Under Johnson, the Term Crime Involving Moral Turpitude
Is Void for Vagueness.

Several months ago, the Supreme Court held that the residual clause of the Armed Career Criminal Act (ACCA) was unconstitutionally void for vagueness. See Johnson v. United States, 135 S. Ct. 2551 (2015). Because the reasons that led the Supreme Court to strike down that provision are just as present"if not more so"in the CIMT statute, the Court must apply Johnson to find that INA [ 212(a)(2)(A)(i)(I)/ 237(a)(2)(A)(ii)] is also void for vagueness.

Courts have long divided CIMTs into two basic types: those involving fraud and those involving grave acts of baseness or depravity. Marmolejo-Campos v. Holder, 558 F.3d 903, 910 (9th Cir. 2009) (en banc) (internal quotations and citation omitted). See also Navarro"Lopez v. Gonzales, 503 F.3d 1063, 1074 (9th Cir. 2007) (en banc) (Reinhardt, J., concurring for the majority) (stating that some offenses are so base, vile, and depraved that they qualify as crimes of moral turpitude even though they have no element of fraud) (citation omitted). In Jordan v. De George, the Supreme Court held that the CIMT statute was not unconstitutionally void for vagueness in regards to fraudulent offenses. 341 U.S. 223, 223-24 (1951). But the Supreme Court was careful to note that its holding only extended to offenses involving fraud. See id. at 232 (Whatever else the phrase crime involving moral turpitude may mean in peripheral cases, the decided cases make it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude.). Because Jordan was limited to fraud offenses, the issue of whether the CIMT statute is unconstitutionally vague in regards to inherently base, vile, or depraved offenses remains an open question.

In Johnson, the Supreme Court gave two reasons for finding the ACCA residual clause"which reaches conduct that presents a serious potential risk of physical injury to another"unconstitutionally vague. First, the Court could find no practical methodology for measuring the inherent risk posed by any given statute, holding that there was no reliable way to choose between . . . competing accounts of how much risk a violation of the statute generally entailed. 135 S. Ct. at 2558; see also id. at 2557 (How does one go about deciding what kind of conduct the ordinary case of a crime involves? A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?) (quoting United States v. Mayer, 560 F.3d 948, 952 (9th Cir. 2009) (Kozinski, J., dissenting from the denial of rehearing en banc). Second, even if the Court could discern how much risk a violation of the statute ordinarily entailed, the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony"i.e., it lacked a meaningful gauge for determining when the typical conviction under a particular statute reaches the ACCA threshold of posing a serious potential risk of physical injury. Id. at 2558. In other words, Johnson found that where both the methodology of analyzing a state statute, as well as the degree of severity necessary to meet a generic definition, are unclear, this implicated constitutional concerns of vagueness.

Here, the concerns raised in Johnson are just as present"if not more so"in the CIMT statute. In Matter of Silva-Trevino, then-Attorney General Michael Mukasey defined a CIMT as reprehensible conduct"a description substantially more vague than the serious potential risk of physical injury found unconstitutional in Johnson. See 24 I&N Dec. 687, 689 (A.G. 2008). To determine whether an offense is a CIMT, courts thus must look to the conduct falling within a particular state statute and decide in theory whether it is reprehensible.

But as the Ninth Circuit has noted, the determination of what constitutes a CIMT may well be unacceptable to one or another segment of society and could well divide residents of red states from residents of blue, the old from the young, neighbor from neighbor, and even males from females. Nunez v. Holder, 594 F.3d 1124, 1127 (9th Cir. 2010). Because [t]here is simply no overall agreement on many issues of morality in contemporary society, courts are equally at a loss to determine whether a conviction under a particular statute renders a noncitizen removable. Id. At this point, courts may as well as resort to the same tongue-in-cheek methodology suggested by Johnson (A survey? Expert evidence? Google? Gut instinct?) to decide whether community standards mandate that an offense qualifies as reprehensible conduct.

Simply put, courts have no ability to gauge the degree of severity necessary for an offense to constitute a CIMT. Traditionally, non-fraudulent CIMTs crimes have been defined as offenses that are base, vile, and depraved and shock the public conscience. Navarro"Lopez, 503 F.3d at 1074"75 (internal quotation marks removed). Historically, this means they have been compared to offenses such as murder, rape, and incest. Id. at 1074. But in the last ten years, the BIA has found the state offense at issue to be a CIMT in 19 out 21 published decisions"over 90% of the time. This has led the Ninth Circuit to complain that if courts do not adhere to our precedents limiting the scope of [CIMTs], the category will sooner or later come to mean simply crimes, which would not only would dilute our language, it would also contravene Congresss intent. Navarro-Lopez, 503 F.3d at 1075.

And like the residual clause, the vagueness problems of CIMTs are evident in courts ongoing failure to establish a standard for moral turpitude. See Johnson, 135 S. Ct. at 2558 (This Court has acknowledged that the failure of persistent efforts to establish a standard can provide evidence of vagueness.) (internal quotations and citation omitted). Johnson discussed its attempts to adjudicate various applications of the residual clause, finding that this Court's repeated attempts and repeated failures to craft a principled and objective standard out of the residual clause confirm its hopeless indeterminacy. Id. Similarly, the Ninth Circuit has often expressed frustration over the difficulty of adjudicating CIMT cases. See Nunez, 594 F.3d at 1130 (noting the consistent failure of either the BIA or our own court to establish any coherent criteria for determining which crimes fall within that classification and which crimes do not); Marmolejo-Campos, 558 F.3d at 909 (describing case law defining CIMTs as a mess of conflicting authority.) (Berzon, J., dissenting); Nicanor"Romero v. Mukasey, 523 F.3d 992, 997"99 (9th Cir. 2008) (summarizing Ninth Circuit law on moral turpitude and recognizing that [w]e have not relied on a consistent or easily applied set of criteria to identify crimes of moral turpitude). Thus, the perpetual struggle to come up with a workable definition for a CIMT confirm[s] its hopeless indeterminacy. Johnson, 135 S. Ct. at 2558.

For these reasons, the CIMT statute"like the ACCA residual clause"is unconstitutionally void for vagueness

Thanks to Kara Hartzler.