The Ninth Circuit Court of Appeals ruled that California’s law against indecent exposure is not necessarily a crime of moral turpitude.

Victor Ocegueda Nunez entered the country illegally when he was fifteen years old. He is now 31, married to a United States citizen and they have three children all of whom are citizens. Homeland Security moved to deport him. An illegal alien who has been in the country for over ten years can apply for cancellation of removal unless he he/she has been convicted of a felony or more than two misdemeanors involving moral turpitude. Cancellation of removal is not available to anyone who spent more than six months in jail on a misdemeanor.

Nunez has two misdemeanor convictions one for petty theft, a crime of moral turpitude, and one for indecent exposure. Crimes of moral turpitude are nigh impossible to distinguish from other crimes. But generally they are are crimes that involve either fraud or “base, vile, and depraved” conduct that “shock[s] the public conscience.” For example theft crimes are crimes of fraud and therefore involve moral turpitude. It the intent is to seriously injure someone, such as murder, rape or kidnapping the crime has been found to be a crime of moral turpitude. Sex crimes are only crimes of moral turpitude if someone is injured as in the case of rape or “lewd and lascivious conduct toward a child.

Crimes of moral turpitude have been divided up into two group. Categorical crimes are those in which all violations of the law are crimes of moral turpitude. This involves crimes such as theft and rape. The second group, the modified categorical includes crimes where a conviction is possible for behavior that is not necessarily a crime of moral turpitude. In these cases the Immigration Court must decide whether whether the particular behavior is “base, vile, and depraved” and whether it shocks the public conscience.

Under California law crimes of indecent exposures involve three different types of behavior; 1) those meant to sexually excite the person exposing himself, 2) those meant to sexually excite someone else, and 3) those meant to insult someone. Not all crimes in all of the categories are crime of moral turpitude. For example the statute has been used to convict nude dancers. But nude dancing is not “base, vile, and depraved.” Likewise one may be convicted of indecent exposure for by showing your behind to someone who cuts in front of you while you are driving but again that is not “base, vile, and depraved.” Therefore, since the trial court did not specify the behavior resulting in Nunez’s conviction the Ninth Circuit remanded the case to the Immigration Court for a determination of whether or not Nunez’s conduct involved moral turpitude. If it did not he will be entitled to request a cancellation of removal.