{"id":9473,"date":"2021-11-20T02:41:00","date_gmt":"2021-11-20T12:41:00","guid":{"rendered":"http:\/\/thefilipinochronicle.com\/backup\/?p=9473"},"modified":"2021-11-20T02:41:04","modified_gmt":"2021-11-20T12:41:04","slug":"is-crime-involving-moral-turpitude-like-beauty-in-the-eye-of-the-beholder","status":"publish","type":"post","link":"https:\/\/thefilipinochronicle.com\/backup\/2021\/11\/20\/is-crime-involving-moral-turpitude-like-beauty-in-the-eye-of-the-beholder\/","title":{"rendered":"Is \u201cCrime Involving Moral Turpitude,\u201d Like Beauty, In The Eye Of The Beholder?"},"content":{"rendered":"\n

by Emmanuel S. Tipon, Esq.

<\/em>The U.S. Congress made a conviction for a \u201ccrime involving moral turpitude\u201d a ground for deportation. Immigration and Nationality Act, Sec. 237(a)(2)(A)(i) and (ii).

Similarly, the Philippine Batasang Pambansa (former National Assembly) made a \u201ccrime involving moral turpitude\u201d a ground for disqualification to be a candidate for public office. B.P. 881, Omnibus Election Code, Sec. 12.

But the Honorable (not horrible, stupid) members of Congress or the Assembly did not define what constitutes a \u201ccrime involving moral turpitude\u201d nor list the particular crimes that involved \u201cmoral turpitude.\u201d

What then? Each court or adjudicator makes its own determination of what is a \u201ccrime involving moral turpitude.\u201d

The practical effect is that what is a \u201ccrime involving moral turpitude,\u201d like beauty, is in the eye of the beholder.

<\/em>As a result, there have been several contradictory or inconsistent decisions by courts and administrative agencies, including within the same government agency.

<\/em>An article \u201cWhy Deporting Immigrants for \u2018Crimes Involving Moral Turpitude\u2019 is now Unconstitutional\u201d in The Free Library by Farlex says: \u201cthe statute authorizing removal of immigrants for “crimes involving moral turpitude” invites officials to base their prosecutorial choices on political or personal views. As a result, defense attorneys advising their clients on the immigration consequences of pleas have no basis for prediction.\u201d

The article noted that Justice Jackson in his dissent in Jordan v De George, 341 U.S. 223 (1951),  said that \u201cmoral turpitude will always fluctuate with differences in time, culture, and locality,\u201d and that \u201clower court opinions applying moral turpitude rested not on consistent usage but rather on the “moral reactions of particular judges to particular offenses.\u201d

\u201cThe chief impression from the cases is the caprice of the judgments.\u201d Jackson asked “How many aliens have been deported who would not have been had some other judge heard their cases, and vice versa, we may only guess. That is not government by law.\u201d<\/em><\/p>\n\n\n\n

What is a CIMT?
<\/strong>Since Congress has not defined \u201ccrime involving moral turpitude” (CIMT), the BIA and the federal courts have defined it as \u201cconduct that shocks the public conscience and as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one\u2019s fellow man or society in general.\u201d\u00a0 Hamdan v. INS, 98 F.3d 183, 185-86 (5th<\/sup> Cir. 1996), cited by Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008).

Mary P. Holper\u00a0 wrote in a law review article \u201cDeportation for a Sin: Why Moral Turpitude Is Void for Vagueness\u201d that this provides no useful definition. Rather, this ground for deportation casts judges in the role of God.\u201d

<\/strong>It is obvious that this definition is as vague as the term being defined. What is \u201cbase, vile, or depraved\u201d is still in the eye of the beholder.

The Philippine Supreme Court held that whether or not a crime involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstances surrounding the violation of the statute. Dela Torre v. Comelec, 258 SCRA 483 (1996).

Issuing check with insufficient funds
<\/strong>For instance, issuing a check with insufficient funds (passing a bad check) has been held by the Board of Immigration Appeals to be a CIMT in a number of cases, Matter of Zangwill, 18 I&N Dec. 22, 28 (BIA 1981; Matter of Balao, 20 I&N Dec. 449 (BIA 1992), but not a CIMT in other cases, Matter of Westman, 17 I&N Dec. 518 (BIA 1979), Matter of Bart 20 I&N Dec. 436 (BIA 1992). The Court of Appeals held that a California conviction of delivering or making a check with insufficient funds with intent to defraud was categorically a crime involving moral turpitude. Planes v Holder, No. 07\u201370730 (9th<\/sup> Cir. 07 05 2011).

The Philippine Supreme Court held that the crime of issuing a check without sufficient funds in violation of B.P. No. 22 involves moral turpitude and a candidate for Congress who was convicted for violation of the statute and sentenced to one-year imprisonment was properly disqualified by the Comelec and his certificate of candidacy canceled. Villaber v. Comelec, G.R. No. 148326.

Tax cases
<\/strong>There is a conflict of authority in the United States as to whether tax evasion is a \u201ccrime involving moral turpitude.\u201d \u00a0In Jordan v. De George, 341 U.S. 223 (1951), involving a defendant convicted of conspiring with others to possess whiskey with intent to sell in fraud of law and evade the tax thereon, the Supreme Court held that a crime in which fraud is an ingredient involves moral turpitude. \u00a0In Carty v. Ashcroft, 395 F.3d 1081 (9th Cir. Jan. 19, 2005), a California conviction for willful failure to file a tax return with the intent to evade taxes, in violation of Revenue and Taxation Code \u00a7 19406 involves fraud, and constitutes a crime involving moral turpitude.<\/a>

However, in United States v. Carrollo, 30 F.Supp. 3 (D.Mo. 1939)<\/a>, the court held that it was not prepared to rule that an attempt to evade the payment of a tax due, \u201cwrong as it is, unlawful as it is, immoral as it is, is an act evidencing baseness, vileness, or depravity of moral character. The number of men who have at some time sought to evade the payment of a tax or some part of a tax to some taxing authority is legion. Any man who does that should be punished civilly or by criminal sentence, but to say that he is base or vile or depraved is to misuse words.\u201dThe BIA held that a German national was not barred from admission to the U.S. for having been convicted in Germany for possession of untaxed chocolate in violation of the German Tax Code because intent to defraud was not an element of the offense, hence the German had not been convicted of a crime involving moral turpitude. Matter of R, 4 I. & N. Dec. 176, (BIA 1950)<\/a>. The BIA also held that the willful failure to file an income tax return is not necessarily a crime involving moral turpitude because fraud is not inherent in the crime. Matter of Mazza-Alas, File No. A13-408-039<\/a>, 15 Immigr. Rep. B1-88 (BIA Oct. 27, 1995), cited in Crimes of Moral Turpitude, Norton Tooby.

Void for vagueness
<\/strong>Is \u201ccrime involving moral turpitude\u201d unconstitutionally void for vagueness in violation of the due process clause?

The prohibition of vagueness in criminal statutes “is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law,” and a statute that flouts it “violates the first essential of due process.” Connally v. General Constr. Co., <\/em>269 U.S. 385, 391, 46 S.Ct. 126, 70 S.Ct. 322 (1926).\u201d Johnson v. United States<\/em>, 576 US 591, 135 S Ct 2551, 2556-57 (2015).

The Supreme Court said that the Government violates the guarantee of due process \u201cby taking away someone\u2019s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.\u201d Johnson v. United States, supra.<\/em>Thus, in Johnson v. United States, supra<\/em>, the Supreme Court held that the residual clause of the Armed Career Criminal Act, 18 U.S.C. \u00a7 924(e)(2)(B) – defining \u00a0\u201cviolent felony\u201d as any felony that \u201cotherwise involves conduct that presents a serious potential risk of physical injury to another,\u201d \u2013 was unconstitutional \u201cvoid for vagueness\u201d under the Fifth Amendment\u2019s Due Process Clause. It required judges to imagine a set of facts or conduct and then to determine whether that imagined set of facts or conduct presented a potential risk of serious injury.

In the immigration context, the Supreme Court held in Sessions v Dimaya<\/em>, 138 S. Ct. 1204 (2018), that 18 U.S.C. \u00a7 16(b) [the residual clause in the definition of \u201ccrime of violence\u201d], as incorporated into the definition of \u201caggravated felony\u201d in 8 U.S.C. \u00a7 1101(a)(43)(F) is unconstitutionally vague, citing\u00a0 Johnson v. United States<\/em>, 576 US 591, 135 S Ct 2551, 2556-57 (2015).

The Supreme Court pointed out in Sessions v. Dimaya<\/em>, 138 S. Ct. 1204, 1210, 1212 (2018) that: The void-for-vagueness doctrine, as we have called it, guarantees that ordinary people have “fair notice” of the conduct a statute proscribes. And the doctrine guards against arbitrary or discriminatory law enforcement by insisting that a statute provides standards to govern the actions of police officers, prosecutors, juries, and judges.

\u201c[I]f the legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could be rightfully detained, [it would] substitute the judicial for the legislative department.\u201dIn Jordan v. De George, 341 U.S. 223 (1951), involving a defendant convicted of conspiring with others to possess whiskey with intent to sell it in fraud of law and evade the tax thereon, the Supreme Court said that the question of the vagueness of the term \u201ccrime involving moral turpitude\u201d was not raised by the parties nor argued before the court, and that no case has been decided to hold that the phrase is vague. \u00a0Nevertheless, the Supreme Court addressed the issue and said that the test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices, and concluded that the test has been satisfied here.

Justice Jackson with Justice Black and Frankfurter, strongly dissented, saying that the phrase \u201ccrime involving moral turpitude\u201d as found in the Immigration Act has no sufficiently definite meaning to be a constitutional standard for deportation. What the Government seeks, and what the Court cannot give, is a basic definition of “moral turpitude” to guide administrators and lower courts. The uncertainties of this statute do not originate in the contrariety of judicial opinion. Congress knowingly conceived it in confusion.

Justice Jackson pointed out that the test by which vagueness was to be determined according to the Connally<\/em> case was that the legislation uses terms “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.\u201d It would seem to be difficult to find a more striking instance than we have here of such a phrase since it requires even judges to guess and permits them to differ.\u201d He questioned the power of administrative officers and courts to decree deportation until Congress has given an intelligible definition of deportable conduct.<\/p>\n\n\n\n

ATTY. EMMANUEL S. TIPON<\/strong> was a Fulbright and Smith-Mundt scholar at Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He has a Bachelor of Laws degree from the University of the Philippines. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He has written law books and legal articles for the world\u2019s most prestigious legal publisher and writes columns for newspapers. He wrote the best-seller \u201cWinning by Knowing Your Election Laws.\u201d Listen to The Tipon Report which he co-hosts with his son Attorney Emmanuel \u201cNoel\u201d Tipon. They talk about immigration law, criminal law, court-martial defense, and current events. It is considered the wittiest, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m.  Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645.  E-Mail: filamlaw@yahoo.com. Website: https:\/\/www.tiponlaw.com<\/a>.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

by Emmanuel S. Tipon, Esq. The U.S. Congress made a conviction for a \u201ccrime involving…<\/p>\n","protected":false},"author":1,"featured_media":2227,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"spay_email":"","_links_to":"","_links_to_target":""},"categories":[28],"tags":[],"featured_image_urls":{"full":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2020\/05\/Untitled-design-2-1.jpg?fit=1050%2C600&ssl=1",1050,600,false],"thumbnail":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2020\/05\/Untitled-design-2-1.jpg?resize=150%2C150&ssl=1",150,150,true],"medium":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2020\/05\/Untitled-design-2-1.jpg?fit=300%2C171&ssl=1",300,171,true],"medium_large":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2020\/05\/Untitled-design-2-1.jpg?fit=640%2C366&ssl=1",640,366,true],"large":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2020\/05\/Untitled-design-2-1.jpg?fit=640%2C366&ssl=1",640,366,true],"1536x1536":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2020\/05\/Untitled-design-2-1.jpg?fit=1050%2C600&ssl=1",1050,600,true],"2048x2048":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2020\/05\/Untitled-design-2-1.jpg?fit=1050%2C600&ssl=1",1050,600,true],"ultp_layout_landscape_large":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2020\/05\/Untitled-design-2-1.jpg?resize=1050%2C600&ssl=1",1050,600,true],"ultp_layout_landscape":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2020\/05\/Untitled-design-2-1.jpg?resize=870%2C570&ssl=1",870,570,true],"ultp_layout_portrait":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2020\/05\/Untitled-design-2-1.jpg?resize=600%2C600&ssl=1",600,600,true],"ultp_layout_square":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2020\/05\/Untitled-design-2-1.jpg?resize=600%2C600&ssl=1",600,600,true],"covernews-slider-full":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2020\/05\/Untitled-design-2-1.jpg?resize=1050%2C600&ssl=1",1050,600,true],"covernews-slider-center":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2020\/05\/Untitled-design-2-1.jpg?resize=780%2C500&ssl=1",780,500,true],"covernews-featured":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2020\/05\/Untitled-design-2-1.jpg?fit=1024%2C585&ssl=1",1024,585,true],"covernews-medium":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2020\/05\/Untitled-design-2-1.jpg?resize=540%2C285&ssl=1",540,285,true],"covernews-medium-square":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2020\/05\/Untitled-design-2-1.jpg?resize=375%2C250&ssl=1",375,250,true]},"author_info":{"info":["admin"]},"category_info":"What's up, Attorney?<\/a>","tag_info":"What's up, Attorney?","comment_count":"0","jetpack_featured_media_url":"https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2020\/05\/Untitled-design-2-1.jpg?fit=1050%2C600&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/posts\/9473"}],"collection":[{"href":"https:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/comments?post=9473"}],"version-history":[{"count":1,"href":"https:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/posts\/9473\/revisions"}],"predecessor-version":[{"id":9474,"href":"https:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/posts\/9473\/revisions\/9474"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/media\/2227"}],"wp:attachment":[{"href":"https:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/media?parent=9473"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/categories?post=9473"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/tags?post=9473"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}