: EVOLUTION OF THE CATEGORICAL

APPROACH ................................................................................... 2272

A.“CRIME INVOLVING MORAL TURPITUDE” ................................ 2273

B.THE CATEGORICAL APPROACH .............................................. 2276

C.CIRCUIT VARIATIONS ON THE CATEGORICAL APPROACH

FOR CIMT ............................................................................ 2278

III. OUTCOMES FOR DEFENDANTS ARE BETTER UNDER THE

REALISTIC PROBABILITY TEST ..................................................... 2282

A.COSTS AND BENEFITS OF THE REALISTIC

PROBABILITY TEST ................................................................ 2283

B.COSTS AND BENEFITS OF THE MINIMUM READING TEST ........... 2286

C.COMPARISON AND IMPLICATIONS ........................................... 2288

IV.THE SUPREME COURT SHOULD ADOPT THE REALISTIC

PROBABILITY TEST NATIONWIDE ................................................ 2289

A.PROCEDURAL PROTECTIONS ARE GUARANTEED BY THE

REALISTIC PROBABILITY TEST ................................................ 2289

B.RESPONSES TO CIRCUIT ARGUMENTS AGAINST THE

REALISTIC PROBABILITY TEST ................................................ 2295

V.CONCLUSION .............................................................................. 2296

I. INTRODUCTION

Much has been said about the spare phrase “crime involving moral

turpitude” (“CIMT”) in the context of the Immigration and Nationality Act

(“INA”), and how such an amorphous phrase nonetheless manages to have

such dramatic consequences.1 Among other things, conviction of a “crime

1. Mary Holper, Deportation for a Sin: Why Moral Turpitude is Void for Vagueness, 90 NEB. L.

REV. 647, 680–81 (2012) (“[CIMT is] loaded with religious overtones and hark[ ens] back to a day

when judges played God, assigning blame for sin.”). Professor Holper makes a strong argument for

striking “crime involving moral turpitude” f rom the INA and other contexts in which it appears on

the grounds that its definition, necessarily shifting and wildly inconsistent, leads to intolerable

confusion on the part of criminal defendants (and their attorneys) and is so vague as to not put

anyone on notice as to what sort of conduct might actually be proscribed in a given jurisdiction. Id.

at 648–49. This line of argument is not new. See John S. Bradway, Moral Turpitude as the Criterion of

Offenses that Justify Disbarment, 24 CALIF. L. REV. 9, 14 (1935) (describing the phrase “crime involving

moral turpitude” as a legislative “catch-all” and anathema to any degree of precision). While the