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)


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