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.

The issue of what is a crime of moral turpitude is one that often comes up. It is raised in different situations. Its affects deportations, bar suspensions, and the ability to cross examine a witness regarding prior bad acts among other situations. In Jesus Lagunas-Salgado v. Holder a crime of moral turpitude is the cause of the plaintiff’s deportation.

Lagunas-Salgado was a lawful permanent resident when he was convicted of fraud involving identification documents in 2000. Three years later upon returning from a trip to his native country of Mexico he was arrested and threatened with deportation. He was found inadmissible due to the conviction and he was denied discretionary relief.

The question of what is a crime of moral turpitude is often difficult to determine. The United States Code does not define “moral turpitude.” The Seventh Circuit gives several definitions. First it quotes the BIA as saying

“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.’ ”

Second, and again quoting the BIA it says “The inquiry is a question ‘of the offender’s evil intent or corruption of the mind.’” The problem here is that the two definitions are contradictory. The first looks at it from the view of the public and the second looks at it from the intent of the perpetrator. It is certainly possible that a crime may shock the public without it being committed with evil intent and likewise a crime can be committed with evil intent without shocking the public. For example the BIA has found petty larceny and writing a bad check to be crimes of moral turpitude. These crimes may be done with evil intent but they hardly shock the public.

Third, the Seventh Circuit has said that crimes of moral turpitude are malum in se This common law concept applies to crimes that are evil in and of themselves as to contrasted to crimes that are malum prohibitum which involve crimes that are illegal only because a legislative body declared them to be illegal. But if this is true why do we need the terms crimes of moral turpitude. Why not just use the term, malum in se. there is no need for two terms meaning exactly the same thing and the law has long assumed that if you have two different terms they must have two different meanings.

Despite the confusion as to the meaning of “moral turpitude” the courts have refused to find the phrase to be vague. And in this case it probably doesn’t matter. If the phrase means anything it means a theft crime or a crime of fraud. and certainly the making of false ID’s to allow illegal immigrants to work is fraudulent and a crime of moral turpitude. The plaintiff’s claim that his actions did not injure the people who used his false ID’s has little merit. The subject of the fraudulent acts is the Federal government and the employers not the recipients of the false ID’s who knew the ID’s were false.