Ninth Circuit Affirms that WA Conviction for Communication with Minor for Immoral Purposes is CIMT

The Ninth Circuit has reaffirmed that a Washington conviction for communication with a minor for immoral purposes is a crime involving moral turpitude, citing its prior decision in Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007) as binding precedent on the issue. The court also determined that it is bound by its own precedent to reject the argument that the phrase “crime involving moral turpitude” is unconstitutionally vague.

Judge Fletcher wrote a lengthy concurrence on why, absent the precedent relied on, the court should find that term is unconstitutionally vague.

The full text of Islas-Veloz v. Whitaker can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/02/04/15-73120.pdf

Ninth Circuit Rejects Vagueness Challenge to Particularly Serious Crime Bar

The Ninth Circuit has revisited its jurisprudence regarding whether the particularly serious crime bar is unconstitutionally vague. The court recognized that the Supreme Court’s most recent case law on vagueness rules out the legal standard that‘a statute is void for vagueness only if it is vague in all its applications. Nevertheless, even with this updated case law in mind, the court found the statute not to be unconstitutionally vague.

“We know with certainty that a minor traffic infraction is not particularly serious and that a heinous, violent crime is particularly serious. But for the crimes in between, the statute provides little guidance. Instead, the statute provides an uncertain standard to be applied to a wide range of fact-specific scenarios. In that sense, the standard is uncertain. But that kind of uncertainty does not mean that a statute is unconstitutionally vague. Many statutes provide uncertain standards and, so long as those standards are applied to real world facts, the statutes are almost certainly constitutional.”

“Critically, the particularly serious crime inquiry in 8 U.S.C. § 1231(b)(3)(B)(ii) applies only to real-world facts. Unlike many standards in the immigration context, the particularly serious crime inquiry requires the BIA to assess what the alien actually did.”

The full text of Guerrero v. Whitaker can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/09/15-72080.pdf

Ninth Circuit Denies Petition for Rehearing En Banc on the CIMT Vagueness Case

The Ninth Circuit has declined a request for rehearing on the issue as of whether the term “crime involving moral turpitude” is unconstitutionally vague. In so doing, the Court also confirmed that a federal conviction for bribery is a crime involving moral turpitude because the statute requires a “corrupt mind.”

The full text of Martinez de Ryan v. Whitaker can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/16/15-70759.pdf

Supreme Court Finds 16(b) Definition of Crime of Violence Unconstitutionally Vague

The Supreme Court has determined that the definition of a crime of violence contained in 18 USC 16(b) is unconstitutionally vague.   In so doing, it relied heavily on its 2015 decision in Johnson v. United States, which invalidated the residual clause of the Armed Career Criminal Act on vagueness grounds.

The full text of Sessions v. Dimaya can be found here:

https://www.supremecourt.gov/opinions/17pdf/15-1498_1b8e.pdf

Fourth Circuit finds that Deferred Prosecution Agreement Constitutes Conviction

The Fourth Circuit has determined that a petitioner who signed a deferred prosecution agreement and who agreed in court that he was stipulating to the facts in the agreement had sustained a conviction for immigration purposes.  In addition, the court determined that the term "crime involving moral turpitude" is not void for vagueness.  

The full text of Boggala v. Sessions can be found here:

http://www.ca4.uscourts.gov/Opinions/Published/161558.P.pdf

Third Circuit Invalidates 18 USC 16(b)

The Third Circuit has joined the Ninth Circuit, Sixth Circuit, Tenth, and Seventh Circuits and found that 18 U.S.C. 16(b) is unconstitutionally vague.  The decision is based on the rationale in Johnson v. United States.  Notably, the Supreme Court will address this issue in Lynch v. Dimaya in the upcoming term.

The full text of Baptiste v. Attorney General can be found here: 

http://www2.ca3.uscourts.gov/opinarch/144476p.pdf

Tenth Circuit Finds 18 USC 16(b) to be Unconstitutionally Vague

Joining the Sixth and Ninth Circuits, the Tenth Circuit has determined that the definition of a crime of violence contained in 18 USC 16(b) is unconstitutionally vague under the Supreme Court's 2015 decision in Johnson v. United States.

The full text of Golicov v. Lynch can be found here: 

https://www.ca10.uscourts.gov/opinions/16/16-9530.pdf

En Banc Fifth Circuit Reverses Precedent Regarding 18 USC 16(b)

Sitting en banc, the Fifth Circuit has reversed its decision earlier this finding that 18 USC 16(b) is unconstitutionally vague.  Instead, the court differentiated 16(b) from the residual clause of the Armed Career Criminal Act (declared unconstitutionally vague by the Supreme Court in 2015 in Johnson v. United States), and declined to extend the decision in Johnson.  The circuits have split on the constitutionality of 16(b) following Johnson, and it seems likely that the Supreme Court will need to take up the issue in the near future.

The full text of United States v. Gonzalez Longoria can be found here:

http://www.ca5.uscourts.gov/opinions/pub/15/15-40041-CR2.pdf

My blog post about the earlier 3 panel decision in the case (reversed by the en banc decision) can be found here: 

http://www.sabrinadamast.com/journal/2016/2/12/fifth-circuit-finds-18-usc-16b-to-be-unconstitutionally-vague

Sixth Circuit Finds 16(b) Definition of a Crime of Violence Unconstitutionally Vague

The Sixth Circuit, applying the Supreme Court's 2015 decision in Johnson v. United States, has determined that 18 USC 16(b) - which contains half of the definition of a crime of violence for immigration purposes - is unconstitutionally vague. 

The full text of Shuti v. Lynch can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0155p-06.pdf

Seventh Circuit Upholds Validity of Crime Involving Moral Turpitude Statute; Finds Illinois Burglary Conviction to be a Crime Involving Moral Turpitude

The Seventh Circuit has rejected a challenge to term "crime involving moral turpitude," finding that it is not unconstitutionally vague.  The Court noted that this phrase has been part of the immigration laws dating back to 1891 and that no case has been decided holding that the phrase is vague, or that it is so meaningless as to be a deprivation of due process.

The Court also determined that a felony burglary conviction in Illinois qualified as a crime involving moral turpitude, at least under the modified categorical approach.  The statute of conviction stated that "a person commits burglary when without authority he or she knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle, railroad car, or any part thereof, with intent to commit therein a felony or theft.”

The full text of Dominguez-Pulido v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D05-05/C:14-3557:J:Flaum:aut:T:fnOp:N:1748791:S:0