Blog Archive Press and Interviews Calendar Contact
The Elusive Concept of Moral Turpitude
I’ve never understood crimes involving moral turpitude. I confess this after reading a recent decision of the U.S. Court of Appeals for the Eleventh Circuit that caused me to realize that I am not alone.
In Zarate v. U.S. Att’y Gen.,1 the court was confronted with the question of whether a federal conviction for “falsely representing a social security number” constitutes a crime involving moral turpitude under our immigration laws. Not surprisingly, the Board of Immigration Appeals held that it was. And yet, one of the most conservative circuit courts in the country chose not to defer to the Board’s judgment.
Reading the decision, it became clear that no one knows what a CIMT is. As the court pointed out, the term was first included in our immigration laws in the late 19th century. That fact immediately brought to mind the character of Lady Bracknell from The Importance of Being Earnest (first performed in 1895), who, upon learning that a character had been found as a baby in a satchel at a train station, responded: “To be born, or at any rate bred, in a handbag, whether it has handles or not, seems to me to display a contempt for the ordinary decencies of family life that reminds one of the worst excesses of the French Revolution. And I presume you know what that unfortunate movement led to?” If that snippet is any indicator, it seems to have been quite the era for the passing of moral judgment.
The Eleventh Circuit went on to explain that by 1914, a legal dictionary defined the term to mean “an act of baseness, vileness or depravity in the private and social duties which one owes to society, and as applied to offenses includes only such crimes as manifest personal depravity or baseness.” This standard becomes all the more elusive when one asks the obvious follow-up question “In whose view?” Lady Bracknell’s? Vladimir Putin’s? Or someone occupying an indeterminate middle point between those extremes?
It seems pretty obvious in reading the Eleventh Circuit’s opinion that the term “crime involving moral turpitude” is unconstitutionally vague. It’s nearly impossible to argue that the term provides sufficient clarity up front of the consequences of committing certain crimes when, as the Eleventh Circuit emphasized, no less an authority than former circuit judge Richard Posner remarked “to the extent that definitions of the term exist, ‘[i]t’s difficult to make sense of . . . [them].’”2
However, there is one huge obstacle preventing courts from simply brushing the term aside: in 1951, the Supreme Court nixed that idea in a case called Jordan v. De George.3 In its decision, the majority of the Court’s justices held that the term “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Of course, the Court provided no workable definition (if it had, courts today wouldn’t still be exhibiting so much confusion). But the majority did make one highly consequential pronouncement to support its shaky conclusion, claiming “The phrase ‘crime involving moral turpitude’ has without exception been construed to embrace fraudulent conduct.”
Jordan v. De George also contains a remarkable dissenting opinion written by Justice Robert H. Jackson, and joined by two of his colleagues (Justices Black and Frankfurter).
Interestingly, prior to his appointment to the Supreme Court, Justice Jackson briefly served as Attorney General under Franklin D. Roosevelt. And readers of Prof. Alison Peck’s excellent book on the history of the U.S. Immigration Court will know that as Attorney General, Jackson tried to dissuade Roosevelt from moving the INS to the Department of Justice due to the harsh consequences it would impose on immigrants, a move that Roosevelt nevertheless undertook in May 1940.4
Sitting on the high court 11 years later, Justice Jackson expressed his frustration with a majority opinion that would punish the petitioner (who had resided in the U.S. for 30 years) “with a life sentence of banishment” because he was a noncitizen. Justice Jackson pointed out that Congress had been forewarned by one of its own at a House hearing on the Immigration Act of 1917 that the term would cause great confusion, yet provided no additional clarifying language in enacting the statute.5
In the record of the same House hearing, Jackson found reason to believe that Congress meant the term to apply to “only crimes of violence,” quoting language to that effect from a witness, NYC Police Commissioner Arthur H. Woods, whose testimony (according to Jackson) “appears to have been most influential” on the subject.6
After further demonstrating the futility of finding any clear meaning for the term, Jackson stated in his dissent that the majority “seems no more convinced than are we by the Government’s attempts to reduce these nebulous abstractions to a concrete working rule, but to sustain this particular deportation it improvises another which fails to convince us…”7
In Jackson’s view, the elusiveness of the term left whether a conviction was for a CIMT or not to the view of the particular judge deciding the matter. He added “How many [noncitizens] have been deported who would not have been had some other judge heard their cases, and vice versa, we may only guess. That is not government by law.”8
Turning to the specific crime before him, which involved the failure to pay federal tax on bootlegged liquor, Jackson noted that those who deplore trafficking in liquor “regard it as much an exhibition of moral turpitude for the Government to share its revenues as for respondents to withhold them.” On the flip side, Jackson wryly observed that “Those others who enjoy the traffic are not notable for scruples as to whether liquor has a law-abiding pedigree.”9 Just for good measure, the justice added: “I have never discovered that disregard of the Nation’s liquor taxes excluded a citizen from our best society…”10
Given the term’s requirement of passing moral judgment on criminal acts, Jackson emphasized (perhaps most importantly) that “We should not forget that criminality is one thing— a matter of law—and that morality, ethics and religious teachings are another.”11
In spite of the wisdom (and wit) of Jackson’s dissent, here we are over 70 years later, with the 11th Circuit left to deal with De George in reviewing the case of someone who falsely used a Social Security number. In Zarate, counsel explained at oral argument that the reasons for his client’s action was to work and support his family, and to have medical coverage to pay for his son’s surgery.12 Counsel also argued that the crime lacked the level of immorality required for a CIMT finding, explaining that those using a false number still pay the required amount of Social Security withholding to the government, and yet are not eligible to receive Social Security benefits themselves in return unless they first obtain lawful immigration status.
The Eleventh Circuit issued a thoughtful opinion. The court understood that it was bound by De George’s view that fraud always involves moral turpitude, a stance repeatedly reinforced by courts since. But the court noted that “under the categorical approach the crime Mr. Zarate committed does not include fraud as an element or ingredient.”
Surveying BIA decisions on the topic all the way back to 1943, it found that over the years, the Board has concluded that not all false statements or deception constitute fraud. The court cited a Second Circuit unpublished opinion distinguishing between deception and fraud, as the latter generally requires “an intent to obtain some benefit or cause a detriment.”13 And the court referenced the Seventh Circuit’s observation that the statute in question covers false use of a Social Security number not only to obtain a benefit, but also “for any other purpose.” That court added “It is not difficult to imagine some purposes for which falsely using a social security number would not be “inherently base, vile, or depraved.”14
In the end, the Eleventh Circuit sent the matter back to the BIA to consider whether under the categorical approach, any and all conduct covered by the statute would involve behavior that 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’s decision certainly provided the Board a path to conclude otherwise.
I of course have no insight into how the Board will rule on remand. However, it seems worth adding some observations on the BIA’s problematic approach to CIMT determinations in recent years.
First, the Eleventh Circuit focused on the importance of the categorical approach in reaching the proper outcome.15 However, Kansas attorney Matthew Hoppock obtained through FOIA the PowerPoint of a presentation from the 2018 EOIR Immigration Judges training conference titled “Avoiding the Use or Mitigating the Effect of the Categorical Approach,” which was presented by a (since retired) Board Member, Roger Pauley.16 By virtue of binding Supreme Court case law, judges are required to apply the categorical approach. So why is the BIA, a supposedly neutral tribunal, training EOIR’s judges to find ways around employing this approach, or to try to reduce its impact?
This concern was further confirmed in an excellent 2019 article by Prof. Jennifer Lee Koh detailing how the BIA has repeatedly fudged its application of the categorical approach in CIMT cases.17 Prof. Koh concluded that the BIA’s approach has involved “The Board’s designation of itself as an arbiter of moral standards in the U.S., its unwritten imposition of a “maximum conduct” test that is at odds with the categorical approach’s “minimum conduct” requirement, and its treatment of criminalization as evidence of moral turpitude” which, not surprisingly, has resulted in BIA precedents expanding the number of offenses judged to be CIMTs.18
Even where the rule is applied correctly, another major problem remains. As Justice Jackson correctly stated, criminality is one thing, moral judgment quite another. And while immigration judges are expected to be experts in the law, they are not the standard bearers for what society views as base or vile.
This returns us to a question asked earlier: if not the judge, then who should be arbiter of moral standards? At the conclusion of its opinion, the Eleventh Circuit cited to a law review article by Prof. Julia Simon-Kerr which criticized how courts have “ ignored community moral sentiments when applying the standard.”19 The article’s author observed that instead of keeping the standard “up to date with the ever-evolving and often-contested morals of a pluralistic society,” courts have to the contrary “preserved, but not transformed, the set of morally framed norms of the early nineteenth century that first shaped its application.”20 In other words, it seems present-day judges too often continue to channel Lady Bracknell, rather than trying to gauge the moral sensibilities of their particular time and place.
If courts were to truly adapt to evolving societal standards, should decisions such as De George remain binding? Or should they be deemed to have provided guidance based on the morals of their time, subject to current reassessment?
Copyright 2022 Jeffrey S. Chase. All rights reserved.
Notes:
- No. 20-11654 (11th Cir. Feb. 18, 2022) (Published).
- Quoting Arias v. Lynch, 834 F.3d 823, 831 (7th Cir. 2016) (Posner, J., concurring).
- 341 U.S. 223 (1951).
- Alison Peck, The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction (University of California Press, 2021) at p. 97.
- The warning was provided by Adolph J. Sabath, who served in the House from 1907 to 1952, was an immigrant himself, and is described in his Wikipedia page as “a leading opponent of immigration restrictions and prohibition.”
- Jordan v. De George, supra at 235.
- Id. at 238.
- Id. at 239-40.
- Id. at 241.
- Id.
- Id.
- Petitioner was represented by Fairfax, VA attorney Arnedo Silvano Valera.
- Ahmed v. Holder, 324 F.App’x 82, 84 (2d Cir. 2009).
- Arias v. Lynch, supra at 826.
- Judge Gerald Tjoflat even authored a concurring opinion tutoring the BIA to properly conclude that the statute is not divisible, ensuring the application of the categorical approach on remand.
- The materials can be found at: https://www.aila.org/infonet/eoir-crimes-bond.
- Jennifer Lee Koh, “Crimmigration Beyond the Headlines,” 71 Stan. L. Rev. Online 267, 272 (2019).
- Id. at 273.
- Julia Simon-Kerr, “Moral Turpitude,” 2012 Utah L. Rev. 1001, 1007-08 (2012).
- Id.
MARCH 4, 2022
Reprinted by permission.
As Jeffrey cogently points out NOBODY — Congress, the Article IIIs, the BIA, Immigration Judges, certainly not respondents — REALLY understands what “moral turpitude” means. Consequently, the only way to properly adjudicate cases involving that issue is through an exhaustive search and parsing of Circuit law, BIA precedents, and often state court decisions.
The problem: No unrepresented immigrant — particularly one in detention where a disproportionate share of these cases are heard — has any realistic chance of performing such intricate, arcane research into all too often conflicting and confusing sources.
As long as migrants continue to be intentionally wrongly treated as “lesser persons” or “not persons at all” by the Supremes and other authorities under the Due Process Clause — a process known as “Dred Scottification” — there will be no equal justice under law in America!
Better, more courageous, practical, and scholarly, Federal Judges — from the Supremes down to the Immigration Courts — won’t solve all of America’s problems. But, it certainly would be an essential start!
