Criminal Defense of Immigrants

(C)  Vagueness of the Definition.  The courts have frequently stated that the term “moral turpitude” has never been clearly or certainly defined.[17]

The United States Supreme Court, however, held that the phrase was not unconstitutionally vague, at least where a conviction required fraud as an essential element.[18]  The court rejected the “suggestion” that the phrase “crime involving moral turpitude” lacked sufficiently definite standards and that the statute was therefore void for vagueness.  The court observed that this doctrine was primarily applicable to criminal prosecutions, its essential purpose being to warn individuals of the criminal consequences of their conduct.  Although noting that the deportation statutes are not criminal, the court said that because of the grave nature of deportation, it would nevertheless examine the application of the “vagueness” doctrine to this case.  Stating that the test for “vagueness” is whether the statutory language conveys a sufficiently definite warning as to the proscribed conduct, when measured by common understanding and practices, the court held that the test had been satisfied in this case, on the basis that the phrase “crime involving moral turpitude” had without exception been construed to embrace fraudulent conduct.  Therefore, the court said, Congress had “sufficiently forewarned” the noncitizen that the statutory consequence of twice conspiring to defraud the United States is deportation.  The court added that difficulty in determining whether “certain marginal offenses” are within the meaning of statutory language under attack as vague does not automatically render a statute unconstitutional for indefiniteness, nor does doubt as to the adequacy of a standard “in less obvious cases” render that standard void for vagueness.  The court held that there was no such doubt present in this case, “whatever else the phrase ‘crime involving moral turpitude’ may mean in peripheral cases.”

Other courts have consistently held the Supreme Court in De George foreclosed this challenge generally.[19]

In Ramirez, for example, the court refused to consider the argument that using the test “a crime involving moral turpitude” for ineligibility for adjustment of status was unconstitutionally vague and void as an indefinite delegation of power to an administrative agency, holding that the application of this standard to “crimes in which fraud is an ingredient” had been foreclosed by the Supreme Court, in Jordan v De George.[20]

The De George holding was explicitly based on the fact that there was no question concerning offenses which had fraud as an essential element.[21]  It may be appropriate, however, to raise the vagueness question in other types of cases in which there is no bright-line standard, and where there is no clear forewarning that the offense will be considered to be a CMT.  The De George decision, the only Supreme Court pronouncement on the subject, is clearly limited to holding that the phrase “crime involving moral turpitude” is not unconstitutionally vague where the crime was one of fraud.[22] 

                If the courts abandon the distinction between crimes malum in se and malum prohibitum as a touchstone for defining the concept of crimes involving moral turpitude, the CMT definition may become vulnerable to a “void for vagueness” challenge, under the Due Process Clause of the Fifth Amendment.[23] 

[17] Jordan v. De George, 341 U.S. 223 (1951) (Jackson, J., dissenting); Quilodran-Brau v. Holland, 232 F.2d 183 (3d Cir. 1956) (the boundaries of “moral turpitude” are not easy to locate); United States ex rel. Manzella v. Zimmerman, 71 F.Supp. 534 (D. Pa. 1947) (stating it was most unfortunate that Congress chose to base the right of a resident noncitizen to remain in this country upon the application of a phrase so lacking in legal precision and, therefore, so likely to result in a judge applying his or her own views to a case rather than the mores of the community); Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir.), cert. den., 355 U.S. 892 (1957) (reference to the “myriad decisions sponsoring various concepts of moral turpitude,” but stating that none of them offered any well-settled criteria which would help it in making its determination); United States ex rel. Berlandi v. Reimer, 30 F.Supp. 767 (D.N.Y. 1939), aff’d, 113 F.2d 429  (2d Cir. 1940) (the meaning of “moral turpitude” is vague and depends to some extent upon the state of public morals); United States ex rel. Manzella v. Zimmerman, 71 F.Supp. 534 (D.Pa. 1947) (the term “moral turpitude” refers, not to legal standards, but rather to those changing moral standards of conduct which society has set up for itself through the centuries).

[18] Jordan v. De George, 341 U.S. 223 (1951).

[19] United States ex rel. Circella v. Sahli, 216 F.2d 33 (7th Cir. 1954), cert. den., 348 U.S. 964 (1955); Ramirez v. U. S. INS, 134 App. D.C. 131, 413 F.2d 405 (D.C. Cir. 1969); Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir.), cert. den., 355 U.S. 892 (1957); Marciano v. INS, 450 F.2d 1022 (8th Cir. 1971), 23 A.L.R. Fed. 466, cert. den., 405 U.S. 997 (1972).

[20] Ramirez v. United States INS, 134 App. D.C. 131, 413 F.2d 405 (D.C. Cir. 1969) (conviction of “false pretenses with intent to defraud,” in violation of 22 D. C. Code § 1301, was a crime involving moral turpitude).

[21] Corporation of Haverford College v. Reeher, 329 F.Supp. 1196 (D. Pa. 1971), supp. op., 333 F.Supp. 450 (D. Pa. 1971).

[22] See Annot., What Constitutes “Crime Involving Moral Turpitude” Within Meaning of § § 212(a)(9) and 241(a)(5) of Immigration and Nationality Act (8 U.S.C. § § 1182(a)(9), 1251(a)(4)), and Similar Predecessor Statutes Providing for Exclusion or Deportation of Aliens Convicted of Such Crime, 23 A.L.R. Fed. 480, § 5 (1975).

[23] See Jordan v. De George, 341 U.S. 223, 71 S.Ct. 703, 707-708 (1951) (“void for vagueness” doctrine applies in deportation cases).