Is “Crime Involving Moral Turpitude,” Like Beauty, In The Eye Of The Beholder?

by Emmanuel S. Tipon, Esq.

The U.S. Congress made a conviction for a “crime involving moral turpitude” a ground for deportation. Immigration and Nationality Act, Sec. 237(a)(2)(A)(i) and (ii).

Similarly, the Philippine Batasang Pambansa (former National Assembly) made a “crime involving moral turpitude” a ground for disqualification to be a candidate for public office. B.P. 881, Omnibus Election Code, Sec. 12.

But the Honorable (not horrible, stupid) members of Congress or the Assembly did not define what constitutes a “crime involving moral turpitude” nor list the particular crimes that involved “moral turpitude.”

What then? Each court or adjudicator makes its own determination of what is a “crime involving moral turpitude.”

The practical effect is that what is a “crime involving moral turpitude,” like beauty, is in the eye of the beholder.

As a result, there have been several contradictory or inconsistent decisions by courts and administrative agencies, including within the same government agency.

An article “Why Deporting Immigrants for ‘Crimes Involving Moral Turpitude’ is now Unconstitutional” in The Free Library by Farlex says: “the statute authorizing removal of immigrants for “crimes involving moral turpitude” invites officials to base their prosecutorial choices on political or personal views. As a result, defense attorneys advising their clients on the immigration consequences of pleas have no basis for prediction.”

The article noted that Justice Jackson in his dissent in Jordan v De George, 341 U.S. 223 (1951),  said that “moral turpitude will always fluctuate with differences in time, culture, and locality,” and that “lower court opinions applying moral turpitude rested not on consistent usage but rather on the “moral reactions of particular judges to particular offenses.”

“The chief impression from the cases is the caprice of the judgments.” Jackson asked “How many aliens have been deported who would not have been had some other judge heard their cases, and vice versa, we may only guess. That is not government by law.”

What is a CIMT?
Since Congress has not defined “crime involving moral turpitude” (CIMT), the BIA and the federal courts have defined it as “conduct that shocks the public conscience and as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.”  Hamdan v. INS, 98 F.3d 183, 185-86 (5th Cir. 1996), cited by Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008).

Mary P. Holper  wrote in a law review article “Deportation for a Sin: Why Moral Turpitude Is Void for Vagueness” that this provides no useful definition. Rather, this ground for deportation casts judges in the role of God.”

It is obvious that this definition is as vague as the term being defined. What is “base, vile, or depraved” is still in the eye of the beholder.

The Philippine Supreme Court held that whether or not a crime involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstances surrounding the violation of the statute. Dela Torre v. Comelec, 258 SCRA 483 (1996).

Issuing check with insufficient funds
For instance, issuing a check with insufficient funds (passing a bad check) has been held by the Board of Immigration Appeals to be a CIMT in a number of cases, Matter of Zangwill, 18 I&N Dec. 22, 28 (BIA 1981; Matter of Balao, 20 I&N Dec. 449 (BIA 1992), but not a CIMT in other cases, Matter of Westman, 17 I&N Dec. 518 (BIA 1979), Matter of Bart 20 I&N Dec. 436 (BIA 1992). The Court of Appeals held that a California conviction of delivering or making a check with insufficient funds with intent to defraud was categorically a crime involving moral turpitude. Planes v Holder, No. 07–70730 (9th Cir. 07 05 2011).

The Philippine Supreme Court held that the crime of issuing a check without sufficient funds in violation of B.P. No. 22 involves moral turpitude and a candidate for Congress who was convicted for violation of the statute and sentenced to one-year imprisonment was properly disqualified by the Comelec and his certificate of candidacy canceled. Villaber v. Comelec, G.R. No. 148326.

Tax cases
There is a conflict of authority in the United States as to whether tax evasion is a “crime involving moral turpitude.”  In Jordan v. De George, 341 U.S. 223 (1951), involving a defendant convicted of conspiring with others to possess whiskey with intent to sell in fraud of law and evade the tax thereon, the Supreme Court held that a crime in which fraud is an ingredient involves moral turpitude.  In Carty v. Ashcroft, 395 F.3d 1081 (9th Cir. Jan. 19, 2005), a California conviction for willful failure to file a tax return with the intent to evade taxes, in violation of Revenue and Taxation Code § 19406 involves fraud, and constitutes a crime involving moral turpitude.

However, in United States v. Carrollo, 30 F.Supp. 3 (D.Mo. 1939), the court held that it was not prepared to rule that an attempt to evade the payment of a tax due, “wrong as it is, unlawful as it is, immoral as it is, is an act evidencing baseness, vileness, or depravity of moral character. The number of men who have at some time sought to evade the payment of a tax or some part of a tax to some taxing authority is legion. Any man who does that should be punished civilly or by criminal sentence, but to say that he is base or vile or depraved is to misuse words.”The BIA held that a German national was not barred from admission to the U.S. for having been convicted in Germany for possession of untaxed chocolate in violation of the German Tax Code because intent to defraud was not an element of the offense, hence the German had not been convicted of a crime involving moral turpitude. Matter of R, 4 I. & N. Dec. 176, (BIA 1950). The BIA also held that the willful failure to file an income tax return is not necessarily a crime involving moral turpitude because fraud is not inherent in the crime. Matter of Mazza-Alas, File No. A13-408-039, 15 Immigr. Rep. B1-88 (BIA Oct. 27, 1995), cited in Crimes of Moral Turpitude, Norton Tooby.

Void for vagueness
Is “crime involving moral turpitude” unconstitutionally void for vagueness in violation of the due process clause?

The prohibition of vagueness in criminal statutes “is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law,” and a statute that flouts it “violates the first essential of due process.” Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 S.Ct. 322 (1926).” Johnson v. United States, 576 US 591, 135 S Ct 2551, 2556-57 (2015).

The Supreme Court said that the Government violates the guarantee of due process “by taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Johnson v. United States, supra.Thus, in Johnson v. United States, supra, the Supreme Court held that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B) – defining  “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” – was unconstitutional “void for vagueness” under the Fifth Amendment’s Due Process Clause. It required judges to imagine a set of facts or conduct and then to determine whether that imagined set of facts or conduct presented a potential risk of serious injury.

In the immigration context, the Supreme Court held in Sessions v Dimaya, 138 S. Ct. 1204 (2018), that 18 U.S.C. § 16(b) [the residual clause in the definition of “crime of violence”], as incorporated into the definition of “aggravated felony” in 8 U.S.C. § 1101(a)(43)(F) is unconstitutionally vague, citing  Johnson v. United States, 576 US 591, 135 S Ct 2551, 2556-57 (2015).

The Supreme Court pointed out in Sessions v. Dimaya, 138 S. Ct. 1204, 1210, 1212 (2018) that: The void-for-vagueness doctrine, as we have called it, guarantees that ordinary people have “fair notice” of the conduct a statute proscribes. And the doctrine guards against arbitrary or discriminatory law enforcement by insisting that a statute provides standards to govern the actions of police officers, prosecutors, juries, and judges.

“[I]f the legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could be rightfully detained, [it would] substitute the judicial for the legislative department.”In Jordan v. De George, 341 U.S. 223 (1951), involving a defendant convicted of conspiring with others to possess whiskey with intent to sell it in fraud of law and evade the tax thereon, the Supreme Court said that the question of the vagueness of the term “crime involving moral turpitude” was not raised by the parties nor argued before the court, and that no case has been decided to hold that the phrase is vague.  Nevertheless, the Supreme Court addressed the issue and said that the test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices, and concluded that the test has been satisfied here.

Justice Jackson with Justice Black and Frankfurter, strongly dissented, saying that the phrase “crime involving moral turpitude” as found in the Immigration Act has no sufficiently definite meaning to be a constitutional standard for deportation. What the Government seeks, and what the Court cannot give, is a basic definition of “moral turpitude” to guide administrators and lower courts. The uncertainties of this statute do not originate in the contrariety of judicial opinion. Congress knowingly conceived it in confusion.

Justice Jackson pointed out that the test by which vagueness was to be determined according to the Connally case was that the legislation uses terms “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” It would seem to be difficult to find a more striking instance than we have here of such a phrase since it requires even judges to guess and permits them to differ.” He questioned the power of administrative officers and courts to decree deportation until Congress has given an intelligible definition of deportable conduct.

ATTY. EMMANUEL S. TIPON was a Fulbright and Smith-Mundt scholar at Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He has a Bachelor of Laws degree from the University of the Philippines. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He has written law books and legal articles for the world’s most prestigious legal publisher and writes columns for newspapers. He wrote the best-seller “Winning by Knowing Your Election Laws.” Listen to The Tipon Report which he co-hosts with his son Attorney Emmanuel “Noel” Tipon. They talk about immigration law, criminal law, court-martial defense, and current events. It is considered the wittiest, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m.  Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645.  E-Mail: filamlaw@yahoo.com. Website: https://www.tiponlaw.com.


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