Crimes Involving Moral Turpitude: Judge Posner’s Blistering Concurrence in Arias v. Lynch (7th Cir. 2016)

posnerJudge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit is perhaps the most-cited legal scholar of the twentieth century. His reputations for brilliance and for rudeness are both on display in his concurring opinion in Arias v. Lynch (7th Cir. 2016).

The question before the court was whether a federal conviction under a statute prohibiting false use of a social security number “for any purpose” constitutes a crime involving moral turpitude. Other circuit courts have split on the issue.

In Arias, an undocumented immigrant used a false social security number to complete a Form I-9, Employment Verification, to show an employer she was eligible to work in the U.S. She used her employment income to support her family, and she paid income tax. Posner characterizes her crime as trivial: “Has the Justice Department nothing better to do with its limited resources than prosecute a mouse?”

The Board of Immigration Appeals has no legal framework in place for deciding what convictions constitute a crime involving moral turpitude (CIMT). A 2008 Attorney General decision, called Silva-Trevino I, created a framework. But in 2015, a new Attorney General decision, Silva-Trevino II, vacated the earlier decision and directed the Board to create a new framework. The Board hasn’t yet done so. As a result, in Arias, the Seventh Circuit remanded the case to the Board to consider the case under an appropriate framework.

Posner’s concurrence focuses most of his derision on Congress, which has used the term “moral turpitude” in statutes excluding certain noncitizens from our borders since 1891:

It is preposterous that that stale, antiquated, and, worse, meaningless
phrase should continue to be a part of American law.

Given the ambiguity of the term CIMT, judges rely on the definitions found in legal dictionaries, such as Black’s, which has described moral turpitude as an “act of baseness, vileness, or … depravity.” But Posner finds such definitions to be “gibberish” and “mysterious.” Justice Jackson wrote as much in 1951, dissenting in Jordan v. De George, where he called the term “undefined and undefinable.”

Posner similarly finds the State Department’s interpretation of the term CIMT to be nonsensical, the “product of a disordered mind.” The concept of moral turpitude, he writes, is “an embarrassment to a modern legal system.”

Still, the Board and courts must struggle to interpret the term. De George involved a conviction for conspiracy to evade payment of a liquor tax. The Supreme Court found this to be a CIMT because “fraud was an ingredient.” Subsequently, some courts seem to have reached the broader conclusion that any conviction in which “deception” is involved is a CIMT. But the Arias majority and Posner’s concurrence both suggest that the broader readings are just dicta so the Board should consider limiting the De George holding to include only cases in which there are “other aggravating factors, especially actual or intended harm to others.” The term “fraud” may, indeed, be read to require that the person defrauded suffer a loss. In Arias, nobody–not the government, the employer, or any other identifiable person–suffered a loss due to reliance on Arias’ misrepresentation.

Hopefully, the Arias decision will light a fire under the Board’s feet to come up with a workable CIMT framework. Or, even better, will convince Congress to do away with the term.

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