The immigration judge found that Michel had been convicted of two or more offenses classified as a "crime involving moral turpitude," or CIMT, an act that courts have described as one with "evil or malicious intent" that is "accompanied by a vicious motive or a corrupt mind." Both the immigration courts' appellate board and the Second Circuit agreed that Michel's crimes fell into this category and thus could impact his immigration status.
His crimes? Stealing bus transfer tickets in New York.
The Second Circuit upheld the appellate board's decision in 2000, but the "moral turpitude" question split the panel, with one judge questioning in his partial dissent how the board could "treat the alleged triviality of the conduct as irrelevant to its decision."
Nearly 20 years later, the federal courts are still wrestling with the language of the Immigration and Nationality Act's "moral turpitude" statute, at times classifying similar offenses differently depending on the state. Congress has yet to clearly define the law's criteria, leaving it up to courts to interpret the statute.
The varying interpretations have thrown immigrants and attorneys alike for a loop, making it difficult for even veteran immigration lawyers to predict whether a client's prior convictions — from witness tampering to sponsoring a chicken in a cockfight to petty theft like Michel's — will be classified as a "crime involving moral turpitude."
That classification can carry heavy penalties, including exposing legal immigrants to deportation and disqualifying foreign citizens from certain deportation relief available to longtime residents with American children.
One immigration attorney described a client whose theft conviction for stealing a small amount of school supplies was found to be a "crime involving moral turpitude," landing her in removal proceedings without much recourse. Even stealing a water bottle or sharing a joint are offenses that could potentially make immigrants vulnerable to "moral turpitude" labels, said Jennifer Koh, a law professor and director of the Immigration Clinic at Western State College of Law in California.
Certain assault and battery crimes, however, are generally not found to be crimes involving moral turpitude, showcasing how crimes are not always weighed intuitively in the eyes of the federal immigration statute.
The statute's vagueness is enough to make undocumented immigrants with a past conviction pause before applying for an immigration benefit they may be otherwise eligible for, attorneys say. It also presents challenges for legal permanent residents who may be considering whether to take a plea deal.
"When you're advising people about what a CIMT means, it's kind of a perilous situation because you don't always know," said Lance Curtright, an immigration lawyer with De Mott McChesney Curtright & Armendariz LLP who is based in San Antonio, Texas.
Unpredictable Consequences
The challenge of predicting whether a client's conviction or plea deal will result in a CIMT classification can be particularly tough for criminal defense attorneys, who may not be as well-versed in the weeds of complex immigration law.
"Liberty is important, and a lot of these criminal defense attorneys focus on liberty," Curtright said. "But for a lot of immigrant noncitizen clients, more important might be deportation. And they may be willing to go to jail for a little while if they can safeguard the right to stay here with their families."
Immigration lawyer Davorin J. Odrcic of Odrcic Law Group LLC said he routinely advises criminal defense attorneys during plea negotiations to help defendants understand the immigration consequences of the offense they are pleading to.
"I wish honestly that I would be used more than I am because I think that having an immigration lawyer prior to plea is the best practice," he said.
Earlier this year, Odrcic represented Juan Garcia-Martinez, an unauthorized immigrant convicted of assault for tripping another person with his foot. Once on the ground, the person who was tripped was then beaten by Garcia-Martinez's friends, but Garcia-Martinez left the scene and did not participate in the beating.
Garcia-Martinez pled guilty to assault with a deadly weapon — the deadly weapon being his foot — under a New Jersey law's broader understanding of the term.
While simple assault is not generally considered a CIMT, assault with a deadly weapon traditionally is. This left Garcia-Martinez unable to stop his deportation with a cancellation of removal, a type of deportation relief available to foreign citizens who have lived in the U.S. for at least 10 years and who have American dependents who would face "unusual hardship" in the event of their deportation.
The case made it to the Seventh Circuit, which ultimately renewed Garcia-Martinez's bid to halt his deportation, sending his case back to the immigration courts to reconsider. Using a leg to trip another person is "something that has probably happened in every elementary school in the country at one time or another," the appeals court said, questioning the finding that tripping someone should fit within the "generic definition" of assault with a deadly weapon.
Not all immigrants are so lucky.
Last year, one of Curtright's clients, a U.S. permanent resident, tried to fight an immigration court's finding that he could not stop his deportation because his misprision conviction for knowingly failing to report a felony was a CIMT. Born in Mexico, Leonardo Villegas-Sarabia had lived in the U.S. since he was an infant.
After losing at the Fifth Circuit, he asked the U.S. Supreme Court to resolve the "entrenched conflict over misprision" that, according to the petition, has created a 3-3 split in the circuits — specifically, whether a crime involving "mere deceit or dishonesty" constitutes a deportable crime.
"The absence of a concrete, consistent CIMT standard for nonfraudulent crimes is particularly dangerous in this context when the harsh and drastic measure of deportation is at stake," the petition to the high court said.
The high court declined in October to take up the case.
'Generations' of Confusion
The phrase "crime involving moral turpitude," has not visited the Supreme Court since 1951, when the justices concluded that most fraud offenses fall into the category. In that case, Jordan v. De George
, the high court found that an Italian immigrant's conviction for conspiring to evade taxes on distilled spirits was a CIMT, rejecting arguments that the term was too vague.But the federal and immigration courts have since "labored for generations to provide a workable definition," as one federal judge put it, with judges frequently relying on the oft-quoted interpretation of the phrase to encompass "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 persons or to society in general."
The Board of Immigration Appeals, part of the U.S. Department of Justice's Executive Office for Immigration Review, changed the way that courts can evaluate if crimes are CIMTs in 2016, requiring judges to adopt a "categorical approach" that does not consider the facts of individual cases. In cases where the criminal statute covers both moral turpitude crimes and crimes not involving moral turpitude, judges have more leeway to consider additional information.
But Curtright said that even with this more defined analytic framework, when dealing with convictions for nonfraud offenses, attorneys still can't be sure how the crimes will be classified.
"The problem is, CIMTs, it's anybody's guess and they're always changing it," he said.
At least two prominent judges also believe the phrase should be reviewed.
Now-retired U.S. Circuit Judge Richard Posner once slammed CIMT as "stale, antiquated, and, worse, meaningless," adding that it "plays a particularly malign role in immigration adjudication."
Likewise, Ninth Circuit Judge Marsha S. Berzon recently called for more clarity in the law, acknowledging in a concurrence that while judges are "loath to upset long-settled doctrine," now may be the time to do so.
She called crimes involving moral turpitude "the quintessential example of an ambiguous phrase" in which the courts have so far made "tortured attempts to find logical consistency" and have interpreted it on a "case-by-case basis," adding that the "time is ripe for reconsideration of this issue."
Could the Law Be Fixed?
With the circuit and immigration courts at times in conflict, and Congress gridlocked, some immigration attorneys have looked to the Supreme Court to clarify the "moral turpitude" statute, challenging it as not only outdated but as unconstitutionally vague.
The high court is currently weighing whether to hear this issue in an appeal of a Ninth Circuit decision in which the panel found that Mexican citizen Rocio Aurora Martinez-de Ryan's bribery conviction counted as a CIMT, disqualifying her from canceling her removal. According to the opinion, she had paid a Nevada Department of Motor Vehicles employee to provide fake documents for foreign citizens.
A group of immigration organizations, including the American Immigration Lawyers Association and the Immigrant Legal Resource Center, filed an amicus brief backing Martinez-de Ryan at the Ninth Circuit.
In the brief co-authored by professor Koh and Evangeline Abriel, a law professor at the Santa Clara University School of Law and director of the Immigration Appellate Practice Clinic, the organizations took issue with the law's impermissible "vagueness," as well as its "changeability over time," as it evolves with the moral standards of the time.
"[The BIA] is really behaving like a moral police, but for immigrants only," Koh told Law360.
The amicus brief also pointed to the Supreme Court's 2018 ruling in Sessions v. Dimaya
. In that decision, the justices struck down the term "crime of violence," another category of crimes that triggers deportation, as unconstitutionally vague.In that ruling, Justice Neil Gorsuch, siding with the liberals, penned a concurrence of his own, writing that "vague laws" can "invite the exercise of arbitrary power… by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up."
Koh said that while she is reluctant to predict where the high court will fall, there may be an opportunity for Martinez-de Ryan to win at the high court with Justice Gorsuch's vote if the justices agree to take the case up.
"I'm not particularly optimistic that this court will take a bold step that favors immigrants, but I certainly do believe that the case law and the authority and the arguments are strong and are available for the court to do so," Koh said.
The DOJ declined to comment for this story or to make any attorneys in its Office of Immigration Litigation available for an interview.
--Editing by Jill Coffey.