F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A N T ON I O I S L

A S -V E L O Z , AKA Antonio I slas, Petitioner
,

v.

M A T T H E W G. W H I T A K E R , Acting Attorney General, Respondent. No. 15-73120

Ag ency No. A060-299-672

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Submitted Aug ust 27, 2018 * Seattle, W a shing ton

F iled F ebruary

4, 2019

B efore: Michael Daly

Hawkins, M. Marg aret McKeown, and W illiam A. F letcher, Circuit Ju dg es.
Opinion by

J udg e McKeown; Concurrence by

J udg e W . F letcher

* T h e p an el u n an im o u s ly

co n clu d es th is case is su itab le f o r d ecisio n

w ith o u t o ral arg u

m en t. S ee Fed . R. A pp . P . 3 4 (a)(2 ).I S L A S -V E L O Z V

. W H I T A K E R 2

SUMMARY * *

Im m igration

Deny ing A ntonio I s l a s

- Veloz ’s petition for review of a decision of the B oard of Immig ration Appeals, the panel h eld that Supreme Court and ci r c uit precedent required rejecting I slas-Veloz ’s contentions that: 1) the phrase “crime involving moral turpitude” was unconstitutiona l l y vag u e; and 2) his conviction for communication with a minor f or immoral purposes in violation of Revised Code of W ashing ton § 9.68A.090 is not categ o rically a crime of moral turpitude.

The panel concluded that, in assessing the constitutional status of the phrase “crime involving moral turpi t u d e , ” it remains b ound by the Supreme Court’s d ecision in Jordan v

. De George
, 3 41 U.S. 2 23 (1951), in which the Court held that the phrase “crime i nvolving moral turpitude” w as not unconstitutionally vag ue. The panel also ex plain e d that Court’s more recent decisions in Johnson v. U nited States
, 135 S. Ct. 2551 (2015), and Sessions v. Dim a y a , 1 38 S. Ct. 1204 ( 2018), did not reopen inquiry into the constitutionality of the phrase. The panel further observed that this court has repeatedly echoed the h olding in De George
, noting that the court r ecently h eld in M

artinez-De Ryan v. Sessions
, 895 F .3d 1191 (9th Cir. 2018), that the p h rase is not unconstitutionally vag ue.

The panel also concluded that this c o u rt ’ s p recedent foreclosed I slas-Veloz ’s alternate claim that his conv i ction

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.I S L A S -V E L O Z V

. W H I T A K E R 3

for communicating with a minor for immoral purposes is not a crime of moral turpitude.

Concurring
, J udg e W

. F letcher wrote that the Supreme Court’s recent decisions in Johnson a n d Dimaya should lead the panel, w ere it not bo u n d b y this court’s precedent in Martinez-De Ryan
, to conclude that the phrase “crime o f moral turpitude” i s unconstitutionally vag ue when used as a basis for the re m o val of a noncitiz en. Observing that this circuit acknowledg es a distinction b etween f raud and nonfraud c r i m e s involving moral turpitude, J u dg e W

. F letcher wrote that non-fraud cases comprise the g reat bulk of crimes involving moral turpitude today and that the d e f inition o f non-fraud crimes involving moral turpitude is hopelessly a nd irredeemably vag ue.

COUNSEL

M anuel Rios, Rios & Cruz P.S., Seattle, W ashing ton, fo r Petitioner.

L aur a M.L

. Maroldy
, Trial Attorney ; J ohn S. Hog an, Assistant Director; Office of Immi gr at ion L itig ation, Civil Division, United States D epartment of J u s t ice, Washing ton, D.C.; for Respondent.I S L A S -V E L O Z V

. W H I T A K E R 4

OP INION

McKEOW

N, Circuit J udg e:

Antonio I slas-Veloz peti tions f or r eview of a f

inal order of removal f

ollowing the dismissal of his appeal by the B oard of Immig ration Appeals (“B I A”). W e conclude that Supreme Court and circuit precedents require us to deny the petition.

I slas-Veloz was convicted of communication with a minor f or immoral purposes in violation of Revised Code o f W a shing ton (“RCW ”) § 9.68A.090. A n immig rat i o n judg e found that I slas-Veloz ’s conviction constituted a crime involving moral turpitude committed within five y ears o f admission to the United States and found him removable on that basis. See 8 U.S.C. § 1 2 2 7 (a)(2)(A)(i). The B I A dismissed I slas-Veloz ’s appeal, ruling that communication with a minor for immoral p urposes in violatio n o f RCW § 9

. 6 8A.090 was c ateg orically a crime involving moral turpitude.

I slas-Veloz argues that the phrase “crime involving moral turpitude” is unconstitutionally vag ue in lig ht of the Supreme Court’s decisions in Johnson v. United States
, 135 S. Ct. 2551 (2015), and Sessions v. D i m a y a , 138 S. Ct. 1204 (2018). I n the alternative, he c l a i m s that the crime of “communication with [ a ] minor for immoral purposes” in violation of RCW § 9

. 6 8 A.090 is not categ o rically a c rime of moral turpitude, and hence that his final order of removal is invalid.

I n assessing the constitutional status of the phrase “ crime involving moral turpitude,” we remain bound by the Supreme Court’s decision in J

o r d a n v. De George
, 341 U.S. 223 (1951). In De George
, the Court held that the phrase “ crimeI S L A S -V E L O Z V

. W H I T A K E R 5
involving moral turpitude” was n ot unconstitutionally vag ue. Id. at 231–32. The Court’s more recent decisions in Johnson and Dimaya did not reopen inquiry into the constitutionality of the p hrase. N otably
, Dimaya acknowledg ed that the Court i n D e George had “ultimately uph[ e] ld” the phrase “cr i m e involving m o ral turpitude” ag ainst a n unconstitutional vag ueness attack. Dimaya , 138 S. Ct. at 1213.

W e have repeatedly echoed the h olding that the Supreme Court laid down in De G eorge

. In Tseung Chu v. Cornell
, we cited De George in ruling that the p hrase “crim e involving moral turpitude” was constitutional. 2 47 F

. 2d 929, 938–39 (9th Cir. 19 5 7). More r ecently
, in Martinez-De Ryan v

. S e s s ions , we ag ain held that the phrase is n o t unconstitutionally vag ue. 8 9 5 F .3d 1191, 1194 (9th Cir. 2018); see also Olivas-Motta v

. W h itaker
, 910 F

. 3d 1271, 1281 ( 9th Cir. 2018). De Ryan ex plicitly addressed Sessions

v. D imaya , ex plaining that the Suprem e Court’s opinion in that case did not chang e the constitut ional status of the phrase. S

ee 895 F

. 3d at 1 193–94. As the concurrence acknowledg es, our precedent cannot be read differently

.

I slas-V e l o z ’s alternate claim that c ommunicating with a minor for immoral purposes is not a c r ime of moral turpitude is f o r e c losed by our decision in Morales v. G onzales
, 478 F .3d 972 (9th Cir. 2007), a brogated on other grounds in Anaya-Ortiz v. Holder
, 594 F .3d 673, 6 77–78 (9th Cir. 2010). I n Morales
, we “conclude[ d ] that [ a] c o n v i ction for communication with a minor for immoral purposes” constitutes a cr i m e o f m o ral turpitude. Id. at 978. W e elaborated: “The full rang e of conduct prohibit ed by section 9.68A.090 of the Revised Code of W a shing ton categ orically constitutes a crime involving moral turpitude.” Id.I S L A S -V E L O Z V

. W H I T A K E R 6

Apart from any o n g oing debate about the d e gree o f ambig uity in h erent in the phrase “ c rime involving moral turpitude,” these precedents ar e d i rectly on point, bind us here, and foreclose I slas-Veloz ’s arg uments.

P ETITION DENIED.

W

. F L ETCHER, Circuit J udg e, concurring :

W e are b ound b y our court’s precedent in Martinez-De Ryan v. W

hitaker
, 909 F .3d 247 (9th Cir. 2018), and I t herefore concur in the panel’s opinion. However, I write

s e p arately because the Supreme Court’s recent decisions in Johnson v. United States
, 135 S. Ct. 2551 (2 0 1 5 )
, a nd Sess i ons v

. Dimaya
, 138 S. Ct. 1204 ( 2018), should lead us,

were w e not b ound, to conclude that the phrase “cri m e o f moral turpitude” is unconstitutionally vag ue when u sed as the basis for removal of a noncitiz en. See 8 U .S.C. § 1227(a)(2)(A)(i)-(ii).

I . “Moral Turpitude” in I mmig ration L aw

The Immig ratio n and Nationality Act (“I N A”) imposes

severe penalties on n oncit iz ens convicted of a “ crime involving moral turpit u d e ” (“CI MT”). See 8 U .S.C. §§ 11 8 2(a)(2)(A) (inadmissibility ), 1227(a)(2)(A)(i)-(ii) (removal), 1 2 2 9 b ( b)(1)(C) (inelig ibility for cancellation o f

r e m o v a l a n d a d

j u s t m e n t o f s t a t u s )

. S e c t i o n 1227(a)(2)(A)(i)–(ii) renders removable any noncitiz en who is (a) convicted of a “crime involving moral turpitude” within f i v e y ears of entry for w hich a sentence of one y ear o r m o r e is imposed o r, (b) convicted of any two “crimes involvingI S L A S -V E L O Z V

. W H I T A K E R 7

moral t u rp itude” at any time after e ntry , reg ardless o f sentence leng th or ty

pe. The noncitiz e n is also inelig ible for cancellation of removal. 8 U.S.C. § 1 229b( b ) ( 1)(C).

“ [ R] emoval is a virtual certainty” no matter how l o n g a n individual may have previously resided in the United States. Dimaya , 138 S. Ct. at 1211.

I n recent y ears, the United States has deported many tens of thousands of noncitiz e ns under § 1227(a)(2)( A ) a fter having been convicted of CI MTs. See Transactional Records Access Clearing house, Indiv i d u als Charged with Moral Turpitude in Immigration Court
, S YR A C U S E U

N I V

. ( last

a c c essed Dec. 21, 2018), http://trac.sy r .edu/immig ration/re p orts/moral_turp.html (collecting data that shows that f r o m 1996-2006 the United States broug ht removal proceeding s ag ainst over 135,000 noncitiz ens for “ c rimes involving moral turpitude”); Transactional Record s Access Clearing house, Immi gration Court Post-Trump Cases: Latest Data
, S Y R A C U S E U N I V

. , t b l

. 6 ( M a r c h 2 1
, 2 0 1 7 )
, http://trac.sy

r.edu/immig ration/reports/462/ (c ollecting data from 2012 to 2017).

The t e r m “moral turpitude” first appeared in federal immig ration law in 1891, w he n Cong ress barred e ntry to pe rs o n s “who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude.” Act of Mar. 3, 189 1
, ch. 551, 26 Stat. 1084. Six teen y ears later, “Cong ress ex panded the class o f ex cluded persons to include individuals who ‘admit’ to having committed a crime of moral turpitude.” Padilla v. Kentucky
, 559 U.S. 356, 361 n.2 (2010) (citing Act of F eb. 20, 1907, ch. 1134, § 2, 34 Stat. 899.). Ten y e ars late r , in the I mmig ration Act of 1917, Cong r ess “rendered deportable” noncitiz ens who a r e “sentenced to imprisonment for a term of one y ear or m o reI S L A S -V E L O Z V

. W H I T A K E R 8

b e cause of c onviction in this country o f a c rime involvin g

m o r a l turpitude, committed within five y ears” of entry a n d “noncitiz e n recidivists who c o mmit two or more cr i m e s o f moral turpitude at a

n y time after e n t r y

. ” I

d

. at 361 (citing I mmig r ation Act of 1917, c h. 29, §19, 39 Stat. 889). The I NA, enacted in 1952 and amended thereafter, included these

same penalties. I n none of those sta tutes has Cong ress defined the term “moral turpitude.” Id.

I I . Void for Vag

ueness

I n two recent cases, the Supreme Court has revitaliz e d the void-for-vag

ueness doctrine in both criminal and civil cases.

F irst, in Johnson v. United S tates , 135 S. Ct. 2551 (2015), the Court upheld a vag ueness c halleng e to a provision of the Armed Career Criminal Act (“ACCA”). F ederal criminal law p r o hibits convicted felons from possessing firearms. 18 U.S.C. § 922(g ). I f a felon convicted under § 922(g ) has previously been convicted of three o r more “ s e r ious d rug

o ffenses” or “violent felonies,” the ACCA increases t h e prison term b y a minimum o f fifteen y ears and a max imum o f life. Id. at § 924(e)(1). The ACCA defines “violent felony ”

as a crime punishable by a term ex ceeding a y e a r that (i) either has as an e lement the a ctual, attempted or threatened use of force or (ii) “is burg lary , arson, or ex tortion, involves the use o f ex plosives, or otherwise involves c onduct that presents a serious risk of physical in

j u r y to another .” Id. at § 924(e)(2)(B ) (emphasis added). The italiciz ed lang uag e is the ACCA’s “residual clause.”

I n an opinion by J ustice Scalia, the Court h eld the residual cl a u s e unconstitutionally vag ue. T he Court wrote, “Two features of th e residual clause conspire to make itI S L A S -V E L O Z V

. W H I T A K E R 9

unconstitutionally vag ue.” Johnson
, 135 S. Ct. at 2557. F irst, the clause “leaves g rave uncertainty a b o u t h ow to estimate the risk posed by a crime.” Id

. S e c ond, the clause “leaves uncertainty about h ow much risk it takes for a crime to qualify as a violent felony

. ” Id. at 2558. The combination produced “ more unpredictability a n d arbitrariness th a n the Due Process Clause tolerates.” Id. at 2557.

The Court described, and lamented, four recent c a s es in which it had reached dispa r a t e r esults under the ACCA

re s i d u al clause: “[ T] his Court’s repeated attempts a nd repeated failures to craft a principled and objective standard

o u t o f t h e r e s i d u a l c l a u s e co n f i r m i t s h o p e l e s s indeterminancy .” Id. at 2558. The Court pointed out that, in addition to its own disparate results
, t h e residual c lause h ad “‘created numerous splits among the lower federal courts,’ wh e re it h a s proved ‘nearly impossible to a pply consistently .’” Id. at 2559–60 (quoting Chambers v. United States
, 555 U.S. 1 22, 133 (2009) (Alito
, J
., concurring in judg ment)). The Court concluded:

Nine y ears’ e x perience try ing to derive meaning from the residual clause convinces u s that we have embarked upon a fai l ed enterprise.

. . . Invoking so shapeless a provision to c ondemn som e o n e to prison for fifteen y ears to life does not comport with the Constitution’s g uarantee of due process.

Id. at 2560.

Second, in Sessions v. Dimaya
, 138 S. Ct. 1 204 (2018), the Court upheld a vag ueness challeng e to a provision of the I NA. The I

NA r e n d e rs d eportable (or “removable”) aI S L A S -V E L O Z V

. W H I T A K E R 10

noncitiz en convicted of an “ag g ravated fe l o n y ” committed

a f t e r e n t e r i n g t h e U n i t e d S t a t e s

. 8 U

. S

. C

. § 1227(a)(2)(A)(iii). The noncitiz en is also inelig ible, b y virtue of the ag g ravated felony
, for cancellation of removal. See id. §§ 1 229b(a)(3), ( b)(1)(C). The I NA d e f i n e s “ag g ravated felony” to i nclude a felony “that, by its nature, involves a substant i a l r i sk that phy sical force ag ainst the person o r property of another may b e used in the c o u r se o f committing the offense.” 8 U.S.C. § 16(b). The lang uag e just quoted is the I

NA’s “residual clause.”

J ustice Kag a

n, writing f

or the Court, h e l d the I NA’s residual clause uncon s t i tutionally vag ue: “ Section 1 6’s residual clause violates [ the] promise [ of t h e due process clause] in just the same way” as the residual clause of the ACCA h eld unconstitutional in J ohnson

. Dimaya
, 138 S. Ct. at 1 2 15. “The result is that § 16(b) produces, just as ACCA’s

r e sidual clause did, ‘ more unpredictability and a rbitrariness than the Due Process Clause tolerates.’” Id. at 1216 (quoting Johnson , 135 S. Ct. at 2558).

W r iting for a p lurality of four, J u stice Kag an acknowledg ed that “removal of an alien is a civil matter.” Id.
at 1213. She n onetheless applied the same test to the I NA the Court h ad applied to the ACCA in Johnson

. “[ W ]e long ag o held that the most e x acting vag ueness standard should a pply in removal c ases.” Id

. ( citing Jordan v. D e George
, 341 U.S. 223, 229 (1951)). She c ontinued, “Nothing in t h e ensuing
y ears c alls that reasoning into question. To the contrary , this Court has r eiterated that deportation is ‘a particularly severe penalty
, ’ which may be of g r eater concern to a convicted alien than ‘ any potential jail sentence.’” Id. (quoting Jae Lee

v. United States
, 137 S. Ct. 1 958, 1968 (2017)). J u s tice Gorsuch did not join the portion of J ustice Kag an’s opin i o nI S L A S -V E L O Z V

. W H I T A K E R 11

j u s tify ing the application of the “ most ex acting vag uenes s

s t andard” in removal cases. H e wrote separately
, ag reei n g that the “ex acting v ag ueness standard” shou l d a p ply in removal cases, but indicating he would apply it in c ivil cases

more broadly

. Id. at 1 231 (Gorsuc h, J
., concurring ). Combining J ustice Kag an’s and J ustice Gorsuch’s opinions,

a majority of the Court concluded t h at the “ex acting vag ueness standard” applicable in criminal c ases applies, at the very least, in removal cases under the I NA.

I I I . Vagueness of “Crime I nvolving Moral Turpitude”

A. Jordan v. De George

Almost seventy y ears ag o in Jordan v. De Ge orge , 341 U.S. 223 ( 1951), the Supreme Court upheld a deportation order under the I mm i gr a tion Act of 1917, b ased on convictions for crimes involving moral turpitude. De Georg e

was an I talian c itiz e n who had lived co n t i n uously in the United States for twenty -nine y ears, and who had been twice convicted of fraudulently avoiding federal tax es on “distilled sp i r i ts.” De G eorge , 341 U.S. at 224–25. The Court o f Appeals for the Seventh Circuit held that tax fraud w as n o t a CI MT and set aside the depo r t a t i o n o rder. Id. at 226. The Supreme Court reversed, holding that fraud w as a CI MT a nd upholding the deportation.

The Court w rote that “[ t] he question of vag ueness was not raised by the parties nor a rg ued before this Court,” id. at 229, but it addressed the questio n a n y way , in response to three dissenting justices. T he Court noted that it h a d p r e v iously upheld a deportation order premised on a conviction f or a CI MT w hen the nonciti z e n h ad been convicted o f counterfeiting with an intent to defraud. See United States exI S L A S -V E L O Z V

. W H I T A K E R 12

rel. Volpe v. Smith
, 2 8 9 U. S. 422 (1933). The Court emphasiz ed that the deportation at issue in the case before it, as in Volpe , was based on a conviction for fraud:

F raud is the touchstone by which this c a se shou ld be judg ed. The phrase “ crime involving moral turpitude” h as without

ex c eption be en c o n s t ru e d t o e m b race fraudulent conduct. W e therefore decide that Cong r ess suffic i ently forewarned respondent that the statut o r y consequence of twice conspiring t o defraud the United States is deportation.

Id . at 232.

The Cou rt wrote that there mig ht be some “marg inal offenses” or “peripheral cases” that mig ht (or mig ht not) be

e n c o mpassed within the phrase “crimes involving moral turpitude.” Id. at 231–32. However, “difficulty in determining whether certain marg inal offenses are within the meaning of the lang uag e under attack as vag ue does not

a u t o m a t i c a l l y r ender a s t a t u t e u n c o n s t i t u t i o n a l f o r indefiniteness.” Id

. at 231. “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 ing redient have alway s been r e ga rded as involving moral turpitude.” Id. at 232.

J ustice J ackson, joined by J ustices B lack and F rankfurter, dissented. He wrote, “W h at the Government seeks, and what the Court cannot g ive, is a ba s i c definition of ‘moral turpitude’ to g ui de administrators and lower c ourts.” Id. at 233 (J ackson, J ., dissenting ). He continued:I S L A S -V E L O Z V

. W H I T A K E R 13

C o ng ress did n ot see fit to state w hat meaning it attributes to the phrase “ c r ime involving moral turpitude

. ” I t is not o ne which has settled sig nificance from being words of art in the p rofession. I f we g o to the dictionaries, the last r e s o rt o f the baffled judg e, we learn little ex cept that the

ex p ression is redundant, for turpi t u de alone

means moral wickedn ess or depravity a nd moral turp i t ude seems to mean little more tha n morally immoral. The Government confesses that it is a “term that is not clearly defined,” and say s : “The various definitions of m o r al turpitude provide no ex act test b y which we can c lassify the speci f ic o ffenses here involved.

Ex cept for the Court’s opin i o n , there appears to be univ e r s al recognition that we have here an und ef

ined a nd undefinable standard.

Id. at 234–35.

B . Void for Vag ueness
1. Questions Today

There are two questions before us tod a y , a lmost seventy y ears after the Court’s decision in De George

.

F irst, the Court in De George concluded that the only

cases in which the meaning of “crime involving moral turpitude” migh t have been impermissibly v a g ue wereI S L A S -V E L O Z V

. W H I T A K E R 14

“ m a r ginal offenses” or “ peripheral cases.” Whether at th e time De George was decided such cases were, in fact, merely “marg inal” or “peripheral,” I need n ot consider. The question to d a y is whether non-fraud cases are still so few—so marg inal or peripheral—that they need not concern us.

Second, the Court in D e George did n ot quarrel with J ustice J ackson’ s c o n c lusion that the definition of “crimes involving moral turpitude” in n o n-fraud cases was unconstitutionally vag u e. The q u e s t i on today is whether, in the time since the Court’s d ecision in D e Georg e , j u d icial construction has clarified the definition in non-fraud cases.

The answer to both questions is clear. Non-fraud CI MTs today a re neither mar gi n al nor peripheral, a nd the definition of non-fraud CI MTs is as vag ue today as it was in 1951.

2. The Reality

Today

O u r c ircuit acknowledg es the distinction between fraud and non-fraud cases, d ividing CI MTs into two categ o ries, “‘those involving f

raud and those involvi n g g rave acts o f baseness or depravity

. ’” Marmolejo-C a m p os v. H older
, 558 F .3d 903, 910 (9th Cir. 2009) (en b anc) (quoting Carty v

. Ashcroft
, 395 F .3d 1081, 1083 (9th Cir. 2005); see a lso, e.g. , Menendez v. W

hitaker
, 908 F .3d 467, 472–73 (9th Cir. 2 018) (“W e have traditionally identified two different ty pes o f crimes involving moral turpitude: ‘those involving fraud a nd those inv o l v i n g g rave acts of baseness or depravity .’” (quoting Carty
, 395 F .3d at 1 083)); Mancilla-Delafuente v

. Lynch , 804 F .3d 1262, 1265 (9th Cir. 2015) (“There are two ty pes of p ossible CI MT s : those involving fraud and those involving g rave acts of baseness or depravity .” (int e r nal quotation omitted)); Rob l es-Urrea v. Holder
, 678 F .3d 702,I S L A S -V E L O Z V

. W H I T A K E R 15

708 (9th Cir. 2012) ( “ S u c h c rimes are of two ty p es: those involving fraud and those involving g rave acts of baseness o r depravity .”).

Our sister circuits and the B oard of I mmig ration Appeals (“B I A”) consistently define moral turpitude as c onduct that is “base, v ile, and depraved,” a n d recogniz e that f

r au d i s alway s a CI MT. See, e .g. , C h iao Fang Ku v

. Attorney Gen. United States of Am
., 9 12 F .3d 133 (3d Cir. 2019) ( “ C ourts ha v e long treated fraud c rimes as ‘involving moral turpitude.’” (citing De Geo r g e , 3 4 1 U.S. at 232)); Pierre v

. U.S. Attorney Gen.
, 879 F .3d 1241, 1251 (11th Cir. 2 018) (“W hether a crime involves the depravity or fraud necessary to be one of moral turpitude d epends upon the inherent nature

o f the o ffense

. . . .” (internal citations omitted)); G u e va r a

Solorzano v. S

essions , 891 F

. 3d 125, 135 (4th Cir. 2018) (“A CI MT is a c ri m e that is ‘inherently base, vile, or depraved,’ meaning that it involves c onduct ‘that n o t only violates a statute but also independently violates a moral norm.’” (citation omitted)); Baptiste v. Attorney Gen
., 841 F .3d 601, 621 (3d Cir. 2 016) (defining morally t u r p itudinous conduct

as “ i nherently base, vile, or depraved, contrary to the accepted r ules of morality and the duties owed other persons” (citation omitted)); Arias v

. L yn c h
, 834 F

. 3 d 823, 826 (7th Cir. 2016) (“The B oard has defined a crime involving moral turpitude as ‘ conduct that shock s t h e public conscience a s being inherently base, vile, or depraved, and contrary to t h e

ac c epted rules o f morality and the duties owed b etween persons or to society in g eneral.’ We h ave adopted definitions substanti v e ly in line w ith the B oard’s.” (internal citation omitte d ) ) ; M

e j ia v. Holder
, 756 F .3d 64, 68 (1st Cir. 2 014) (defining CI MT as “conduct th a t shocks the public

c o n s c i ence as being inherently base, vile, o r depraved, a nd contrary to the accepted r

ules o f morality and the duties owedI S L A S -V E L O Z V

. W H I T A K E R 16

between persons or to society in g eneral” (citation omitted)); Efstathiadis v. Holder
, 752 F .3d 591, 595 (2 d Cir. 2 014) (“W hether a prior conviction constitutes a CI MT t urns on whether the c rime is ‘inhere n t l y base, vile, or depraved.’” (citation omitted)); Y

eremin v

. Holder
, 738 F .3d 708, 714 (6th Cir. 2013) (“The term ‘refers g enerally to conduct t h at is inherently base, vile, or depraved, a n d contrary to the accepted rules of morali t y and the duties owed b etween persons or to society in g e n eral.’

. . . Crimes that involve deception or fraud consistently a re held to qualify as c rimes in v o lving moral turpitude.” (citation omitted)); MarinR o d riguez v. Holder
, 710 F .3d 7 34, 738 (7th Cir. 201 3 ) (“Cri mes entailing an intent to deceive or defraud a re unquestionably morally turpitudinous.”); Rodriguez-Heredia

v. Holder
, 639 F .3d 1264, 1268 ( 10th Cir. 2011) (“Althoug h ‘c r i m e involving moral turpitude’ is not defined by statute,

we h ave said that ‘moral turpitude refers to conduct which is inherently base, vile, or depraved, contrary to the a c c ep t ed rules o f morality and the duties owed b etween man and man, either o ne’s fellow man or society in g eneral.’ Apply

ing this concept, we have followed Supreme Court precedent making it ‘plain that crimes in which fr a ud was an ing redient have alw a y s been reg arded as involving moral turpitude.’” (internal citations omitted)); Guardado-Gar c i a v

. H older
, 615 F

. 3d 900, 902 ( 8th Cir. 2010) (“Crimes involving moral turpitude h ave been held to require conduct ‘that is inherently base, vile, or depraved, and co n t r a ry to a ccepted rules o f morality and the duties owed between persons or to society in g eneral.’ ‘Crimes involving the intent to deceive or defr aud

are g enerally considered to involve moral turpitude.’ (internal citations omitted)); Hyder v. Keisler
, 506 F

. 3d 388, 391 (5th Cir. 2007) (“‘Moral turpitude r e f ers g enerally to conduct that shocks the public conscience as being i n herently base, vile,

o r depraved, and c ontrary to the accepted rules of moral i t yI S L A S -V E L O Z V

. W H I T A K E R 17

and the duties owed b e tween p ersons or to society in g eneral.’

. . . W e have repeatedly emphasiz ed that crimes whose essential elements involve f raud or deception tend to be CI MTs.” (internal citations omitted)); Matter of Zarag o zaVaquero
, 26 I

. & N. Dec. 81 4
, 8 15–16 (B I A 2016) (“Moral turpitude refers g enerally to conduct that shocks th e public conscience as being i n h e rently b ase, vile, or depraved, a nd contrary to accepted rules of morality and the d u t i es owed between perso n s o r to society in g e n eral.

. . . Crimes that

r e quire intent to defraud are [ ] c rimes involving mo ra l turpitu d e .”); M

atter of Flores
, 17 I

. & N

. Dec. 225, 227–28 (B I A 1980) (“Moral turpitude is a n ebulous concept which refers g enerally to conduct which is inherently base, v i l e , o r depraved, co n trary to the accepted r ules of morality a

nd the duties owed between man and man, either one’s fellow man

or society in g eneral.

. . . The most frequently cited definition of moral turpitude was g iven by the Supreme Court in Jordan

v. DeGeorge
, 341 U.S. 223, 2 32 (1951), where it was stated: ‘W hatever else the phrase crime involving moral turpitude may mean in peripheral cases, the decided cases m a k e it p l a in that crimes in w hich fraud w as an ing redient h a v e alway s been reg arded as involving m o r a l t u r pitude.’”); Matter of E---

- - , 2 I & N Dec. 134, 140 (B I A 1944) (“[ A ] crime involves moral turpitude when its n ature is such that it manifests up o n t he part o f its perpetrator personal depravity or baseness.”).

I f CI M Ts were r estricted to fraud, there would be no constitutional difficulty

. B u t in the decades since De George

was d ecided, courts and administrators s i gn i f i c a nt l y e xp a n d ed the conduct that qualifies as “base, vile, or d e p r a v ed” and, therefore, “ morally turpitudious.” F ar f rom being marg inal

or peripheral, non-fraud cases c o mprise the g r eat bu l k o fI S L A S -V E L O Z V

. W H I T A K E R 18

CI MTs today

. F urther, the definition of non-fraud CI MTs is hopelessly

and irredeemably

vag ue.

I n a recent law review article, Professor Simon-Kerr provided a number of ex amples that show both the breadth o f
t h e C I MT categ ory and the v a gueness of the definition of non-fraud CI MTs. Citing cases, she wrote, “Moral turpitude jurispru d e n c e today sug g ests that society condemns a s immoral the petty thief, but n o t t he person w ho attacks a police offic er.” J ulia Ann Simon-Kerr, Moral Turpitude
, 2012 U T A H L

. R E V

. 1001, 1005 (2012). Compare M i chel v

. I.N.S.
, 206 F .3d 253, 261 ( 2d Cir. 2000) (holding that petty t h e ft for stolen bus transfers is a CI MT), with Zaranska v

. U.S. Dep’t o

f Homeland Sec
., 4 00 F

. Supp. 2d 500, 511, 514 (E.D.N.Y. 2005) (ho l d i n g that second deg ree assault on police officer is not a CI MT). “ ‘[ A] g g rav a ted fleeing ’ is inherently base, vile, and deprav e d, while some forms o f ag g r avated assault do not violate community norms of morality .” Simon-Kerr, Moral Turpitude
, supra , at 1005

. Compare M

ei v. Ashcroft
, 393 F .3d 737, 741–42 ( 7 t h C ir. 2004) (ag g ravated fleeing )
, with Carr v. I.N.S.
, 86 F .3d 949, 950–51 (9th Cir. 1996) (ag g ravated assault). See also Alonzo

v. Lynch
, 821 F .3d 951, 958 ( 8th Cir. 2016) (“Assault may o r may not involve moral turpit u d e

. ” (citation omitted)); Zaranska
, 400 F

. Supp. 2d at 514 (“[ A] ccording to the B I A
, simpl e assault is not a crime o f moral turpitude, but assault with a d eadly weapon is; a conviction for misc o n duct that caused bodily i n

j u ry is not a crime of moral turpitude, but where the conduct caused serious bodily injury
, it is.”). “Drunk driving r e p e a tedly is deemed not to involve moral turpitude, but drun k d r i v ing with a suspended license is assessed differently .” Simon-Kerr, Moral Turpitude
, supra , at 1005. Compare In re T o r r es-Varela
, 23 I

. & N. Dec. 78, 83–84 (B I A 2 0 01) (en banc) ( drunk driving repeatedly ), withI S L A S -V E L O Z V

. W H I T A K E R 19

Marmole jo-Campos v. Holder
, 5 58 F .3d 903, 917 ( 9 th Cir. 2009) (en banc) (drunk driving with suspended license).

More ex amples are easy to find. Some convictions under state hit-and-run statutes are crimes i n volving moral turpitude while other convictions are not. S e e Orosco v. H

older
, 396 F e d. App’x 5 0, 52–55 (5th Cir. 2010) (failure to report an accident where no injury re s u lted is not a CI MT); Latu v

. Mukasey
, 5 47 F

. 3d 1070, 1 073

– 76 ( 9th Cir. 2008) (a driver who stops and renders aid b u t fails to g ive requisite information to police had not committed a CI MT); Cerezo v

. Mukasey
, 512 F .3d 1163 (9th Cir. 2008) (a conviction under

a California hit-and-run statute is not a con v i c t i on for a CI MT, but le a v i ng the scene of an accident is a CI MT); Garcia-Maldonado v. Gonzales
, 491 F .3d 284 (5th Cir. 2 007) (a conviction under a Tex as hit-and-run statute is a conviction for a CI MT). Citing c ases, Korneg ay a nd Professor L ee have provided still more ex amples. T hey wrote, “A m o n g t he offenses that may or may not be [ crimes in v o l v i n g moral turpitude] are manslaug hter, fraud, sex of f e nses ag ainst children, c hild aba n d o nment and child abuse, indecent

ex p osure, assault, misprision of felony
, false statements, a nd driving under the influence.” L indsay M. Korneg ay & Evan Tsen L ee, W

h y Deporting Immigrants for “Crimes Involving Moral Turpitude” Is Now U n c o nstitutional
, 13 D UK E J

. C ON S T

. L

. & P UB

. P O L ’ Y

47, 61–63 (2017).

Modern fed eral courts and the B I A have repeatedly complained that the definition o f CI MTs is vag ue. A sample of such complaints includes Menendez v. W hitaker
, 908 F .3d 467, 472 (9th Cir. 2018) (stating that “[ t] he m e a n i n g of the term falls well short of clarity” (citation omitted)); Ar i a s v

. Lynch
, 834 F .3d 823, 830, 8 3 5 (7th Cir. 2016) (Posner, J
., c o ncurring ) (calling CI MT a “ stale, antiquated, and, wor s e,I S L A S -V E L O Z V

. W H I T A K E R 20

meaning less phrase,” a “vague[ ] ” phrase, “ri f e with contradiction, a f

ossil, [ and] an embarrassment to a modern leg al sy stem,” and d iscussing “remarkable dissent by J u stice J ackson” in De George
, which “ex posed [ the] emptiness” o f the moral turpitude conce p t ) ; B obadilla v. Holder
, 679 F .3d 1052, 1053–54 (8th Cir. 2012) (callingit a “murky statutory standard” and stating
, “[ w ] ithout question, the term [ CI MT] is ambig u ous.”); Marmo l e j o -Campos
, 558 F .3d at 909 (“‘Moral turpitude’ is perhaps the quintessential e x ample o f

an ambig uous phrase.”); Ali v

. M u k asey , 521 F .3d 737, 739 (7 th Cir. 2008) (calling moral turpitude a “notoriously plastic” c oncept); Garcia-Meza v. M ukasey
, 516 F .3d 535, 536 ( 7th Cir. 2008) (calling the standard “notoriously baffling ”); Franklin v. INS
, 7 2 F .3d 5 71, 573 ( 8th Cir. 1 995) (“[ M] oral turpitude is a nebulous concept and there is ample

room for differing definitions of the term.”); Zaranska
, 400 F

. Supp. 2d at 513–14 (“‘Moral turp i t u d e’ h istorically has referred to conduct which is inherently b a s e , v ile, o r depraved, and contrary to the accepted rules of morality and the duties o wed between persons o r to soci e t y i n general. I n other words, there is no useful definiti o n f or the term.” (internal quotations o mitted)); I n re Lopez-Meza
, 22 I

. & N

. Dec. 11 8 8, 1191 (B I A 1999) (“[ B ] oth the courts and this B oard have r eferred to moral turpitude as a ‘n e b u l o us concept’ with ample room for differing defin i t i o n s of the term.

. . . Under this standard, the nature o f a crime is measured ag ainst contemporary moral standards and may be

su sceptible to chang e based on the prevailing views in society .”); M

atter of Short
, 2 0 I

. & N. Dec. 136, 139 (B I A 19 8 9) (describing “moral turpitude” as a “nebulous concept”); Matter of McNaughton , 16 I . & N. Dec. 569, 574 (B I A 1978) (describing

moral turpitude as a “vag u e” term).I S L A S -V E L O Z V

. W H I T A K E R 21

Despite m a n y y ears of try ing
, courts and administrators have not been able to establish coherent criteria. S e e Nunez

v. Holder
, 594 F .3d 1124, 1130 (9th Cir. 2010) ( “W e h ave previously discussed at some leng th the inherent ambig uity o f the phrase ‘moral turpitude’ and the consistent failu r e o f either the B IA or our own c o u r t to establish any coherent criteria for dete r mining which crimes fall within that classification and which c rimes do not.”); MarmolejoCampos v. Holder
, 558 F .3d 9 03, 9 21 (9th Cir. 2 0 0 9 ) (en banc) (B erz on, J
., dissenting ) (“[ T] he B I A’s precedential case law reg arding t h e m ea ning of the phrase ‘crime involving moral turpitude’

. . . is a mess of confli c t i ng authority .”); Nicanor-Romero v. Mukasey
, 523 F .3d 992, 997–99 (9th Cir. 2009), overr u l e d on other grounds by Marmolejo-Campos
, 558 F .3d 903 (summa r i z i n g Ninth Circuit law on moral turpitude a

nd recogniz ing that “[ w] e have not relied on a consistent or easily

applied set of criteria” to identify crimes of moral turpitude); Partyka v. A ttorney G eneral
, 417 F .3d 4 0 8
, 4 09 (3d Cir. 2005) (calling moral turpitude jurisprudence

an “amorphous morass”); M ei v

. Ashcroft
, 393 F .3d 7 3 7, 741 (7th Cir. 2004) (“The B oard should not be blamed too harshly [ for w idely vary

ing results in what i s c o nsidered a CI MT] ; courts h ave e qually failed to impart a c lear meaning to ‘moral turpitude.’ Time has only confirmed J ustice J ackson’s powerful dissent in the De George c a s e, in which he called ‘moral turpitude’ an ‘undefined a n d undefinable standard.’ The term may well h ave outlived i t s u sefulness.” (internal citation o mitte d )) ; M

e i v

. Ashcroft
, 393 F

. 3 d 737, 739 (7th Cir. 2004) (“Since Cong r ess did not define ‘crime involving moral turpitude’ when it inserted the term in the immig r ation statute, and the term h ad no settled meaning at the time (and has none still), it is re a s o nable to suppose a la Chevron that C o ng ress c ontemplated that the ag ency c harg ed w i t h administering the st a t u t e would define the term, a ndI S L A S -V E L O Z V

. W H I T A K E R 22

specifically w ould tailor the definition t o t he policies embodied in the immig ration stat u tes. The B o ard o f I mmig r ation Appea ls h as done n either.

. . . [ T] he B oard hasn’t done any

thing to part i c u l a r iz e the meaning of ‘crime i n v o l v ing moral turpitude’

. . . . ”); Tseung Chu v. Corne l l
, 247 F .2d 9 29, 933 (9th Cir. 1957) (“W e are n ot unmindful o f the my riad decisions spons o r i n g various concepts of moral turpitude. They o ffer no well settled cr iteria.”); see a lso De George
, 341 U.S. at 239–40 (J a ckson, J
., dissenting ) (“No

one can read this body of opinions and feel that its a pplication represents a satisfy ing
, r ational p rocess. I f any consistent pattern o f a pplication or consensus of meaning could be distilled from ju d i c i al d ecision, neither the Government nor the Court spells it out. I rrationality is inher e n t i n the task o f translating the relig ious and ethical connotations of the phrase into leg al decisions. The lower court cases seem to rest, as we f e e l this Court’s decision d oes, u pon the moral reactions o f particular judg es to particular offenses.”).

J ustice Alito, joined by Chief J ustice Rob e r t s , recently echoed these complaints in Padilla
, arguing that a n attorney did not provide ineffective assistance of c o unsel when he failed to determine whether a particular offense was a CI MT. J ustice Alito listed a number offenses that may or may not be crimes involving moral t

u r p itude (citing R. McW hirter, AB A
, T h e C r i minal Lawyer’s Guide to Immigration La w : Q u e s t i o n s and Answers 134 (2d ed. 2006)):

See [ McW h irter] at 134 (“W riting bad c hecks
may or may not be a CI M T ” (emphasis added); ibid. ( “[ R] eckless assault coupled with an element of injury
, but not serious injury
, is probably n ot a CI MT” (emphasis added)); id. at 135 (misdemeanor d r ivingI S L A S -V E L O Z V

. W H I T A K E R 23

under the influence i s ge nerally not a CI MT, but may b e a CI MT if he DUI r e sults in injury

or if the driver knew that his license had been suspended or revoked); id. at 136 (“I f there is

no e lement of actual injury
, the endang erment offense may not be a CI MT” (emphasis added); ibid

. (“W hether [ a child abuse] conviction involves m o r al turpitude may d e pend on the subsection under which t h e individual is convicted. Child abuse done with criminal neg lig ence probably is not a CI MT” (emphasis added)).

Padilla , 559 U.S. at 379 (Alito, J ., concurring ).

3 . Recent Ex ample

A recent decision of our court illustrat es J ustice Alito’s point. Manuel Olivas-Motta was leg a lly present in the United States as a noncitiz en lawful permanen t resident. O livasMotta v

. W

h itaker
, 910 F .3d 1 271, 1283 (9th Cir. 2 018) (W atford, J

. , dissenting ). He had been broug ht to the United States in 1976 by his paren t s when h e was ten day s old. Id. He was married to a United States citiz en and had two citiz en children. Id. Most of his ex tended f amily lived in the United States as either citiz ens or lawful permanent residents. Id.

O l i vas-Motta was charg ed under Ariz ona law wi t h ag g r avated assault and attempted murder. Id. I f he had been convicted as c ha rg ed, the conviction w ould have rendered him removable. Id. Olivas-Motta contended tha t h e was innocent of the charg es, but he was willing to p lead guilty to “reckless endang erment” r ather than g o to trial if he could be assured t h at reckless e ndang erment was not a CI MT. Id.I S L A S -V E L O Z V

. W H I T A K E R 24

O l ivas-Motta’s attorney consulted with a n ex perienc e d immig ration attorney who advised that in all likelihood reckless endang er m e n t under Ariz ona law was not a CI MT. Id. The attorney ’s advice was based o n two n on-precedential decisions by the B I A that had s p ecifically held that reckless endang erment in Ariz o na was not a CI MT. Ol i v as

- M otta relied on the immigr a t ion attorney ’s advice, and he pleaded g uilty to reckless endang erment. Id. at 1284.

F ive y ears after O livas-Motta’s g uilty plea, the B I A chang ed course. I n Matter of Leal
, 26 I . & N. Dec. 20 (B I A 2012), aff’d sub n om. Leal v. Holder
, 7 71 F .3d 1140 (9th Cir. 2014), the B I A abandoned the position taken in its two prior decisions, n ow holding that reckless endang erment under Ariz ona law is a CI MT. B a sed on its decisi o n in Matter of Leal
, the B I A o rdered O livas-Motta removed b ecause he h ad been convicted of two CI MTs. Id. at 1275. Over a dissent b y J udg e W atford, we denied Olivas-Motta’s petition for review. Id.

4. State Courts’ Ex perience

Use of the phrase “moral turpitude” under state law increasing ly has been abandoned or forbidden. Starting in the 19th and 2 0th centuries, states used the term “moral turpitude” as a criterion to d isqualify and impeach witnesses, to decide whether certain lang uag e is slanderou s , to disenfranchise voters, and to disbar attorney s a n d r evoke medical licenses, among other applications. See De George
, 341 U.S. at 2 27 (discussing u se of the term in other contex ts); Simon-Kerr, Moral Turpitude
, supra (same). Seventy y ears ag o in De George
, the majority b eg an its discussion b y recogniz ing this history
, stating that “[ t] he term ‘ moral turpitude’ has deep roots in the law.” De George
, 341 U.S.I S L A S -V E L O Z V

. W H I T A K E R 25

at 227. Citing states’ use of the phrase i n o t h er, noni m mig r ation contex ts, the Court reasoned, “In deciding t h e

case before the Court, we look to the manner in which the term ‘moral turpitude’ h as been applied by judicial decision.” Id. F inding that, “[ w] ithout ex ception, federal and s t a te courts h ave held that a crime in which fraud is an ing redient involves moral turpitude,” t h e Court went on to hold that fraud was a CIMT. I

d

.

B u t in the decad e s since De George
, many states have discont i n u e d u se of the phrase “ moral turpitude” in v arious contex ts. See, e.g. , S i m on-Kerr, M oral Turpitude
, supra , at 1040–44. F or e x ample, citing the phrase’s vag u eness and the resulting inconsistent ruling s, the vast majority o f states have abandoned use of the phrase “moral turpitude” in the c ontex t of witness impeachment. S ee Simon-Kerr, Moral Turpitude
, supra , at 1033–39; see a lso, e.g. , State v. Morg an , 541 S.W .2d 385, 388 (Tenn. 1976) ( rea s oning that judg e s f aced g reat “ difficulty ” in “apply ing a test that is vag ue a

nd cannot be ex plicitly defined,” that the dictionary definition o f “moral turpitude” had provided no g uidance, a n d t h a t the standard had produced inconsistent r uling s); Tucker v. Lower
, 434 P.2d 3 20, 324 (Kan. 1967) (noting that CI MT has “a vag ue and un c e rt ain meaning which plag ues the courts”); Heating Acceptance Corp. v

. P atterson , 208 A.2d 341, 343–44 (Conn. 1965) (noting that the “uncerta i n t y ” of the term “moral turpitude” had caused “not inconsider a b l e” difficulties f

or judg es and u ltimately deciding to abandon the term); Vt. R. Evid. 6 09, Re p o r ter’s Notes on 1989 Amendment (1989) (“Subdivision (a) is amended to replace ‘moral turpitude’ with more p recise and relevant standards for determining the admiss i b ility o f prior convictions for im p eachment. Moral turpitude was troublesome because it

was at once underinclusive and overinclusive, as well a sI S L A S -V E L O Z V

. W H I T A K E R 26

vag ue.”); Maine R. Evid. 609, Advisers’ Note to F ormer M.R. Evid. 609–F e bruary 2, 1976 (calling moral turpitude a “troublesome phrase” before switching to a clea rer impeachment standard).

I n the con t e x t of v oter disenfranchisement, use of the phrase has been struck down due to d iscriminatory intent a nd impact. See Simon-Kerr, M oral Tu r p i t u de
, supra , at 1040–41; Hunter v. Underwood
, 4 7 1 U

. S. 222, 233 (1985) ( h o l d i n g t h a t A l a b a m a ’ s c o n s t i t u t i o n a l p r o v i s i o n di s e n f r anchising citiz ens convicted of a crime o f moral turpitude was unconstitutional). The term’s very “fuz z iness

. . . made it well suited to the purpose of” selective, arbitrary and d iscrimi n a tory decision making

. Simon-Kerr, Moral Turpitude
, supra , at 1040.

Conclusion

Rooted in the Due Process Clause, the v o i d-for-vag ueness doctrine serves two primary purposes. I t “guarantees that ordinary p eople have ‘fair notice’ o f t he conduct a statute proscribes,” and it “g u ards ag ainst arbitrary or discriminatory law enforcement by insisting that a statute provide standards to g overn the acti o n s of police officers, prosecutors, juries, and judg es.” Dimaya , 138 S. Ct. at 1212.

Cong r ess did not d efine “moral turpitude” w hen it introduced the term into o ur immig ration law in 1891. Six ty y ears later, J ustice J ackson wrote that “moral turpitude” was still “ an undefined and unde f inable standard.” De George
, 341 U.S at 235 (J a ckson
, J
., dissenting ). Now, almost seventy y ears after De George
, “ m o r al turpitude” is a s undefined and undefinable as ever.I S L A S -V E L O Z V

. W H I T A K E R 27

J u stice Scalia wrote of the ACCA’s residual clause i n Johnson
, “Nine y ears’ e x perience try ing to derive meaning from the residual clause convinces us that we have embarked up o n a f a i l ed enterprise.” Johnson
, 135 S. Ct. at 2560. W e have had n o t just nine y e ar s b ut more than a century o f

ex p erience with “moral t u r p i t ude.” I t is time to r ecog niz e another failed enterprise.