Immigration Law Associates, PC

Pondering the Definition of Moral Turpitude

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By: Karen Smith*

Because some criminal activities and convictions can result in adverse immigration consequences for non-U.S. citizens, a number of recent cases in federal courts and the Board of Immigration Appeals (the Department of Justice’s immigration court) have questioned which crimes may result in deportation or inadmissibility. The U.S. Attorney General advised courts on how to determine whether a particular crime involved moral turpitude in his 2008 decision, Matter of Silva-Trevino. Provisions of the Immigration and Nationality Act make individuals who commit crimes of moral turpitude ineligible to enter the U.S. or deportable if they are already present in the U.S. The Fourth Circuit Court of Appeals rejected the Attorney General’s standard in the case of Prudencio v. Holder earlier this year.

The Attorney General’s test was established to create a uniform standard for assessing moral turpitude. One approach involves comparing the statutory definition of a crime with the definition of moral turpitude. The Attorney General defines moral turpitude to encompass more than illegality or criminality, and requires the perpetrator to commit a reprehensible act with some form of intent or knowledge that what they did was wrong. Another approach, if the criminal statute includes conduct that involves moral turpitude and conduct that does not, is to examine the documents pertaining to the conviction of the accused to determine whether the specific crime committed was one that involved moral turpitude. If judges cannot determine whether criminal conduct involves moral turpitude by using the first two steps, the Attorney General’s decision permits them to “consider any additional evidence or fact finding” that is “necessary or appropriate to resolve the moral turpitude question.”

Unfortunately, the test does not clarify the inquiry that courts should use when they are deciding whether a crime involves moral turpitude. The Fourth Circuit rejected the test because it did not provide a clear statement regarding what additional evidence may be considered under the new, third step of the Attorney General’s test. Rather than making it easier to know when a crime involves moral turpitude and when it does not, the test creates more uncertainty by giving judges the discretion to take into account any facts from a case that they wish to. It also creates evidentiary problems by allowing judges to consider facts that are alleged in the immigrant’s criminal history, but not proven. Under the Attorney General’s standard, a judge could potentially consider a police officer’s initial impression of a crime as it was documented in an arrest warrant, even if the records of the police officer are later amended or corrected to reflect new information.

The Attorney General’s moral turpitude decision created a divide between courts that follow his test, and the Fourth, Third, Eighth, and Eleventh Circuit Courts, all of which rejected the Attorney General’s third prong for finding moral turpitude. The differing standards applied by the courts result in confusion among immigrants who cannot be sure that their offenses will not have consequences for their immigration statuses, and headaches for immigration lawyers who do not have a clear test to apply to the facts of their clients’ cases when they represent them in court.

The Fourth Circuit was correct in joining its fellow courts and rejecting the Attorney General’s standard. While there is no specific statutory definition of moral turpitude for courts to apply, prior case law provides a guide for determining when a criminal offense will qualify as a crime of moral turpitude. The attorney general should have provided a standard that sharpened the definition of moral turpitude and make it more workable, rather than one that made it more ambiguous.

*Karen Smith is a legal intern at Beach-Oswald and a third year student at American University Washington College of Law.

Photo Credit: Ahluwalia Law

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