by Kameron Johnston1
The intersection of immigration law and criminal law has increasingly been referred to as crimmigration. This expression is appropriate because individuals caught in the crosshairs of these two legal systems are subjected to excessively harsh consequences, such as deportation.2 Federal immigration law has progressively premised deportation orders on prior convictions, which effectively intertwines removal proceedings with the criminal process.3 The Immigration and Nationality Act (“INA”) is the controlling statute of immigration regulation and sets forth grounds for deportation. One particularly troubling provision makes any “crime involving moral turpitude” (“CIMT”) committed within five years of admission a deportable offense.4 The vague CIMT language, applied categorically, rubberstamps the removal of lawful permanent residents.
This Contribution argues that the CIMT provision of the INA is a violation of the Due Process Clause of the Constitution because it is void for vagueness.
The Fifth Amendment to the United States Constitution guards against the deprivation of “life, liberty, or property, without due process of law.”5 The void for vagueness doctrine, an outgrowth of the Fifth Amendment, invalidates laws that fail to provide notice of what they prohibit and encourage arbitrary and discriminatory enforcement.6 The doctrine requires that any statute be defined “with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”7 Although the doctrine has not traditionally been applied to immigration statutes, the Sessions v. Dimaya Court confirmed its applicability to the INA.8 The “grave nature of deportation” and the ever-widening arrest-to-deportation-pipeline warrants applying the doctrine to immigration statutes.9 In the current constitutional order, “a vague law is no law at all,” and immigration laws are no exception.10
In 2015, the void for vagueness doctrine was revisited when the Supreme Court deemed the Armed Career Criminal Act residual clause void for vagueness. The clause defined “violent felony” as “any felony that involves conduct that presents a serious potential risk of physical injury to another.”11 The Court found that the residual clause possessed two condemning features that “conspire[d] to make it unconstitutionally vague.”12 First, the provision was categorically applied, thus any judicial assessment of what constituted a “serious potential risk” was inextricably bound to a hypothetical “ordinary case” rather than the specific facts of the case at hand.13 Second, the clause gave no guidance on the level of risk required to be considered “serious.”14 As such, any accused person’s actual conduct was irrelevant to the inquiry, which instead turned on a judges’ fabricated determination of an “ordinary instance” of a crime.15
Courts in the immigration context also proceed without regard to the actual facts of the conviction in question.16 Under the categorical analysis, a court determines the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction and then ascertains whether moral turpitude is intrinsic to that minimum offense.17 The analysis precludes adjudicators from evaluating the factual basis of an underlying criminal conviction and instead asks whether the elements of a violated criminal statute trigger a statutory ground for removal.18 But Johnson held that this level of judicial abstraction, combined with the imprecise language of the “serious potential risk” standard, fails to meet the demands of due process.
The second feature that doomed the residual clause in Johnson was the futile venture of determining how much risk it takes for a crime to qualify as a violent felony.19 The Supreme Court emphasized that splits among lower federal courts indicated vagueness.20 The Court also explained that even if “there is some conduct that clearly falls within the provision’s grasp,” the provision is not immune from a vagueness challenge.21 The INA is similarly silent on the threshold level of immorality that makes a crime a CIMT. For more than a century, Congress has relegated the task of fleshing out the provision’s meaning to the Board of Immigration Appeals (“BIA”) and the judiciary.22 The BIA has constructed a simulacrum of a workable definition of CIMT: conduct that is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”23 The definition is circuitous, and measuring moral turpitude is just as mercurial as measuring “serious risk” in Johnson.24
Despite arduous attempts to define its contours, courts have not established coherent criteria to measure the threshold level at which a crime becomes a CIMT.25 The factors used by courts to define CIMTs “approach gibberish.”26 Scholars have catalogued an extensive list of convictions that may or may not be a CIMT.27 But morality is a notoriously subjective notion that invites judges to juggle ethical, social, and religious beliefs.28 For example, circuit courts were once split on whether misrepresenting a social security number as one’s own is a CIMT.29 Judges have described efforts to discern what level of immorality makes a crime a CIMT as a “consistent failure,”30 “defying common sense,”31 “meaningless”32 and “an embarrassment to a modern legal system.”33 As the Court recognized in Johnson, such impracticability is a pitfall that should readily be recognized as unconstitutional vagueness. This is compounded by the hypothetical nature of the categorical approach.
In Sessions v. Dimaya, the Supreme Court extended Johnson’s void for vagueness framework to a nearly identical residual clause in the INA.34 This confirms that the vagueness doctrine applies—at a minimum—to immigration laws that result in deportation or removal. Under the INA, any foreign national convicted of an aggravated felony is deportable.35 Like the Armed Career Criminal Act, the definition of an aggravated felony included a “crime of violence” residual clause.36 The Sessions Court assessed and confirmed that the INA’s “definition of ‘crime of violence’ suffer[ed] from the same constitutional defect” present in Johnson.37 Like Johnson, the challenged residual clause used “an ordinary-case requirement and an ill-defined risk threshold.”38 Thus, Sessions confirmed that the same exacting void for vagueness standard applied to criminal sentencing statutes also applies to immigration laws. Legal scholars have interpreted the jurisprudential shift in Johnson and Sessions to indicate that the CIMT provision of the INA is ripe for reconsideration.39
The indiscriminate implementation of the CIMT provision fails to provide fair notice and invites arbitrary enforcement. In oral reargument for Sessions, Justice Alito asked the petitioner’s counsel whether, if given a list of offenses, they could categorize any of them as a CIMT.40 Justice Alito vehemently asserted that he himself “couldn’t do that . . . . doubt[s] that somebody who’s facing possible removal consequences would be able to answer that question.”41 When ordinary people cannot understand what legal consequences attach to their conduct, then that law fails to meet due process requirements.42 If a Supreme Court justice charged with interpreting the law cannot make sense of the CIMT provision, it is inconceivable that an average person would be able to do so. For example, no discernable reasoning can be deduced as to why illegally downloading music is a CIMT but failing to register as a sex offender is not.43 Many offenses are inconsistently deemed CIMTs.44
Even though the INA’s CIMT provision shares some of the constitutional inconsistencies that were present in Johnson and Sessions, the CIMT provision has escaped scrutiny under the void for vagueness doctrine in the past because of a fundamental misreading of the Supreme Court’s decision in Jordan v. De George. Despite a resounding “chorus of voices” calling for the reconsideration of whether the CIMT provision is unconstitutionally vague, lower courts have felt precluded from doing so by the ruling in Jordan.45 In that case, the Court narrowly upheld the constitutionality of the CIMT phrase, but noted that “[f]raud [was] the touchstone” of the opinion.46 The Jordan Court underscored that “[w]hatever else the phrase ‘crime involving moral turpitude’ may mean in peripheral cases, the decided cases make it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude.”47 Lower courts have misconstrued this holding to preclude any void for vagueness challenge to the CIMT provision—regardless of the crime.48 However, the Court did not intend for its determination to extend to “peripheral cases.”49 Instead, the Court confined its decision strictly to “crimes in which fraud was an ingredient.”50 Therefore, the Supreme Court has not addressed the general constitutionality of CIMTs because Jordan’s language definitively cabins the holding to a particular conviction: fraud.
Even if Jordan foreclosed void for vagueness challenges to the CIMT provision, it should be overturned in light of Johnson and Sessions. The principle of stare decisis “does not matter for its own sake,” but only “because it ‘promotes the evenhanded, predictable, and consistent development of legal principles.’”51 The CIMT provision, by stark contrast, produces unpredictable and inconsistent results.52 In a scathing dissent nearly seventy years ago, Justice Jackson wrote, “[t]he chief impression from the [moral turpitude] cases is the caprice of the judgments.”53 Even at that time, Justice Jackson knew that the inquiry turned on a judge’s moral reactions to a particular offense.54
The Supreme Court has warned of the dangers of a legislature casting such a wide net that it catches all possible offenders, and then relegating to the courts the task of implicating some and setting others free.55 Forty years ago, the Supreme Court recognized the inevitable arbitrary enforcement that the CIMT phrase invites, albeit in the context of voting rather than immigration law.56 In Hunter v. Underwood, an Alabama state constitutional provision stripped the right to vote from persons convicted of “any crime . . . involving moral turpitude.”57 In that case, the Court found that the CIMT provision was manipulated to intentionally target and disenfranchise Black voters.58 CIMT provisions encourage exploiting their language to inflate or shrink the scope of convictions that fall within the definition of a CIMT, inviting discriminatory and arbitrary enforcement.59 The CIMT provision in the immigration context has become a “collateral sanctioning mechanism,” by which lawful permanent residents are channeled into the arrest-to-deportation-pipeline with little hope of escaping.60 The CIMT provision violates the Due Process mandate that the law afford individuals, including lawful permanent residents, fair notice of prohibited conduct and protection from arbitrary enforcement.61
The malleability of the INA’s CIMT provision provides officials and judges with discretion to apply it to offenses they personally think are base, vile, or depraved. This outmoded provision is predisposed to arbitrary enforcement that reinforces the exceedingly punitive crimmigration system. Though immigration laws have been insulated from some constitutional challenges in the past, the recent framework in Johnson and Sessions compels the application of the criminal void for vagueness standard to immigration laws. To safeguard the integrity of Fifth Amendment protections, the Supreme Court should hold that the CIMT provision is void for vagueness.
1. Kameron Johnston is a J.D. Candidate (2021) at New York University School of Law. This piece is a commentary on the problem presented at the 2020 Wechsler Moot Court Competition in Buffalo, NY. The question presented asked whether the phrase “[c]rimes involving moral turpitude” (“CIMT”) used in 8 U.S.C. § 1227(a)(2)(A)(i) as grounds for removal of foreign nationals, including lawful permanent residents, is void for vagueness.
2. Jordan v. De George, 341 U.S. 223, 243 (1951) (Jackson, J., dissenting) (describing deportation as a “life sentence of exile from what has become home, of separation from his established means of livelihood for himself and his family of American citizens”).
3. Sessions v. Dimaya, 138 S. Ct. 1204, 1213 (2018).
4. 8 U.S.C. § 1227(a)(2)(A)(i).
5. U.S. CONST. amend. V.
6. City of Chi. v. Morales, 527 U.S. 41, 56 (1999).
7. Kolender v. Lawson, 461 U.S. 352, 357 (1983).
8. Sessions, 138 S. Ct. at 1213 (stating that “the most exacting vagueness standard should apply in removal cases”).
9. Jordan v. De George, 341 U.S. 223, 231 (1951).
10. United States v. Davis, 139 S. Ct. 2319, 2323 (2019).
11. Johnson v. United States, 576 U.S. 591, 593 (2015) (quoting 18 U.S.C. § 924(e)(2)(B)).
12. Id. at 597.
14. Id. at 596 (noting that a court looks at “how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion”).
15. Id. at 597.
16. Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015) (noting a judge “looks to the statutory definition of the offense of conviction, not to the particulars of an alien’s behavior”).
17. See Ortega-Lopez v. Lynch, 834 F.3d 1015, 1017 (9th Cir. 2016) (“We have recognized that whether a crime is a CIMT is a ‘nebulous question that we are required to answer on the basis of judicially established categories of criminal conduct.’”(quoting Nunez v. Holder, 594 F.3d 1124, 1127 (9th Cir. 2010))).
18. Philip L. Torrey, Unpacking the Rise in Crimmigration Cases at the Supreme Court, 44 N.Y.U. REV. L. & SOC. CHANGE 109, 109 (2020).
19. See Johnson, 576 U.S. at 598 (noting that “the failure of ‘persistent efforts … to establish a standard’ can provide evidence of vagueness” (quoting United States v. L. Cohen Grocery Co., 255 U.S. 81, 91 (1921))).
20. See id. at 601–02 (“Nine years’ experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise.”).
21. See id. at 602 (rejecting the notion “that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision’s grasp”).
22. See Jordan v. De George, 341 U.S. 223, 242 (1951) (Jackson, J., dissenting) (“Apparently, Congress expected the courts to determine the various crimes includable in this vague phrase. We think that not a judicial function.”).
23. Matter of Ortega-Lopez, 27 I. & N. Dec. 382, 386 (B.I.A. 2018).
24. Compare In re Khourn, 21 I. & N. Dec. 1041, 1046 (B.I.A. 1997) (“‘[E]vil intent’ is a requisite element for a crime involving moral turpitude.”), with In re Medina, 15 I. & N. Dec. 611, 614 (B.I.A. 1976) (“The presence or absence of a corrupt or vicious mind is not controlling.”).
25. Nunez v. Holder, 594 F.3d 1124, 1130 (9th Cir. 2010) (noting that the failure of both “the BIA or our own court to establish any coherent criteria for determining which crimes fall within that classification and which crimes do not” is vexing), overruled by Betansos v. Barr, 928 F.3d 1133, 1141–42 (9th Cir. 2019).
26. Arias v. Lynch, 834 F.3d 823, 831 (7th Cir. 2016) (Posner, J., concurring); see also Blake v. Carbone, 489 F.3d 88, 103 (2d. Cir. 2007) (describing CIMTs as “criminal because their nature is morally reprehensible” and not “simply by reason of statutory prohibition”); De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 636 (3d Cir. 2002) (relying on Black’s Law Dictionary’s definition of moral turpitude: “[c]onduct that is contrary to justice, honesty, or morality.”).
27. See Lindsay M. Kornegay & Evan T. Lee, Why Deporting Immigrants for “Crimes Involving Moral Turpitude” Is Now Unconstitutional, 13 DUKE J. CONST. L. & PUB. POL’Y 47, 61–63 (2017) (listing manslaughter, fraud, sex offenses against children, child abandonment and child abuse, indecent exposure, assault, misprision of felony, false statements, and driving under the influence as convictions that receive differential treatment under the moral turpitude provision).
28. See Nunez, 594 F.3d at 1127 (“Morality is not a concept that courts can define by judicial decrees, and even less can it be defined by fiats issued by the Board of Immigration Appeals . . . .”); see also Marmolejo-Campos v. Holder, 558 F.3d 903, 921 (9th Cir. 2009) (en banc) (Berzon, J., dissenting) (“[T]he BIA’s precedential case law regarding the meaning of the phrase ‘crime involving moral turpitude’ (‘CIMT’) is a mess of conflicting authority.”).
29. See Arias, 834 F.3d at 826. Compare Hyder v. Keisler, 506 F.3d 388, 392 (5th Cir. 2007) and Guardado-Garcia v. Holder, 615 F.3d 900, 901 (8th Cir. 2010), with Beltran-Tirado v. I.N.S., 213 F.3d 1179, 1184 (9th Cir. 2000).
30. Nunez, 594 F.3d at 1130.
31. Marmolejo-Campos, 558 F.3d at 919.
32. Arias, 834 F.3d at 830.
33. Id. at 835.
34. See Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018) (holding that the residual clause was unconstitutionally vague).
35. Id. at 1210.
36. Id. at 1211.
37. Id. at 1210.
38. Id. at 1223.
39. See, e.g., Jennifer Lee Koh, Crimmigration and the Void for Vagueness Doctrine, 2016 WIS. L. REV. 1127, 1133 (2016) (asserting that the CIMT provision is ripe for reconsideration under the vagueness doctrine following Sessions); Lindsay M. Kornegay & Evan T. Lee, Why Deporting Immigrants for “Crimes Involving Moral Turpitude” Is Now Unconstitutional, 13 DUKE J. CONST. L. & PUB. POL’Y 47, 116 (2017) (arguing that “the fact that ‘moral turpitude’ must be gauged on a categorical basis” and a court’s hypothesis of least culpable conduct renders the standard void for vagueness).
40. Oral Reargument at 52:08, Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (No. 15–1498), https://www.oyez.org/cases/2017/15–1498.
41. Id. at 52:21.
42. See Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1310 (11th Cir. 2009).
43. Compare Hashish v. Gonzales, 442 F.3d 572, 576–77 (7th Cir. 2006) with Mohamed v. Holder, 769 F.3d 885, 889 (4th Cir. 2014).
44. See Kornegay & Lee, supra note 27, at 61–63 (listing manslaughter, fraud, sex offenses against children, child abandonment and child abuse, indecent exposure, assault, misprision of felony, false statements, and driving under the influence as convictions that receive differential treatment under the CIMT provision); see also Islas-Veloz v. Whitaker, 914 F.3d 1249, 1259 (9th Cir. 2019) (Fletcher, J., concurring) (explaining how the lawful permanent resident pled guilty to a reckless endangerment charge because two prior BIA decisions had held that reckless endangerment was not a CIMT).
45. Barbosa v. Barr, 926 F.3d 1053, 1060 (9th Cir. 2019) (Berzon, J., concurring).
46. Jordan v. De George, 341 U.S. 223, 232 (1951).
48. See, e.g., Islas-Veloz, 914 F.3d at 1250 (“The Court’s more recent decisions in Johnson and Dimaya did not reopen inquiry into the constitutionality” of CIMT); Garcia-Meza v. Mukasey, 516 F.3d 535, 536 (7th Cir. 2008) (“Although the phrase ‘crime involving moral turpitude’ is notoriously baffling, the Supreme Court has rejected a vagueness challenge to it.” (citing Jordan, 341 U.S. at 232)).
49. Jordan, 341 U.S. at 232 (stating that a standard’s potential inadequacy in “less obvious cases” does not render it void for vagueness).
51. Johnson, 576 U.S. at 606 (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)).
52. Marciano v. INS, 450 F.2d 1022, 1026 n.1 (8th Cir. 1971) (Eisele, J., dissenting) (“[T]hat the phrase ‘crime involving moral turpitude’ is unconstitutionally vague and violates the due process clause . . . seems manifest by the variety and inconsistency of the various opinions attempting to deal with the phrase.”).
53. Jordan, 341 U.S. at 239 (Jackson, J., dissenting).
54. See id. at 239–40 (speculating that many noncitizens may not have been deported if their cases were heard by a different judge).
55. See Papachristou v. Jacksonville, 405 U.S. 156, 165 (1972) (striking a vagrancy ordinance void for vagueness because of the unfettered discretion afforded to law enforcement).
56. Hunter v. Underwood, 471 U.S. 222 (1985).
57. Id. at 223.
58. Id. at 227 (finding that crimes selected for inclusion in the provision were believed by the delegates to be more frequently committed by Black individuals and potential Black voters were nearly two times as likely to be disenfranchised by the statute than potential white voters).
59. See South Carolina v. Katzenbach, 383 U.S. 301, 312–13 (1966) (holding that vague “good-morals” voting requirements constitute an open invitation for abuse by state officials).
60. See Julia Ann Simon-Kerr, Moral Turpitude, 2012 Utah L. Rev. 1001, 1001 (2012).
61. See Padilla v. Kentucky, 559 U.S. 356, 373–74 (2010) (“The severity of deportation … only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.”).