Lead Opinion
Myrisia Franklin, a Philippine citizen, was convicted of recklessly causing the death of her child, a crime classified as involuntary manslaughter under Mo.Rev.Stat. § 565.024.1(1) (Supp.1994). Under Missouri law, persons act recklessly when they “consciously disregard[ ] a substantial and unjustifiable risk that circumstances exist or that a result will follow, and [the] disregard constitutes a gross deviation from the standard of care [that] a reasonable person would exercise in the situation.” Mo.Rev.Stat. § 562.016.4 (Supp.1994). Following Franklin’s conviction, the Immigration and Naturalization Service brought deportation proceedings against Franklin under 8 U.S.C. § 1251(a)(2)(A)(i) (1994), which permits the deportation of an alien who is convicted of a “crime involving moral turpitude.” After a hearing, an immigration judge (IJ) decided Franklin’s crime involves moral turpitude and ordered Franklin deported. The Board of Immigration Appeals (BIA) affirmed the IJ’s decision. Contending she was not convicted of a crime involving moral turpitude, Franklin petitions for review.
Whether a statute defines a crime that involves moral turpitude for deportation under § 1251(a)(2)(A)(i) is a question of federal law. Cabral v. INS,
The Immigration and Nationality Act, 8 U.S.C. §§ 1101-1524 (1994), does not define the phrase “crime involving moral turpitude” and the Act’s legislative history does not shed any light on Congress’s intent. Cabral,
Although Franklin argued for a bright-line rule that involuntary manslaughter convictions do not involve moral turpitude, the BIA rejected her approach as unworkable in light of “the myriad [of] state classifications” for the crime. In re Franklin, No. A-40191863,
Mindful that moral turpitude is a nebulous concept and there is ample room for differing definitions of the term, 3 Charles Gordon & Stanley Mailman, Immigration Law and Procedure § 71.05[1][d], at 71-146 to 71-149 (1994), we cannot say the BIA’s interpretation is unreasonable. Indeed, two other federal circuits have accepted the BIA’s finding of moral turpitude in criminally reckless conduct that is defined as the conscious disregard of a substantial and unjustifiable risk. Gutierrez-Chavez v. INS, No. 92-70104,
In the framework of our deferential review, we cannot say the BIA has gone be^ yond the bounds of reasonableness in finding that an alien who recklessly causes the death of her child by consciously disregarding a substantial and unjustifiable risk to life has committed a crime that involves moral turpitude. Under the BIA’s longstanding definition of moral turpitude, Franklin’s crime can be fairly characterized as “ ‘ “an act of baseness, vileness, or depravity in the private and social duties which [persons] owe to [their] fellow [persons] or to society in general, [and is] contrary to the accepted and customary rule of right and duty between [persons].” ’ ” Marciano v. INS,
We deny Franklin’s petition for review.
Dissenting Opinion
dissenting.
The deportation of Myrisia Franklin to the Philippines would be a miscarriage of justice. Before explaining why, I offer two observations based on extensive examination of deportation eases. First, such eases all too often receive from the BIA consideration that is both cursory and superficial. Second, the BIA often receives from the courts more deferential review than it is due. There are admittedly deportation cases that may be decided by the BIA with relative ease and dispatched with brevity. This is not such a case. The BIA must resist the temptation to dismiss deportation cases as treading all-too-familiar ground. Hiding in the apparently familiar landscape may be an issue that should send triers of fact and law up roads less traveled. This is such a case and compels such a journey. Because I conclude that neither the majority here nor the BIA below has applied the proper standards to determining whether Myrisia Franklin has been convicted of a crime involving moral turpitude, and hence is deportable, I dissent.
I have three principal disagreements with the decisions in this cáse. ' First, I dissent from according the BIA deferential review of each of its determinations in this ease. Second, I dissent from the view that criminal recklessness can be a sufficient mental state to make a crime one in which moral turpitude necessarily inheres. Third, even if criminal recklessness could be deemed sufficient as that state of mind is sometimes defined, I find that neither the majority nor the BIA properly considered Missouri’s definition of the crime of which Myrisia Franklin was convicted in deciding that such a crime was one in which moral turpitude necessarily inheres. At bottom, I must conclude that involuntary manslaughter as defined under Missouri law simply is not a “crime involving moral turpitude,” subjecting an alien to deportation under § 241(a)(2)(A) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1251(a)(2)(A). Involuntary manslaughter
I. THE GRAVITY OF DEPORTATION
However, before I turn to these specific disagreements with the majority, I must first stress the gravity of the issue before the court. As the Supreme Court has emphasized on more than one occasion,
“deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael,332 U.S. 388 [68 S.Ct. 10 ,92 L.Ed. 17 (1947) ]. It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty. To construe this statutory provision [former § 241(a)(4), now § 241(a)(2)(A) ] less generously to the alien might find support in logic. But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on [the alien’s] freedom beyond that which is required by the narrowest of several possible meanings of the words used.”
Costello v. INS,
II. STANDARD OF REVIEW
Because I take issue with both the INS’s and the majority’s disposition of this ease, it is of critical importance that I first establish the proper standard of review by this court of the agency’s determination. On this question, I find that the majority has failed to appreciate what I believe to be a split in the circuits over what standard of review is applicable, or has extended deferential review of the INS’s interpretation of “moral turpitude” in this ease beyond its proper bounds. This may be attributable to a more general failure among the circuit courts of appeals to appreciate fully that the BIA’s determinations in deportation eases such as this involve interpretations of both federal and state law. When the BIA considers whether an alien should be deported pursuant to § 241(a)(2)(A), 8 U.S.C. § 1251(a)(2)(A), following the alien’s conviction of a state crime, the definition of “crime involving moral turpitude” under this section of the INA is a matter of federal law. See, e.g., Cabral v. INS,
A. “Reasonableness” Or ■ “De Novo” Review?
Following a road well traveled, but rarely scrutinized, the majority has applied the standard of review for agency interpretations of statutes the agency is charged with implementing, citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
The INS argued for this standard of review in this case, citing Cabral v. INS, 15
The reasonableness of the agency’s interpretation, under this standard of review, may be evidenced by the “reasoning process the [INS or BIA] followed in deciding where along the spectrum of possibilities” the proper definition of a statutory standard lies. See Jaramillo v. INS,
This standard of review was described in Cabral as “review de novo, according due deference to the BIA’s interpretation of the deportation statute,” see Cabral,
Furthermore, the “de novo with deference” review in Cabral was based in part on the Supreme Court’s stated standard for review of an INS interpretation of a statutory standard stated in INS v. Jong Ha Wang,
Finally, the Cabral court’s principal authority for this standard of review, Mosqu-era-Perez, also did not involve review of a comparable issue. Although Mosquera-Per-ez did not involve review of a mátter in the INS’s discretion originally, nonetheless it involved review of a statutory construction of
I agree that a deferential review is appropriate in INS eases that properly fall within the parameters of a Chevron review. See Jaramillo,
In the present ease, I agree that this deferential standard of review is applicable to the INS’s, or BIA’s, resolution of one of the key questions with which it was presented, the proper definition of “crime involving moral turpitude” under § 241(a)(2)(A), 8 U.S.C. § 1251(a)(2)(A). The meaning of the phrase is a matter of federal law, based on Congressional intent so far as such intent can be perceived from the language of the statute or its legislative history, and, in the absence of such guidance, the meaning of the phrase is a matter for federal agency and federal judicial construction. See Chevron,
By contrast, the Ninth Circuit Court of Appeals has held that whether or not a state statute defines a crime that necessarily involves moral turpitude for the purposes of the deportation provisions of § 241(a)(2)(A), 8 U.S.C. § 1251(a)(2)(A), is a question of law reviewed de novo, in the pure sense of that phrase — that is, without any deference to the decision below. See, e.g., Rodriguez-Herrera v. INS,
Thus, when we turn to the question of the application of the INS’s definition of “crime involving moral turpitude” to a crime as defined by state law, I do not believe that the INS is entitled to any deference at all. I can see no difference, for purposes of the appropriate standard of appellate review, between the INS’s interpretation of state law defining a criminal offense, when the INS tries to determine whether a crime of the nature defined by that state law necessarily involves moral turpitude, and interpretation of state law by a federal district court. Although the former was reviewed deferentially until 1991, in this and a majority of other circuits, see, e.g., Parmenter v. FDIC,
The reason for the change in the standard of appellate review of district court interpretations of state law is that, in 1991, the United States Supreme Court decided Salve Regina College v. Russell,
District judges preside over fast-paced trials: Of necessity they devote much of their energy and resources to hearing witnesses and reviewing evidence. Similarly, the logistical burdens of trial advocacy limit the extent to which trial counsel is able to supplement the district judge’s legal research with memoranda and briefs. Thus, trial judges often must resolve complicated legal questions without benefit of “extended reflection [or] extensive information.” [ (Citation omitted) ].
Courts of appeals, on the other hand, are structurally suited to the collaborative judicial process that promotes decisional accuracy. With the record having been constructed below and settled for purposes of the appeal, appellate judges are able to devote their primary attention to legal issues. As questions of law become the focus of appellate review, it can be expected that the parties’ briefs will be refined to bring to bear on the legal issues more information and more comprehensive analysis than was provided for the district judge....
Independent appellate review necessarily entails a careful consideration of the district court’s legal analysis, and an efficient and sensitive appellate court at least will naturally consider this analysis in undertaking its review.
Id. at 232,
In my opinion, therefore, when the question is whether a particular crime defined by state law fits within the federal standard for a “crime involving moral turpitude,” the state-law definition of the crime and whether that definition necessarily involves moral turpitude under the federal standard are questions of law that should be subject to pure de novo review without any deference to the INS’s conclusions. See, e.g., Rodriguez-Herrera,
To summarize in the light of issues before this court, in my view, whether the INS has properly defined “crime involving moral turpitude” is a matter in which the INS is entitled to deference as the agency charged with implementing the immigration statute. However, how the crime in question is defined under state law, and whether the nature of the crime under state law defines a crime that necessarily involves moral turpitude, are questions of law for the appellate court to review de novo with no deference to the INS’s conclusions whatsoever.
B. The Basis For Determinations Although I disagree with giving any deference to the BIA’s or the INS’s conclusions about whether a particular crime is one necessarily involving moral turpitude, I agree with the majority that in determining whether the crime of which the alien has been convicted falls within one of the grounds for deportation under § 241(a)(2)(A), both the court and the BIA look only at the definition of the crime under state law, and not at the underlying facts and circumstances of the alien’s particular offense. Ramsey v. INS,
However, the state law definition of the crime has also been described as consisting of both the statute and decisions of the state’s highest court construing the statute. See, e.g., Grageda v. U.S. INS,
Looking at how a state’s highest court has construed the elements of a crime defined by a state statute comports with common sense and is the best way to insure that the constitutional requirement of a “uniform rule of naturalization,” U.S. Const, art. I, § 8, cl. 4, is met. Cf. Nemetz v. INS,
Nor does looking to state judicial explications of the elements of an offense make the effect of the federal statute “depend upon the niceties and nuances of a state procedure.” Burr v. INS,
Having examined why I disagree with the majority on the question of what standard of review is applicable to which issues presented in this appeal, and the basis upon which the BIA’s and the appellate court’s decisions should be made, I will next turn to the opinion of the BIA that is under review here, then to the questions involved in deciding whether or not the BIA’s decision in this ease should stand.
III. THE DECISION BELOW
In the decision below, the BIA considered solely the issue of whether Franklin’s conviction for involuntary manslaughter under Missouri law had been for a crime involving moral turpitude as required by the applicable statute. The BIA defined moral turpitude as referring generally to “conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and duties owed between persons or to society in general,” citing two prior BIA decisions, Matter of Danesh, 19 I. & N.Dec. 669 (BIA1988), and Matter of Flores, 17 I. & N.Dec. 225, 227 (BIA1980). The BIA also recognized that moral turpitude has been defined as “an act which is per se morally reprehensible and intrinsically wrong, or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude,” citing Matter of P., 6 I. & N.Dec. 795 (BIA1955).
The BIA found that the crime of which Franklin was convicted, involuntary manslaughter under Mo.Rev.Stat. § 565.024, involved “recklessly causing] the death of another person.” The BIA next found that Missouri’s statutory definition of “reckless” as “a conscious disregard of a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation,” Mo.Rev.Stat. § 562.016(4), necessarily involved moral turpitude as an element of the offense of which Myrisia Franklin had been convicted. The BIA’s decision was based on similar definitions of criminally reckless conduct found by the BIA to involve moral turpitude in two prior decisions, Matter of Medina, 15 I. & N.Dec. 611 (BIA 1976), aff'd sub nom. Medina-Luna v. INS,
The BIA rejected the argument that its own prior cases had historically distinguished between voluntary and involuntary manslaughter, finding the former were crimes involving moral turpitude while the latter were not, on the ground that such decisions ante-dated the decisions holding that criminally reckless conduct could involve moral turpitude. The BIA also rejected a black-letter conclusion that involuntary manslaughter never involves moral turpitude, finding that the specific statute under which the alien was convicted must be examined on a ease-by-case basis. Finally, the BIA specifically overruled its prior cases holding that involuntary manslaughter is not a crime involving moral turpitude.
IV. ANALYSIS
I turn now to whether or not I would let stand the BIA’s decision in this case. I look first at the question of the propriety of the INS’s construction of the phrase “crime involving moral turpitude.” As I concluded
An analysis of the reasonableness of the INS’s interpretation of the statute should be conducted in light of the legislative history and purpose of the statute. See, e.g., Chevron,
A. Purpose And History
The Supreme Court has observed that the “general legislative purpose” of the predecessor to the present § 241(a)(2)(A), former § 241(a)(4) of the Immigration and Nationality Act of 1952, was to “broaden the provisions governing deportation, ‘particularly those referring to criminal and subversive aliens.’” Costello,
As the Supreme Court noted in Jordan, a decision considering whether the phrase “crime involving moral turpitude” lacked sufficiently definite standards to justify deportation proceedings, “moral turpitude” is an is
The term “moral turpitude” has deep roots in the law. The presence of moral turpitude has been used as a test in a variety of situations, including legislation governing the disbarment of attorneys and the revocation of medical licenses. Moral turpitude also has found judicial employment as a criterion in disqualifying and impeaching witnesses, in determining the measure of contribution between joint tort-feasors, and in deciding whether certain language is slanderous.
Jordan,
More generally, one of the classic dichotomies of criminal law is the distinction between crimes that involve moral turpitude and those that do not. See generally New Jersey v. T.L.O.,
Nonetheless, despite its use in a number of circumstances and presence as a standard for deportation in the immigration laws of the United States for just over a century, the meaning of the phrase “crime involving moral turpitude” has defied absolute definition. Jordan,
B. Lack Of Congressional Guidance
The difficulties faced by the courts and admittedly confronted by the INS are not entirely of their own making. As the dissenters in Jordan observed, and no court, to my knowledge, has ever disagreed, “The uncertainties of this statute do not originate in contrariety of judicial opinion. Congress knowingly conceived it in confusion.” Jordan,
[Y]ou know that a crime involving moral turpitude has not been defined. No one can really say what is meant by saying a crime involving moral turpitude. Under some circumstances, larceny is considered a crime involving moral turpitude — that is, stealing. We have laws in some States under which picking out a chunk of coal on a railroad track is considered larceny or stealing. In some States it is considered a felony. Some States hold that every felony is a crime involving moral turpitude. In some places the stealing of a watermelon or a chiсken is larceny. In some States the amount is not stated. Of course, if the larceny is of an article, or a thing which is less than $20 in value, it is a misdemeanor in some States, but in other States there is no distinction.
Hearings before House Committee on Immigration and Naturalization on H.R. 10884, 64th Cong., 1st Sess. 8 (comments of Rep. Sabath); see also Jordan,
C. The Anecdotal Approach To Defining “Crimes Involving Moral Turpitude”
In the face of the difficulty of determining what crimes involve moral turpitude and the lack of congressional guidance as to the meaning of the phrase, courts have approached the problem of defining the phrase “crime involving moral turpitude” in anecdotal fashion. Courts have found consistently that certain categories of crimes involve “moral turpitude,” but whether or not “moral turpitude” inheres in other categories of crimes has left courts if not lost, at least bewildered. I shall wander first through the safe ground in the “moral turpitude” landscape, before venturing, with no small trepidation, into the terra incognita which I believe is the place where this ease can be found.
Some cases, as I said at the outset of this dissent, in which an alien is found deportable for commission of a crime assertedly involving moral turpitude, can be decided with relative ease and dispatched with brevity. Such “easy” cases are those in which the alien has been convicted of a crime with an element of fraud. Over four decades ago, the Supreme Court found that “[wjithout exception, federal and state courts have held that a crime in which fraud is an ingredient involves moral turpitude.” Jordan,
[i]n every deportation case where fraud has been proved, federal courts have held that the crime in issue involved moral turpitude. This has been true in a variety of situations involving fraudulent conduct: obtaining goods under fraudulent pretenses; conspiracy to defraud by deceit and falsehood; forgery with intent to defraud; using the mails to defraud; execution of chattel mortgage with intent to defraud; concealing assets in bankruptcy; issuing checks with intent to defraud. In the state courts, crimes involving fraud have universally been held to involve moral turpitude.
Moreover, there have been two other decisions by courts of appeals prior to the decision now under review on the question of whether the particular offense before us in this case [conspiracy to violate the internal revenue laws by possessing and concealing distilled spirits with intent to defraud the United States of taxes] involves moral turpitude within the meaning of § 19(a) of the Immigration Act....
In view of these decisions, it can be concluded that fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude. It is therefore clear, under an unbroken course of judicial decisions, that the crime of conspiring to defraud the United States is a “crime involving moral turpitude.”
Courts have consistently held that statutory rape is a crime involving moral turpitude, even though it has no intent element, because such a crime is “usually classed as rape,” which “manifestly involves moral turpitude.” See, e.g., Marciano,
Of greater pertinence here are cases involving homicides. Courts have uniformly held voluntary murder to be a “crime involving moral turpitude.” Cabral,
Yet, the question presented here is whether the crime of involuntary manslaughter is also a crime universally recognized as a “crime involving moral turpitude.” A merely anecdotal survey of court decisions, many of which involve impeachment of witnesses, would suggest that a conviction for involuntary manslaughter is not such a crime, because of the lack of any intent, let alone an “evil intent.” See, e.g., United States ex rel. Mongiovi v. Karnuth,
The INS argues that a change from its prior interpretations of the meaning of “crime involving moral turpitude” does not necessarily make the new interpretation unreasonable, citing Rust v. Sullivan,
Furthermore, the “new” interpretation here is not merely a change of interpretation of statutory language, but a reinterpretation of language with a long history of application and interpretation in the statutes and common law of this country. Here, the BIA’s new interpretation of “crimes involving moral turpitude” as including involuntary manslaughter is against the entire weight of the common law and the interpretations of the phrase by the courts of this country, as well as contrary to the BIA’s prior interpretations. On that basis alone, I do not find the BIA’s change of interpretation reasonable.
Nor do I find the requisite “reasoned analysis” that might sustain a new interpretation of a statute even where it is contrary to prior agency interpretations. Yanez-Popp v. INS,
In Matter of Median, 15 I. & N. Dec. 611 (BIA 1976), aff'd sub nom. Medina—Luna v. INA,547 F.2d 1171 (7th Cir.1977), the Board revisited the issue of whether criminally reckless conduct constituted a crime involving moral turpitude. In Medina, the alien had been convicted of aggravated assault in violation of Illinois law. Holding that the criminally reckless conduct defined by the Illinois “recklessness” statute provided the basis for a finding of moral turpitude, the Board construed the statute as follows:
The person acting recklessly must consciously disregard a substantial and unjustifiable risk, and such disregard must constitute a gross deviation from the standard of care which a reasonable person would exercise in the situation. This definition of recklessness requires an actual awareness of the risk created by the criminal violator’s action. While the Illinois recklessness statute may not require a specific intent to cause a particular harm, the violator must show a willingness to commit the act in disregard of the perceived risk. The presence or absence of a corrupt or vicious mind is not controlling.
Id. at 613-14.
Later, in Matter of Wojtkow, [18 I. & N. Dec. Ill (BIA 1981)], the Board relied upon the holding in Medina to conclude that an alien’s conviction for second degree manslaughter under the New York Penal Law constituted a crime involving moral turpitude. Quoting the New York statute, the Board noted that a person is guilty of second degree manslaughter in New York if “ ‘he recklessly causes the death of another person.’ ” Matter of Wojtkow, supra, at 112 n. 1. The Board further observed that the definition of “recklessness” under New York law was the same as the definition under Illinois law that had been analyzed in Medina. Id. at 112-13.
Matter of Franklin, Interim Dec. (BIA) 3228, Slip, op., pp. 3-4. Rejecting all prior precedent to the contrary, the BIA found these two decisions sufficient to find involuntary manslaughter based on reckless conduct to be a crime involving moral turpitude.
The authority upon which thе BIA relied in this case, however, suffers from its own fatal deficiencies. As the BIA noted in its opinion below, the decision in Wojtkow relies upon that in Medina. Indeed, I find no analysis at all in the Wojtkow decision except a parroting of the conclusions of the Medina court. Wojtkow, 18 I. & N. Dec. at 112-13. The decision in Medina had been based upon an Illinois statute and the Wojtkow Board simply applied the Medina Board’s conclusions to a New York statute framed in similar language. Id. In Medina, the BIA stated that “we have reconsidered the general position taken in [prior] cases, and we have concluded that moral turpitude can lie in criminally reckless conduct.” Medina, 15 I. & N. Dec. 611 (BIA 1976). The extent of the Medina Board’s analysis is the following:
The person acting recklessly must consciously disregard a substantial and unjustifiable risk, and such disregard must constitute a gross deviation from the standard of care which a reasonable person would exercise in the situation. This definition of recklessness requires an actual awareness of the risk created by the criminal violator’s action. While the Illinois recklessness statute may not require a specific intent to cause a particular harm, the violator must show a willingness to commit the act in disregard of the perceived risk. The presence or absence of a corrupt or vicious mind is not controlling. Guerrero de Nodahl v. INS,407 F.2d 1405 ([9th Cir.] 1969). We hold that the criminally reckless conduct defined by [the Illinois statute] be [sic] the basis for a finding of moral turpitude.
Medina, 15 I. & N. Dec. 611 (also rejecting assertions that an “infamous crime” is synonymous with “crime involving moral turpitude”). I find that the Medina decision gives no explanation or analysis to support its conclusion that willingness to commit an act in disregard of a perceived risk is moral turpitude, because that decision does not consider the relationship of willingness to commit the act to an evil intent or any other, necessary element of moral turpitude. It asserts only that willingness to commit an act does not equate with a corrupt or vicious mind, but that the lack of a corrupt or vicious mind is not dispositive of the question of whether a crime involves moral turpitude. Nor does the BIA consider in Medina whether its reading of the statute bears any relationship to the reading given the statute by the state’s highest court, the body properly charged with interpreting the laws of the state.
Furthermore, the BIA’s decision in this case is against the far greater weight of precedent. As the state and federal court decisions cited in this section indicate, most courts require an evil intent element or, at the very least, a knowledge element, for a crime to be one that involves moral turpitude. Additional examples of decisions so holding are Wadman v. INS,
In part because of the BIA’s change of direction from these precedents in this case, I deem it essential, in deciding the reasonableness of the BIA’s new position, to move beyond an anecdotal determination of what is a “crime involving moral turpitude,” and instead attempt to find a concrete meaning for the phrase. However, I find that such a quest has rarely been made, and even more rarely has reached its objective.
D. The Lack Of A Concrete Meaning
Despite the copious number of decisions addressing whether or not certain categories of crimes are or are not “crimes involving moral turpitude,” thе courts have rarely been able to strike upon a concrete meaning of the phrase. For example, the Supreme Court in Jordan had no difficulty in finding that a crime with an element of fraud was a “crime involving moral turpitude,” because of a substantial body of precedent so holding. Jordan,
The Court first acknowledged that deportation is a drastic measure, then recognized that the purpose of the “void for vagueness” doctrine was to ensure that criminal statutes placed persons on notice of the consequences of their conduct. Id. at 230-31,
Whatever else the phrase “crime involving moral turpitude” may mean in peripheral cases, the decided cases make it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude. We. have recently stated that doubt as to the adequacy of a standard in less obvious cases does not render that standard unconstitutional for vagueness. See Williams v. United States, [ 341 U.S. 97 ,71 S.Ct. 576 ,95 L.Ed. 774 (1951) ]. But there is no such doubt present in this case. Fraud is the touchstone by which this case should be judged. The phrase “crime involving moral turpitude” has without exception been construed to embrace fraudulent' conduct. We therefore decide that Congress sufficiently forewarned respondent that the statutory consequence of twice conspiring to defraud the United States is deportation.
Id. at 232,
The dissenting justices in Jordan recognized that these very questions were unresolved. In a stinging dissent, Justice Jackson, writing for himself and Justices Black and Frankfurter, described an alien who is deported for conviction of one or more crimes involving moral turpitude as being “punished with a life sentence of banishment in addition to the punishment which a citizen would suffer for the identical acts.” Id. at 232,
Unlike the majority in Jordan, the dissenting justices attempted to find a concrete definition of the phrase “crime involving moral turpitude,” rather than simply an anecdo
[T]he phrase “crime involving moral turpitude” ... is not one which has settled significance from being words of art in the profession. If we go to the dictionaries, the last resort of the baffled judge, we learn little except that the expression is redundant, for turpitude alone means moral wickedness or depravity and moral turpitude seems to mean little more than morally immoral. The Government confesses that it is “a term that is not clearly defined,” and says: “the various definitions of moral turpitude provide no exact test by which we can classify the specific offenses here involved.”
Jordan,
The lower court cases seem to rest, as we feel this Court’s decision does, upon the moral reactions of particular judges to particular offenses. What is striking about the opinions in these “moral turpitude” cases is the wearisome repetition of clichés attempting to define “moral turpitude,” usually a quotation from Bouvier. But the guiding line seems to have no relation to the result reached. The chief impression from the cases is the caprice of the judgments.
Id. at 239,
E. Reasonableness In The Light Of A Concrete Meaning
In this case, the INS employed a definition of a crime involving moral turpitude as a crime involving “conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and duties owed between persons or to society in general.” I acknowledge that the definition of “crime involving moral turpitude” employed by the INS is used with remarkable consistency. See, e.g., Rodriguez-Herrera v. INS,
There are a few eases that attempt to develop a concrete definition of what is a crime involving moral turpitude by looking at the elements of this definition of moral turpitude or by drawing from the crimes universally recognized as. involving moral turpitude those characteristics that define the general class of “crimes involving moral turpitude.” Among the most valiant of such efforts was that undertaken by the Ninth Circuit Court of Appeals in Rodriguez-Herrera v. INS,
In Rodriguez-Herrera, the court tried to discover from the anecdotal decisions finding or not finding moral turpitude to inhere in certain categories of offenses some guiding principles or defining characteristics that could be used to recognize or classify certain crimes as involving moral turpitude. See Rodriguez-Herrera,
The court in Rodriguez-Herrera discovered that
[f]or crimes like malicious mischief that are not of the gravest character, a requirement of fraud has ordinarily been-required_
On the other hand, certain crimes necessarily involving rather grave acts of baseness or depravity may qualify as crimes of moral turpitude even though they have no element of fraud. Applying this standard we have found that spousal abuse, child abuse, first-degree incest, and having carnal knowledge with a 15 year old female, all involve moral turpitude....
Id. at 240 (citations omitted). Applying these principles, the court held that the Washington statute prohibiting malicious mischief did not define a crime involving moral turpitude. Id. Although the crime included' an “evil intent” element in the form of “malice,” it was a minor offense, including pranks resulting from poor judgment, that lacked either depravity or fraud, and therefore did not involve moral turpitude. Id. The INS resisted this conclusion, arguing that if a statute requires an “evil intent, wish, or design to vex, annoy, or injure another person,” as the Washington statute defining “malice” did, it defined a crime necessarily involving moral turpitude. Id. The court rejected this proposition:
It is true that, in the fraud context we have placed a great deal of weight on the requirement of an evil intent. But even in this context, we have not held that' if a statute requires evil intent, it necessarily involves moral turpitude. We have held only that without an evil intent, a stаtute does not necessarily involve moral turpitude. See Hirsch v. INS,308 F.2d 562 , 567 (9th Cir.1962) (“A crime that does not necessarily involve evil intent,', such as an intent to defraud, is not necessarily a crime involving moral turpitude.”) To state the proposition positively, we have held that in the fraud context an evil intent is necessary, but not sufficient, for a crime inevitably to involve moral turpitude. Cf. Gonzalez-Alvarado [v. INS ], 39 F.3d [245,] 246 [(9th Cir.1994) ] (holding that “[a] crime involving the willful commission of a base or depraved act is a crime involving moral turpitude, whether or not the statute requires proof of evil intent”)-
Id. The Ninth Circuit Court of Appeals rejected the argument that all crimes requiring some degree of evil intent are necessarily crimes involving moral turpitude. Id. at 241. The court reasoned that
evil intent may become much too attenuated to imbue the crime with the character of fraud or depravity that we have associated with moral turpitude. At least outside of the fraud context, the bare presence of some degree of evil intent is not enough to convert a crime that is not serious into one of moral turpitude leading to deportation under [former] section 241(a)(4) of the Immigration and Nationality Act.
Id. (footnote omitted). The court held that-Washington’s statutory definition of malicious mischief defined such a crime in which evil intent was “too attenuated” for the crime to be one that necessarily involved moral turpitude. Id. Therefore, an alien convicted under the Washington malicious mischief statute was not deportable for conviction of a crime involving moral turpitude. Id.
The classifying principles or taxonomy of moral turpitude as stated by the Ninth Circuit Court of Appeals in Rodriguez-Herrera may be distilled into the following propositions: 1) for minor crimes, an element of fraud has been required; 2) for fraud crimes, an element of evil intent, such as intent to defraud, is necessary, but not sufficient, to define a crime as one involving moral turpitude; 3) for serious crimes, an element of baseness or depravity suffices even if there is no explicit element of fraud or evil intent; 4) at least, for minor crimes not involving fraud, evil intent may become too attenuated to meet the requirement of either fraud or depravity such that the crime necessarily involves moral turpitude. Id. at 24(M1.
Other cases, nearly all of them also decided by the Ninth Circuit Court of Appeals, in which the court attempted to develop a classification system for crimes that necessarily do or do not involve moral turpitude,-have grappled with similar defining elements. Notable among these decisions are two cited by the court in Rodriguez-Herrera. See, e.g., Gonzalez-Alvarado v. INS,
For example, in Gonzalez-Alvarado v. INS,
Typically, crimes of moral turpitude involve fraud. See Grageda v. U.S. INS,12 F.3d 919 , 921 (9th Cir.1993); Goldeshtein,8 F.3d at 647 . However, we have included in this category acts “of baseness or depravity contrary to accepted moral standards,” Grageda,12 F.3d at 921 (quotation omitted), such as spousal abuse, child abuse, and statutory rape which involve moral turpitude “by their very nature.” See id. at 922 (spousal abuse); Guerrero de Nodahl v. INS,407 F.2d 1405 , 1406-07 (9th Cir.1969) (child abuse); Bendel v. Nagle,17 F.2d 719 , 720 (9th Cir.1927) (statutory rape). Incest also involves an act of baseness or depravity contrary to accepted moral standards, and we hold that it too is a “crime involving moral turpitude.” See also II American Law Institute, Model Penal Code and Commentaries § 230.2 cmt. 2(d), 406-07 (1980) (recognizing that laws against incest reinforce a community norm of “general and intense hostility” toward such conduct).
Gonzalez-Alvarado,
This reading is in accord with other decisions, none of which find a crime involves moral turpitude unless “evil intent” or “guilty knowledge” is a required element. See Goldeshtein, 8 F.3d at 648 (crime that does not necessarily involve evil intent is not necessarily a crime involving moral turpitude, citing Hirsch,
In Grageda, the Ninth Circuit Court of Appeals focused on another element in the definition of the crime, this time “willfulness,” and its relationship to baseness and depravity. Grageda,
the term ‘willfully’ does not constitute moral turpitude. Rather, it is the combination of the base or depraved act and the willfulness of the action that makes the crime one of moral turpitude.
Id. The court suggested that it was the willfulness of the injurious conduct to one committed to a relationship of trust that, in part, made the act of spousal abuse base and depraved. Id.; see also Goldeshtein,
Thus, in light of these eases, the classification system I believe is applicable to the question of whether or not a crime as defined is one in which moral turpitude necessarily inheres is as follows: 1) “evil intent,” either explicit or implicit, is necessary, but not sufficient to define a crime as one necessarily involving moral turpitude; 2) for relatively minor crimes, mere “evil intent” may become toо attenuated to define a crime in which moral turpitude necessarily inheres; 3) baseness and depravity, while not necessary, are always sufficient to define a crime as one involving moral turpitude, because implicit in such crimes is the necessary “evil intent” as well as sufficient moral obliquity contrary to accepted moral standards.
This taxonomy of moral turpitude accords with the substantial weight of authority defining the phrase “crime involving moral turpitude” in merely anecdotal fashion. Thus, under this taxonomy of moral turpitude, fraud crimes will always be crimes involving moral turpitude, Jordan,
But what of criminally reckless conduct, such as reckless theft or involuntary manslaughter? As noted above, the vast majority of decisions find reckless or involuntary conduct does not fit the paradigm. However, we must be most concerned with cases that appear to depart from, not merely confirm, an anticipated result. Such cases require careful analysis to see if they fit the paradigm offered here after all.
One case at first blush appears to define reckless conduct as defining conduct imbuing a crime with the essential elements of moral turpitude. See People v. Campbell,
“It is generally held that [the term ‘malice’ in such statutes] calls for more than mere intentional harm without justification or excuse; there must be a wanton and wilful (or ‘reckless’) disregard of the plain dangers of harm, without justification, excuse or mitigation.” ([2 Within & Epstein, Cal.Criminal Law (2d ed. 1988) Crimes Against Property, § 678,] p. 762.) Such a state of mind betokens that “general readiness to do evil” which constitutes moralturpitude. (See Castro, supra, 38 Cal.3d at 314 ,211 Cal.Rptr. 719 ,38 Cal.3d 301 .)
Id. However, the California Court of Appeals specifically stated that immigration decisions, pressed by the defendant, did not apply the standards for a crime involving moral turpitude set forth in the Castro decision controlling on the state law question of impeachment of witnesses. Id.
As a general matter, I find the California standard of “readiness to do evil” as defining a crime involving moral turpitude to be inadequate. To my mind, “readiness to do evil” does not necessarily imply intent to do evil. “Readiness” is a disposition, but “intent” is the formulation of a purpose. It is “evil intent,” not readiness to have such an intent, in which moral turpitude necessarily inheres. However, the Campbell court noted that its “readiness to do evil” standard differed from that applied to a determination of crimes involving moral turpitude for immigration purposes, and therefore that standard, with what I would consider an unreasonable extension of the meaning of “crime involving moral turpitude,” is simply inapplicable here. Finally, it is apparent that the Campbell court was actually looking at a mens rea that exceeded “mere intent,” not one that fell short of intent. Thus, the Campbell court may have been addressing a crime in which more than the necessary elements of a crime involving moral turpitude were necessarily present.
In an unpublished decision, Gutierrez-Chavez v. INS,
Searching for the defining characteristics of a crime involving moral turpitude, the court inquired “whether the statute’ contains an element of guilty knowledge or evil intent.” Id. (citing, inter alia, Wadman,
“[A] person acts “recklessly” with respect to a result or to a circumstance described by a provision of law defining an offense when the person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance- exists; the risk must be of such a nature and degree that disregardof it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation...
Id. (quoting Alaska Stat. § 11.81.900(a)(3)).
The court in Gutierrez-Chavez then performed the crucial step in the analysis by carefully analyzing interpretations of the statutes in question by the Alaska courts before concluding that “Alaska courts have interpreted the theft by receiving statute to contain both an element of guilty knowledge and an implied element of intent to deprive the owner of property which has been stolen.” Id. (citing Andrew v. State,
“Guilty knowledge” has been recognized as a minimum degree of culpability for a crime to involve moral turpitude. See, e.g., Lennon,
However, other decisions determining that crimes involving only a recklessness mens rea were crimes involving moral turpitude fall far short of this careful search for the defining elements of a “crime involving moral turpitude” found in Campbell and Gutierrez-Chavez. The deficiencies in the analysis in Wojtkow and Medina have already been demonstrated above, beginning at page -45-. Neither of these cases looked beyond the statutory definition of the state crimes in question, thus pulling out of thin air the BIA’s own interpretation of whether the state crime involved the essential elements of a crime involving moral turpitude. Thus, in Medina, the ease upon which Wojtkow relies, the BIA glibly ignored a long string of precedent holding reckless or involuntary conduct not to involve moral turpitude, because of the lack of any intent, by remarking that “willingness to commit the act in disregard of the perceived risk” was sufficient. Medina, 15 I. & N. Dec. 611. However, recklessness, defined as “conscious disregard,” or “willingness to commit the act,” does not equal “evil intent”; otherwise, the law would not distinguish among culpable states of mind, separating intentional acts from the merely reckless, and meting out punishment accordingly. Nor is a “conscious disregard” of or “gross deviation” from a standard of care necessarily vile, base, or depraved, nor does it raise an inference of implicit evil intent.
Thus, nowhere do I find an adequately reasoned opinion holding that “recklessness,” defined by applicable state court decisions as lacking elements of intent or guilty knowledge, can be a crime involving moral turpitude. The BIA’s decision below is not such a decision and does not rely on such decisions. To the extent that the BIA concluded that recklessness, defined only as a “conscious disregard” of harm to another, involved the essential characteristics of a crime involving moral turpitude, I find the BIA’s inclusion of criminally reckless conduct within the ambit of the deportation statute, § 241(a)(2)(A), 8
F. Missouri’s Involuntary Manslaughter Statute ■
Although it may be possible that “recklessness,” properly defined, could define a crime involving moral turpitude, I find the BIA’s conclusion that the Missouri recklessness statute provides such a definition is wrong as a matter of law. As I have, postulated the standard of review for this issue, the BIA is entitled to no deference whatsoever in its interpretation of Missouri law. That is well, because I find that the BIA made two errors in its interpretation of Missouri law in this case. First, the language of the Missouri recklessness statute does not explicitly state the characteristic elements of a crime involving moral turpitude, nor is the language of the statute amenable to such an interpretation. Furthermore, the BIA looked only at the Missouri statutes defining Ms. Franklin’s offense, and not at Missouri case law, which properiy defines the nature of the statutory elements of the offense. Had the BIA done so, it would have found that Missouri courts have never interpreted Missouri’s involuntary manslaughter, statute as involving the essential elements of a “crime involving moral turpitude.”
Missouri’s statutory definition of criminal recklessness at issue here is found in Mo.' Rev.Stat. § 562.016.4. That statute defines a person who has acted with criminal recklessness as one who “consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and [the] disregard constitutes a gross deviation from the standard of care [that] a reasonable person would exercise in the situation.” Mo. Rev.Stat. § 562.016.4. This statutory language does not define an “evil intent” element of a crime, because, as I observed above, it does not state any kind of intent at all, let alone an intent to do evil. The law distinguishes among culpable states of mind,
Thus, although the language of the statute does not explicitly state the essential elements of a crime involving moral turpitude, the BIA “reads into” the explicit elements some inference or possibility of moral turpitude. Following Medina, 15 I. & N. Dec. 611, the BIA' in this case apparently finds sufficient a “willingness to commit the act in disregard of the perceived risk,” which is its own interpretation of the meaning of “conscious disregard.” I do not find that interpretation supportable, nor, if it were proper, would I find such “willingness” sufficient. Like “readiness to do evil,” such a “willingness” to act in disregard of risks does not necessarily imply intent to do evil. “Readiness” and “willingness” to act in a certain way or in disregard of risks is a disposition, but “intent” is the formulation of a purpose. It is “evil intent,” not readiness or willingness to have such an intent, in which moral turpitude necessarily inheres. Nor is an inference or possibility of moral turpitude the proper standard. A crime is not a “crime involving moral turpitude” unless it is one in which moral turpitude necessarily inheres. Goldeshtein, 8 F.3d at 647; Chu Kong Yin,
Thus, it is not necessary to subscribe to my position that review of the BIA’s interpretation of Missouri law is de novo, according the BIA no deference, to come to the conclusion that the BIA’s interpretation of this Missouri statute cannot stand. Even if I am wrong, and the BIA must be accorded deference in its interpretation of the Missouri statute, the BIA’s interpretation simply is not reasonable. Neither “conscious disregard” nor the BIA’s gloss on the meaning of that phrase as “willingness to commit an act” can be construed, as a matter of law or as a matter of “reasonableness,” to be the requisite “evil intent” element of moral turpitude.
It might be argued that Missouri courts nonetheless recognize elements of moral turpitude in the state’s involuntary manslaughter statute.
In Harris, the Missouri Court of Appeals distinguished between acting recklessly and knowingly under Missouri law on the ground that recklessness ‘“involves conscious risk creation. It resembles knowingly in that a state of awareness is involved, but the awareness is of risk, that is of a probability less than a substantial certainty_’” Harris,
Similarly, in Hamlett, the Missouri Court of Appeals points out that “recklessness” in Missouri’s involuntary manslaughter statute “has the same connotation as the term ‘culpable negligence’ which appeared in the old manslaughter statute.” Hamlett,
I have found no Missouri cases finding or suggesting that involuntary manslaughter under the Missouri statute involves the essential elements of a crime involving moral turpitude, but I have found many that suggest that involuntary manslaughter under the Missоuri statute lacks precisely the necessary elements. See, e.g., State v. Isom,
The present Missouri manslaughter statute, which distinguishes between voluntary and involuntary manslaughter on the basis of intent, became effective on October 10, 1984, State v. Galbraith,
V. CONCLUSION
When the proper standard of review is applied to the issues involved in this appeal, the decision of the BIA should be reversed. Although the BIA’s definition of a “crime involving moral turpitude” is reasonable, indeed, almost universal, it does not reasonably extend to crimes, such as involuntary manslaughter, involving merely criminal recklessness as a mens rea, at least not where that mens rea is defined as “conscious disregard” of risk to another. The BIA provides no reasoned basis for its sudden view to the contrary. Furthermore, a de novo review of Missouri law conclusively demonstrates that the crime of which Myrisia FranHin was convicted has never been defined by Missouri courts as one in which the essential elements of a crime involving moral turpitude necessarily inhere. By imposing its own interpretation of the language of a Missouri statute, instead of examining how the Missouri courts have interpreted that statute, the BIA committed a fatal error as a matter of law. The BIA’s interpretation so imposed was also wrong as a matter of law, because it was contrary to the interpretation of the statute by Missouri courts.
However, even if one accords the BIA deferential review of its interpretation of Missouri law, as well as deferential review of the entirely federal matter of the meaning of the phrase “crime involving moral turpitude,” the BIA’s interpretation of Missouri law is not reasonable. Neither the language of the Missouri statute itself nor the gloss put upon it by the BIA can reasonably be construed as stating the requisite elements of a crime involving moral turpitude.
My journey to this conclusion has been long and arduous. It may not be practicable to expect the BIA to embark upon such an involved analysis in each deportation case. Indeed, there is no need for the BIA to travel the whole path I have marked, because the BIA would not be concerned with the proper standard of review for its deportatiоn decisions. That part of the road less traveled is only for the courts entrusted with review of BIA decisions. However, given the gravity of deportation decisions, justice requires that the BIA travel some of this trail. The BIA must undertake a careful analysis of state law in order to determine whether crimes as defined by state statutory law and judicial decisions are crimes in which the essential elements of moral turpitude necessarily inhere. The BIA did not even attempt such an analysis here.
For each of the reasons discussed above, involuntary manslaughter as defined under Missouri law simply is not a “crime involving moral turpitude,” subjecting an alien to deportation under § 241(a)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(A). The BIA’s strained and tortured notions about the nature of the offense of which Myrisia Franklin was convicted is dramatically at odds with two centuries of this nation’s common law and with its own long standing prior rulings. Furthermore, involuntary manslaughter, as it is typically defined, does not include elements characteristic of a “crime involving moral turpitude.” Finally, and of most critical importance, My-risia Franklin’s conviction for involuntary manslaughter does not include those characteristic elements as the crime is defined under Missouri law. This being so — I end where I began — the deportation of Myrisia Franklin to the Philippines is, in my view, a miscarriage of justice. I dissent.
Notes
. By focusing on the gravity of deportation decisions, I do not mean to suggest that Congress does not have the power to control immigration and deportation:
Judge Learned Hand, speaking for the United States Court of Appeals for the Second Circuit, in United States ex rel. Kaloudis v. Shaughnessy,180 F.2d 489 , 490 [(2d Cir.1950)], said:
"The interest which an alien has in continued residence in this country is protected only so far as Congress may choose to protect it; Congress may direct that all shall go back, or that some shall go back and some may stay; and it may distinguish between the two by such tests as it thinks appropriate.”
Aliens, so long as they are permitted to remain in the United States, are entitled to the protection of its Constitution and laws with respect to their rights of person and of property and to their civil and criminal responsibility. "But they continue to be aliens, * * * and therefore remain subject to the power of Congress to expel them, or to order them to be removed and deported from the country, whenever, in its judgment, their removal is necessary or expedient for the public interest.” Fong Yue Ting v. United States,149 U.S. 698 , 724,13 S.Ct. 1016 , 1026,37 L.Ed. 905 .
United States ex rel. De Luca v. O’Rourke,
. In Jaramillo, the Eleventh Cirсuit Court of Appeals noted that where'the INS had been delegated discretionary authority to construe the mean- , ing of a statute, they could do so narrowly should they deem it wise to do so for policy reasons. Jaramillo,
. Even applying this deferential standard of review to the INS’s definition of "crime involving moral turpitude,” however, I find the INS’s construction of the standard, which encompasses crimes that may involve only criminally reckless conduct, to be unreasonable.
. Although it is possible that my perception" of the oddity of according a federal agency greater deference than is given a federal district court may be somewhat colored by the fact that I am a federal district court judge, I nonetheless believe the proposition survives on its own merits.
. I note a further point of distinction in the decisions of courts applying "reasonableness” versus true "de novo" reviews of INS action. When courts apply a two-prong test to the question of whether the agency's action was appropriate, involving the questions, first, whether the agency has applied the proper legal standard and, second, whether there is substantial evidence that the case falls within that standard, courts again diverge. Compare Animashaun v. INS,
. This legal principle explains why neither the majority nor I have thus far recited the facts of the case. However, because appellant urges us to consider those facts, despite this blackletter rule, I will indulge her so far as to recite, albeit very briefly, what the facts and circumstances of her conviction were. Myrisia Franklin is a native and citizen of the Philippines. She entered the United States at Los Angeles, California, on December 15, 1987. She is 28 years old and the mother of three children. However, on June 4, 1991, while she was expecting her fourth child, her husband severely beat their three-year old son, who later died of peritonitis. Franklin’s husband is now serving a twenty-year sentence for the child's murder. On October 15, 1992, Franklin was found guilty in a bench trial of involuntary manslaughter in the death of her son on a charge that she had failed to seek medical treatment for him although she knew he was in distress. She was sentenced to three years confinement in a correctional facility. Her sentence
. The Cabral court described the purpose behind limiting what the tribunals review in the deportation proceedings to the record -of conviction as “administrative workability.” Cabral,
. However, occasional dissents from this view can be found. For example, in his dissent from the majority opinion in Marciano v. INS,
.Both in her brief and at oral arguments, appellant strenuously' urged that we consider the facts of the particular case leading to her conviction. Although both the majority and I reject her arguments here, and, indeed, I do not find the facts of this case particularly sympathetic, any hardship that deportation may impose upon the alien may be relevant to whether an alien is ultimately deported. An alien who has been a lawful permanent resident of the United States for at least seven years and who has been found deportable on certain, grounds may seek a waiver of inadmissibility or relief from deportation under § 212(c), 8 U.S.C. § 1182(c). See, e.g., Hajiani-Niroumand v. INS, 26 F.3d 832, 834-35 (8th Cir.1994); Varela-Blanco v. INS,
Similarly, in considering whether an applicant for asylum or withholding of deportation is ineligible for relief pursuant to 8 U.S.C. § 1253(h)(2)(B), because the applicant has been convicted of "a particularly serious crime,” courts have authorized the BIA to consider the nature of the conviction, the type of sentence imposed, and the circumstances and facts underlying the conviction in determining whether or not the crime was "particularly serious.” See Mahini v. INS,
. Anyone who has ever prepared jury instructions in a criminal case in which the crime is defined by statute will appreciate my observation that judicial interpretations of statutes, as much or more than the language of the statute, define the "nature of the crime” of which a person is convicted. To close one's eyes to that case law could well result in reversible error in a criminal case; to close one's eyes to judicial interpretations of state criminal law in making a deportation decision is, to my mind, to commit an error of similar proportions.
. In Nemetz, the Fourth Circuit Court of Appeals feared that looking to laws which vary from state to state to determine whether a crime involving moral turpitude had been committed could only lead to differing and often inconsistent results based on "accidentfs] of geography,” because one state might criminalize conduct permitted in another state. Id. Although the court concluded that federal courts "can appropriately look to state law in the initial stage of determination,” when use of state law defeats uniformity, the court should devise a federal standard by other means. Id.
. This approach would, I believe, protect the alien from deportation based on conviction of a crime in which the BIA mistakenly finds moral turpitude necessarily inheres, without creating the dangers of a "satellite proceeding” over guilt of the offense feared by the First Circuit Court of Appeals in Cabral. Cabral, 15 F.3d at 196 n. 6. It would not, however, go nearly far enough to suit Judge Eisele, dissenting in Marciano,
.I am not suggesting that the information to be extracted from state cases construing a statute and thereby controlling on the meaning of a statutorily-defined crime is the state court’s determination of whether or not the crime defined by statute is one involving moral turpitude. See, e.g., Gonzales v. Barber,
. In the opinion below, the BIA identified the following decisions of the BIA as holding that involuntary manslaughter is not a crime involving moral turpitude, but stated that these decisions were now overruled on that issue by the decision in this сase: Matter of Ghunaim, 15 I. & N. Dec. 269, 270 (BIA 1975); Matter of Lopez, 13 I. & N. Dec. 725, 726 (BIA 1971); Matter of Sanchez-Marin, 11 I. & N. Dec. 264, 266 (BIA 1965); Matter of Szegedi, 10 I. & N. Dec. 28, 34 (BIA 1962); Matter of B, 4 I. & N. Dec. 493, 496 (BIA 1951).
. In Costello, the Court identified other sources of legislative history for this provision as the following: H.R.Rep. No. 1365, 82d Cong., 2d Sess., 60 (1952); S.Rep. No. 1515, 81st Cong., 2d Sess., 390-92 (1950); S.Rep. No. 1137, 82d Cong., 2d Sess., 21 (1952); H.R.Rep. No. 2096 (Conference Report), 82d Cong., 2d Sess., 127 (1952); Immigration and Naturalization Service, Analysis of S. 3455, 81st Cong., 2d Sess. (195), Vol. 5, pp. 241-3 through 241-6; Analysis of S. 716, 82d Cong., 1st Sess. (1951), Vol. 4, pp. 241-2 through 241-4. Costello,
. The venerable decision of this circuit court of appeals in United States v. O’Rourke,
. These cases demonstrate that under the common law, involuntary manslaughter was consistently viewed as not being a crime involving moral turpitude, and commentators agree. See, e.g., Tarik H. Sultan, Immigration Consequences Of Criminal Convictions, ARIZ.ATT’Y 15 (June 30, 1994) ("[T|he following crimes do not generally involve moral turpitude: involuntary manslaughter, simple assault and battery, attempted suicide, libel, riot, vagrancy, maintaining a nuisance, fornication or Mann Act violations, breaking and entering or unlawful entry, possession of stolen property, joyriding, damaging private property, failure to report for induction, conspiracy to commit offenses against the United States, desertion, false statements not amounting to perjury, and violation of regulatory laws such as gambling or drunk driving."); Robert D. Ahlgren, State Dep’t Implementation Of The 1990 Act: Grounds Of Exclusion Related To Criminal Activity, 422 PRAC.LAW INST./LIT & ADMIN.PRAC. COURSE HANDBOOK SERIES 165 (1991) ("[A] [crime involving moral turpitude] is any crime showing an innate "moral depravity.” This can include anything from shoplifting to murder, but would not include, for example, a fistfight, drinking in a public place, or involuntary manslaughter."); Arthur C. Helton, Gaining Status For Your Client Under The Immigration Reform And Control Act Of 1986, 329 PRAC.LAW. INST./LIT. & ADMIN.PRAC. COURSE HANDBOOK SERIES 123 (1987) ("Moral turpitude is
. In my opinion, it would be improper to "deem" a crime to be one necessarily involving moral turpitude where the statute under which the alien has been convicted does not make this distinctiоn, at least where the indictment makes no such distinction either.
. Although “vagueness” is not an issue here, and I present the “vagueness” conclusions of the Jordan Court only to demonstrate that courts are most comfortable in examining "moral turpitude” when they are not required to stray far from the beaten path, I am not persuaded that the Jordan majority’s “vagueness” argument is enhanced by one of the grounds on which it is based. The Court opined that ”[t]he phrase 'crime involving moral turpitude' presents no greater uncertainty or difficulty than language found in many other statutes repeatedly sanctioned by the Court.” Jordan,
. The baffled dissenting justices turned to the edition of Black's Law Dictionary current at the time to find "turpitude” defined as "[I]nherent baseness or vileness of principle or action; shameful wickedness; depravity,” and to Bouvier’s Law Dictionary, Rawles Third Revision, in which "moral turpitude” was defined as "An act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man.” Jordan,
. The reference in the preceding quotation to Bouvier is to the definition found in Bouvier’s Law Dictionary, Rawles Third Revision, which the Jordan dissenters had previously cited and which is quoted herein in footnote 20 supra.
. Another variant on the mental state required for a crime to be one necessarily involving moral turpitude is the “corrupt mind” element. See, e.g., Okabe v. INS,
. As I observed above, at note 13, the question is not whether Missouri courts have ever recognized involuntary manslaughter under the Missouri statute as a crime involving moral turpitude, because to do so would indeed surrender to state determination a matter of federal law. Rather, the question is whether Missouri courts have defined the elements or nature of the crime in such a way that it necessarily involves the essential elements of a "crime involving moral turpitude” under the federal definition of such crimes.
However, I do not believe that a determination by a Missouri court that the state's involuntary manslaughter statute was or was not a crime involving moral turpitude would be unpersuasive in this case, because Missouri employs the same definition of moral turpitude as does the BIA in attorney disciplinary cases. See, e.g., In re Warren,
. The BIA, as I have noted, made no examination of Missouri case law to determine whether the courts have ever interpreted the statutory language in question to include the elements of moral turpitude in the nature of the crime. On appeal, the INS has cited Missouri cases only for the proposition that Missouri recognizes “recklessness” as a "culpable mental state.” See State v. Jennings,