Friday, February 12, 2010

Ninth Circuit's Stephen Reinhardt on Moral Turpitude

From Kathy Brady of the Immigrant Legal Resource Center:

Ocegueda-Nunez v. Holder (9th Cir. 2/10/2010) holding Calif. P.C. 314 (indecent exposure) is not categorically a crime involving moral turpitude.    (You have to read the whole opinion to get to the disagreement about exotic dancers.)

Once again we face the question of what is moral turpitude: a nebulous question that we are required to answer on the basis of judicially established categories of criminal conduct. Although that may not be a satisfactory basis for answering such a question, it is the role to which we are limited by precedent as a court of law. Furthermore, any answer based on other considerations would in all probability be unacceptable to one or another segment of society and could well divide residents of red states from residents of blue, the old from the young, neighbor from neighbor, and even males from females. There is simply no overall agreement on many issues of morality in contemporary society.

Morality is not a concept that courts can define by judicial decrees, and even less can it be defined by fiats issued by theBoard of Immigration Appeals, to whose decisions the courts must give great deference. Yet, for the purpose of our immigration laws we are required to follow those determinations and to start by applying categories of offenses that the judiciary or the Board members appointed by the Attorney General have deemed morally turpitudinous in all of their applications. We call this the categorical approach. How sensible those decisions are and how close to rational concepts of morality they may come can be seen by considering one of the offenses involved in the case before us. While under our law numerous felonies are deemed not to be morally turpitudinous, all acts of petty theft automatically qualify for that label and the drastic legal consequences that may follow. As some in today’s society might say, and with good reason, “Go figure.”

{editor's note: my illustrious co-blogster, Kevin Johnson, clerked for Judge Reinhardt after graduating from law school)


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