914 F.3d 1249
9th Cir.2019Background
- Petitioner Antonio Islas-Veloz was convicted under Washington RCW § 9.68A.090 for "communication with a minor for immoral purposes." The Immigration Judge found the conviction a "crime involving moral turpitude" (CIMT) committed within five years of admission, making him removable under 8 U.S.C. § 1227(a)(2)(A)(i).
- The Board of Immigration Appeals (BIA) dismissed his appeal, holding the Washington statute is categorically a CIMT.
- Islas-Veloz challenged (1) the constitutional vagueness of the statutory phrase "crime involving moral turpitude" in light of Johnson and Dimaya, and (2) the categorical application of the Washington offense as a CIMT.
- The Ninth Circuit panel majority held governing Supreme Court and Ninth Circuit precedent (notably Jordan v. De George and circuit decisions) bind the court to reject the vagueness challenge and to treat the Washington offense as a CIMT.
- Judge W. Fletcher concurred, acknowledging precedent but wrote separately arguing that, were the court not bound, Johnson and Dimaya counsel that the phrase "crime of moral turpitude" is unconstitutionally vague when used to trigger removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "crime involving moral turpitude" is unconstitutionally vague under the Due Process Clause (post-Johnson/Dimaya) | Islas-Veloz: phrase is void for vagueness after Johnson and Dimaya | Government: De George and controlling Ninth Circuit precedent uphold phrase as constitutional | Court: Bound by Jordan v. De George and Ninth Circuit precedent; phrase not held void for vagueness in this panel decision (petition denied) |
| Whether RCW § 9.68A.090 (communication with a minor for immoral purposes) is categorically a CIMT | Islas-Veloz: statute is not categorically a CIMT | Government/BIA: statute categorically constitutes a CIMT; circuit precedent supports that result | Court: Foreclosed by Ninth Circuit precedent (Morales); conviction is a CIMT |
| Precedential effect of Johnson/Dimaya on CIMT doctrine | Islas-Veloz: Supreme Court vagueness decisions undermine CIMT doctrine | Government: Johnson/Dimaya did not overturn De George; circuit precedent persists | Court: Johnson/Dimaya did not reopen De George; circuit precedent controls, so result stands |
| Whether lower-court/BIA variability renders CIMT doctrine unworkable for removal | Islas-Veloz: variability supports vagueness and due process concerns | Government: reliance on longstanding decisions and BIA practice | Held: Majority declines to revisit; concurrence notes strong arguments that the phrase is now unacceptably vague if the court were free to decide |
Key Cases Cited
- Jordan v. De George, 341 U.S. 223 (1951) (upheld deportation statute’s phrase “crime involving moral turpitude” and treated fraud as prototypical CIMT)
- Johnson v. United States, 576 U.S. 591 (2015) (ACCA residual clause unconstitutional for vagueness)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (Supreme Court held INA residual clause unconstitutionally vague and applied exacting vagueness standard in removal context)
- Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007) (Ninth Circuit held Washington § 9.68A.090 communications-with-minor statute categorically a CIMT)
- Martinez-De Ryan v. Sessions, 895 F.3d 1191 (9th Cir. 2018) (Ninth Circuit reaffirmed that the CIMT phrase is not unconstitutionally vague post-Dimaya)
- Olivas-Motta v. Whitaker, 910 F.3d 1271 (9th Cir. 2018) (illustrates practical prejudice from shifting CIMT interpretations; BIA reversal led to removal based on previously relied-upon guidance)