Criminal Defense of Immigrants

(E)  Definitions Outside the Immigration Context.  States use the phrase “moral turpitude” as a statutory or regulatory standard for a variety of nonimmigration purposes, such as witness impeachment, or disbarment.[30] 

Arguably, these cases should not be referred to in determining whether a particular offense is a crime of moral turpitude because the question of removability for a crime of moral turpitude is a question of federal law, and because “immigration laws should be applied uniformly across the country, without regard to the nuances of state law.”[31]  At least two courts have held this to be the case.[32]  Other courts, however, have referred to state cases in the disbarment and other contexts in support of arguments that a particular offense is a CMT for immigration purposes.[33] 

The Ninth Circuit recently cited a disbarment case in support of the idea that accessory after the fact was a CMT, regardless of the underlying offense.[34]  The dissent in that case objected to the use of a non-immigration CMT case in the immigration context.[35]  That case has subsequently been vacated upon the grant of a motion to it rehear en banc.[36]

Although noting that all courts that have dealt with the issue have applied Chevron deference[37] to the BIA’s definition of crime of moral turpitude, the Seventh Circuit has suggested that such deference was not due, since the BIA has never applied or established a unique definition of the term, but rather has only “parrot[ed] the standard criminal-law definition.”[38]  The Seventh Circuit also noted that the circuit courts are split with regard to a second issue, whether the BIA is entitled to Chevron deference in its determination that a particular criminal offense is or is not a crime of moral turpitude.  The court noted that while the First, Third and Eighth Circuits grant such deference, the Fifth and Ninth Circuits do not.[39] 

[30] See Jordan v. DeGeorge, 341 U.S. 223, 227, 228 (1951).

[31] See, e.g., Ye v. INS, 214 F.3d 1128, 1132 (9th Cir. 2000); Burr v. INS, 350 F.2d 87, 90 (9th Cir. 1965).

[32] Gonzalez v. Barber, 207 F.2d 398, 400 (9th Cir. 1953) (“A California case is cited in which it was held that an assault with a deadly weapon was not such a crime for purposes of disbarment of an attorney . . . .  However, there the California court was concerned with whether the crime involved such moral turpitude as to reflect upon the attorney’s moral fitness to practice law, a state question. Here we are faced with the federal question of whether the crime involves such moral turpitude as to show that the alien has a criminal heart and a criminal tendency- as to show him to be a confirmed criminal.”), aff’d, 374 U.S. 637 (1954).  See also Franklin v. INS, 72 F.3d 571 (8th Cir. 1995).

[33] See, e.g, Matter of Khourn, 21 I. & N. Dec. 1041 (BIA Oct. 31, 1997); Matter of R, 5 I. & N. Dec. 29 (BIA 1952) (“Nevertheless, we believe that [state crime of moral turpitude] judicial pronouncements cannot be ignored in determining the question before us.”).  See also Jordan v. De George, 341 U.S. 223, 227 (1951) (examining state law decisions in determining that fraud involves moral turpitude).

[34] Navarro-Lopez v. Gonzalez, 455 F.3d 1055, 1058 (9th Cir. Jul. 31, 2006), rehearing granted, 469 F.3d 800 (9th Cir. Nov 8, 2006).

[35] Id. at 1060 n.1.

[36] Id.

[37] See § 15.37, supra.

[38] Mei v. Ashcroft, 393 F.3d., 737, 739 (7th Cir. Dec. 29, 2004).

[39] Id., comparing Knapik v. Ashcroft, 384 F.3d 84, 87 (3d Cir. 2004);  Chanmouny v. Ashcroft, 376 F.3d 810, 811 (8th Cir. 2004), and Cabral v. INS, 15 F.3d 193, 195 (1st Cir. 1994), with Smalley v. Ashcroft, 354 F.3d 332, 336 (5th Cir. 2003), and Rodriguez-Herrera v. INS, 52 F.3d 238 n.4 (9th Cir. 1995).