Moral Turpitude and Deportation: Drawing the Line in U.S. Immigration Law

Introduction

From early in the history of federal immigration laws in the United States, criminal activity has been a ground for denying admission to the country and for expelling or deporting someone already present. In the past decade, however, the standards and procedures for deportation have become much more restrictive, as Congress has expressed growing frustration over failures to remove criminal aliens and decreasing tolerance for continued residence by aliens who have committed crimes. The number of deportations has increased as the category of crimes involving "moral turpitude" has been dramatically expanded to include numerous offenses not previously covered. This paper analyzes where the courts should draw the line in cases involving moral turpitude, including an examination of the legislative history and related cases.

Legislative History of U.S. Immigration Law

The first comprehensive law for national control of immigration was the Immigration Act of 1891. This act established the Bureau of Immigration as part of the Treasury Department and gave it the authority to administer all immigration laws other than the Chinese Exclusion Act.¹ It also expanded the list of inadmissible classes of immigrants to include those likely to become a public charge, those suffering from selected contagious diseases, felons, persons convicted of other crimes or misdemeanors, polygamists, and contract laborers, and it made it illegal to recruit or advertise for immigrants. The act also authorized the Bureau of Immigration to deport immigrants who entered unlawfully.² In 1903, Congress transferred the Bureau of Immigration to the Department of Commerce and Labor and expanded the list of inadmissible aliens to include anarchists, in response to growing concerns about political instability in several European countries.³ It also allowed for the deportation of immigrants who became public charges within two years of otherwise lawful entry.

The Naturalization Act of 1906 transferred the process of naturalization to the Bureau of Immigration, creating the Bureau of Immigration and Naturalization, and made knowledge of English a prerequisite for naturalization. The Immigration Act of 1907 further codified these revisions to immigration policy and added to the list of inadmissible aliens "persons who admitted the commission of a crime involving moral turpitude."⁴ The 1907 Act also created a Joint Congressional Commission on Immigration to research the immigration system, whose findings formed the basis for the Immigration Act of 1917 and the Quota Law of 1921.⁵ Under these laws, immigration from Asia had been incrementally and systematically restricted — first from China, then from Japan and Korea, and eventually from the entire Asia-Pacific Triangle.

Attitudes toward China changed when the United States saw the need for a military alliance during World War II. As a national security measure, Congress passed the Alien Registration Act in 1940, which required all foreign-born non-citizens over the age of 14 who were eligible for naturalization to register and be fingerprinted. In 1943, the act was amended to add Chinese persons to those eligible for citizenship. World War II drew men and women from all social classes into the military at a time when the economy was still recovering from the prolonged Great Depression. Despite the number of women who entered assembly-line jobs during the war, there were significant labor shortages. To meet the need for laborers, the federal government looked to neighboring countries for temporary workers. Mexicans and Central and South Americans were recruited as temporary agricultural laborers, laying the foundation for the Mexican Bracero Program that continued until 1964.⁶

The Immigration Reform Act of 1965 finally eliminated national origin, race, ethnicity, and ancestry as bases for immigration. It also made family reunification a more important component of the visa system by reordering the preference system so that two extended-family preference categories came before professional and highly skilled laborer preferences, and by moving more extended family members to nonquota status. As a result, immigrant visas were now to be awarded on a first-come, first-served basis within the new preference system. The act also included protections for American workers by requiring certification that those applying for labor-based preferences would not negatively affect American workers either through wage depression or as replacements for available native workers.

The Bracero Program was terminated in 1964, but a generation of Mexican households had become dependent on migrant remittances for their economic well-being, and farmers had become accustomed to this source of cheap labor. A major problem was that deportation did not serve as a sufficient disincentive, since employers continued to hire undocumented laborers. Although there were undocumented immigrants from many countries, the undocumented Mexican migrant came to symbolize the problem.

In 1986, Congress passed the Immigration Reform and Control Act (IRCA), which took the very different direction of amnesty for the undocumented. Under IRCA, undocumented immigrants who could prove they had continuously resided in the United States since January 1, 1982 could regularize their status — first to temporary resident, then to permanent resident — without risking deportation.⁷ The IRCA also created sanctions prohibiting employers from knowingly hiring immigrants, whether documented or not, who did not have visas allowing general employment. The Immigration Act of 1990 created a new category of entrant: a quasi-documented Temporary Protected Status (TPS) for undocumented immigrants from specific countries experiencing natural disasters or armed conflicts, and for whom remaining in their countries would place their lives at risk. TPS was not an immigrant status per se, because it allowed the applicant to remain in the United States until his or her case for protection had been reviewed by an immigration judge. If the person could prove a well-founded fear of persecution upon return, or if return was impossible due to a natural disaster, the applicant would receive a permanent resident visa.

Despite these reforms, undocumented immigrants continued to be a major concern for the American public. Although they did receive some federal funding for public services, states were primarily responsible for public education, indigent health care, and general cash assistance. Prior federal legislation had not specified whether states were required to provide these services to undocumented immigrants. In 1994, California voters approved the controversial Proposition 187, which would have denied access to public services to undocumented immigrants on the grounds that state citizens had suffered economic hardship as a result of illegal immigration. It also would have obligated public servants — teachers, healthcare providers, social workers, police, and others who might come into contact with undocumented immigrants — to verify immigration status before providing services and to report the undocumented to the INS for deportation.⁸

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). This law increased border patrolling and created more stringent penalties for those who entered unlawfully or who smuggled undocumented immigrants into the country. The IIRIRA reformed deportation procedures, expediting removal and making re-entry more difficult. It also addressed many of the concerns raised by Proposition 187 by requiring the foreign-born to provide proof of citizenship or lawful immigration status to receive public benefits, and gave states the authority to limit general public cash benefits to immigrants.⁹

The attacks of September 11, 2001 raised unprecedented concerns about immigration and protection of the nation's borders. Scrutiny of the Immigration and Naturalization Service (INS) revealed myriad problems, including visa and naturalization backlogs. By November 2002, President Bush had created a new cabinet-level department — the Department of Homeland Security (DHS) — and the newly restructured Bureau of Citizenship and Immigration Services (BCIS), responsible for visa and naturalization applications, was moved from the Department of Justice to this new department. Border enforcement was also moved to DHS, under the Directorate of Border and Transportation Services. As a result, entry into the United States with intent to stay was once again viewed as a national security concern.

On March 1, 2003, the Immigration and Naturalization Service ceased to exist. All INS immigration functions were moved into three new bureaus within the Department of Homeland Security. The Bureau of Citizenship and Immigration Services (BCIS) handles the "benefits" side of immigration — processing all applications for immigration benefits and services, including applications for employment- and family-based visas, employment authorization documents, and naturalization. The Bureau of Immigration and Customs Enforcement (BICE) focuses on enforcement of immigration laws within U.S. borders, including detention and removal of criminal aliens and certain duties previously performed by the Customs Service and Federal Protection Service. The Bureau of Customs and Border Protection (BCBP) is responsible for immigration and customs matters at the borders, encompassing the Border Patrol, parts of the Customs Service, and Agricultural Quarantine Inspections. Whether this restructuring would improve administration of the immigration laws or slow the system further remained to be seen; there is no question, however, that immigration issues have remained at the forefront of national policy debates.

Deportation Factors and Crimes Involving Moral Turpitude

Since the late 1980s, Congress had been tightening the substantive provisions of immigration law to make it far less likely that a convicted criminal alien could find a way to be relieved of expulsion. For many years the basic statutory pattern was that a crime involving moral turpitude rendered a person deportable if it was committed less than five years after the person's entry and resulted in a sentence of one year or more of confinement.¹⁰ A later-committed crime, or one that drew a lighter sentence, did not result in deportation.¹¹ If the person committed two such crimes that were not part of a single criminal scheme, they could render the person deportable regardless of when they were committed. A drug offense or a firearms possession offense ordinarily made a person deportable whenever it was committed.

The Anti-Drug Abuse Act of 1988 added the concept of an aggravated felony to the immigration laws. A person found guilty of an aggravated felony committed at any time would be deportable. Until 1994, the definition of an aggravated felony included only murder, drug trafficking, and firearms trafficking, plus conspiracy or attempt to commit those offenses.¹² In the years that followed, the definition expanded considerably. Its impact on immigration law became more severe because the rule remained that commission of an aggravated felony made a person deportable regardless of how many years of lawful residence the person had accrued. Congress also began to use this widening list of aggravated felonies as a tool to cut back on discretionary relief from deportation for criminal aliens.¹³

Cancellation of removal was a form of relief that evolved to provide protection primarily to persons convicted of criminal offenses who had been lawful permanent residents for seven years or more.¹⁴ If the person met the basic threshold requirements, wide discretion was accorded to the immigration judge to decide whether the person deserved to escape removal, despite the crime. This provision offered a necessary safety valve to recognize the stakes that a lawful permanent resident had in the community and to allow the immigration judge to determine that the criminal sanction was sufficient penalty — a penalty that should not be compounded by deportation.¹⁵ Cancellation of removal was flexible in that any alien, regardless of the seriousness of the crime, could be considered for the benefit. The statute provided no clear standards for the exercise of this discretion; as a result, patterns varied widely among immigration judges, and INS appeals produced only limited uniformity.

In 1990, the aggravated felony concept was amended to provide that aggravated felons sentenced to five years or more of incarceration were ineligible for cancellation-type relief. This change carried limited impact initially because of the narrow definition of aggravated felony. As noted above, however, that impact widened considerably with legislative changes in 1994 and 1996. In 1994, the definition was expanded to include additional serious offenses such as racketeering, alien smuggling for commercial advantage, child pornography, peonage, fraud offenses involving losses of over $200,000, and crimes of violence or theft offenses drawing a five-year sentence. As a result, a conviction of one of these offenses would render the person deportable whenever it was committed, and cancellation relief would be barred if the sentence exceeded five years.¹⁶ In 1996, the aggravated felony definition was again greatly expanded, new offenses were added, and minimum thresholds were substantially reduced.^{17 18}

As a result of this legislation, crimes involving moral turpitude that rendered an individual deportable essentially came to include every possible offense. Cancellation relief is now wholly unavailable to anyone with an aggravated felony conviction. Asylum and withholding of removal have likewise been barred to aggravated felons since 1990.¹⁹ Withholding is possible for an aggravated felon if the sentence was for less than five years, although immigration judges retain discretion to find that a lesser offense is nonetheless a particularly serious crime barring the individual from refugee protections.²⁰ The broadening of the definition of an aggravated felony has raised many questions about where the line should be drawn in cases involving moral turpitude. As a practical matter, virtually any alien who commits a nontrivial crime is now subject to automatic expulsion — especially if the crime fits one of the 21 paragraphs of the new aggravated felony definition. This result applies even if the alien has been a lawful permanent resident since childhood, the crime and punishment took place decades ago, and the individual otherwise has a completely clean record.²¹

Conclusion

Traditional distinctions between illegal aliens and criminal aliens have been blurred by policies that seek to strengthen the criminal justice and immigration systems through broadly applied definitions and shifting policy agendas. The lumping together of violent crimes, aggravated felonies, and crimes involving moral turpitude must be reconsidered, and a clear line must be drawn to ensure the uniform application of these standards. Instead of passing new laws every few years or broadening legal definitions on a continual basis, the immigration system would be better served by a careful analysis of existing provisions and the establishment of consistent, binding precedent that accounts for the individual circumstances of each case.