Antonio Islas-Veloz v. Matthew Whitaker ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO ISLAS-VELOZ, AKA No. 15-73120
Antonio Islas,
Petitioner, Agency No.
A060-299-672
v.
MATTHEW G. WHITAKER, Acting OPINION
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 27, 2018*
Seattle, Washington
Filed February 4, 2019
Before: Michael Daly Hawkins, M. Margaret McKeown,
and William A. Fletcher, Circuit Judges.
Opinion by Judge McKeown;
Concurrence by Judge W. Fletcher
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 ISLAS-VELOZ V. WHITAKER
SUMMARY**
Immigration
Denying Antonio Islas-Veloz’s petition for review of a
decision of the Board of Immigration Appeals, the panel held
that Supreme Court and circuit precedent required rejecting
Islas-Veloz’s contentions that: 1) the phrase “crime involving
moral turpitude” was unconstitutionally vague; and 2) his
conviction for communication with a minor for immoral
purposes in violation of Revised Code of Washington
§ 9.68A.090 is not categorically a crime of moral turpitude.
The panel concluded that, in assessing the constitutional
status of the phrase “crime involving moral turpitude,” it
remains bound by the Supreme Court’s decision in Jordan v.
De George, 341 U.S. 223 (1951), in which the Court held that
the phrase “crime involving moral turpitude” was not
unconstitutionally vague. The panel also explained that
Court’s more recent decisions in Johnson v. United States,
135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct.
1204 (2018), did not reopen inquiry into the constitutionality
of the phrase. The panel further observed that this court has
repeatedly echoed the holding in De George, noting that the
court recently held in Martinez-De Ryan v. Sessions, 895 F.3d
1191 (9th Cir. 2018), that the phrase is not unconstitutionally
vague.
The panel also concluded that this court’s precedent
foreclosed Islas-Veloz’s alternate claim that his conviction
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ISLAS-VELOZ V. WHITAKER 3
for communicating with a minor for immoral purposes is not
a crime of moral turpitude.
Concurring, Judge W. Fletcher wrote that the Supreme
Court’s recent decisions in Johnson and Dimaya should lead
the panel, were it not bound by this court’s precedent in
Martinez-De Ryan, to conclude that the phrase “crime of
moral turpitude” is unconstitutionally vague when used as a
basis for the removal of a noncitizen. Observing that this
circuit acknowledges a distinction between fraud and non-
fraud crimes involving moral turpitude, Judge W. Fletcher
wrote that non-fraud cases comprise the great bulk of crimes
involving moral turpitude today and that the definition of
non-fraud crimes involving moral turpitude is hopelessly and
irredeemably vague.
COUNSEL
Manuel Rios, Rios & Cruz P.S., Seattle, Washington, for
Petitioner.
Laura M.L. Maroldy, Trial Attorney; John S. Hogan,
Assistant Director; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
4 ISLAS-VELOZ V. WHITAKER
OPINION
McKEOWN, Circuit Judge:
Antonio Islas-Veloz petitions for review of a final order
of removal following the dismissal of his appeal by the Board
of Immigration Appeals (“BIA”). We conclude that Supreme
Court and circuit precedents require us to deny the petition.
Islas-Veloz was convicted of communication with a
minor for immoral purposes in violation of Revised Code of
Washington (“RCW”) § 9.68A.090. An immigration judge
found that Islas-Veloz’s conviction constituted a crime
involving moral turpitude committed within five years of
admission to the United States and found him removable on
that basis. See 8 U.S.C. § 1227(a)(2)(A)(i). The BIA
dismissed Islas-Veloz’s appeal, ruling that communication
with a minor for immoral purposes in violation of RCW
§ 9.68A.090 was categorically a crime involving moral
turpitude.
Islas-Veloz argues that the phrase “crime involving moral
turpitude” is unconstitutionally vague in light of the Supreme
Court’s decisions in Johnson v. United States, 135 S. Ct. 2551
(2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018). In
the alternative, he claims that the crime of “communication
with [a] minor for immoral purposes” in violation of RCW
§ 9.68A.090 is not categorically a crime of moral turpitude,
and hence that his final order of removal is invalid.
In assessing the constitutional status of the phrase “crime
involving moral turpitude,” we remain bound by the Supreme
Court’s decision in Jordan v. De George, 341 U.S. 223
(1951). In De George, the Court held that the phrase “crime
ISLAS-VELOZ V. WHITAKER 5
involving moral turpitude” was not unconstitutionally vague.
Id. at 231–32. The Court’s more recent decisions in Johnson
and Dimaya did not reopen inquiry into the constitutionality
of the phrase. Notably, Dimaya acknowledged that the Court
in De George had “ultimately uph[e]ld” the phrase “crime
involving moral turpitude” against an unconstitutional
vagueness attack. Dimaya, 138 S. Ct. at 1213.
We have repeatedly echoed the holding that the Supreme
Court laid down in De George. In Tseung Chu v. Cornell, we
cited De George in ruling that the phrase “crime involving
moral turpitude” was constitutional. 247 F.2d 929, 938–39
(9th Cir. 1957). More recently, in Martinez-De Ryan v.
Sessions, we again held that the phrase is not
unconstitutionally vague. 895 F.3d 1191, 1194 (9th Cir.
2018); see also Olivas-Motta v. Whitaker, 910 F.3d 1271,
1281 (9th Cir. 2018). De Ryan explicitly addressed Sessions
v. Dimaya, explaining that the Supreme Court’s opinion in
that case did not change the constitutional status of the
phrase. See 895 F.3d at 1193–94. As the concurrence
acknowledges, our precedent cannot be read differently.
Islas-Veloz’s alternate claim that communicating with a
minor for immoral purposes is not a crime of moral turpitude
is foreclosed by our decision in Morales v. Gonzales,
478 F.3d 972 (9th Cir. 2007), abrogated on other grounds in
Anaya-Ortiz v. Holder, 594 F.3d 673, 677–78 (9th Cir. 2010).
In Morales, we “conclude[d] that [a] conviction for
communication with a minor for immoral purposes”
constitutes a crime of moral turpitude. Id. at 978. We
elaborated: “The full range of conduct prohibited by section
9.68A.090 of the Revised Code of Washington categorically
constitutes a crime involving moral turpitude.” Id.
6 ISLAS-VELOZ V. WHITAKER
Apart from any ongoing debate about the degree of
ambiguity inherent in the phrase “crime involving moral
turpitude,” these precedents are directly on point, bind us
here, and foreclose Islas-Veloz’s arguments.
PETITION DENIED.
W. FLETCHER, Circuit Judge, concurring:
We are bound by our court’s precedent in Martinez-De
Ryan v. Whitaker, 909 F.3d 247 (9th Cir. 2018), and I
therefore concur in the panel’s opinion. However, I write
separately because the Supreme Court’s recent decisions in
Johnson v. United States, 135 S. Ct. 2551 (2015), and
Sessions v. Dimaya, 138 S. Ct. 1204 (2018), should lead us,
were we not bound, to conclude that the phrase “crime of
moral turpitude” is unconstitutionally vague when used as the
basis for removal of a noncitizen. See 8 U.S.C.
§ 1227(a)(2)(A)(i)-(ii).
I. “Moral Turpitude” in Immigration Law
The Immigration and Nationality Act (“INA”) imposes
severe penalties on noncitizens convicted of a “crime
involving moral turpitude” (“CIMT”). See 8 U.S.C.
§§ 1182(a)(2)(A) (inadmissibility), 1227(a)(2)(A)(i)-(ii)
(removal), 1229b(b)(1)(C) (ineligibility for cancellation of
removal and adjustment of status). Section
1227(a)(2)(A)(i)–(ii) renders removable any noncitizen who
is (a) convicted of a “crime involving moral turpitude” within
five years of entry for which a sentence of one year or more
is imposed or, (b) convicted of any two “crimes involving
ISLAS-VELOZ V. WHITAKER 7
moral turpitude” at any time after entry, regardless of
sentence length or type. The noncitizen is also ineligible for
cancellation of removal. 8 U.S.C. § 1229b(b)(1)(C).
“[R]emoval is a virtual certainty” no matter how long an
individual may have previously resided in the United States.
Dimaya, 138 S. Ct. at 1211.
In recent years, the United States has deported many tens
of thousands of noncitizens under § 1227(a)(2)(A) after
having been convicted of CIMTs. See Transactional Records
Access Clearinghouse, Individuals Charged with Moral
Turpitude in Immigration Court, SYRACUSE UNIV. (last
accessed Dec. 21, 2018), http://trac.syr.edu/immigration/re
ports/moral_turp.html (collecting data that shows that from
1996-2006 the United States brought removal proceedings
against over 135,000 noncitizens for “crimes involving moral
turpitude”); Transactional Records Access Clearinghouse,
Immigration Court Post-Trump Cases: Latest Data,
S YRACUSE U NIV ., tbl. 6 (March 21, 2017),
http://trac.syr.edu/immigration/reports/462/ (collecting data
from 2012 to 2017).
The term “moral turpitude” first appeared in federal
immigration law in 1891, when Congress barred entry to
persons “who have been convicted of a felony or other
infamous crime or misdemeanor involving moral turpitude.”
Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084. Sixteen years
later, “Congress expanded the class of excluded persons to
include individuals who ‘admit’ to having committed a crime
of moral turpitude.” Padilla v. Kentucky, 559 U.S. 356, 361
n.2 (2010) (citing Act of Feb. 20, 1907, ch. 1134, § 2, 34 Stat.
899.). Ten years later, in the Immigration Act of 1917,
Congress “rendered deportable” noncitizens who are
“sentenced to imprisonment for a term of one year or more
8 ISLAS-VELOZ V. WHITAKER
because of conviction in this country of a crime involving
moral turpitude, committed within five years” of entry and
“noncitizen recidivists who commit two or more crimes of
moral turpitude at any time after entry.” Id. at 361 (citing
Immigration Act of 1917, ch. 29, §19, 39 Stat. 889). The
INA, enacted in 1952 and amended thereafter, included these
same penalties. In none of those statutes has Congress
defined the term “moral turpitude.” Id.
II. Void for Vagueness
In two recent cases, the Supreme Court has revitalized the
void-for-vagueness doctrine in both criminal and civil cases.
First, in Johnson v. United States, 135 S. Ct. 2551 (2015),
the Court upheld a vagueness challenge to a provision of the
Armed Career Criminal Act (“ACCA”). Federal criminal law
prohibits convicted felons from possessing firearms.
18 U.S.C. § 922(g). If a felon convicted under § 922(g) has
previously been convicted of three or more “serious drug
offenses” or “violent felonies,” the ACCA increases the
prison term by a minimum of fifteen years and a maximum of
life. Id. at § 924(e)(1). The ACCA defines “violent felony”
as a crime punishable by a term exceeding a year that
(i) either has as an element the actual, attempted or threatened
use of force or (ii) “is burglary, arson, or extortion, involves
the use of explosives, or otherwise involves conduct that
presents a serious risk of physical injury to another.” Id. at
§ 924(e)(2)(B) (emphasis added). The italicized language is
the ACCA’s “residual clause.”
In an opinion by Justice Scalia, the Court held the residual
clause unconstitutionally vague. The Court wrote, “Two
features of the residual clause conspire to make it
ISLAS-VELOZ V. WHITAKER 9
unconstitutionally vague.” Johnson, 135 S. Ct. at 2557.
First, the clause “leaves grave uncertainty about how to
estimate the risk posed by a crime.” Id. Second, the clause
“leaves uncertainty about how much risk it takes for a crime
to qualify as a violent felony.” Id. at 2558. The combination
produced “more unpredictability and arbitrariness than the
Due Process Clause tolerates.” Id. at 2557.
The Court described, and lamented, four recent cases in
which it had reached disparate results under the ACCA
residual clause: “[T]his Court’s repeated attempts and
repeated failures to craft a principled and objective standard
out of the residual clause confirm its hopeless
indeterminancy.” Id. at 2558. The Court pointed out that, in
addition to its own disparate results, the residual clause had
“‘created numerous splits among the lower federal courts,’
where it has proved ‘nearly impossible to apply
consistently.’” Id. at 2559–60 (quoting Chambers v. United
States, 555 U.S. 122, 133 (2009) (Alito, J., concurring in
judgment)). The Court concluded:
Nine years’ experience trying to derive
meaning from the residual clause convinces us
that we have embarked upon a failed
enterprise. . . . Invoking so shapeless a
provision to condemn someone to prison for
fifteen years to life does not comport with the
Constitution’s guarantee of due process.
Id. at 2560.
Second, in Sessions v. Dimaya, 138 S. Ct. 1204 (2018),
the Court upheld a vagueness challenge to a provision of the
INA. The INA renders deportable (or “removable”) a
10 ISLAS-VELOZ V. WHITAKER
noncitizen convicted of an “aggravated felony” committed
after entering the United States. 8 U.S.C.
§ 1227(a)(2)(A)(iii). The noncitizen is also ineligible, by
virtue of the aggravated felony, for cancellation of removal.
See id. §§ 1229b(a)(3), (b)(1)(C). The INA defines
“aggravated felony” to include a felony “that, by its nature,
involves a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense.” 8 U.S.C. § 16(b). The language
just quoted is the INA’s “residual clause.”
Justice Kagan, writing for the Court, held the INA’s
residual clause unconstitutionally vague: “Section 16’s
residual clause violates [the] promise [of the due process
clause] in just the same way” as the residual clause of the
ACCA held unconstitutional in Johnson. Dimaya, 138 S. Ct.
at 1215. “The result is that § 16(b) produces, just as ACCA’s
residual clause did, ‘more unpredictability and arbitrariness
than the Due Process Clause tolerates.’” Id. at 1216 (quoting
Johnson, 135 S. Ct. at 2558).
Writing for a plurality of four, Justice Kagan
acknowledged that “removal of an alien is a civil matter.” Id.
at 1213. She nonetheless applied the same test to the INA the
Court had applied to the ACCA in Johnson. “[W]e long ago
held that the most exacting vagueness standard should apply
in removal cases.” Id. (citing Jordan v. De George, 341 U.S.
223, 229 (1951)). She continued, “Nothing in the ensuing
years calls that reasoning into question. To the contrary, this
Court has reiterated that deportation is ‘a particularly severe
penalty,’ which may be of greater concern to a convicted
alien than ‘any potential jail sentence.’” Id. (quoting Jae Lee
v. United States, 137 S. Ct. 1958, 1968 (2017)). Justice
Gorsuch did not join the portion of Justice Kagan’s opinion
ISLAS-VELOZ V. WHITAKER 11
justifying the application of the “most exacting vagueness
standard” in removal cases. He wrote separately, agreeing
that the “exacting vagueness standard” should apply in
removal cases, but indicating he would apply it in civil cases
more broadly. Id. at 1231 (Gorsuch, J., concurring).
Combining Justice Kagan’s and Justice Gorsuch’s opinions,
a majority of the Court concluded that the “exacting
vagueness standard” applicable in criminal cases applies, at
the very least, in removal cases under the INA.
III. Vagueness of “Crime Involving Moral Turpitude”
A. Jordan v. De George
Almost seventy years ago in Jordan v. De George,
341 U.S. 223 (1951), the Supreme Court upheld a deportation
order under the Immigration Act of 1917, based on
convictions for crimes involving moral turpitude. De George
was an Italian citizen who had lived continuously in the
United States for twenty-nine years, and who had been twice
convicted of fraudulently avoiding federal taxes on “distilled
spirits.” De George, 341 U.S. at 224–25. The Court of
Appeals for the Seventh Circuit held that tax fraud was not a
CIMT and set aside the deportation order. Id. at 226. The
Supreme Court reversed, holding that fraud was a CIMT and
upholding the deportation.
The Court wrote that “[t]he question of vagueness was not
raised by the parties nor argued before this Court,” id. at 229,
but it addressed the question anyway, in response to three
dissenting justices. The Court noted that it had previously
upheld a deportation order premised on a conviction for a
CIMT when the noncitizen had been convicted of
counterfeiting with an intent to defraud. See United States ex
12 ISLAS-VELOZ V. WHITAKER
rel. Volpe v. Smith, 289 U.S. 422 (1933). The Court
emphasized that the deportation at issue in the case before it,
as in Volpe, was based on a conviction for fraud:
Fraud is the touchstone by which this case
should be judged. The phrase “crime
involving moral turpitude” has without
exception been construed to embrace
fraudulent conduct. We therefore decide that
Congress sufficiently forewarned respondent
that the statutory consequence of twice
conspiring to defraud the United States is
deportation.
Id. at 232.
The Court wrote that there might be some “marginal
offenses” or “peripheral cases” that might (or might not) be
encompassed within the phrase “crimes involving moral
turpitude.” Id. at 231–32. However, “difficulty in
determining whether certain marginal offenses are within the
meaning of the language under attack as vague does not
automatically render a statute unconstitutional for
indefiniteness.” Id. at 231. “Whatever else the phrase ‘crime
involving moral turpitude’ may mean in peripheral cases, the
decided cases make it plain that crimes in which fraud was an
ingredient have always been regarded as involving moral
turpitude.” Id. at 232.
Justice Jackson, joined by Justices Black and Frankfurter,
dissented. He wrote, “What the Government seeks, and what
the Court cannot give, is a basic definition of ‘moral
turpitude’ to guide administrators and lower courts.” Id. at
233 (Jackson, J., dissenting). He continued:
ISLAS-VELOZ V. WHITAKER 13
Congress did not see fit to state what
meaning it attributes to the phrase “crime
involving moral turpitude.” It is not one
which has settled significance from being
words of art in the profession. If we go to the
dictionaries, the last resort of the baffled
judge, we learn little except that the
expression is redundant, for turpitude alone
means moral wickedness or depravity and
moral turpitude seems to mean little more
than morally immoral. The Government
confesses that it is a “term that is not clearly
defined,” and says: “The various definitions
of moral turpitude provide no exact test by
which we can classify the specific offenses
here involved.
Except for the Court’s opinion, there
appears to be universal recognition that we
have here an undefined and undefinable
standard.
Id. at 234–35.
B. Void for Vagueness
1. Questions Today
There are two questions before us today, almost seventy
years after the Court’s decision in De George.
First, the Court in De George concluded that the only
cases in which the meaning of “crime involving moral
turpitude” might have been impermissibly vague were
14 ISLAS-VELOZ V. WHITAKER
“marginal offenses” or “peripheral cases.” Whether at the
time De George was decided such cases were, in fact, merely
“marginal” or “peripheral,” I need not consider. The question
today is whether non-fraud cases are still so few—so
marginal or peripheral—that they need not concern us.
Second, the Court in De George did not quarrel with
Justice Jackson’s conclusion that the definition of “crimes
involving moral turpitude” in non-fraud cases was
unconstitutionally vague. The question today is whether, in
the time since the Court’s decision in De George, judicial
construction has clarified the definition in non-fraud cases.
The answer to both questions is clear. Non-fraud CIMTs
today are neither marginal nor peripheral, and the definition
of non-fraud CIMTs is as vague today as it was in 1951.
2. The Reality Today
Our circuit acknowledges the distinction between fraud
and non-fraud cases, dividing CIMTs into two categories,
“‘those involving fraud and those involving grave acts of
baseness or depravity.’” Marmolejo-Campos v. Holder,
558 F.3d 903, 910 (9th Cir. 2009) (en banc) (quoting Carty v.
Ashcroft, 395 F.3d 1081, 1083 (9th Cir. 2005); see also, e.g.,
Menendez v. Whitaker, 908 F.3d 467, 472–73 (9th Cir. 2018)
(“We have traditionally identified two different types of
crimes involving moral turpitude: ‘those involving fraud and
those involving grave acts of baseness or depravity.’”
(quoting Carty, 395 F.3d at 1083)); Mancilla-Delafuente v.
Lynch, 804 F.3d 1262, 1265 (9th Cir. 2015) (“There are two
types of possible CIMTs: those involving fraud and those
involving grave acts of baseness or depravity.” (internal
quotation omitted)); Robles-Urrea v. Holder, 678 F.3d 702,
ISLAS-VELOZ V. WHITAKER 15
708 (9th Cir. 2012) (“Such crimes are of two types: those
involving fraud and those involving grave acts of baseness or
depravity.”).
Our sister circuits and the Board of Immigration Appeals
(“BIA”) consistently define moral turpitude as conduct that
is “base, vile, and depraved,” and recognize that fraud is
always a CIMT. See, e.g., Chiao Fang Ku v. Attorney Gen.
United States of Am., 912 F.3d 133 (3d Cir. 2019) (“Courts
have long treated fraud crimes as ‘involving moral
turpitude.’” (citing De George, 341 U.S. at 232)); Pierre v.
U.S. Attorney Gen., 879 F.3d 1241, 1251 (11th Cir. 2018)
(“Whether a crime involves the depravity or fraud necessary
to be one of moral turpitude depends upon the inherent nature
of the offense . . . .” (internal citations omitted)); Guevara-
Solorzano v. Sessions, 891 F.3d 125, 135 (4th Cir. 2018) (“A
CIMT is a crime that is ‘inherently base, vile, or depraved,’
meaning that it involves conduct ‘that not only violates a
statute but also independently violates a moral norm.’”
(citation omitted)); Baptiste v. Attorney Gen., 841 F.3d 601,
621 (3d Cir. 2016) (defining morally turpitudinous conduct
as “inherently base, vile, or depraved, contrary to the
accepted rules of morality and the duties owed other persons”
(citation omitted)); Arias v. Lynch, 834 F.3d 823, 826 (7th
Cir. 2016) (“The Board has defined a crime involving moral
turpitude as ‘conduct that shocks the public conscience as
being inherently base, vile, or depraved, and contrary to the
accepted rules of morality and the duties owed between
persons or to society in general.’ We have adopted definitions
substantively in line with the Board’s.” (internal citation
omitted)); Mejia v. Holder, 756 F.3d 64, 68 (1st Cir. 2014)
(defining CIMT as “conduct that shocks the public
conscience as being inherently base, vile, or depraved, and
contrary to the accepted rules of morality and the duties owed
16 ISLAS-VELOZ V. WHITAKER
between persons or to society in general” (citation omitted));
Efstathiadis v. Holder, 752 F.3d 591, 595 (2d Cir. 2014)
(“Whether a prior conviction constitutes a CIMT turns on
whether the crime is ‘inherently base, vile, or depraved.’”
(citation omitted)); Yeremin v. Holder, 738 F.3d 708, 714 (6th
Cir. 2013) (“The term ‘refers generally to conduct 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.’ . . . Crimes that involve
deception or fraud consistently are held to qualify as crimes
involving moral turpitude.” (citation omitted)); Marin-
Rodriguez v. Holder, 710 F.3d 734, 738 (7th Cir. 2013)
(“Crimes entailing an intent to deceive or defraud are
unquestionably morally turpitudinous.”); Rodriguez-Heredia
v. Holder, 639 F.3d 1264, 1268 (10th Cir. 2011) (“Although
‘crime involving moral turpitude’ is not defined by statute,
we have said that ‘moral turpitude refers to conduct which is
inherently base, vile, or depraved, contrary to the accepted
rules of morality and the duties owed between man and man,
either one’s fellow man or society in general.’ Applying this
concept, we have followed Supreme Court precedent making
it ‘plain that crimes in which fraud was an ingredient have
always been regarded as involving moral turpitude.’”
(internal citations omitted)); Guardado-Garcia v. Holder,
615 F.3d 900, 902 (8th Cir. 2010) (“Crimes involving moral
turpitude have been held to require conduct ‘that is inherently
base, vile, or depraved, and contrary to accepted rules of
morality and the duties owed between persons or to society in
general.’ ‘Crimes involving the intent to deceive or defraud
are generally considered to involve moral turpitude.’ (internal
citations omitted)); Hyder v. Keisler, 506 F.3d 388, 391 (5th
Cir. 2007) (“‘Moral turpitude refers generally to conduct that
shocks the public conscience as being inherently base, vile,
or depraved, and contrary to the accepted rules of morality
ISLAS-VELOZ V. WHITAKER 17
and the duties owed between persons or to society in general.’
. . . We have repeatedly emphasized that crimes whose
essential elements involve fraud or deception tend to be
CIMTs.” (internal citations omitted)); Matter of Zaragoza-
Vaquero, 26 I. & N. Dec. 814, 815–16 (BIA 2016) (“Moral
turpitude refers generally to conduct that shocks the public
conscience as being inherently base, vile, or depraved, and
contrary to accepted rules of morality and the duties owed
between persons or to society in general. . . . Crimes that
require intent to defraud are [] crimes involving moral
turpitude.”); Matter of Flores, 17 I. & N. Dec. 225, 227–28
(BIA 1980) (“Moral turpitude is a nebulous concept which
refers generally to conduct which is inherently base, vile, or
depraved, contrary to the accepted rules of morality and the
duties owed between man and man, either one’s fellow man
or society in general. . . . The most frequently cited definition
of moral turpitude was given by the Supreme Court in Jordan
v. DeGeorge, 341 U.S. 223, 232 (1951), where it was stated:
‘Whatever else the phrase crime involving moral turpitude
may mean in peripheral cases, the decided cases make it
plain that crimes in which fraud was an ingredient have
always been regarded as involving moral turpitude.’”); Matter
of E-----, 2 I & N Dec. 134, 140 (BIA 1944) (“[A] crime
involves moral turpitude when its nature is such that it
manifests upon the part of its perpetrator personal depravity
or baseness.”).
If CIMTs were restricted to fraud, there would be no
constitutional difficulty. But in the decades since De George
was decided, courts and administrators significantly expanded
the conduct that qualifies as “base, vile, or depraved” and,
therefore, “morally turpitudious.” Far from being marginal
or peripheral, non-fraud cases comprise the great bulk of
18 ISLAS-VELOZ V. WHITAKER
CIMTs today. Further, the definition of non-fraud CIMTs is
hopelessly and irredeemably vague.
In a recent law review article, Professor Simon-Kerr
provided a number of examples that show both the breadth of
the CIMT category and the vagueness of the definition of
non-fraud CIMTs. Citing cases, she wrote, “Moral turpitude
jurisprudence today suggests that society condemns as
immoral the petty thief, but not the person who attacks a
police officer.” Julia Ann Simon-Kerr, Moral Turpitude,
2012 UTAH L. REV. 1001, 1005 (2012). Compare Michel v.
I.N.S., 206 F.3d 253, 261 (2d Cir. 2000) (holding that petty
theft for stolen bus transfers is a CIMT), with Zaranska v.
U.S. Dep’t of Homeland Sec., 400 F. Supp. 2d 500, 511, 514
(E.D.N.Y. 2005) (holding that second degree assault on
police officer is not a CIMT). “‘[A]ggravated fleeing’ is
inherently base, vile, and depraved, while some forms of
aggravated assault do not violate community norms of
morality.” Simon-Kerr, Moral Turpitude, supra, at 1005.
Compare Mei v. Ashcroft, 393 F.3d 737, 741–42 (7th Cir.
2004) (aggravated fleeing), with Carr v. I.N.S., 86 F.3d 949,
950–51 (9th Cir. 1996) (aggravated assault). See also Alonzo
v. Lynch, 821 F.3d 951, 958 (8th Cir. 2016) (“Assault may or
may not involve moral turpitude.” (citation omitted));
Zaranska, 400 F. Supp. 2d at 514 (“[A]ccording to the BIA,
simple assault is not a crime of moral turpitude, but assault
with a deadly weapon is; a conviction for misconduct that
caused bodily injury is not a crime of moral turpitude, but
where the conduct caused serious bodily injury, it is.”).
“Drunk driving repeatedly is deemed not to involve moral
turpitude, but drunk driving with a suspended license is
assessed differently.” Simon-Kerr, Moral Turpitude, supra,
at 1005. Compare In re Torres-Varela, 23 I. & N. Dec. 78,
83–84 (BIA 2001) (en banc) (drunk driving repeatedly), with
ISLAS-VELOZ V. WHITAKER 19
Marmolejo-Campos v. Holder, 558 F.3d 903, 917 (9th Cir.
2009) (en banc) (drunk driving with suspended license).
More examples are easy to find. Some convictions under
state hit-and-run statutes are crimes involving moral turpitude
while other convictions are not. See Orosco v. Holder,
396 Fed. App’x 50, 52–55 (5th Cir. 2010) (failure to report an
accident where no injury resulted is not a CIMT); Latu v.
Mukasey, 547 F.3d 1070, 1073–76 (9th Cir. 2008) (a driver
who stops and renders aid but fails to give requisite
information to police had not committed a CIMT); Cerezo v.
Mukasey, 512 F.3d 1163 (9th Cir. 2008) (a conviction under
a California hit-and-run statute is not a conviction for a
CIMT, but leaving the scene of an accident is a CIMT);
Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. 2007)
(a conviction under a Texas hit-and-run statute is a conviction
for a CIMT). Citing cases, Kornegay and Professor Lee have
provided still more examples. They wrote, “Among the
offenses that may or may not be [crimes involving moral
turpitude] are manslaughter, fraud, sex offenses against
children, child abandonment and child abuse, indecent
exposure, assault, misprision of felony, false statements, and
driving under the influence.” Lindsay M. Kornegay & Evan
Tsen Lee, Why Deporting Immigrants for “Crimes Involving
Moral Turpitude” Is Now Unconstitutional, 13 DUKE J.
CONST. L. & PUB. POL’Y 47, 61–63 (2017).
Modern federal courts and the BIA have repeatedly
complained that the definition of CIMTs is vague. A sample
of such complaints includes Menendez v. Whitaker, 908 F.3d
467, 472 (9th Cir. 2018) (stating that “[t]he meaning of the
term falls well short of clarity” (citation omitted)); Arias v.
Lynch, 834 F.3d 823, 830, 835 (7th Cir. 2016) (Posner, J.,
concurring) (calling CIMT a “stale, antiquated, and, worse,
20 ISLAS-VELOZ V. WHITAKER
meaningless phrase,” a “vague[]” phrase, “rife with
contradiction, a fossil, [and] an embarrassment to a modern
legal system,” and discussing “remarkable dissent by Justice
Jackson” in De George, which “exposed [the] emptiness” of
the moral turpitude concept); Bobadilla v. Holder, 679 F.3d
1052, 1053–54 (8th Cir. 2012) (calling it a “murky statutory
standard” and stating, “[w]ithout question, the term [CIMT]
is ambiguous.”); Marmolejo-Campos, 558 F.3d at 909
(“‘Moral turpitude’ is perhaps the quintessential example of
an ambiguous phrase.”); Ali v. Mukasey, 521 F.3d 737, 739
(7th Cir. 2008) (calling moral turpitude a “notoriously
plastic” concept); Garcia-Meza v. Mukasey, 516 F.3d 535,
536 (7th Cir. 2008) (calling the standard “notoriously
baffling”); Franklin v. INS, 72 F.3d 571, 573 (8th Cir. 1995)
(“[M]oral turpitude is a nebulous concept and there is ample
room for differing definitions of the term.”); Zaranska, 400 F.
Supp. 2d at 513–14 (“‘Moral turpitude’ historically has
referred to conduct which 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. In
other words, there is no useful definition for the term.”
(internal quotations omitted)); In re Lopez-Meza, 22 I. & N.
Dec. 1188, 1191 (BIA 1999) (“[B]oth the courts and this
Board have referred to moral turpitude as a ‘nebulous
concept’ with ample room for differing definitions of the
term. . . . Under this standard, the nature of a crime is
measured against contemporary moral standards and may be
susceptible to change based on the prevailing views in
society.”); Matter of Short, 20 I. & N. Dec. 136, 139 (BIA
1989) (describing “moral turpitude” as a “nebulous
concept”); Matter of McNaughton, 16 I. & N. Dec. 569, 574
(BIA 1978) (describing moral turpitude as a “vague” term).
ISLAS-VELOZ V. WHITAKER 21
Despite many years of trying, courts and administrators
have not been able to establish coherent criteria. See Nunez
v. Holder, 594 F.3d 1124, 1130 (9th Cir. 2010) (“We have
previously discussed at some length the inherent ambiguity of
the phrase ‘moral turpitude’ and the consistent failure of
either the BIA or our own court to establish any coherent
criteria for determining which crimes fall within that
classification and which crimes do not.”); Marmolejo-
Campos v. Holder, 558 F.3d 903, 921 (9th Cir. 2009) (en
banc) (Berzon, J., dissenting) (“[T]he BIA’s precedential case
law regarding the meaning of the phrase ‘crime involving
moral turpitude’ . . . is a mess of conflicting authority.”);
Nicanor-Romero v. Mukasey, 523 F.3d 992, 997–99 (9th Cir.
2009), overruled on other grounds by Marmolejo-Campos,
558 F.3d 903 (summarizing Ninth Circuit law on moral
turpitude and recognizing that “[w]e have not relied on a
consistent or easily applied set of criteria” to identify crimes
of moral turpitude); Partyka v. Attorney General, 417 F.3d
408, 409 (3d Cir. 2005) (calling moral turpitude jurisprudence
an “amorphous morass”); Mei v. Ashcroft, 393 F.3d 737, 741
(7th Cir. 2004) (“The Board should not be blamed too harshly
[for widely varying results in what is considered a CIMT];
courts have equally failed to impart a clear meaning to ‘moral
turpitude.’ Time has only confirmed Justice Jackson’s
powerful dissent in the De George case, in which he called
‘moral turpitude’ an ‘undefined and undefinable standard.’
The term may well have outlived its usefulness.” (internal
citation omitted)); Mei v. Ashcroft, 393 F.3d 737, 739 (7th
Cir. 2004) (“Since Congress did not define ‘crime involving
moral turpitude’ when it inserted the term in the immigration
statute, and the term had no settled meaning at the time (and
has none still), it is reasonable to suppose ala Chevron that
Congress contemplated that the agency charged with
administering the statute would define the term, and
22 ISLAS-VELOZ V. WHITAKER
specifically would tailor the definition to the policies
embodied in the immigration statutes. The Board of
Immigration Appeals has done neither. . . . [T]he Board
hasn’t done anything to particularize the meaning of ‘crime
involving moral turpitude’ . . . .”); Tseung Chu v. Cornell,
247 F.2d 929, 933 (9th Cir. 1957) (“We are not unmindful of
the myriad decisions sponsoring various concepts of moral
turpitude. They offer no well settled criteria.”); see also De
George, 341 U.S. at 239–40 (Jackson, J., dissenting) (“No
one can read this body of opinions and feel that its application
represents a satisfying, rational process. If any consistent
pattern of application or consensus of meaning could be
distilled from judicial decision, neither the Government nor
the Court spells it out. Irrationality is inherent in the task of
translating the religious and ethical connotations of the phrase
into legal decisions. The lower court cases seem to rest, as we
feel this Court’s decision does, upon the moral reactions of
particular judges to particular offenses.”).
Justice Alito, joined by Chief Justice Roberts, recently
echoed these complaints in Padilla, arguing that an attorney
did not provide ineffective assistance of counsel when he
failed to determine whether a particular offense was a CIMT.
Justice Alito listed a number offenses that may or may not be
crimes involving moral turpitude (citing R. McWhirter, ABA,
The Criminal Lawyer’s Guide to Immigration Law: Questions
and Answers 134 (2d ed. 2006)):
See [McWhirter] at 134 (“Writing bad checks
may or may not be a CIMT” (emphasis
added); ibid. (“[R]eckless assault coupled
with an element of injury, but not serious
injury, is probably not a CIMT” (emphasis
added)); id. at 135 (misdemeanor driving
ISLAS-VELOZ V. WHITAKER 23
under the influence is generally not a CIMT,
but may be a CIMT if he DUI results in injury
or if the driver knew that his license had been
suspended or revoked); id. at 136 (“If there is
no element of actual injury, the endangerment
offense may not be a CIMT” (emphasis
added); ibid. (“Whether [a child abuse]
conviction involves moral turpitude may
depend on the subsection under which the
individual is convicted. Child abuse done with
criminal negligence probably is not a CIMT”
(emphasis added)).
Padilla, 559 U.S. at 379 (Alito, J., concurring).
3. Recent Example
A recent decision of our court illustrates Justice Alito’s
point. Manuel Olivas-Motta was legally present in the United
States as a noncitizen lawful permanent resident. Olivas-
Motta v. Whitaker, 910 F.3d 1271, 1283 (9th Cir. 2018)
(Watford, J., dissenting). He had been brought to the United
States in 1976 by his parents when he was ten days old. Id.
He was married to a United States citizen and had two citizen
children. Id. Most of his extended family lived in the United
States as either citizens or lawful permanent residents. Id.
Olivas-Motta was charged under Arizona law with
aggravated assault and attempted murder. Id. If he had been
convicted as charged, the conviction would have rendered
him removable. Id. Olivas-Motta contended that he was
innocent of the charges, but he was willing to plead guilty to
“reckless endangerment” rather than go to trial if he could be
assured that reckless endangerment was not a CIMT. Id.
24 ISLAS-VELOZ V. WHITAKER
Olivas-Motta’s attorney consulted with an experienced
immigration attorney who advised that in all likelihood
reckless endangerment under Arizona law was not a CIMT.
Id. The attorney’s advice was based on two non-precedential
decisions by the BIA that had specifically held that reckless
endangerment in Arizona was not a CIMT. Olivas-Motta
relied on the immigration attorney’s advice, and he pleaded
guilty to reckless endangerment. Id. at 1284.
Five years after Olivas-Motta’s guilty plea, the BIA
changed course. In Matter of Leal, 26 I. & N. Dec. 20 (BIA
2012), aff’d sub nom. Leal v. Holder, 771 F.3d 1140 (9th Cir.
2014), the BIA abandoned the position taken in its two prior
decisions, now holding that reckless endangerment under
Arizona law is a CIMT. Based on its decision in Matter of
Leal, the BIA ordered Olivas-Motta removed because he had
been convicted of two CIMTs. Id. at 1275. Over a dissent by
Judge Watford, we denied Olivas-Motta’s petition for review.
Id.
4. State Courts’ Experience
Use of the phrase “moral turpitude” under state law
increasingly has been abandoned or forbidden. Starting in the
19th and 20th centuries, states used the term “moral
turpitude” as a criterion to disqualify and impeach witnesses,
to decide whether certain language is slanderous, to
disenfranchise voters, and to disbar attorneys and revoke
medical licenses, among other applications. See De George,
341 U.S. at 227 (discussing use of the term in other contexts);
Simon-Kerr, Moral Turpitude, supra (same). Seventy years
ago in De George, the majority began its discussion by
recognizing this history, stating that “[t]he term ‘moral
turpitude’ has deep roots in the law.” De George, 341 U.S.
ISLAS-VELOZ V. WHITAKER 25
at 227. Citing states’ use of the phrase in other, non-
immigration contexts, the Court reasoned, “In deciding the
case before the Court, we look to the manner in which the
term ‘moral turpitude’ has been applied by judicial decision.”
Id. Finding that, “[w]ithout exception, federal and state
courts have held that a crime in which fraud is an ingredient
involves moral turpitude,” the Court went on to hold that
fraud was a CIMT. Id.
But in the decades since De George, many states have
discontinued use of the phrase “moral turpitude” in various
contexts. See, e.g., Simon-Kerr, Moral Turpitude, supra, at
1040–44. For example, citing the phrase’s vagueness and the
resulting inconsistent rulings, the vast majority of states have
abandoned use of the phrase “moral turpitude” in the context
of witness impeachment. See Simon-Kerr, Moral Turpitude,
supra, at 1033–39; see also, e.g., State v. Morgan,
541 S.W.2d 385, 388 (Tenn. 1976) (reasoning that judges
faced great “difficulty” in “applying a test that is vague and
cannot be explicitly defined,” that the dictionary definition of
“moral turpitude” had provided no guidance, and that the
standard had produced inconsistent rulings); Tucker v. Lower,
434 P.2d 320, 324 (Kan. 1967) (noting that CIMT has “a
vague and uncertain meaning which plagues the courts”);
Heating Acceptance Corp. v. Patterson, 208 A.2d 341,
343–44 (Conn. 1965) (noting that the “uncertainty” of the
term “moral turpitude” had caused “not inconsiderable”
difficulties for judges and ultimately deciding to abandon the
term); Vt. R. Evid. 609, Reporter’s Notes on 1989
Amendment (1989) (“Subdivision (a) is amended to replace
‘moral turpitude’ with more precise and relevant standards
for determining the admissibility of prior convictions for
impeachment. Moral turpitude was troublesome because it
was at once underinclusive and overinclusive, as well as
26 ISLAS-VELOZ V. WHITAKER
vague.”); Maine R. Evid. 609, Advisers’ Note to Former
M.R. Evid. 609–February 2, 1976 (calling moral turpitude a
“troublesome phrase” before switching to a clearer
impeachment standard).
In the context of voter disenfranchisement, use of the
phrase has been struck down due to discriminatory intent and
impact. See Simon-Kerr, Moral Turpitude, supra, at
1040–41; Hunter v. Underwood, 471 U.S. 222, 233 (1985)
(holding that Alabama’s constitutional provision
disenfranchising citizens convicted of a crime of moral
turpitude was unconstitutional). The term’s very “fuzziness
. . . made it well suited to the purpose of” selective, arbitrary
and discriminatory decision making. Simon-Kerr, Moral
Turpitude, supra, at 1040.
Conclusion
Rooted in the Due Process Clause, the void-for-vagueness
doctrine serves two primary purposes. It “guarantees that
ordinary people have ‘fair notice’ of the conduct a statute
proscribes,” and it “guards against arbitrary or discriminatory
law enforcement by insisting that a statute provide standards
to govern the actions of police officers, prosecutors, juries,
and judges.” Dimaya, 138 S. Ct. at 1212.
Congress did not define “moral turpitude” when it
introduced the term into our immigration law in 1891. Sixty
years later, Justice Jackson wrote that “moral turpitude” was
still “an undefined and undefinable standard.” De George,
341 U.S at 235 (Jackson, J., dissenting). Now, almost
seventy years after De George, “moral turpitude” is as
undefined and undefinable as ever.
ISLAS-VELOZ V. WHITAKER 27
Justice Scalia wrote of the ACCA’s residual clause in
Johnson, “Nine years’ experience trying to derive meaning
from the residual clause convinces us that we have embarked
upon a failed enterprise.” Johnson, 135 S. Ct. at 2560. We
have had not just nine years but more than a century of
experience with “moral turpitude.” It is time to recognize
another failed enterprise.