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Excerpted From: Colleen Muñoz, Reevaluating the Adjudication of Crimes Involving Moral Turpitude, 24 Lewis & Clark Law Review 325 (2020) (Note and Comment) (178 Footnotes) (Full Document)


ColleenMuñozImagine the story of Rosa. Rosa immigrated to the United States from Mexico as a child. She became a lawful permanent resident as a maturing adolescent. Rosa has since lived in the United States for 40 years. Rosa has four children and works full-time pumping gas to put food on the table for her family. One late night, Rosa was working alone at the pump station and recognized a car slowly pull forward. It was her childhood friend. Rosa's friend stepped out of her car and walked up to Rosa with tears in her eyes. She only had five dollars, but desperately needed gas to return home to her one-year-old baby and food to hold them over until payday in two days. Rosa felt deeply saddened to see her friend in need. Rosa filled her friend's gas tank, washed her car, and loaded two bags filled with bagels and bananas into her friend's car. Rosa accepted her friend's five dollars, contributed ten dollars of her own, and wrote off the remaining balance.

At the end of every month, Rosa's station manager records inventory and balances the station's account. Upon calculation this month, Rosa's manager recognized a deviation in the account's receivables. Rosa, along with a couple of other employees who independently engaged in similar behavior, confessed to their actions of unlawfully assisting guests. All guilty employees were fired from their jobs, reported to the California police department, and charged with theft pursuant to California Penal Code § 484(a), which criminalizes the intent to permanently deprive the owner of his or her property or services. The charged employees face charges including a fine potentially exceeding $1,000 and imprisonment for up to one year. Rosa and her colleagues pled guilty, and the judge sentenced them to ten months of probation and community service--no jail time.

Rosa's now-former colleagues are United States citizens. The conviction left them with new jobs and tainted resumes. Unfortunately, Rosa was not so lucky. About a month later, she received a Notice to Appear in Immigration Court. After living in the United States for over 40 years, Rosa faced potential deportation for having committed a crime involving moral turpitude. 

Rosa's hypothetical account is just one illustration of how a single criminal conviction has the potential to impose extremely adverse immigration consequences on noncitizens. Despite establishing roots and maintaining residencies in the United States for several decades, noncitizens face the threat of mandatory deportation upon conviction of a criminal offense, even for a minor misdemeanor.

A conviction of a minor offense could have “disastrous consequences for a person's immigration status.” As United States citizens, Rosa's former colleagues were able to continue their residence in the United States and remain with their families. Since Rosa was born across the border, in a land foreign to her as an adult, she could be forced to leave the country she considers home.

A criminal conviction may compromise a noncitizen's legal immigration status in a number of ways. Some compromises are strictly defined and unambiguous, while others are not as easily recognizable. Crimes involving moral turpitude are not specifically defined in the Immigration and Nationality Act (INA). Consequently, adjudicators and advocates alike face decades of controversy and debate while the courts attempt to strictly define which crimes fall involve “moral turpitude.”

Considering the extreme immigration implications noncitizens face as a result of a criminal conviction, it is important to understand the process adjudicators use to determine a noncitizen's fate. Immigration courts continuously modify the evaluation process for determining which crimes involve moral turpitude and which do not. Traditionally, courts administer a two-step approach which first attempts to identify a categorical match to the generic federal definition of the crime, and second, in divisible statutes only, attempts to “discern whether the [noncitizen's] conviction can be narrowed to the qualifying crime.” In 2008, United States Attorney General Mukasey modified the traditional two-step categorical approach to include a third step. The third step permitted the evaluation of evidence historically barred from entering the analysis. In 2015, Attorney General Holder vacated the 2008 decision noting that the “third step of Attorney General Mukasey's framework [was] contrary to the unambiguous language of the statute.”

In April 2018, the Supreme Court employed the categorical analysis to a conviction ultimately determined too vague to satisfy a categorical match presumption. There, the Court employed the categorical approach to determine “whether 'the ordinary case’ of an offense poses the requisite risk” for the generic federal standard of conviction. In evaluating the requisite risk, the Court evaluates the “'nature of the offense[,]’ generally speaking.”

While the courts continuously attempt to define crimes involving moral turpitude, the noncitizens bearing the weight of the experimentation often have created a family, livelihood, and substantial stake in the United States. In an effort to make outcomes more uniform and certain, the adjudication of crimes involving moral turpitude should be modified in two respects. First, the INA should provide a clear definition for crimes involving moral turpitude. Second, immigration courts should only use the traditional categorical approach, eliminate the independent evaluation of divisible elements, and continue to reject the analysis of extrinsic evidence.

This Note examines the interrelated effects of criminal law and immigration law. Part I begins by explaining the relationship between immigrants and crime. It next describes the creation of what is known as “crimmigration”--a term used to describe the intersection of two distinct bodies of law merging on various adjudicative platforms.

Part II introduces crimes involving moral turpitude and provides an overview of the controversial definition, effects of a conviction, and the analytic approach an adjudicator will use to determine whether a crime involves moral turpitude.

Part III details the categorical analysis employed to determine whether a crime involves moral turpitude. This Part uses the hypothetical scenario of Rosa to assist in describing the process. Part III also addresses the seminal case of In re Silva-Trevino to discuss the proposed, and eventually rejected, third step of the categorical analysis.

Part IV proposes a solution to define the ambiguous crimes involving moral turpitude and suggests an approach to make uniform all future analyses related to evaluating crimes involving moral turpitude.

[. . .]

Crimmigration has become a greater part of legal debate as adjudicators determine the fate of noncitizens convicted of a criminal offense. The threat of extreme penalties for minor misdemeanors highlights the importance of a consistent adjudication process with unbiased results. In an effort to make the approach more transparent and uniform, the evaluation of determining a crime involving moral turpitude should be more concise in several respects.

The INA should adopt a generic federal definition for a crime involving moral turpitude. This adoption would promote transparency and predictability for adjudicators and advocates alike in evaluating the categorical approach. Similarly, the categorical approach should be minimized to an evaluation based solely on the first step: the traditional categorical approach. The evaluation for determining whether a crime involves moral turpitude should be limited to an inquiry into the state statutory elements of the conviction compared to the generic federal definition. An approach limited to the elements will produce more consistent, unbiased results and prevent ambiguity.

Colleen Muñoz, J.D., Lewis & Clark Law School.

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