FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTONIO ISLAS-VELOZ, AKA

Antonio Islas,

Petitioner,

v.

MATTHEW G. WHITAKER, Acting

Attorney General,

Respondent.

No. 15-73120

Agency No.

A060-299-672

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted August 27, 2018*

Seattle, Washington

Filed February 4, 2019

Before: Michael Daly Hawkins, M. Margaret McKeown,

and William A. Fletcher, Circuit Judges.

Opinion by Judge McKeown;

Concurrence by Judge W. Fletcher

*

 The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
2 ISLAS-VELOZ V. WHITAKER

SUMMARY**

Immigration 

Denying Antonio Islas-Veloz’s petition for review of a

decision of the Board of Immigration Appeals, the panel held

that Supreme Court and circuit precedent required rejecting

Islas-Veloz’s contentions that: 1) the phrase “crime involving

moral turpitude” was unconstitutionally vague; and 2) his

conviction for communication with a minor for immoral

purposes in violation of Revised Code of Washington

§ 9.68A.090 is not categorically a crime of moral turpitude.

The panel concluded that, in assessing the constitutional

status of the phrase “crime involving moral turpitude,” it

remains bound by the Supreme Court’s decision in Jordan v.

De George, 341 U.S. 223 (1951), in which the Court held that

the phrase “crime involving moral turpitude” was not

unconstitutionally vague. The panel also explained that

Court’s more recent decisions in Johnson v. United States,

135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 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 holding in De George, noting that the

court recently held in Martinez-De Ryan v. Sessions, 895 F.3d

1191 (9th Cir. 2018), that the phrase is not unconstitutionally

vague.

The panel also concluded that this court’s precedent

foreclosed Islas-Veloz’s alternate claim that his conviction

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ISLAS-VELOZ V. WHITAKER 3

for communicating with a minor for immoral purposes is not

a crime of moral turpitude.

Concurring, Judge W. Fletcher wrote that the Supreme

Court’s recent decisions in Johnson and Dimaya should lead

the panel, were it not bound by this court’s precedent in

Martinez-De Ryan, to conclude that the phrase “crime of

moral turpitude” is unconstitutionally vague when used as a

basis for the removal of a noncitizen. Observing that this

circuit acknowledges a distinction between fraud and nonfraud crimes involving moral turpitude, Judge W. Fletcher

wrote that non-fraud cases comprise the great bulk of crimes

involving moral turpitude today and that the definition of

non-fraud crimes involving moral turpitude is hopelessly and

irredeemably vague.

COUNSEL

Manuel Rios, Rios & Cruz P.S., Seattle, Washington, for

Petitioner.

Laura M.L. Maroldy, Trial Attorney; John S. Hogan,

Assistant Director; Office of Immigration Litigation, Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.
4 ISLAS-VELOZ V. WHITAKER

OPINION

McKEOWN, Circuit Judge:

Antonio Islas-Veloz petitions for review of a final order

of removal following the dismissal of his appeal by the Board

of Immigration Appeals (“BIA”). We conclude that Supreme

Court and circuit precedents require us to deny the petition.

Islas-Veloz was convicted of communication with a

minor for immoral purposes in violation of Revised Code of

Washington (“RCW”) § 9.68A.090. An immigration judge

found that Islas-Veloz’s conviction constituted a crime

involving moral turpitude committed within five years of

admission to the United States and found him removable on

that basis. See 8 U.S.C. § 1227(a)(2)(A)(i). The BIA

dismissed Islas-Veloz’s appeal, ruling that communication

with a minor for immoral purposes in violation of RCW

§ 9.68A.090 was categorically a crime involving moral

turpitude.

Islas-Veloz argues that the phrase “crime involving moral

turpitude” is unconstitutionally vague in light of the Supreme

Court’s decisions in Johnson v. United States, 135 S. Ct. 2551

(2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018). In

the alternative, he claims that the crime of “communication

with [a] minor for immoral purposes” in violation of RCW

§ 9.68A.090 is not categorically a crime of moral turpitude,

and hence that his final order of removal is invalid.

In assessing the constitutional status of the phrase “crime

involving moral turpitude,” we remain bound by the Supreme

Court’s decision in Jordan v. De George, 341 U.S. 223

(1951). In De George, the Court held that the phrase “crime
ISLAS-VELOZ V. WHITAKER 5

involving moral turpitude” was not unconstitutionally vague. 

Id. at 231–32. The Court’s more recent decisions in Johnson

and Dimaya did not reopen inquiry into the constitutionality

of the phrase. Notably, Dimaya acknowledged that the Court

in De George had “ultimately uph[e]ld” the phrase “crime

involving moral turpitude” against an unconstitutional

vagueness attack. Dimaya, 138 S. Ct. at 1213.

We have repeatedly echoed the holding that the Supreme

Court laid down in De George. In Tseung Chu v. Cornell, we

cited De George in ruling that the phrase “crime involving

moral turpitude” was constitutional. 247 F.2d 929, 938–39

(9th Cir. 1957). More recently, in Martinez-De Ryan v.

Sessions, we again held that the phrase is not

unconstitutionally vague. 895 F.3d 1191, 1194 (9th Cir.

2018); see also Olivas-Motta v. Whitaker, 910 F.3d 1271,

1281 (9th Cir. 2018). De Ryan explicitly addressed Sessions

v. Dimaya, explaining that the Supreme Court’s opinion in

that case did not change the constitutional status of the

phrase. See 895 F.3d at 1193–94. As the concurrence

acknowledges, our precedent cannot be read differently.

Islas-Veloz’s alternate claim that communicating with a

minor for immoral purposes is not a crime of moral turpitude

is foreclosed by our decision in Morales v. Gonzales,

478 F.3d 972 (9th Cir. 2007), abrogated on other grounds in

Anaya-Ortiz v. Holder, 594 F.3d 673, 677–78 (9th Cir. 2010). 

In Morales, we “conclude[d] that [a] conviction for

communication with a minor for immoral purposes”

constitutes a crime of moral turpitude. Id. at 978. We

elaborated: “The full range of conduct prohibited by section

9.68A.090 of the Revised Code of Washington categorically

constitutes a crime involving moral turpitude.” Id.
6 ISLAS-VELOZ V. WHITAKER

Apart from any ongoing debate about the degree of

ambiguity inherent in the phrase “crime involving moral

turpitude,” these precedents are directly on point, bind us

here, and foreclose Islas-Veloz’s arguments.

PETITION DENIED.

W. FLETCHER, Circuit Judge, concurring:

We are bound by our court’s precedent in Martinez-De

Ryan v. Whitaker, 909 F.3d 247 (9th Cir. 2018), and I

therefore concur in the panel’s opinion. However, I write

separately because the Supreme Court’s recent decisions in

Johnson v. United States, 135 S. Ct. 2551 (2015), and

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

were we not bound, to conclude that the phrase “crime of

moral turpitude” is unconstitutionally vague when used as the

basis for removal of a noncitizen. See 8 U.S.C.

§ 1227(a)(2)(A)(i)-(ii).

I. “Moral Turpitude” in Immigration Law

The Immigration and Nationality Act (“INA”) imposes

severe penalties on noncitizens convicted of a “crime

involving moral turpitude” (“CIMT”). See 8 U.S.C.

§§ 1182(a)(2)(A) (inadmissibility), 1227(a)(2)(A)(i)-(ii)

(removal), 1229b(b)(1)(C) (ineligibility for cancellation of

removal and adjustment of status). Section

1227(a)(2)(A)(i)–(ii) renders removable any noncitizen who

is (a) convicted of a “crime involving moral turpitude” within

five years of entry for which a sentence of one year or more

is imposed or, (b) convicted of any two “crimes involving
ISLAS-VELOZ V. WHITAKER 7

moral turpitude” at any time after entry, regardless of

sentence length or type. The noncitizen is also ineligible for

cancellation of removal. 8 U.S.C. § 1229b(b)(1)(C). 

“[R]emoval is a virtual certainty” no matter how long an

individual may have previously resided in the United States. 

Dimaya, 138 S. Ct. at 1211.

In recent years, the United States has deported many tens

of thousands of noncitizens under § 1227(a)(2)(A) after

having been convicted of CIMTs. See Transactional Records

Access Clearinghouse, Individuals Charged with Moral

Turpitude in Immigration Court, SYRACUSE UNIV. (last

accessed Dec. 21, 2018), http://trac.syr.edu/immigration/re

ports/moral_turp.html (collecting data that shows that from

1996-2006 the United States brought removal proceedings

against over 135,000 noncitizens for “crimes involving moral

turpitude”); Transactional Records Access Clearinghouse,

Immigration Court Post-Trump Cases: Latest Data,

SYRACUSE UNIV., tbl. 6 (March 21, 2017),

http://trac.syr.edu/immigration/reports/462/ (collecting data

from 2012 to 2017).

The term “moral turpitude” first appeared in federal

immigration law in 1891, when Congress barred entry to

persons “who have been convicted of a felony or other

infamous crime or misdemeanor involving moral turpitude.”

Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084. Sixteen years

later, “Congress expanded the class of excluded 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 Feb. 20, 1907, ch. 1134, § 2, 34 Stat.

899.). Ten years later, in the Immigration Act of 1917,

Congress “rendered deportable” noncitizens who are

“sentenced to imprisonment for a term of one year or more
8 ISLAS-VELOZ V. WHITAKER

because of conviction in this country of a crime involving

moral turpitude, committed within five years” of entry and

“noncitizen recidivists who commit two or more crimes of

moral turpitude at any time after entry.” Id. at 361 (citing

Immigration Act of 1917, ch. 29, §19, 39 Stat. 889). The

INA, enacted in 1952 and amended thereafter, included these

same penalties. In none of those statutes has Congress

defined the term “moral turpitude.” Id.

II. Void for Vagueness

In two recent cases, the Supreme Court has revitalized the

void-for-vagueness doctrine in both criminal and civil cases.

First, in Johnson v. United States, 135 S. Ct. 2551 (2015),

the Court upheld a vagueness challenge to a provision of the

Armed Career Criminal Act (“ACCA”). Federal criminal law

prohibits convicted felons from possessing firearms.

18 U.S.C. § 922(g). If a felon convicted under § 922(g) has

previously been convicted of three or more “serious drug

offenses” or “violent felonies,” the ACCA increases the

prison term by a minimum of fifteen years and a maximum of

life. Id. at § 924(e)(1). The ACCA defines “violent felony”

as a crime punishable by a term exceeding a year that

(i) either has as an element the actual, attempted or threatened

use of force or (ii) “is burglary, arson, or extortion, involves

the use of explosives, or otherwise involves conduct that

presents a serious risk of physical injury to another.” Id. at

§ 924(e)(2)(B) (emphasis added). The italicized language is

the ACCA’s “residual clause.”

In an opinion by Justice Scalia, the Court held the residual

clause unconstitutionally vague. The Court wrote, “Two

features of the residual clause conspire to make it
ISLAS-VELOZ V. WHITAKER 9

unconstitutionally vague.” Johnson, 135 S. Ct. at 2557. 

First, the clause “leaves grave uncertainty about how to

estimate the risk posed by a crime.” Id. Second, the clause

“leaves uncertainty about how much risk it takes for a crime

to qualify as a violent felony.” Id. at 2558. The combination

produced “more unpredictability and arbitrariness than the

Due Process Clause tolerates.” Id. at 2557.

The Court described, and lamented, four recent cases in

which it had reached disparate results under the ACCA

residual clause: “[T]his Court’s repeated attempts and

repeated failures to craft a principled and objective standard

out of the residual clause confirm its hopeless

indeterminancy.” Id. at 2558. The Court pointed out that, in

addition to its own disparate results, the residual clause had

“‘created numerous splits among the lower federal courts,’

where it has proved ‘nearly impossible to apply

consistently.’” Id. at 2559–60 (quoting Chambers v. United

States, 555 U.S. 122, 133 (2009) (Alito, J., concurring in

judgment)). The Court concluded:

Nine years’ experience trying to derive

meaning from the residual clause convinces us

that we have embarked upon a failed

enterprise. . . . Invoking so shapeless a

provision to condemn someone to prison for

fifteen years to life does not comport with the

Constitution’s guarantee of due process.

Id. at 2560.

Second, in Sessions v. Dimaya, 138 S. Ct. 1204 (2018),

the Court upheld a vagueness challenge to a provision of the

INA. The INA renders deportable (or “removable”) a
10 ISLAS-VELOZ V. WHITAKER

noncitizen convicted of an “aggravated felony” committed

after entering the United States. 8 U.S.C.

§ 1227(a)(2)(A)(iii). The noncitizen is also ineligible, by

virtue of the aggravated felony, for cancellation of removal. 

See id. §§ 1229b(a)(3), (b)(1)(C). The INA defines

“aggravated felony” to include a felony “that, by its nature,

involves a substantial risk that physical force against the

person or property of another may be used in the course of

committing the offense.” 8 U.S.C. § 16(b). The language

just quoted is the INA’s “residual clause.”

Justice Kagan, writing for the Court, held the INA’s

residual clause unconstitutionally vague: “Section 16’s

residual clause violates [the] promise [of the due process

clause] in just the same way” as the residual clause of the

ACCA held unconstitutional in Johnson. Dimaya, 138 S. Ct.

at 1215. “The result is that § 16(b) produces, just as ACCA’s

residual clause did, ‘more unpredictability and arbitrariness

than the Due Process Clause tolerates.’” Id. at 1216 (quoting

Johnson, 135 S. Ct. at 2558).

Writing for a plurality of four, Justice Kagan

acknowledged that “removal of an alien is a civil matter.” Id.

at 1213. She nonetheless applied the same test to the INA the

Court had applied to the ACCA in Johnson. “[W]e long ago

held that the most exacting vagueness standard should apply

in removal cases.” Id. (citing Jordan v. De George, 341 U.S.

223, 229 (1951)). She continued, “Nothing in the ensuing

years calls that reasoning into question. To the contrary, this

Court has reiterated that deportation is ‘a particularly severe

penalty,’ which may be of greater concern to a convicted

alien than ‘any potential jail sentence.’” Id. (quoting Jae Lee

v. United States, 137 S. Ct. 1958, 1968 (2017)). Justice

Gorsuch did not join the portion of Justice Kagan’s opinion
ISLAS-VELOZ V. WHITAKER 11

justifying the application of the “most exacting vagueness

standard” in removal cases. He wrote separately, agreeing

that the “exacting vagueness standard” should apply in

removal cases, but indicating he would apply it in civil cases

more broadly. Id. at 1231 (Gorsuch, J., concurring). 

Combining Justice Kagan’s and Justice Gorsuch’s opinions,

a majority of the Court concluded that the “exacting

vagueness standard” applicable in criminal cases applies, at

the very least, in removal cases under the INA.

III. Vagueness of “Crime Involving Moral Turpitude”

A. Jordan v. De George

Almost seventy years ago in Jordan v. De George,

341 U.S. 223 (1951), the Supreme Court upheld a deportation

order under the Immigration Act of 1917, based on

convictions for crimes involving moral turpitude. De George

was an Italian citizen who had lived continuously in the

United States for twenty-nine years, and who had been twice

convicted of fraudulently avoiding federal taxes on “distilled

spirits.” De George, 341 U.S. at 224–25. The Court of

Appeals for the Seventh Circuit held that tax fraud was not a

CIMT and set aside the deportation order. Id. at 226. The

Supreme Court reversed, holding that fraud was a CIMT and

upholding the deportation.

The Court wrote that “[t]he question of vagueness was not

raised by the parties nor argued before this Court,” id. at 229,

but it addressed the question anyway, in response to three

dissenting justices. The Court noted that it had previously

upheld a deportation order premised on a conviction for a

CIMT when the noncitizen had been convicted of

counterfeiting with an intent to defraud. See United States ex
12 ISLAS-VELOZ V. WHITAKER

rel. Volpe v. Smith, 289 U.S. 422 (1933). The Court

emphasized that the deportation at issue in the case before it,

as in Volpe, was based on a conviction for fraud:

Fraud is the touchstone by which this case

should be judged. The phrase “crime

involving moral turpitude” has without

exception been construed to embrace

fraudulent conduct. We therefore decide that

Congress sufficiently forewarned respondent

that the statutory consequence of twice

conspiring to defraud the United States is

deportation.

Id. at 232.

The Court wrote that there might be some “marginal

offenses” or “peripheral cases” that might (or might not) be

encompassed within the phrase “crimes involving moral

turpitude.” Id. at 231–32. However, “difficulty in

determining whether certain marginal offenses are within the

meaning of the language under attack as vague does not

automatically render a statute unconstitutional for

indefiniteness.” Id. at 231. “Whatever 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.” Id. at 232.

Justice Jackson, joined by Justices Black and Frankfurter,

dissented. He wrote, “What the Government seeks, and what

the Court cannot give, is a basic definition of ‘moral

turpitude’ to guide administrators and lower courts.” Id. at

233 (Jackson, J., dissenting). He continued:
ISLAS-VELOZ V. WHITAKER 13

Congress did not see fit to state what

meaning it attributes to the phrase “crime

involving moral turpitude.” It is not one

which has settled significance from being

words of art in the profession. If we go to the

dictionaries, the last resort of the baffled

judge, we learn little except that the

expression is redundant, for turpitude alone

means moral wickedness or depravity and

moral turpitude seems to mean little more

than morally immoral. The Government

confesses that it is a “term that is not clearly

defined,” and says: “The various definitions

of moral turpitude provide no exact test by

which we can classify the specific offenses

here involved.

Except for the Court’s opinion, there

appears to be universal recognition that we

have here an undefined and undefinable

standard.

Id. at 234–35.

B. Void for Vagueness

1. Questions Today

There are two questions before us today, almost seventy

years after the Court’s decision in De George.

First, the Court in De George concluded that the only

cases in which the meaning of “crime involving moral

turpitude” might have been impermissibly vague were
14 ISLAS-VELOZ V. WHITAKER

“marginal offenses” or “peripheral cases.” Whether at the

time De George was decided such cases were, in fact, merely

“marginal” or “peripheral,” I need not consider. The question

today is whether non-fraud cases are still so few—so

marginal or peripheral—that they need not concern us.

Second, the Court in De George did not quarrel with

Justice Jackson’s conclusion that the definition of “crimes

involving moral turpitude” in non-fraud cases was

unconstitutionally vague. The question today is whether, in

the time since the Court’s decision in De George, judicial

construction has clarified the definition in non-fraud cases.

The answer to both questions is clear. Non-fraud CIMTs

today are neither marginal nor peripheral, and the definition

of non-fraud CIMTs is as vague today as it was in 1951.

2. The Reality Today

Our circuit acknowledges the distinction between fraud

and non-fraud cases, dividing CIMTs into two categories,

“‘those involving fraud and those involving grave acts of

baseness or depravity.’” Marmolejo-Campos v. Holder,

558 F.3d 903, 910 (9th Cir. 2009) (en banc) (quoting Carty v.

Ashcroft, 395 F.3d 1081, 1083 (9th Cir. 2005); see also, e.g.,

Menendez v. Whitaker, 908 F.3d 467, 472–73 (9th Cir. 2018)

(“We have traditionally identified two different types of

crimes involving moral turpitude: ‘those involving fraud and

those involving grave acts of baseness or depravity.’”

(quoting Carty, 395 F.3d at 1083)); Mancilla-Delafuente v.

Lynch, 804 F.3d 1262, 1265 (9th Cir. 2015) (“There are two

types of possible CIMTs: those involving fraud and those

involving grave acts of baseness or depravity.” (internal

quotation omitted)); Robles-Urrea v. Holder, 678 F.3d 702,
ISLAS-VELOZ V. WHITAKER 15

708 (9th Cir. 2012) (“Such crimes are of two types: those

involving fraud and those involving grave acts of baseness or

depravity.”).

Our sister circuits and the Board of Immigration Appeals

(“BIA”) consistently define moral turpitude as conduct that

is “base, vile, and depraved,” and recognize that fraud is

always a CIMT. See, e.g., Chiao Fang Ku v. Attorney Gen.

United States of Am., 912 F.3d 133 (3d Cir. 2019) (“Courts

have long treated fraud crimes as ‘involving moral

turpitude.’” (citing De George, 341 U.S. at 232)); Pierre v.

U.S. Attorney Gen., 879 F.3d 1241, 1251 (11th Cir. 2018)

(“Whether a crime involves the depravity or fraud necessary

to be one of moral turpitude depends upon the inherent nature

of the offense . . . .” (internal citations omitted)); GuevaraSolorzano v. Sessions, 891 F.3d 125, 135 (4th Cir. 2018) (“A

CIMT is a crime that is ‘inherently base, vile, or depraved,’

meaning that it involves conduct ‘that not only violates a

statute but also independently violates a moral norm.’”

(citation omitted)); Baptiste v. Attorney Gen., 841 F.3d 601,

621 (3d Cir. 2016) (defining morally turpitudinous conduct

as “inherently base, vile, or depraved, contrary to the

accepted rules of morality and the duties owed other persons”

(citation omitted)); Arias v. Lynch, 834 F.3d 823, 826 (7th

Cir. 2016) (“The Board has defined a crime involving moral

turpitude as ‘conduct that shocks the public conscience as

being inherently base, vile, or depraved, and contrary to the

accepted rules of morality and the duties owed between

persons or to society in general.’ We have adopted definitions

substantively in line with the Board’s.” (internal citation

omitted)); Mejia v. Holder, 756 F.3d 64, 68 (1st Cir. 2014)

(defining CIMT as “conduct that shocks the public

conscience as being inherently base, vile, or depraved, and

contrary to the accepted rules of morality and the duties owed
16 ISLAS-VELOZ V. WHITAKER

between persons or to society in general” (citation omitted));

Efstathiadis v. Holder, 752 F.3d 591, 595 (2d Cir. 2014)

(“Whether a prior conviction constitutes a CIMT turns on

whether the crime is ‘inherently base, vile, or depraved.’”

(citation omitted)); Yeremin v. Holder, 738 F.3d 708, 714 (6th

Cir. 2013) (“The term ‘refers generally to 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.’ . . . Crimes that involve

deception or fraud consistently are held to qualify as crimes

involving moral turpitude.” (citation omitted)); MarinRodriguez v. Holder, 710 F.3d 734, 738 (7th Cir. 2013)

(“Crimes entailing an intent to deceive or defraud are

unquestionablymorally turpitudinous.”); Rodriguez-Heredia

v. Holder, 639 F.3d 1264, 1268 (10th Cir. 2011) (“Although

‘crime involving moral turpitude’ is not defined by statute,

we have said that ‘moral turpitude refers to conduct which is

inherently base, vile, or depraved, contrary to the accepted

rules of morality and the duties owed between man and man,

either one’s fellow man or society in general.’ Applying this

concept, we have followed Supreme Court precedent making

it ‘plain that crimes in which fraud was an ingredient have

always been regarded as involving moral turpitude.’”

(internal citations omitted)); Guardado-Garcia v. Holder,

615 F.3d 900, 902 (8th Cir. 2010) (“Crimes involving moral

turpitude have been held to require conduct ‘that is inherently

base, vile, or depraved, and contrary to accepted rules of

morality and the duties owed between persons or to society in

general.’ ‘Crimes involving the intent to deceive or defraud

are generallyconsidered to involve moral turpitude.’ (internal

citations omitted)); Hyder v. Keisler, 506 F.3d 388, 391 (5th

Cir. 2007) (“‘Moral turpitude refers generally to conduct that

shocks the public conscience as being inherently base, vile,

or depraved, and contrary to the accepted rules of morality
ISLAS-VELOZ V. WHITAKER 17

and the duties owed between persons or to society in general.’

. . . We have repeatedly emphasized that crimes whose

essential elements involve fraud or deception tend to be

CIMTs.” (internal citations omitted)); Matter of ZaragozaVaquero, 26 I. & N. Dec. 814, 815–16 (BIA 2016) (“Moral

turpitude refers generally to conduct that shocks the public

conscience as being inherently base, vile, or depraved, and

contrary to accepted rules of morality and the duties owed

between persons or to society in general. . . . Crimes that

require intent to defraud are [] crimes involving moral

turpitude.”); Matter of Flores, 17 I. & N. Dec. 225, 227–28

(BIA 1980) (“Moral turpitude is a nebulous concept which

refers generally to conduct which is inherently base, vile, or

depraved, contrary to the accepted rules of morality and the

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

or society in general. . . . The most frequently cited definition

of moral turpitude was given by the Supreme Court in Jordan

v. DeGeorge, 341 U.S. 223, 232 (1951), where it was stated:

‘Whatever 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 involvingmoral turpitude.’”); Matter

of E-----, 2 I & N Dec. 134, 140 (BIA 1944) (“[A] crime

involves moral turpitude when its nature is such that it

manifests upon the part of its perpetrator personal depravity

or baseness.”).

If CIMTs were restricted to fraud, there would be no

constitutional difficulty. But in the decades since De George

was decided, courts and administratorssignificantlyexpanded

the conduct that qualifies as “base, vile, or depraved” and,

therefore, “morally turpitudious.” Far from being marginal

or peripheral, non-fraud cases comprise the great bulk of
18 ISLAS-VELOZ V. WHITAKER

CIMTs today. Further, the definition of non-fraud CIMTs is

hopelessly and irredeemably vague.

In a recent law review article, Professor Simon-Kerr

provided a number of examples that show both the breadth of

the CIMT category and the vagueness of the definition of

non-fraud CIMTs. Citing cases, she wrote, “Moral turpitude

jurisprudence today suggests that society condemns as

immoral the petty thief, but not the person who attacks a

police officer.” Julia Ann Simon-Kerr, Moral Turpitude,

2012 UTAH L. REV. 1001, 1005 (2012). Compare Michel v.

I.N.S., 206 F.3d 253, 261 (2d Cir. 2000) (holding that petty

theft for stolen bus transfers is a CIMT), with Zaranska v.

U.S. Dep’t of Homeland Sec., 400 F. Supp. 2d 500, 511, 514

(E.D.N.Y. 2005) (holding that second degree assault on

police officer is not a CIMT). “‘[A]ggravated fleeing’ is

inherently base, vile, and depraved, while some forms of

aggravated assault do not violate community norms of

morality.” Simon-Kerr, Moral Turpitude, supra, at 1005. 

Compare Mei v. Ashcroft, 393 F.3d 737, 741–42 (7th Cir.

2004) (aggravated fleeing), with Carr v. I.N.S., 86 F.3d 949,

950–51 (9th Cir. 1996) (aggravated assault). See also Alonzo

v. Lynch, 821 F.3d 951, 958 (8th Cir. 2016) (“Assault may or

may not involve moral turpitude.” (citation omitted));

Zaranska, 400 F. Supp. 2d at 514 (“[A]ccording to the BIA,

simple assault is not a crime of moral turpitude, but assault

with a deadly weapon is; a conviction for misconduct that

caused bodily injury is not a crime of moral turpitude, but

where the conduct caused serious bodily injury, it is.”). 

“Drunk driving repeatedly is deemed not to involve moral

turpitude, but drunk driving with a suspended license is

assessed differently.” Simon-Kerr, Moral Turpitude, supra,

at 1005. Compare In re Torres-Varela, 23 I. & N. Dec. 78,

83–84 (BIA 2001) (en banc) (drunk driving repeatedly), with
ISLAS-VELOZ V. WHITAKER 19

Marmolejo-Campos v. Holder, 558 F.3d 903, 917 (9th Cir.

2009) (en banc) (drunk driving with suspended license).

More examples are easy to find. Some convictions under

state hit-and-run statutes are crimes involvingmoral turpitude

while other convictions are not. See Orosco v. Holder,

396 Fed. App’x 50, 52–55 (5th Cir. 2010) (failure to report an

accident where no injury resulted is not a CIMT); Latu v.

Mukasey, 547 F.3d 1070, 1073–76 (9th Cir. 2008) (a driver

who stops and renders aid but fails to give requisite

information to police had not committed a CIMT); Cerezo v.

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

a California hit-and-run statute is not a conviction for a

CIMT, but leaving the scene of an accident is a CIMT);

Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. 2007)

(a conviction under a Texas hit-and-run statute is a conviction

for a CIMT). Citing cases, Kornegay and Professor Lee have

provided still more examples. They wrote, “Among the

offenses that may or may not be [crimes involving moral

turpitude] are manslaughter, fraud, sex offenses against

children, child abandonment and child abuse, indecent

exposure, assault, misprision of felony, false statements, and

driving under the influence.” Lindsay M. Kornegay & Evan

Tsen Lee, Why Deporting Immigrants for “Crimes Involving

Moral Turpitude” Is Now Unconstitutional, 13 DUKE J.

CONST. L. & PUB. POL’Y 47, 61–63 (2017).

Modern federal courts and the BIA have repeatedly

complained that the definition of CIMTs is vague. A sample

of such complaints includes Menendez v. Whitaker, 908 F.3d

467, 472 (9th Cir. 2018) (stating that “[t]he meaning of the

term falls well short of clarity” (citation omitted)); Arias v.

Lynch, 834 F.3d 823, 830, 835 (7th Cir. 2016) (Posner, J.,

concurring) (calling CIMT a “stale, antiquated, and, worse,
20 ISLAS-VELOZ V. WHITAKER

meaningless phrase,” a “vague[]” phrase, “rife with

contradiction, a fossil, [and] an embarrassment to a modern

legal system,” and discussing “remarkable dissent by Justice

Jackson” in De George, which “exposed [the] emptiness” of

the moral turpitude concept); Bobadilla v. Holder, 679 F.3d

1052, 1053–54 (8th Cir. 2012) (calling it a “murky statutory

standard” and stating, “[w]ithout question, the term [CIMT]

is ambiguous.”); Marmolejo-Campos, 558 F.3d at 909

(“‘Moral turpitude’ is perhaps the quintessential example of

an ambiguous phrase.”); Ali v. Mukasey, 521 F.3d 737, 739

(7th Cir. 2008) (calling moral turpitude a “notoriously

plastic” concept); Garcia-Meza v. Mukasey, 516 F.3d 535,

536 (7th Cir. 2008) (calling the standard “notoriously

baffling”); Franklin v. INS, 72 F.3d 571, 573 (8th Cir. 1995)

(“[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 turpitude’ historically has

referred to conduct which 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. In

other words, there is no useful definition for the term.”

(internal quotations omitted)); In re Lopez-Meza, 22 I. & N.

Dec. 1188, 1191 (BIA 1999) (“[B]oth the courts and this

Board have referred to moral turpitude as a ‘nebulous

concept’ with ample room for differing definitions of the

term. . . . Under this standard, the nature of a crime is

measured against contemporary moral standards and may be

susceptible to change based on the prevailing views in

society.”); Matter of Short, 20 I. & N. Dec. 136, 139 (BIA

1989) (describing “moral turpitude” as a “nebulous

concept”); Matter of McNaughton, 16 I. & N. Dec. 569, 574

(BIA 1978) (describing moral turpitude as a “vague” term).
ISLAS-VELOZ V. WHITAKER 21

Despite many years of trying, courts and administrators

have not been able to establish coherent criteria. See Nunez

v. Holder, 594 F.3d 1124, 1130 (9th Cir. 2010) (“We have

previously discussed at some length the inherent ambiguity of

the phrase ‘moral turpitude’ and the consistent failure of

either the BIA or our own court to establish any coherent

criteria for determining which crimes fall within that

classification and which crimes do not.”); MarmolejoCampos 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’ . . . is a mess of conflicting authority.”);

Nicanor-Romero v. Mukasey, 523 F.3d 992, 997–99 (9th Cir.

2009), overruled on other grounds by Marmolejo-Campos,

558 F.3d 903 (summarizing Ninth Circuit law on moral

turpitude and recognizing that “[w]e have not relied on a

consistent or easily applied set of criteria” to identify crimes

of moral turpitude); Partyka v. Attorney General, 417 F.3d

408, 409 (3d Cir. 2005) (callingmoral turpitude jurisprudence

an “amorphous morass”); Mei v. Ashcroft, 393 F.3d 737, 741

(7th Cir. 2004) (“The Board should not be blamed too harshly

[for widely varying results in what is considered a CIMT];

courts have equally failed to impart a clear meaning to ‘moral

turpitude.’ Time has only confirmed Justice Jackson’s

powerful dissent in the De George case, in which he called

‘moral turpitude’ an ‘undefined and undefinable standard.’

The term may well have outlived its usefulness.” (internal

citation omitted)); Mei v. Ashcroft, 393 F.3d 737, 739 (7th

Cir. 2004) (“Since Congress did not define ‘crime involving

moral turpitude’ when it inserted the term in the immigration

statute, and the term had no settled meaning at the time (and

has none still), it is reasonable to suppose ala Chevron that

Congress contemplated that the agency charged with

administering the statute would define the term, and
22 ISLAS-VELOZ V. WHITAKER

specifically would tailor the definition to the policies

embodied in the immigration statutes. The Board of

Immigration Appeals has done neither. . . . [T]he Board

hasn’t done anything to particularize the meaning of ‘crime

involving moral turpitude’ . . . .”); Tseung Chu v. Cornell,

247 F.2d 929, 933 (9th Cir. 1957) (“We are not unmindful of

the myriad decisions sponsoring various concepts of moral

turpitude. They offer no well settled criteria.”); see also De

George, 341 U.S. at 239–40 (Jackson, J., dissenting) (“No

one can read this body of opinions and feel that its application

represents a satisfying, rational process. If any consistent

pattern of application or consensus of meaning could be

distilled from judicial decision, neither the Government nor

the Court spells it out. Irrationality is inherent in the task of

translating the religious and ethical connotations of the phrase

into legal decisions. The lower court cases seem to rest, as we

feel this Court’s decision does, upon the moral reactions of

particular judges to particular offenses.”).

Justice Alito, joined by Chief Justice Roberts, recently

echoed these complaints in Padilla, arguing that an attorney

did not provide ineffective assistance of counsel when he

failed to determine whether a particular offense was a CIMT. 

Justice Alito listed a number offenses that may or may not be

crimes involvingmoral turpitude (citingR. McWhirter, ABA,

TheCriminal Lawyer’s Guide to Immigration Law:Questions

and Answers 134 (2d ed. 2006)):

See [McWhirter] at 134 (“Writing bad checks

may or may not be a CIMT” (emphasis

added); ibid. (“[R]eckless assault coupled

with an element of injury, but not serious

injury, is probably not a CIMT” (emphasis

added)); id. at 135 (misdemeanor driving
ISLAS-VELOZ V. WHITAKER 23

under the influence is generally not a CIMT,

but may be a CIMT if he DUI results in injury

or if the driver knew that his license had been

suspended or revoked); id. at 136 (“If there is

no element of actual injury, the endangerment

offense may not be a CIMT” (emphasis

added); ibid. (“Whether [a child abuse]

conviction involves moral turpitude may

depend on the subsection under which the

individual is convicted. Child abuse done with

criminal negligence probably is not a CIMT”

(emphasis added)).

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

3. Recent Example

A recent decision of our court illustrates Justice Alito’s

point. Manuel Olivas-Motta was legally present in the United

States as a noncitizen lawful permanent resident. OlivasMotta v. Whitaker, 910 F.3d 1271, 1283 (9th Cir. 2018)

(Watford, J., dissenting). He had been brought to the United

States in 1976 by his parents when he was ten days old. Id.

He was married to a United States citizen and had two citizen

children. Id. Most of his extended family lived in the United

States as either citizens or lawful permanent residents. Id.

Olivas-Motta was charged under Arizona law with

aggravated assault and attempted murder. Id. If he had been

convicted as charged, the conviction would have rendered

him removable. Id. Olivas-Motta contended that he was

innocent of the charges, but he was willing to plead guilty to

“reckless endangerment” rather than go to trial if he could be

assured that reckless endangerment was not a CIMT. Id.
24 ISLAS-VELOZ V. WHITAKER

Olivas-Motta’s attorney consulted with an experienced

immigration attorney who advised that in all likelihood

reckless endangerment under Arizona law was not a CIMT. 

Id. The attorney’s advice was based on two non-precedential

decisions by the BIA that had specifically held that reckless

endangerment in Arizona was not a CIMT. Olivas-Motta

relied on the immigration attorney’s advice, and he pleaded

guilty to reckless endangerment. Id. at 1284.

Five years after Olivas-Motta’s guilty plea, the BIA

changed course. In Matter of Leal, 26 I. & N. Dec. 20 (BIA

2012), aff’d sub nom. Leal v. Holder, 771 F.3d 1140 (9th Cir.

2014), the BIA abandoned the position taken in its two prior

decisions, now holding that reckless endangerment under

Arizona law is a CIMT. Based on its decision in Matter of

Leal, the BIA ordered Olivas-Motta removed because he had

been convicted of two CIMTs. Id. at 1275. Over a dissent by

JudgeWatford, we denied Olivas-Motta’s petition forreview. 

Id.

4. State Courts’ Experience

Use of the phrase “moral turpitude” under state law

increasingly has been abandoned or forbidden. Starting in the

19th and 20th centuries, states used the term “moral

turpitude” as a criterion to disqualify and impeach witnesses,

to decide whether certain language is slanderous, to

disenfranchise voters, and to disbar attorneys and revoke

medical licenses, among other applications. See De George,

341 U.S. at 227 (discussing use of the term in other contexts);

Simon-Kerr, Moral Turpitude, supra (same). Seventy years

ago in De George, the majority began its discussion by

recognizing this history, stating that “[t]he term ‘moral

turpitude’ has deep roots in the law.” De George, 341 U.S.
ISLAS-VELOZ V. WHITAKER 25

at 227. Citing states’ use of the phrase in other, nonimmigration contexts, the Court reasoned, “In deciding the

case before the Court, we look to the manner in which the

term ‘moral turpitude’ has been applied by judicial decision.” 

Id. Finding that, “[w]ithout exception, federal and state

courts have held that a crime in which fraud is an ingredient

involves moral turpitude,” the Court went on to hold that

fraud was a CIMT. Id.

But in the decades since De George, many states have

discontinued use of the phrase “moral turpitude” in various

contexts. See, e.g., Simon-Kerr, Moral Turpitude, supra, at

1040–44. For example, citing the phrase’s vagueness and the

resulting inconsistent rulings, the vast majority ofstates have

abandoned use of the phrase “moral turpitude” in the context

of witness impeachment. See Simon-Kerr, Moral Turpitude,

supra, at 1033–39; see also, e.g., State v. Morgan,

541 S.W.2d 385, 388 (Tenn. 1976) (reasoning that judges

faced great “difficulty” in “applying a test that is vague and

cannot be explicitly defined,” that the dictionary definition of

“moral turpitude” had provided no guidance, and that the

standard had produced inconsistent rulings); Tucker v. Lower,

434 P.2d 320, 324 (Kan. 1967) (noting that CIMT has “a

vague and uncertain meaning which plagues the courts”);

Heating Acceptance Corp. v. Patterson, 208 A.2d 341,

343–44 (Conn. 1965) (noting that the “uncertainty” of the

term “moral turpitude” had caused “not inconsiderable”

difficulties for judges and ultimately deciding to abandon the

term); Vt. R. Evid. 609, Reporter’s Notes on 1989

Amendment (1989) (“Subdivision (a) is amended to replace

‘moral turpitude’ with more precise and relevant standards

for determining the admissibility of prior convictions for

impeachment. Moral turpitude was troublesome because it

was at once underinclusive and overinclusive, as well as
26 ISLAS-VELOZ V. WHITAKER

vague.”); Maine R. Evid. 609, Advisers’ Note to Former

M.R. Evid. 609–February 2, 1976 (calling moral turpitude a

“troublesome phrase” before switching to a clearer

impeachment standard).

In the context of voter disenfranchisement, use of the

phrase has been struck down due to discriminatory intent and

impact. See Simon-Kerr, Moral Turpitude, supra, at

1040–41; Hunter v. Underwood, 471 U.S. 222, 233 (1985)

(holding that Alabama’s constitutional provision

disenfranchising citizens convicted of a crime of moral

turpitude was unconstitutional). The term’s very “fuzziness

. . . made it well suited to the purpose of” selective, arbitrary

and discriminatory decision making. Simon-Kerr, Moral

Turpitude, supra, at 1040.

Conclusion

Rooted in the Due Process Clause, the void-for-vagueness

doctrine serves two primary purposes. It “guarantees that

ordinary people have ‘fair notice’ of the conduct a statute

proscribes,” and it “guards against arbitrary or discriminatory

law enforcement by insisting that a statute provide standards

to govern the actions of police officers, prosecutors, juries,

and judges.” Dimaya, 138 S. Ct. at 1212.

Congress did not define “moral turpitude” when it

introduced the term into our immigration law in 1891. Sixty

years later, Justice Jackson wrote that “moral turpitude” was

still “an undefined and undefinable standard.” De George,

341 U.S at 235 (Jackson, J., dissenting). Now, almost

seventy years after De George, “moral turpitude” is as

undefined and undefinable as ever.
ISLAS-VELOZ V. WHITAKER 27

Justice Scalia wrote of the ACCA’s residual clause in

Johnson, “Nine years’ experience trying to derive meaning

from the residual clause convinces us that we have embarked

upon a failed enterprise.” Johnson, 135 S. Ct. at 2560. We

have had not just nine years but more than a century of

experience with “moral turpitude.” It is time to recognize

another failed enterprise.