Crimes of Moral Turpitude Analyzed

The Fifth Circuit Court of Appeals neatly summarized the method to analyze whether a convction should be considered a crime of moral turpitude in the case of Rodriguez-Castro v. Gonzales, Case No. 04-60003 (5th Cir. Oct. 3, 2005).

Take the statute for the particular crime. It will be considered a crime of moral turpitude only if every type of conduct that triggers the statute is a crime of moral turpitude. This is known as the categorical approach because it depends on showing the entire category of actions covered would be crimes of moral turpitude.

In this case, it was easy to analyze: attempted non-harmful child abandonment with the intent to return for the child under Texas law is not a crime of moral turpitude. The statute penalizes anyone who intentionally attempts to leave a child for any length of time where there are perilous conditions, even if the person was not aware of the conditions and did not intend for the child to be in a perilous situation. Generally, crimes of moral turpitude require showing that the person intended or recklessly disregarded the potential consequences of the action. The Texas statute does not require any knowledge of the potential consequences, so of course it is not a crime of moral turpitude.

The biggest question is not the legal decision in the appeal. The biggest question is how come the immigration judge and the Board of Immigration Appeals came up with the wrong decision. Even if they were initially mistaken, why didn't they realize their mistake and fix it? How come the immigrant was forced to spend lots of time and money to fight the case through a federal court appeal to reach the obvious result? I wonder whether the public's confidence in the immigration court system will be shaken by these kinds of cases.

Additional analysis: the Ninth Circuit explained that just because the statute penalizes conduct that is "willful" does not automatically make it a crime of moral turpitude. All that willful means is that the forbidden act was done intentionally -- not every illegal act involves an intent to defraud. For example, a conviction for willfully and knowingly making false and fraudulent statements on a shipper’s export declaration did not constitute a crime involving moral turpitude in Hirsch v. INS, 308 F.2d 562, 567 (9th Cir. 1962). A conviction for willfully violating 31 U.S.C. § 5324(a)(3), which proscribes structuring a financial transaction for the purpose of evading federal reporting laws, “does not establish the evil intent required for a crime of moral turpitude.” Goldeshtein v. INS, 8 F.3d 645, 647 (9th Cir. 1993) (noting that the person merely deprived the government of information while structuring the transaction). But it is not that easy to escape a finding of a crime involving moral turpitude -- the court can look to the conduct described in the statute even if the statute does not explicitly use the word fraud. For example, the crime of "evading" tax payments is a crime of moral turpitude because evasion and fraud are virtually synonyms in California law. Carty v. Ashcroft, 395 F.3d 1081 (9th Cir. 2005). In Notash v. Gonzales, No. 03-72116 (9th Cir. Nov. 2, 2005), the Ninth Circuit ruled that a statute requiring willful actions that ultimately denied the government of revenue was not a crime of moral turpitude -- the only willfullness was the action, not an intent to deny the government of revenue.

Motion to Suppress Should Exclude Identity

As discussed in a prior blog entry, a major issue to be revisited is whether the exclusionary rule should be applied in immigration court to prevent the government from using evidence that it improperly obtained. The major issue is how the U.S. Supreme Court ruled in 1984 that it was not going to apply the exclusionary rule to mass arrests in the field for deportation cases. The Supreme Court left open the possibility of changing its mind depending on how much the government officials improved or regressed in their conduct.

One minor issue is how to interpret the Supreme Court's ruling that it is impossible to suppress the actual body of the person apprehended. Does this mean that you can try to suppress everything improperly obtained, but of course you can't ignore that they have the person in court? Immigration advocates read the decision in this way -- you can't challenge jurisdiction over the person (that the person is in fact standing in court), but you can still challenge the use of any information improperly obtained (such as coerced admissions of the person's name and where he was born).

A number of federal courts agree with this interpretation. One is United States v. Guevara-Martinez in 2000 in the Distrcit of Nebraska district court. The Supreme Court's language only dealt with the issue of jurisdiction over the person, but not whether evidence about the defendant's identity had been illegally obtained. Therefore, in Guevara-Martinez, the district court ruled that the individual's identity can be suppressed in a criminal case where the government illegally arrested the person (and without that arrest, they would not be able to bring the identity information to court). Another district court in South Dakota agreed in United States v. Mendoza-Carrillo, 2000 WL 1159114, *7 (D.S.D. 2000). But two circuits as of 2000 ruled the other way: United States v. Roque-Villanueva, 175 F.3d 345, 346 (5th Cir. 1999); United States v. Guzman-Bruno, 27 F.3d 420, 421-22 (9th Cir. 1994).

First thing is first, though, we need to prove that the exclusionary rule applies in immigration cases. The second step will be to explain that where the rule applies, it prohibits the use of any identity information if the person was captured through an illegal arrest.