Angels Dancing on Pins and the Meaning of Moral Turpitude

By David North on April 23, 2011

Sometimes it is useful to look at a single deportation case to get a sense of how the immigration law is, in fact, enforced.

In the Middle Ages theologians used to debate how many angels could dance on the head of a pin; nowadays, immigration lawyers and judges often argue about the meaning of a "crime of moral turpitude" in deportation cases.

It's not that the alien in the dock is not deportable – that he's deportable is usually conceded by all parties. Nor is there a question of whether or not the alien has committed a crime; again, that is pretty clear.

The question almost worthy of medieval disputation is: is the crime one of moral turpitude? If it is not, then the IJ can, at his or her discretion, decide for or against a one-case amnesty for the about-to-be-removed alien in the court. If the crime is one involving moral turpitude (MT hereafter) then the IJ has no discretion and the alien must be tossed out of the country. Many cases before the Board of Immigration Appeals (BIA), an arm of the Justice Department, revolve around these and related questions.

The legal definition of moral turpitude, according to Law.Com, is:

gross violation of standards of moral conduct, vileness. An act involving moral turpitude is considered intentionally evil, making the act a crime. The existence of moral turpitude can bring a more severe criminal charge or penalty for a criminal defendant.

The definition of MT may be clear, but the problem is deciding whether a specific crime meets these standards.

As background, one of the scarier (for the alien) ways to obtain legal status in this country, and one of the most dramatic, is to be hauled into immigration court on a deportation charge. Whereas, up to this time, the alien had been living (and probably working) in this country as an un-noticed illegal alien, now he (and it is usually a male) faces a crossroad. He will emerge from the court system either as a deportee or, less likely, as a legal alien.

If the alien does not have a serious criminal record, if he has been in the States for ten years, and if he can argue that there's a close citizen or green card relative who would suffer exceptional hardship were he to be deported, he can be awarded "cancellation of removal" in an act of judicial discretion and thus gain legal status. This is, however, not automatic. If he has a criminal record, then the MT question arises. And that decision usually has to be made regarding a crime that happened long ago, sometimes with minimal documentation.

It is in this setting that the BIA recently ruled on the matter of MT, and the fate of Julio Cesar Ahortalejo-Guzman. Though the word "ruled" suggests a decisiveness that does not yet obtain in the case, and may not for years.

Guzman, a Mexican national, came to the U.S. as an EWI (entrant without inspection, i.e., a border-jumper) in 1987, i.e., almost a quarter of a century ago. A dozen years later, in 1999, he pled guilty to a charge of assault in El Paso. The person assaulted was his then common-law wife.

Subsequently, and this is often the case, nothing happened for ten years. There is no explanation in the decision of this time gap.

On June 3, 2009, DHS filed a Notice to Appear in immigration court, as the first step on the road to deporting Guzman. Probably appearing on his own behalf (generally not a good idea under these circumstances), the alien conceded he was deportable (on the grounds of the illegal entry) but argued that removal should be cancelled on the grounds that the assault, ten years earlier, was not a crime of moral turpitude. The IJ found otherwise and ordered his removal. Guzman appealed, pro se, to the BIA.

At this point you might think things were bleak for the alien: he had admitted that he was in the U.S. illegally; he had pled guilty to a crime in a state court; an immigration judge had ruled against him; and he was without an attorney as he filed the appeal on fairly sophisticated legal grounds. The government's lawyer, according to the decision, was Lauren A. Henault, Assistant Chief Counsel of DHS, presumably an experienced immigration lawyer.

Guzman, with either luck or skill, argued that he had pled guilty to assault, but not to assault within the framework of family violence, the latter being a MT matter. He also argued that the IJ had, impermissibly, looked beyond the court documents (to a police report in this case) to reach the MT decision. (I have trouble believing that an illegal alien could mount these arguments without some help with the brief, but the decision is silent on that variable.)

The BIA ruled that the IJ had done the wrong thing by deciding that MT was involved, but it did not rule that Guzman was to be legalized. It sent the case back to the IJ with instructions for "further consideration of his application for cancellation of removal." The case was heard by a three-judge panel of the BIA, and they were unanimous in their decision.

How long will the next step take? How will the IJ rule the second time around? And, if negative to Guzman, will there be another appeal to the BIA? And how will it rule? No one knows the answers to those four questions and it may be several years before the fate of this EWI of 1987 – probably now a man of more than 40 – will finally be determined.

After a while the IJ in this case will be pondering, again, what should be done with an apparent wife-beater who admitted assault but not wife-beating? And, throughout the land, other judges dealing with similar deportation cases will be wrestling with the question – just what is a crime of moral turpitude?