On March 4, 2021, the Supreme Court of the United States (SCOTUS) handed down a decision that any person who faced removal proceedings (i.e. deportation back to their country of origin) would not be able to apply for a removal order to be cancelled if they had committed a crime of “moral turpitude”. A conviction of a crime of “moral turpitude” is considered a “disqualifying offense” under the Immigration & Nationality Act (INA) i..e. such a conviction means that removal proceedings will proceed and cannot be overturned or stayed by a judicial order.
The Defendant in this case had overstayed his visa (and admitted as much) and had also been convicted of a crime. He sought for the removal to be cancelled, since removal proceedings are discretionary per immigration laws, and not absolute (i.e. the immigration authorities can choose to not remove an illegal resident, based on the merits of each case). The government (in the form of the Attorney-General’s office) can cancel removal orders in its discretion. To be eligible to apply for cancellation, there are currently four requirements: 1) the Defendant has been present in the United States for at least 10 years; (2) he has been a person of good moral character; (3) he has not been convicted of certain criminal offenses; and (4) his removal would impose an “exceptional and extremely unusual” hardship on a close relative who is either a citizen or permanent resident of this country.
In this case, the removal order was valid, but the question remained as to whether the Defendant could apply for a cancellation thereof. In immigration law, convictions of crimes of “moral turpitude” disqualify a convicted person from application for cancellation.
Crimes of moral turpitude is a category of crimes that appear only in our immigration laws and has long formed a basis for removing individuals back to their country of origin.
SCOTUS ruled that under the Immigration & Nationality Act (INA), it is the Defendant (the person facing removal proceedings/deportation) – and not the government – who has to prove that she or he is eligible to apply for cancellation of removal. In this case, records were unclear as to exactly which of a number offenses the Defendant had been convicted of while awaiting deportation. He had been fined for operating a business without the requisite license, but also for using a false social security card to apply for employment. SCOTUS ruled that the latter was a crime of moral turpitude, thereby making the Defendant ineligible to apply for cancellation.
It is interesting that the Defendant had argued that official records did not make clear exactly which crime he was convicted of. He relied on this ambiguity to argue that it did not mean that he had been convicted of a “disqualifying offense”, per the legislation of the state he resided in. His argument was that this lack of clarity meant that it was possible that he had been convicted of not having a business license, the “lesser” of the two crimes he had been charged with. This meant that he had in fact not been convicted of a crime of “moral turpitude” i.e. the crime of using a fraudulent social security number to apply for a job. In short, he was indeed eligible to apply for removal proceedings to be cancelled. The majority of SCOTUS dismissed this argument. Part of their reasoning is convoluted, complex and based on long-standing legal principles of how such ambiguity of facts (in this case the conviction records) should be interpreted.
The bottom line is this: with this latest SCOTUS decision, the cancellation of removal proceedings is likely impossible in cases where the Defendant has committed a crime of “moral turpitude”.
This is a legal term which has never been unequivocally defined by our highest courts, given shifting social landscapes and moral values. It is generally accepted to be anything that shocks the public conscience, and crimes of moral turpitude have an intent to do wrong that society would generally consider wrong and immoral. With no definite and final definition from our courts (including SCOTUS) to serve as a clear guide on what is considered “moral turpitude”, it’s likely that applicants/Defendants will find all the much more difficult to fight removal proceedings.