Contributor, The Volokh Conspiracy

Illegal immigrants can be deported, especially if they commit a crime. But if their crime is not a “crime involving moral turpitude,” then they can ask the Justice Department to exercise its discretion to keep them from being deported (for instance, because they have lived here a long time, their record is otherwise clean, their children are U.S. citizens, and so on). If it is a crime involving moral turpitude, then they can’t get such discretionary relief. You might like this rule, or prefer either a more illegal-immigrant-friendly or a more illegal-immigrant-hostile rule. But that’s the rule that Congress has created.

But what does “crime involving moral turpitude” mean? For instance, is using a false Social Security number a crime of moral turpitude? Wednesday’s 7th Circuit decision in Arias v. Lynch suggests that some such uses aren’t crimes of moral turpitude; crimes involving “moral turpitude,” the court concludes, are crimes that are “inherently base, vile, or depraved,” and

It seems inconsistent with the terms “base, vile, or depraved” to hold that an unauthorized immigrant who uses a false social security number so that she can hold a job, pay taxes, and support her family would be guilty of a crime involving moral turpitude, while an unauthorized immigrant who is paid solely in cash under the table and does not pay any taxes would not necessarily be guilty of a crime involving moral turpitude. A rule that all crimes that involve any element of deception categorically involve moral turpitude would produce results at odds with the accepted definition of moral turpitude as conduct that is “inherently base, vile, or depraved.” At the same time, there is significant precedent indicating that deceptive conduct is morally turpitudinous.

The court, though, does not “try to resolve this conflict definitively in this case,” because it concludes that the Board of Immigration Appeals has to reevaluate its rule for applying the “involving moral turpitude” standard in light of a 2015 attorney general decision. So the 7th Circuit doesn’t squarely decide whether to go with the 5th and 8th Circuits (which have held that use of false Social Security numbers is a crime involving moral turpitude) or the 9th Circuit (which has held the opposite).

If you think that there’s something dicey about a statute that involves such a vague term, with so much at stake, you’re not alone: Judge Posner wrote a long concurring opinion sharply condemning the “moral turpitude” standard. “It is preposterous that that stale, antiquated, and, worse, meaningless phrase should continue to be a part of American law.” “What does ‘inherently base, vile, or depraved’ — words that have virtually dropped from the vocabulary of modern Americans — mean … ?” And Judge Posner concludes that, given that the test is the law, it should at least be limited in cases like this to false statements aimed at fraudulently getting money, and not to deception generally: “Although convicted of a crime against the government, the petitioner … was not seeking any money from the government. So far as appears her crime harmed no one, least of all the government though it is the ‘victim’ of her crime.” (She was using a made-up number, not the number of someone else.)

Of course, whether the crime indeed “harmed no one” depends a lot on your view of work by illegal immigrants, and whether it indeed harms the American citizens and permanent residents with whom they are competing. I take it, though, that Judge Posner’s response would be that the “moral turpitude” standard requires courts to make such judgments based on their own sense of what qualifies as sufficiently harmful behavior; and if Congress disagrees, and wants to mandate deportation of all illegal immigrants, or of all illegal immigrants who use false Social Security numbers, it should say so clearly.

Thanks to Howard Bashman (How Appealing) and Dan Klau (Appeallingly Brief!) for the pointer.