In this Article, I argue that courts should find the term CIMT in deportation law is void for vagueness, notwithstanding the Jordan decision. Courts are bound by Jordan with respect to the “easy” cases such as fraud. However, for the world of offenses with no clear case law deciding whether they are CIMTs, the term is vague. Because the definition of CIMT used by the Board of Immigration Appeals (BIA) and courts is an act that is “base, vile, or depraved” and “contrary to the accepted rules of morality,” it provides no useful definition. Rather, this ground for deportation casts judges in the role of God, assessing whether the offense offends the “moral standards generally prevailing in the United States.” In Part II, I give the background leading up to a situation like Manuel’s. I discuss some legislative history of the term CIMT and how it presently is defined by the courts and BIA. I also discuss the Supreme Court’s recent holding in Padilla, which left defense counsel representing noncitizens with no clear obligation to read case law and determine whether a given offense will lead to deportation for a CIMT. In Part III, I discuss the Supreme Court’s holding in Jordan that the term CIMT is not void for vagueness in a deportation statute. In Part IV, I argue that courts should find the term CIMT is void for vagueness in an as-applied challenge to an offense that is not an “easy” case such as fraud. I discuss examples in which the BIA and courts have sat in judgment of whether certain offenses are CIMTs by applying the “moral standards generally prevailing in the United States” to demonstrate how the term CIMT allows judges to apply their own personal opinions of morality. I also discuss several Supreme Court cases, decided both before and after Jordan, which determined whether statutes were void for vagueness and apply this reasoning to the statute authorizing deportation for a CIMT. Finally, I argue that a vague term like CIMT is not necessary in deportation law because Congress has found ways to fulfill its legislative goal of deporting undesirable noncitizens through clearer terms.
Mary P. Holper,
Deportation for a Sin: Why Moral Turpitude Is Void for Vagueness,
90 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol90/iss3/3