(G)

Deference to the BIA Definition.  Although noting that all courts that have dealt with the issue have applied Chevron deference[60] to the BIA’s definition of crime of moral turpitude, the Seventh Circuit had previously suggested that such deference was not due, since the BIA has never applied or established a unique definition of the term, but rather has only “parrot[ed] the standard criminal-law definition.”[61]  The Seventh Circuit also noted that the circuit courts are split with regard to a second issue, whether the BIA is entitled to Chevron deference in its determination that a particular criminal offense is or is not a crime of moral turpitude.  The court noted that while the First, Third and Eighth Circuits grant such deference, the Fifth and Ninth Circuits do not.[62]  The Second Circuit has also chosen to give the BIA deference.[63]

 

The Seventh Circuit had encouraged the BIA to look to other contexts in making a determination whether an offense is a CMT, and suggested that because the BIA is not the only source of CMT law, it should not be accorded Chevron deference.[64]

 

However, the Seventh Circuit has recently held the BIA should be granted both Chevron and Brand X deference with respect to the determination that a criminal offense is a CMT.[65]

 

(H)  Foreign Offenses.  Whether a foreign conviction constitutes an offense involving moral turpitude will be assessed under United States standards.[66]  See § 8.21, infra.

[60] See § 3.18(B)(3), supra.

[61] Mei v. Ashcroft, 393 F.3d. 737, 739 (7th Cir. Dec. 29, 2004).

[62] Id., comparing Knapik v. Ashcroft, 384 F.3d 84, 87 (3d Cir. 2004); Chanmouny v. Ashcroft, 376 F.3d 810, 811 (8th Cir. 2004), and Cabral v. INS, 15 F.3d 193, 195 (1st Cir. 1994), with Smalley v. Ashcroft, 354 F.3d 332, 336 (5th Cir. 2003), and Rodriguez-Herrera v. INS, 52 F.3d 238 n.4 (9th Cir. 1995).  See also Plasencia-Ayala, 516 F.3d 738 (9th Cir. Feb. 7, 2008).  One Ninth Circuit case, Marmolejo-Campos v. Gonzales, 503 F.3d 922 (9th Cir. Sep 12, 2007), rehearing en banc granted by, 519 F.3d 907 (9th Cir. Mar 14, 2008), did give deference to a published BIA decision interpreting the same state statute, citing an asylum case for support of the idea deference was owed.  This case has a number of other problems and the court granted rehearing en banc.

[63] See, e.g., Wala v. Mukasey, 511 F.3d 102 (2d Cir. Jan. 20, 2008).

[64] Garcia-Meza v. Mukasey, 516 F.3d 535 (7th Cir. Feb. 5, 2008). 

[65] Ali v. Mukasey, 521 F.3d 737 2008 WL 901467 (7th Cir. Apr. 4, 2008).  See § 6.2(B), supra.

[66] Squires v. INS, 689 F.2d 1276, 1278 (6th Cir. 1982), cert. den., 461 U.S. 905 (1983) ((1) in determining whether foreign criminal conviction triggered deportation, the foreign conviction had to be analogized to an equivalent domestic offense as it existed at time of entry into the United States and not as it existed at time of his conviction, and (2) under circumstances of case, foreign “false pretenses” offense, for which six-month suspended sentence was imposed, could not be analogized to District of Columbia false pretenses statute, but could be analogized to a violation of the District of Columbia bad check statute, as amended after the conviction but before entry to the United States, and thus triggered deportation); McKenzie v. Savoretti, 200 F.2d 546 (5th Cir. 1952); Mercer v. Lence, 96 F.2d 122 (10th Cir.), cert. den., 305 U.S. 611 (1938); Matter of McNaughton, 16 I. & N. Dec. 569 (BIA 1978) (securities fraud); Matter of M, 9 I. & N. Dec. 132 (BIA 1960).

BIBIOGRAPHY " CRIME OF MORAL TURPITUDE " DEFINITION
Mary Holper, Deportation for a Sin: Why Moral Turpitude is Void for Vagueness, Roger Williams University School of Law (Sept. 30, 2011). Abstract: A major problem facing noncitizen criminal defendants today is the vagueness of the term crime involving moral turpitude (CIMT) in deportation law. The Supreme Court in the 1951 case Jordan v. DeGeorge decided that a statute authorizing deportation for a CIMT was not void for vagueness because courts had long held the noncitizens offense, fraud, to be a CIMT, so he was on notice of his likely deportation. I argue that when noncitizens are charged with an offense that case law has not clearly delineated as a CIMT, the term is vague, since the definition used by the agency and courts, an act that is base, vile, depraved, and contrary to the rules of morality, provides no useful definition. Rather, it casts judges in the role of God, deporting noncitizens for sin. Exacerbating this situation is the Supreme Courts 2010 decision in Padilla v. Kentucky; since the Court held that defense counsel only has a Sixth Amendment duty to warn noncitizens about immigration consequences that are succinct, clear, and explicit from the immigration statute, there is no clear obligation to warn about deportability for a CIMT. Scholars have thoroughly discussed the vagueness doctrine and also have begun to analyze the Courts recent Padilla decision. This article is the first to address whether CIMT in deportation law is void for vagueness in a post-Padilla world. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1936136

CRIMES OF MORAL TURPITUDE - DEFINITION
Nunez v. Holder, 594 F.3d 1124 (9th Cir. Feb. 10, 2010) The Ninth Circuit described the difficult moral turpitude question as follows: 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 the Board 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 todays society might say, and with good reason, "Go figure." (Nunez v. Holder, ___ F.3d ___, ___, 2010 WL 432417 (9th Cir. Feb. 10, 2010).)

Third Circuit

CRIMES OF MORAL TURPITUDE - "INVOLVES"
Jean-Louis v. Att'y Gen., 582 F.3d 462 (3d Cir. Oct. 6, 2009) (the term "crime involving moral turpitude" is a term of art; the use of the term "involving" does not "invite" an examination into the underlying circumstances of the offense). See also, Nijhawan v. Holder, 129 S.Ct. 2294, 2299 ("Thus in James, referring to Taylor, we made clear that courts must use the "categorical method" to determine whether a conviction for "attempted burglary" was a conviction for a crime that, in ACCA's language, "involved conduct that presents a serious potential risk of physical injury to another." 924(e)(2)(B)(ii).")

Fifth Circuit

CRIMES OF MORAL TURPITUDE " MISPRISION OF A FELONY
Villegas-Sarabia v. Sessions, 874 F.3d 871 (5th Cir. Oct. 31, 2017) (federal conviction of misprision of a felony, in violation of 18 U.S.C. 4 ((1) knowledge that a felony was committed; (2) failure to notify the authorities of the felony; and (3) an affirmative step to conceal the felony."), was a crime against moral turpitude, because misprision of a felony required an intentional act of deceit); following Patel v. Mukasey, 526 F.3d 800 (5th Cir. April 29, 2008); Itani v. Ashcroft, 298 F.3d 1213, 1216 (11th Cir. 2002) (holding that misprision of felony is a categorical CIMT); distinguishing Robles-Urrea v. Holder, 678 F.3d 702, 711 (9th Cir. 2012) (holding that misprision of felony is not a CIMT for lack of a sufficiently evil mental state).

Ninth Circuit

CRIME OF MORAL TURPITUDE " OBSTRUCTION OF JUSTICE " WITNESS DISSUASION
Escobar v. Lynch, 846 F.3d 1019 (9th Cir 2017) (California conviction of witness dissuasion, in violation of Penal Code 136.1(b)(1) is not a crime of moral turpitude). NOTE: The Courts analysis focused on the growing rift between the BIA and the Ninth Circuit (and older BIA case law) on defining crime of moral turpitude.)

CRIMES OF MORAL TURPITUDE " HIT AND RUN
Conejo Bravo v. Sessions, 875 F.3d 890 (9th Cir. Nov.17, 2017) (California conviction of hit and run, under Vehicle Code 20001(a), is under a divisible statute; the record established that noncitizen failed to render aid, which is a crime of moral turpitude); see Garcia-Maldonado v. Gonzales, 491 F.3d 284, 290 (5th Cir. 2007) (holding that Texas hit and run law qualifies as a CIMT, as "the failure to stop and render aid after being involved in an automobile accident is the type of base behavior that reflects moral turpitude").

CRIMES OF MORAL TURPITUDE " DEFINITION " IMMIGRATION CONTEXT
Turijan v. Holder, 744 F.3d 617, 622 n.3 (9th Cir. Mar. 10, 2014) (The BIA's unreasoned reliance on a state court decision ... is not of great weight because it relates to the very different issue of whether a crime is morally turpitudinous for purposes of California evidence law, lacks power to persuade and thus is not entitled to deference.); quoting Castrijon-Garcia v. Holder, 704 F.3d 1205, 1211 and n.6 (9th Cir. Jan. 9, 2013).