The Term 'Moral Turpitude' is Perhaps the Quintessential Example of an Ambiguous Phrase

In a recent decision, the Ninth Circuit Court of Appeals found that a conviction of felony endangerment in Arizona is a crime involving moral turpitude (CIMT).  Although the Arizona statute only requires "reckless conduct," the act required for conviction is "endangering another person with a substantial risk of imminent death or physical injury."  Arizona Revised Statute § 13-
1201 (2006).

The Ninth Circuit agreed with the BIA's analysis that the creation of a substantial, actual risk of imminent death is sufficiently establish a CIMT, even though no actual harm need occur.

This is important to remember in analyzing potential CIMTs.  It is tempting at times to think that because a statute requires nothing more than a reckless mens rea, it is unlikely to be a CIMT. Unfortunately, the mental state is not the only prong of the analysis.  You need to consider both the state of mind and the level of harm required to complete the offense.

There is a relationship between mental state and the level of harm.  As the level of consciousness decreases, the level of required harm goes up. While an intentional mental state may require less severe harm, a reckless mental state will require more severe harm.

There were other items of note from the Ninth Circuit's decision.  Interestingly, despite the Ninth Circuit having overturned Matter of Silva-TreviƱo, the BIA relied on the case in arriving at its conclusion.  However, the Ninth Circuit overlooked this, noting prior Ninth Circuit precedent made clear that the Ninth Circuit's definition of moral turpitude did not differ substantially from that of the BIA.

Some of my favorite quotes from the decision include:

"a petitioner's 'good fortune in not...killing anyone does not change the quality of his actions."  quoting Knapik v. Ashcroft, 384 F.3d 84, 90 n.5 (3d Cir. 2004).

"As our court has repeatedly recognized, the term 'moral turpitude' is 'perhaps the quintessential example of an ambiguous phrase.'"  quoting Turijan v. Holder, 744 F.3d 617 (9th Cir. 2014).

Like I tell some of my clients, "if you know what CIMT means, please feel free to tell me, because I don't know, and I've never met anyone who knows, including judges."  I say the same thing about exceptional and extremely unusual hardship, extreme hardship and particular social group.  If nothing else, it gets them to laugh.


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