Justices, Justices, Look through Your Books, and Make Me a Perfect Match: An Argument for the Realistic Probability Test in CIMT Removal Proceedings

By McCarthy, Evan F. | Iowa Law Review, May 2019 | Go to article overview

Justices, Justices, Look through Your Books, and Make Me a Perfect Match: An Argument for the Realistic Probability Test in CIMT Removal Proceedings


McCarthy, Evan F., Iowa Law Review


I. Introduction

Much has been said about the spare phrase "crime involving moral turpitude" ("CIMT") in the context of the Immigration and Nationality Act ("INA"), and how such an amorphous phrase nonetheless manages to have such dramatic consequences.1 Among other things, conviction of a "crime involving moral turpitude" can be used to deny entry to the United States,2 deny the extension of a visa or travel permit,3 and trigger automatic removal procedures for a noncitizen.4 The lack of guidance in the INA as to what counts as a CIMT historically led to inconsistent outcomes, with arguably nonturpitudinous conduct getting swept up in overbroad legislative language, leading to inconsistent outcomes based on things like accidents of geography or poorly drafted law.5

This problem, combined with the severity of deportation, prompted courts and the Board of Immigration Appeals ("B.I.A.") to use a "categorical approach," a judicial method imported from collateral consequences doctrines developed in general criminal law, when determining which state and federal crimes count as crimes involving moral turpitude.6

A court applying the categorical approach takes the language of a statute of conviction and assesses whether the actions that the statute criminalizes inherently cover morally turpitudinous action, using whatever standard of "moral turpitude" has been developed by the local jurisdiction.7 If the statutory language does inherently include morally turpitudinous action, a court can move on to a "modified" categorical approach, which is used to separately analyze sections of ambiguous or broad criminal laws.8 Importantly, a reviewing court using either the categorical approach or the modified categorical approach will generally not be permitted to look at the facts of the individual case.9

In the early 21st century, the Supreme Court and the Board of Immigration Appeals developed two frameworks for new modifications of the categorical approach. First is the "realistic probability" test, which allows a court using the modified categorical approach to ask whether there is an actual (i.e., supported by historical prosecution or convictions) probability that the statute being examined would be used to capture behavior not considered morally turpitudinous.10 If that realistic probability cannot be shown, the statute is not a categorical match, and cannot be used to trigger automatic CIMT deportation.11

Second is the "minimum reading" test, which does not look to an actual record of prosecution, but instead asks whether the narrowest possible interpretation of a statute captures only crimes involving moral turpitude.12 If the narrowest possible interpretation captures non-turpitudinous action, it is not a categorical match, and cannot be used to trigger automatic CIMT deportation either.13 The Circuits have split over which test to apply, with a majority adopting the realistic probability test, but a significant minority adopting the minimum reading test.14

This Note will assess the methodology and the arguments for both the realistic probability test and the minimum reading test. Part II will provide background on the relevant portions of the INA, and on the development of the categorical approach and subsequent development of the competing tests. Part III will examine the outcomes of each test as applied by the various Circuits. In Part IV, this Note will advocate for a uniform adoption of the realistic probability test for CIMT removal proceedings that use the categorical approach. Uniform application of the realistic probability test over the minimum reading test would create a national floor of predictability for aliens facing CIMT removal, and would comport with the Supreme Court's existing precedent, as well as national trends. While there would likely be an increased administrative cost to adopting the realistic probability test, the benefits outweigh whatever small strain would result from its national use. …

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