Immigration Article of the Day: The Board of Immigration Appeals’ Quiet Expansion of the Meaning of Moral Turpitude by Jennifer Lee Koh

Crimmigration Beyond the Headlines: The Board of Immigration Appeals’ Quiet Expansion of the Meaning of Moral Turpitude by Jennifer Lee Koh, 71 Stanford Law Review Online 267 (2019)

Abstract

The multiple entanglements of immigration and criminal law — known as “crimmigration” — include the reality that certain criminal convictions can lead to deportation, detention, and disqualification from immigration relief. “Crimes involving moral turpitude” (CIMTs) comprise one of the many categories of crimes that can elicit adverse immigration consequences, affecting thousands of people each year. But the precise meaning of moral turpitude has long been elusive. Courts have stated that CIMTs must involve an amorphously defined “culpable mental state” and “reprehensible conduct,” and looked to the Board of Immigration Appeals (BIA) to define the scope of moral turpitude. However, a series of BIA decisions over the last two years suggests that the Board has expanded the definition of moral turpitude in ways that defy common sense and undermine the prevailing methodology for assessing the immigration consequences of crime.

Part I of this Essay provides a brief overview of the controversies associated with the use of the categorical approach in the CIMT context. Part II explains how the generic definition of moral turpitude fits into the categorical approach. Part III argues that since 2016, the BIA has remained facially faithful to the categorical approach, and yet its decisions on CIMTs ultimately suggest a more sinister departure from the prevailing legal framework. In stretching the meaning of moral turpitude, the Board has made broad, lightly-supported announcements about the nature of socially reprehensible behavior, replaced the categorical approach’s “minimum conduct” requirement with an unwritten “maximum conduct” test, and relied on the existence of mere criminalization as evidence of moral turpitude. Part IV focuses on how the federal courts may ultimately respond to the BIA’s expansion of CIMTs in various ways. Retroactivity analysis presents one possible, albeit limited, judicial intervention. Courts may refuse to extend Chevron deference to the Board’s definitions of moral turpitude, particularly under step two of the Chevron analysis. Courts can apply arbitrary and capricious review to vacate specific BIA decisions. The judiciary also has an opportunity to take constitutional challenges to the CIMT definition itself more seriously, particularly void for vagueness challenges in light of the Supreme Court’s decision in Sessions v. Dimaya.

KJ