“It is time to recognize another failed enterprise.” Islas-Veloz v. Whitaker, No. 15-73120, slip op. at *27 (9th Cir. Feb. 4, 2019) (Fletcher, J., concurring). You might be wondering what the “failed enterprise” is to which Judge Fletcher is referring. It’s defining non-fraudulent CIMTs. This week the Ninth Circuit, held that a crime involving moral turpitude (CIMT) is not an unconstitutionally vague statute. In so doing, the Ninth Circuit made clear that they were bound by prior precedent; namely, Jordan v. De George, 341 U.S. 223 (1951), and Tseung Chu v. Cornell, 247 F.3d 929 (9th Cir. 1957) (applying Jordan v. De George to the Ninth Circuit). In a lengthy concurrence, (that is well worth reading) Judge William Fletcher very kindly lays out the arguments that practitioners should make to the Supreme Court to argue that the a CIMT is an unconstitutionally vague statute – if the offense is a non-fraud offense. The BIA did not issue any decisions this week. They have been remarkably quiet since Attorney General Sessions left.
There are two interesting aspects to Islas-Veloz v. Whitaker. First, I believe the Ninth Circuit misapplied the categorical approach in determining whether the underlying crime was a CIMT. Second, Judge Fletcher’s concurrence gives us a road map to argue that a CIMT is unconstitutionally vague – provided the CIMT is for a non-fraudulent offense.
Antonio Isla-Veloz was convicted of communication with a minor for immoral purposes in violation of Revised Code of Washington § 9.68A.090. To understand this case, it is important to understand the Washington statute. The statute provides in relevant part:
“(1) Except as provided in subsection (2) of this section, a person who communicates with a minor for immoral purposes, or a person who communicates with someone the person believes to be a minor for immoral purposes, is guilty of a gross misdemeanor.”
Here is where the Ninth Circuit’s analysis seems off. The Ninth Circuit relies too much on its own precedent. In 2007 the Ninth Circuit held that the statute at issue is a CIMT because “[t]he full range of conduct prohibited by section 9.68A.090 of the Revised Code of Washington categorically constitutes a crime involving moral turpitude.” Morales v. Gonzales, 473 F.3d 972 (9th Cir. 2007) quoted in Islas-Veloz v. Whitaker, No. 15-73120, slip op. at *5 (9th Cir. Feb. 4, 2019). Do you see the problem? The Ninth Circuit looked to the “full range of conduct” rather than the minimum conduct necessary for a conviction. The Supreme Court made clear in 2013 that under the categorical approach, the adjudicator must look to the minimum conduct required for conviction to see if there is a match. “Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction “rested upon [nothing] more than the least of th[e] acts” criminalized, and then determine whether even those acts are encompassed. Moncrieffe v. Holder, 574 U.S. 184, 190-91 (2013).
In 2018, the Ninth Circuit held that under the categorical approach, the adjudicator must consider whether every violation of the statute is necessarily a crime of violence. Solorio-Ruiz v. Sessions, 881 F.3d 733, 737 (9th Cir. 2018). (I do a lot of crim/imm and I love this case). Using this analysis, the adjudicator must determine whether every violation of the statute is necessarily a CIMT. So is every violation of this statute necessarily a CIMT? An older Ninth Circuit decision lists some of the conduct prohibited under the “immoral purposes” clause of Section 9.68A.090 including: providing information on how to get an unlawful abortion; and displaying pornography visible from a public thoroughfare. Parrilla v. Gonzales, 414 F.3d 1038, 1042–43 (9th Cir. 2005). This conduct does not appear to be base, vile, or reprehensible. So if Mr. Islas-Veloz chooses to petition for rehearing, he can bring to the Ninth Circuit’s attention that every violation of this statute is not necessarily a CIMT.
Back to what the case itself says. The Ninth Circuit held that they were bound by precedent to find that Wash. Rev. Code § 9.68A.090 is categorically a CIMT and that a CIMT is not unconstitutionally vague. Based on precedent, the majority held that Mr. Islas-Veloz was convicted of a CIMT for immigration purposes.
Now on to the interesting part of the case – the concurrence. I assume that someone will file a petition for certiorari in the Supreme Court on whether a CIMT is unconstitutionally vague, and Judge Fletcher very kindly lays out a roadmap for that argument in his concurrence. First, Judge Fletcher notes that the U.S. has deported tens of thousands of noncitizens under INA § 237(a)(2)(A) for having been convicted of CIMTs. He then goes through the history of CIMTs. In 1891 Congress made a conviction for a CIMT a ground of inadmissibility. In 1917 Congress made a conviction for a CIMT a ground of deportability. After going through the history of a CIMT, Judge Fletcher reviews the vagueness doctrine. He notes that the Supreme Court upheld a vagueness challenge to part of the Armed Career Criminal Act (ACCA). Johnson v. United States, 135 S. Ct. 2551 (2015). And that the Supreme Court upheld a vagueness challenge to a provision of the INA. Sessions v. Dimaya, 138 S. Ct. 1204 (2018). So we know that the courts are worried about statutes being unconstitutionally vague in the civil immigration context.
Judge Fletcher then goes to analyze Jordan v. De George. Mr. De George had been convicted of tax fraud for evading federal taxes on distilled liquor. The Government placed Mr. De George in deportation proceedings charging him with a CIMT. The case went up to the Supreme Court and the Supreme Court held that fraud was a CIMT and that Mr. De George was deportable. Now, here is the part of Jordan v. De George that I have always found stunning. “The question of vagueness was not raised by the parties nor argued before this Court.” Jordan v. De George, 341 U.S. 223, 229 (1951). I truly think it might be time to bring this issue before the Supreme Court again, but this time, make sure that the Court has the benefit of a full analysis of this issue through the lower courts. Judge Fletcher noted that the Supreme Court had previously found “the phrase “crime involving moral turpitude” has without exception been construed to embrace fraudulent conduct.” Jordan v. De George, 341 U.S. at 232. And “there might be some “marginal offenses” or “peripheral cases” that might (or might not) be encompassed within the phrase “crimes involving moral turpitude.” Id. at 231-232.” Islas-Veloz v. Whitaker, slip op. at *12, (Fletcher, J. concurring).
After providing this background, Judge Fletcher narrows the issue:
“[T]he Court in De George did not quarrel with Justice Jackson’s [the dissent in the case] conclusion that the definition of “crimes involving moral turpitude” in non-fraud cases was unconstitutionally vague. The question today is whether, in the time since the Court’s decision in De George, judicial construction has clarified the definition in non-fraud cases.
The answer to both questions is clear. Non-fraud CIMTs today are neither marginal nor peripheral, and the definition of non-fraud CIMTs is as vague today as it was in 1951.”
Islas-Veloz, slip op. at *14 (Fletcher, J. concurring). Got to love elegant prose.
Judge Fletcher notes that the Ninth Circuit divides CIMTs into two categories those involving fraud and those involving “grave acts of baseness and depravity.” Marmolejo-Campos v. Holder, 558 F.3d 903, 910 (9th Cir. 2009) (en banc). Judge Fletcher notes that the BIA and the other circuits consistently define CIMTs as conduct that is base vile and depraved and recognize that fraudulent conduct is always a CIMT. Islas-Veloz, slip op. at *15 (Fletcher, J. concurring). Judge Fletcher notes that if CIMTs were restricted to fraud offenses, there would be no constitutional difficulty. However, since Jordan v. De George the courts and the BIA have significantly expanded the conduct that qualifies as being base, vile, and depraved. “Far from being marginal or peripheral, non-fraud cases comprise the great bulk of CIMTs today. Further, the definition of non-fraud CIMTs is hopelessly and irredeemably vague.” Id. at *17-18 (Fletcher, J. concurring). Judge Fletcher then cites scores of cases in which the courts sometimes define a crime as a CIMT and sometimes define a similar crime as not being a CIMT.
Judge Fletcher cites the recent Ninth Circuit case in Olivas-Motta v. Whitaker, 910 F.3d 1271 (9th Cir. 2018) as a cautionary tale of CIMTs gone wild. Mr. Olivas-Motta pleaded guilty to the crime of reckless endangerment in Arizona. Mr. Olivas-Motta had consulted with an immigration attorney before entering his plea. It is clear from the record that Mr. Olivas-Motta’s biggest concern in entering the plea was the immigration consequences of the plea. The immigration attorney researched the issue and found two unpublished BIA decisions holding that an Arizona conviction for reckless endangerment was not a CIMT. With this assurance, Mr. Olivas-Motta entered his plea. To understand just how important the immigration consequences of this plea were to Mr. Olivas-Motta it is important to note that his parents had brought him to the United States when he was ten days old and his entire family lives here. Five years after Mr. Olivas-Motta entered his plea, the BIA published Matter of Leal, 26 I.&N. Dec. 20 (BIA 2012) holding that a conviction for reckless endangerment under Arizona law was a CIMT. The BIA ordered Mr. Olivas-Motta removed for having been convicted of two CIMTs and the Ninth Circuit denied his petition for review.
Judge Fletcher notes that the states have increasingly excised crimes involving moral turpitude from their statutes and regulations. States had been using convictions for CIMTs to disbar attorneys, disenfranchise voters, revoke medical licenses, and so on but many states have found the concept too vague. (I think this argument would appeal to Justice Gorsuch). Here is the conclusion of the concurrence which is worth reading in its entirety. I think I will just let Judge Fletcher end this post with his own words.
“Congress did not define the term “moral turpitude” when it introduced the term into our immigration law in 1891. Sixty years later, Justice Jackson wrote that “moral turpitude” was still “an undefined and undefinable standard.” De George, 341 U.S at 235 (Jackson, J., dissenting). Now, almost seventy years after De George, “moral turpitude” is as undefined and undefinable as ever.
Justice Scalia wrote of the ACCA’s residual clause in Johnson, “Nine years’ experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise.” Johnson, 135 S. Ct. at 2560. We have had not just nine years but more than a century of experience with “moral turpitude.” It is time to recognize another failed enterprise.”