Academic journal article The Review of Litigation

An Unrealistic Burden: Crimes Involving Moral Turpitude and Silva-Trevino's Realistic Probability Test

Academic journal article The Review of Litigation

An Unrealistic Burden: Crimes Involving Moral Turpitude and Silva-Trevino's Realistic Probability Test

Article excerpt

I. INTRODUCTION

Ramona is a noncitizen of the United States who was admitted to the United States four years ago as a "Lawful Permanent Resident" (LPR). She has held a steady job working as a grocery store cashier and is now married to a United States citizen. One day at work, a friend asks her to give him a discount on his grocery store purchases because he cannot afford to pay for all of his family's groceries. Reluctantly, Ramona acquiesces, and she does not scan some of her friend's groceries before bagging them. When the store checks its ledgers at the end of the month, it notices an imbalance, and discovers that multiple employees have been providing unauthorized discounts to friends. The store manager asks Ramona if she has given any unauthorized discounts, and she tells the truth. The manager reports Ramona to the police, and the local prosecutor charges her with embezzlement, for which the maximum sentence is one year. She pleads guilty and is sentenced to six months probation. To her surprise, she is soon issued a Notice to Appear in Immigration Court. She is being deported from the United States because she has committed a "crime involving moral turpitude."

The hypothetical story of Ramona is just one example of the way in which a conviction for a crime involving moral turpitude ("CIMT") can have devastating consequences for those who are not citizens of the United States. For those with lawful immigration status who have recently been admitted to the United States, like Ramona, a single CIMT can be a deportable offense under the Immigration and Nationality Act ("the Act").1 Anyone with lawful immigration status - including a lawful permanent resident that has lived in the United States for decades - is deportable if convicted of more than one CIMT, regardless of the sentence that the charged individual may receive.2 A single CIMT can prevent a noncitizen from receiving relief such as cancellation of removal, despite the potential hardship that could result from deportation.3 Finally, conviction of a CIMT can also serve as a bar to eligibility for a number of benefits under immigration law, including naturalization.4

Despite the significance of CIMTs in immigration law, the term "crime involving moral turpitude" is not defined in the immigration statute, nor has it ever been clearly defined by any court.5 In 1933, the Attorney General pronounced such an offense to be "anything done contrary to justice, honesty, principle, or good morals" and "an act of baseness, vileness or depravity." In order for a crime to involve "turpitude," it usually must involve a mens rea of intent or knowledge, or at the very least recklessness causing serious bodily injury.7 Courts have also recognized that a crime will generally involve moral turpitude when "such [evil] intent is implicit in the nature of the crime." Crimes of this class have included, for example, incest9 and statutory rape.10 In addition, crimes involving the intent to defraud always involve moral turpitude.11 The Supreme Court has held that, despite the confusion surrounding the term "crime involving moral turpitude" and the seriousness of deportation as a punishment, statutes containing the phrase are not void for vagueness.12

The characterization of an offense as a CEMT under the Act is a matter of statutory interpretation. Traditionally, the moral turpitude determination has been based upon the definition of the offense under the statute cited in the judgment of conviction, not the circumstances surrounding the noncitizen's actual conduct.13 The "categorical approach" to the moral turpitude determination has been the standard for nearly a century.14 Until recently, it has been consistently applied by the Board of Immigration Appeals ("BIA") and every federal appellate court that has reviewed determinations as to whether a noncitizen's crime involved moral turpitude.15 Under the categorical approach, the immigration judge ("LJ") sometimes must look to the record of conviction to determine what section of a statute a noncitizen was convicted under (known as the "modified categorical approach"). …

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