I will be making a major speech on ILLEGAL IMMIGRATION on Wednesday in the GREAT State of Arizona. Big crowds, looking for a larger venue.
Tuesday, August 30, 2016
Immigration Article of the Day: 'Sanctuary' Laws: The New Immigration Federalism by Barbara E. Armacost
Abstract: The policy of “immigration federalism” has justified granting state and local police officers greatly increased responsibilities for enforcing immigration laws, but the devolution of power has also generated enormous controversy. Supporters argue that the vast number of local police and their knowledge of local conditions can substantially assist federal immigration enforcement. Critics say that the policy has caused serious problems, including increased racial profiling and more pretextual arrests for minor crimes, and that the resulting alienation of immigrant communities has reduced public safety. The controversy is not just academic, as more than 270 local jurisdictions have adopted policies designed to resist immigration federalism. Some argue that these laws have only one purpose: to thwart federal enforcement and shelter illegal immigrants. National legislators have proposed legislation to squelch local resistance by cutting federal funds to those localities. Such responses are, however, fundamentally inconsistent with the very theory of federalism. The widespread resistance to immigration federalism is a state/local-inspired reaction to the serious, if unintended consequences of localized immigration policing. A true immigration federalist should view such local resistance not as mere opposition to quash, but as a “new immigration federalism,” a source of insight into the on-the-ground problems with current immigration policies. This article argues that the policies enacted as part of the local resistance movement point the way both to specific solutions, and to a better – and more theoretically sound – immigration federalism. This “new immigration federalism” is already having an effect on federal immigration policy.
Today the Democratic National Committee released a new video entitled, “Stand up to Trump” that shows how Donald Trump’s words and actions are a divisive and dangerous attempt to divide us, but we know that we are stronger together. In the video, Americans from a diversity of backgrounds – from a Muslim-American, to an American living with a disability, to an Asian-American and others – react to Donald Trump’s hateful words and make clear that he cannot and does not speak for all of us. Trump’s divisive rhetoric and policies show he is unfit for the presidency and does not have the temperament to occupy the Oval Office.
Libertarian Presidential Candidate Gary Johnson, the former Governor of New Mexico, offers a Libertarian alternative on immigration. Click here for Johnson's proposal for reform of the immigration system -- without demonization of undocumented immigrants.
In 2015 and the first half of 2016, over 6,600 refugees and migrants drowned or went missing in the Mediterranean after their boats capsized while trying to reach Europe. The crisis is ongoing. A new report: Missing Migrants in the Mediterranean: Addressing the Humanitarian Crisis, authored by the University of York, City University London and IOM’s Global Migration Data Analysis Centre in Berlin, shows that many of the bodies are never identified, and families at home face never finding out what has happened to their loved ones. For more details, click here.
The Mediterranean Missing research project will be launching its final reports from August 31st, and holding launch events in Greece, Italy and Brussels in August and September.
Launch dates are as follows:
- Lesbos: Aug. 31st, Hotel Elysion, Mytilene, 11.00 am
- Athens: Sept. 1st, Hotel Poseidon (Palio Faliro), 10.00 am
- Palermo, Rome, Brussels: The week of Sept. 26th
These are public meetings and all are welcome. Watch this space for more details.
Monday, August 29, 2016
Third Circuit Holds Suspension Clause Does Not Apply to Non-Citizens Physically (But Not Lawfully) Present in the United States
In a breathtaking 80-page opinion handed down today in Castro v. U.S. Dep’t of Homeland Security, a unanimous panel of the Third Circuit has held that the Suspension Clause does not protect non-citizens physically (but not lawfully) present within the United States — at least where they have recently (and surreptitiously) entered the country. The holding comes in the specific context of habeas petitions filed by dozens of Central American migrants seeking to block their expedited removal from the country, but the reasoning has much broader scope (and, potentially, enormously troubling consequences).
Here’s the central passage from pp. 66-68 of the majority opinion:
Boumediene contemplates a two-step inquiry whereby courts must first determine whether a given habeas petitioner is prohibited from invoking the Suspension Clause due to some attribute of the petitioner or to the circumstances surrounding his arrest or detention. Only after confirming that the petitioner is not so prohibited may courts then turn to the question whether the substitute for habeas is adequate and effective to test the legality of the petitioner’s detention (or removal). . . . .The reason Petitioners’ Suspension Clause claim falls at step one is because the Supreme Court has unequivocally concluded that “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.” Landon, 459 U.S. at 32. Petitioners were each apprehended within hours of surreptitiously entering the United States, so we think it appropriate to treat them as“alien[s] seeking initial admission to the United States.” Id. And since the issues that Petitioners seek to challenge all stem from the Executive’s decision to remove them from the country, they cannot invoke the Constitution, including the Suspension Clause, in an effort to force judicial review beyond what Congress has already granted them. As such, we need not reach the second question under the Boumediene framework, i.e., whether the limited scope of review of expedited removal orders under § 1252 is an adequate substitute for traditional habeas review.
Read the full blog post at the link above.
The Department of Justice recently announced that it would stop using private contractors for prisons. Will the federal government follow suit with respect to immigrant detention?
The Department of Homeland Security today issued an important "Statement by Secretary Jeh C. Johnson on Establishing a Review Of Privatized Immigration Detention." It states in full that
"On August 18, the Department of Justice announced that the Bureau of Prisons will reduce and ultimately end its use of private prisons. On Friday, I directed our Homeland Security Advisory Council, chaired by Judge William Webster, to evaluate whether the immigration detention operations conducted by Immigration and Customs Enforcement should move in the same direction. Specifically, I have asked that Judge Webster establish a Subcommittee of the Council to review our current policy and practices concerning the use of private immigration detention and evaluate whether this practice should be eliminated. I asked that the Subcommittee consider all factors concerning ICE’s detention policy and practice, including fiscal considerations. A subcommittee of the HSAC will undertake this review, and the full HSAC will provide to me and the Director of U.S. Immigration and Customs Enforcement its written report of its evaluation no later than November 30, 2016."
UPDATE (Aug. 20): The Washington Post in this article looks at the possible end of private immigrant detention. Immigrant detention has skyrocketed since reforms in 1996, which dramatically increased the use of detention in immigration enforcement.
Nigerian billionaire Gilbert Chagoury, one of Africa’s richest men, has built a reputation in global philanthropy. Since the 1990s, Chagoury has been friends with the Clinton family — in part through a contribution of at least $1 million to the Clinton Foundation. By the time Hillary Clinton became secretary of State, the relationship was strong enough for Bill Clinton’s closest aide to push for Chagoury to get access to top diplomats, and the agency began exploring a deal, still under consideration, to build a consulate on Chagoury family land in Lagos, Nigeria.
But even as those talks were underway, bureaucrats in other arms of the State Department were examining accusations that Chagoury had unsavory affiliations, stemming from his activities and friendships in Lebanon. In fact, Chagoury was refused a visa to enter the U.S. last year.
Chagoury was born in Lagos to Lebanese parents and attended school in Lebanon. During the rule of Gen. Sani Abacha, who seized power in Nigeria in 1993, Chagoury prospered, receiving development deals and oil franchises. In the 1990s, Chagoury portrayed himself as an Abacha insider as he tried to influence American policy.
As a noncitizen, Chagoury in 1996 gave $460,000 to a voter registration group steered by Bill Clinton’s allies and was rewarded with an invitation to a White House dinner. Over the years, Chagoury attended Clinton's 60th birthday fundraiser and helped arrange a visit to St. Lucia, where the former president was paid $100,000 for a speech. Chagoury also contributed $1 million to $5 million to the Clinton Foundation.
During a 2013 dedication ceremony in Lagos, just after Hillary Clinton left her post as secretary of State, Bill Clinton lauded the $1-billion Eko Atlantic as an example to the world of how to fight climate change.
After Hillary Clinton left the State Department, Chagoury again found himself under suspicion by U.S. security officials for allegedly “facilitating fundraising for Hezbollah.” The U.S. government put Chagoury in its database used to screen travelers for possible links to terrorism, interagency memos show.
Juan Gabriel was a Mexican singer and songwriter. Also called El Divo de Juárez, Gabriel was known for his flamboyant style and broke barriers within the Latin music market. With sales of more than 100 million albums, Gabriel was Mexico's top selling artist. Gabriel's album, Recuerdos, Vol. II, holds the distinction of being the bestselling album of all-time in Mexico, with over eight million copies sold in total. During his career he wrote around 1,800 songs.
On August 28, 2016, Gabriel died in Santa Monica, California, while on tour. Born in Mexico, Gabriel lived most recently in El Paso.
Donald Trump's positions on immigration have been the subject of considerable discussion in recent days, with many wondering whether he was softening his "extreme" positions. Well, according to this tweet, Trump will be making a "major speech" on the issue later this week:
The Associated Press reports that the United States will reach its target this week of taking in 10,000 Syrian war refugees in a year-old resettlement program. Refugee resettlement is an issue in the presidential campaign, with Republican nominee Donald Trump stating that displaced Syrians pose a potential security threat. Alice Wells, the U.S. ambassador to Jordan, said Sunday that keeping Americans safe and taking in some of the world's most vulnerable people are not mutually exclusive.
In this photo taken Sunday, August 28, 2016, the U.S. ambassador to Jordan, Alice Wells, shakes hands with Syrian refugees ahead of their departure to the United States. The refugees are part of a year-long program to resettle 10,000 Syrian refugees in the United States.(AP Photo/Raad Adayleh)
Sunday, August 28, 2016
As discussed in this CNN story, Senator John McCain is in a tough primary campaign in Arizona. Immigration has been at its center. Senator McCain joined a bipartisan group of U.S. Senators in supporting comprehensive immigration reform in 2007, which is getting him attacked in the primary by Dr. Kelli Ward. And he is attacked by the likely Democratic nominee Congresswoman Ann Kirkpatrick for being too Trump-like on immigration.
Despite the nastiness of the campaign, Senator McCain enjoys comfortable leads in the polls.
Here is a succinct and thoughtful summary of the immigration positions of the two major presidential candidates. By the way, Donald Trump in Iowa yesterday returned to his "extreme" immigration positions.
"Having served as Governor of a border state, Gary Johnson knows the complex issues associated with immigration reform first hand. Solving immigration problems is not as easy as building a wall or simply offering amnesty.
We should appreciate and respect the diversity of immigrants that come to the United States to be productive members of society. But we also need to recognize that everyone who comes here is not so well-intentioned.
Gary Johnson and Bill Weld don’t want to build an expensive and useless wall. The only thing a big wall will do is increase the size of the ladders, the depth of the tunnels, and the width of the divisions between us.
Candidates who say they want to militarize the border, build fences, and impose punitive measures on good people, ground their position in popular rhetoric, not practical solutions.
Governors Johnson and Weld believe that, instead of appealing to emotions and demonizing immigrants, we should focus on creating a more efficient system of providing work visas, conducting background checks, and incentivizing non-citizens to pay their taxes, obtain proof of employment, and otherwise assimilate with our diverse society.
Making it simpler and more efficient to enter the United States legally will provide greater security than a wall by allowing law enforcement to focus on those who threaten our country, not those who want to be a part of it."
Saturday, August 27, 2016
Michele Waslin for the American Immigration Council reports that nearly 50 foreign-born athletes proudly represented the U.S. as part of the Olympic team in Rio de Janeiro, and eight of them won medals.
- Kerron Clement, born in Trinidad and Tobago, won Gold in the men’s 400 meter hurdles (Track and Field).
- Kyrie Irving, who won gold with the U.S. Men’s Basketball team, was born in Australia to U.S. citizen parents and has dual citizenship.
- Paul Chelimo, originally of Kenya, won Silver in the men’s 5,000 meter race (Track and Field). Chelimo is one of four immigrant Olympians who enlisted in the Army, train with the military’s World Class Athlete Program (WCAP), and competed for the U.S. in track and field.
- Danell Leyva, who defected to the U.S. with his family from Cuba, won two individual Silver medals in Gymnastics.
- Steffen Peters, who was born in Germany and became a U.S. citizen in 1992 won a team bronze in Dressage (Equestrian).
- Phillip Dutton, who was born in Australia, won an individual bronze in Equestrian.
- Dagmara Wozniak, who was born in Poland and came to the U.S. with her parents as a child, was part of the Bronze medal winning Saber Fencing team.
- Foluke Akinradewo, born in Canada to Nigerian parents, won Bronze as a member of the Women’s Volleyball team.
The diversity of this year’s team was evident, not only in the athletes but also their parents, coaches, and all others who helped the team succeed. Geno Auriemma, coach of the gold medal winning women’s basketball team, was born in Italy and came to the U.S. with his family when he was a child. Marta Karolyi, national team coordinator of the gold medal winning women’s gymnastics team was born in a part of Hungary that is now Romania. She and her husband defected to the U.S. in 1981.
Abstract: As the nation transitions from one presidential administration to the next, it will need to settle on a vision for the administrative state. This Article provides a framework for understanding the role of the President as administrator-in-chief of the executive branch. Given ongoing gridlock in Congress, the president and his agencies are likely to continue making policy. Which of those policies is legitimate, and which ought to be questioned, is ripe for debate. Institutional analysis of agencies from the inside out elucidates the conditions under which executive action is acceptable and the conditions under which it requires constraint. Case studies immigration policy, both pro- and anti-enforcement, illustrate these dynamics. Prescriptions for the president and his agencies balance the need for policy and restraint.
In 1991, with just a few hundred dollars to our name, my family and I immigrated to the United States from the USSR, and landed in Chicago a couple of days after I turned 16 years old.
Coming from a family of scientists, I was always strongly encouraged to seek out the best education available. Graduating high school in 1993, I went to study Computer Science at the University of Illinois at Urbana-Champaign, one of America’s best schools in the discipline.
The Internet’s popularity had just begun to explode, opportunities were limitless, and everyone around me was dreaming up startup company ideas. I started no fewer than four companies while finishing up my degree, and every single one of them failed. Undeterred, I drove cross-country to Silicon Valley, and co-founded my fifth company -- PayPal.
Recruiting as many college friends as I could to join the venture, the next few years were spent building the foundation of what is now a $45 billion company, employing over nearly 17,000 people.
Because of PayPal’s success, I was afforded the opportunity to support and fuel the start of many other great companies. I was able to co-found Glow and Affirm, and I was the first investor and chairman of Yelp -- a company that now employs more than 4,000 people. I’ve served on corporate boards of Yahoo!, Yelp, and Evernote, as well as the U.S. Consumer Financial Protection Bureau’s Consumer Advisory Board. I’ve had the privilege to invest in over 100 startups, and advise numerous others.
I believe that the most promising entrepreneurs from around the world should have the same opportunity I had -- the chance to deliver on their potential, here in America.
That’s why I am thrilled that the Obama Administration has a plan to make it easier for the world’s best and brightest immigrant entrepreneurs to start the next great companies right here, in the United States. And you can have a voice in how the new process will work.
My story isn’t unique -- America is a nation of immigrants and has always been a magnet for strivers, innovators, and entrepreneurs from every corner of the globe.
Immigrants co-founded as many as a quarter of the high-tech startups in communities all across this country -- and over half of the startups in Silicon Valley. One in every 10 people employed at a privately-owned U.S. company works at an immigrant-owned firm -- that's nearly 4 million people. Immigrants or children of immigrants founded more than 40 percent of Fortune 500 companies.
And the next great companies are being conceived right now, in countless dorm rooms and garages around the world. So many of these entrepreneurs yearn to grow their companies here in America, where the opportunities are still limitless. And when these companies are started and capitalized here, it creates jobs for Americans and grows our economy.
Co-Founder of PayPal, Affirm, Glow, and Slide
Here is the Obama administration's plan:
U.S. Citizenship and Immigration Services (USCIS) is proposing a new rule, which would allow certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so that they may start or scale their businesses here in the United States.
Read the advance version of the notice of proposed rulemaking: International Entrepreneur Rule. Once the notice of proposed rulemaking is published in the Federal Register, the public will have 45 days from the date of publication to comment. To submit comments, follow the instructions in the notice.
“America’s economy has long benefitted from the contributions of immigrant entrepreneurs, from Main Street to Silicon Valley,” said Director León Rodríguez. “This proposed rule, when finalized, will help our economy grow by expanding immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment and generating revenue in the U.S.”
The proposed rule would allow the Department of Homeland Security (DHS) to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation. Under this proposed rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:
- Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
- Whose startup was formed in the United States within the past three years; and
- Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
- Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
- Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
- Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.
Under the proposed rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entity in the United States. A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue or job creation.
The notice of proposed rulemaking in the Federal Register invites public comment for 45 days, after which USCIS will address the comments received. The proposed rule does not take effect with the publication of the notice of proposed rulemaking. It will take effect on the date indicated in the final rule when a final rule is published in the Federal Register.
For a New York Times look at the new proposed rule, click here.
In Part 2 of a series ‘Why Couldn’t Wildin Graduate?’: The Legacy of a U.S. Immigration Program Targeting Teens, Tina Vasquez talks to educators and advocates about the impact of Operation Border Guardian on schools, students and the community. Here is Part 1. For more on Operation Boarder Guardian, watch this video.
We all have heard the words "Build a Wall!"
In the past year or so more and more discriminatory policies have been adopted, like the banning of Chicano Studies In Phoenix or the racist text book that will soon be available in all Texas Schools
This is where our documentary comes in
Viva Los Icons is a documentary by Eduardo A. Tobias that will celebrate the positive contributions of Chicano Art and the importance of Chicano Studies
Viva los Icons is a traveling documentary that follows Jesse Borrego and Adan Hernandez and they teach our youth about the contirbutions of Chicanos in the Arts. It will shed a light into the importance of Chicano Studies and Chicano contributions to our country.
On our Journey to Albuqerque, New Mexico, I decided to ask the question that has been the fuel behind The Chicano movement and this documentary. "What does it mean to be Chicano?" As a young filmmaker from San Antonio, Texas; I have never had the pleasure of being able to identify myself as Mexican, or American. I have been stuck somewhere in the abyss, with no identity.
Growing up, my school textbooks never taught me about the history behind the Chicano civil rights movements, the pride that flows from generation to generation, and the remnants of our culture that still remain through the lands of Aztlan. It has become my mission to further my education through the Chicanos I meet and to use my art to help get their Untold Stories out to the mainstream public.
Our main goal is to enlighten the world on the Chicano Icons that had to endure oppression, which has allowed the youth of today to stand on the shoulders of their Chicano ancestors.
The best way to share stories, is through the ART!
Friday, August 26, 2016
Posner on Immigration's Crimes Involving Moral Turpitude: "Who talks like that? Who needs to talk like that"?
If we had an “immigration case of the week” category on this blog, this decision – especially Judge Richard Posner’s concurrence – out of the Seventh Circuit would be the hands down winner. The case: Arias v. Lynch, No. 14-2839 (7th Cir. Aug. 24, 2016). The issue: does a conviction for falsely using a social security number to work under 42 U.S.C. § 408(a)(7)(B) constitute a “crime involving moral turpitude”?
The majority opinion illustrates the lingering problems created by then-Attorney General Michael Mukasey’s decision in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008) (“Silva-Trevino I”), when DHS sought to depart from the categorical approach by permitting adjudicators to look behind the record of conviction when making CIMT determinations. In this case, the majority finds that the BIA had essentially misapplies the categorical analysis, even under Silva-Trevino I.
More importantly, the majority opinion has some great insights to challenge the very notion of treating a conviction for using a false social security number to work as a conviction that should trigger negative immigration consequences:
“It seems inconsistent with the terms “base, vile, or depraved” to hold that an unauthorized immigrant who uses a false social security number so that she can hold a job, pay taxes, and support her family would be guilty of a crime involving moral turpitude, while an unauthorized immigrant who is paid solely in cash under the table and does not pay any taxes would not necessarily be guilty of a crime involving moral turpitude. A rule that all crimes that involve any ele ment of deception categorically involve moral turpitude would produce results at odds with the accepted definition of moral turpitude as conduct that is “inherently base, vile, or depraved.” At the same time, there is significant precedent indicating that deceptive conduct is morally turpitudinous. In the end, though, we do not need to try to resolve this conflict definitively in this case. “ (Slip Op. at *11-12)
The majority goes on to comment upon the current confusion in the law over how to even determine whether a conviction is a CIMT, in light of most federal circuit courts’ rejection of the Silva-Trevino I approach and former Attorney General Eric Holder’s subsequent Silva-Trevino II decision, which vacated Silva-Trevino I:
“Given the difficulty that courts and the Board have had in defining the boundaries of moral turpitude, perhaps we should not be surprised to find great uncertainty regarding how the Board should decide whether an immigrant has been convicted of a crime involving moral turpitude. In between the Board’s order and the briefing in Arias’s petition for our review, the Attorney General vacated the order that had set the approach the Board used to determine that Arias’s crime involved moral turpitude. No replacement framework has yet emerged. The current uncertainty about method and an error the Board made in applying the old framework warrant a remand to the Board to reconsider Arias’s conviction under a new framework the Board adopts or the Attorney General mandates…The Board has not yet acted on that instruction, leaving a vacuum of authority regarding how it should determine whether a crime involves moral turpitude.” (*12)
But Posner’s concurrence is where the real fun lies. Rather than try to summarize the opinion, I’ve excerpted what (in my view) are the best parts, which amounted to quite a bit of the concurrence, with a few areas bolded (my emphasis).
On CIMTs as a concept in immigration law:
“It is preposterous that that stale, antiquated, and, worse, meaningless phrase should continue to be a part of American law. Its meaninglessness is well illustrated by this case; and even if it is to be retained in immigration law it was misapplied by the Board of Immigration Appeals. The concept plays a particularly malign role in immigration adjudication, as this case illustrates, because conviction of a crime involving moral turpitude bars the Attorney General from canceling the removal, or adjusting the status, of an alien. See 8 U.S.C. §§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(I).” (*16)
“Congress has never defined “moral turpitude,” but courts and the immigration agencies have tended to adopt a slight variant of the definition in Black’s Law Dictionary: an “act of baseness, vileness, or the depravity in private and social duties which man owes to his fellow man, or to society in general … . [An] act or behavior that gravely violates moral sentiment or accepted moral standards of [the] com‐ munity and is a morally culpable quality held to be present in some criminal offenses as distinguished from others.” Black’s Law Dictionary 1008–09 (6th ed. 1990). Thus Lagunas‐ Salgado v. Holder, 584 F.3d 707, 710 (7th Cir. 2009), remarked that “the BIA has described a crime of moral turpitude as including ‘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 per‐ sons or to society in general.’” The most recent edition of Black’s offers a simpler but broader definition: “conduct that is contrary to justice, honesty, or morality; esp., an act that demonstrates depravity.” Black’s Law Dictionary 1163 (10th ed. 2014). It’s difficult to make sense of these definitions, which approach gibberish yet are quoted deferentially in countless modern opinions. . . .What does “the public conscience” mean? What does “inherently base, vile, or depraved”—words that have virtually dropped from the vocabulary of modern Americans—mean and how do any of these terms differ from “contrary to the accepted rules of morality”? How for that matter do the “accepted rules of morality” differ from “the duties owed between persons or to society in general”? And—urgently—what is “depravity”? A partial list of its synonyms, according to a Google search, includes corruption, vice, perversion, deviance, degeneracy, immorality, debauchery, dissipation, profligacy, licentiousness, lechery, prurience, obscenity, indecency, a wicked or morally corrupt act, the innate corruption of human nature due to original sin, moral perversion, bestiality, flagitiousness, and putrefaction.” (*17-18)
“The definitions constitute a list of antiquated synonyms for bad character, and why does the legal profession cling to antiquated synonyms? Why are we so backward‐looking? The answer lies in the American legal culture—in the fact that law is backward‐looking, that the legal profession revels in antiquity, cherishes jargon, and lacks respect for proper English usage—“base or vile” is not an expression used by sophisticated speakers of modern English, or for that matter unsophisticated, and the word “turpitude” has disappeared from the language as spoken and written today. The language I quoted from Black’s—who talks like that? Who needs to talk like that? Lawyers apparently, and they go a step further into the lexical mud by intoning an adjectival form of “turpitude”: “turpitudinous.” (*18-19)
Posner goes to discuss the U.S. Department of State Foreign Affairs Manual (FAM), which at Volume 9 contains a list of crimes typically found to be CIMTs and crimes not considered CIMTs.
“Crimes committed against governmental authority which fall within the definition of moral turpitude include: (1) Bribery; (2) Counterfeiting; (3) Fraud against revenue or other government functions; (4) Mail fraud; (5) Perjury; (6) Harboring a fugitive from justice (with guilty knowledge); and (7) Tax evasion (willful).
Crimes committed against governmental authority, which would not constitute moral turpitude for visa‐ issuance purposes, are, in general, violation of laws which are regulatory in character and which do not involve the element of fraud or other evil intent. The following list assumes that the statutes involved do not require the showing of an intent to defraud, or evil intent:
(1) Black market violations; (2) Breach of the peace; (3) Carrying a concealed weapon; (4) Desertion from the Armed Forces; (5) Disorderly conduct; (6) Drunk or reckless driving; (7) Drunkenness; (8) Escape from prison; (9) Failure to report for military induction; (10) False statements (not amounting to perjury or involving fraud); (11) Firearms violations; (12) Gambling violations; (13) Immigration violations; (14) Liquor violations; (15) Loan sharking; (16) Lottery violations; (17) Possessing burglar tools (without intent to commit burglary); (18) Smuggling and customs violations (where intent to commit fraud is absent); (19) Tax evasion (without intent to defraud); and (20) Vagrancy.
The division between the two lists is arbitrary…
The pair of lists seems the product of a disordered mind. They make no sense.” (*22)
Posner questions the wisdom behind prosecutorial decisions to convict, and seek the deportation of, the immigrant in the case:
“The petitioner’s crime was the use of a social security number that had been assigned to another person by the Social Security Administration. That was a felony. 42 U.S.C. § 408(a)(7)(B). She had used the number to obtain a job. There is no indication that had she not done this, an American citizen would have gotten the job in her stead rather than one of the 10 or 11 million other illegal aliens who live in the United States and like Arias need to work in order to support themselves. The statute does not require proof of intent to cause harm—an absence that one would think would negate an inference of moral turpitude. Nor is it required that the violation be material; nor was there proof in this case that the violation wrongfully deprived anyone of social security benefits or increased the expenses of government. Unsurprisingly Arias was punished very lightly: she was merely placed on probation for a year and assessed $100, which is the mandatory assessment for felony convictions. See 18 U.S.C. § 3013. So: no incarceration, no fine, just a year’s probation and an assessment equivalent to the amount of money she earns in 9.1 hours of work (for her wage is $10.97 per hour). Conceivably her very light sentence reflects in part the fact that she has two young children, has worked without incident since coming to the United States in 2000, and has paid federal income tax. Or maybe the judge thought her crime trivial, as do I. (Has the Justice Department nothing better to do with its limited resources than prosecute a mouse? Has prosecutorial discretion flown out the window?) She did not steal or invent the social security number; it was given her by the persons who smuggled her into the United States. After completing her probation she was allowed to resume her employment with the same company she’d worked for until her arrest, and she obtained a glowing letter of support from the general manager. She does manual work for the company, described by the general manager as “sealer sanding doors, wear thru and working with specialty paints.” It is the kind of work that illegal immigrants typically do, because it is not pleasant work and it is not well paid. To prosecute and deport such a harmless person (to Ecuador, her country of origin)—indeed a productive resident of the United States—would be a waste of taxpayers’ money, but to deport her on the ground that her crime was one of moral turpitude would be downright ridiculous.” (22-23
Posner also discusses the Supreme Court’s decision in Jordan v. DeGeorge, 341 U.S. 223 (1951), in which the Court refused to invalidate the CIMT definition under the void for vagueness doctrine. In particular, he discusses the “remarkable dissent” in DeGeorge:
“The dissent picked apart the concept of “moral turpitude.” It exposed its emptiness (“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 234–235. And the dissent argued convincingly that deportation was an extreme sanction to impose on De George, the alien, without a more definite standard guiding its imposition. See id. at 240–242. Alas, a great dissent by a great Justice has been forgotten. The concept of moral turpitude, in all its vagueness, rife with contradiction, a fossil, an embarrassment to a modern legal system, continues to do its dirty work. Even so, and despite the precedent of Marin‐Rodriguez, there is a route to justice in this case. It is to recognize that this is not a fraud case.” (*25-26)