Denying Formalism’s Apologists: Reforming Immigration Law’s CIMT Analysis

Jeremiah J. Farrelly

Congress has long favored the “crime involving moral turpitude” as a statutory device to remove “undesirable” aliens from the United States. Unfortunately, Congress never bothered to define this important phrase.  The judicial standard developed to address this shortfall has long been seen as unnecessarily formalistic, arbitrary, and both over- and under-inclusive.  Until recently, however, these issues were ignored.  In 2008, the Board of Immigration Appeals—rightly deferred to by the Seventh Circuit—and the Attorney General finally addressed these issues, making significant revisions to the traditional standard.  The Third Circuit, rather than following the Seventh Circuit in allowing the reform of an unfair standard, instead chose to ignore Chevron and its progeny, and rejected these reforms based upon a faulty and revisionist reading of history and precedent.  This Comment begins by situating the phrase “crimes involving moral turpitude” within immigration law, and discusses the traditional standard.  It then introduces the two recent reforms to the traditional standard with the assistance of an illustrative hypothetical based on the facts of director Roman Polanski’s 1977 statutory rape conviction.  It goes on to assess the failure of the Third Circuit to adequately justify its refusal to recognize the reforms under either Chevron or precedent.  After eliminating the Third Circuit’s holding as a permissible option, this Comment argues that the two recent reforms are nevertheless imperfect, and that a variation—defined herein—on the Board’s new standard would constitute a more practicable and fair assessment of whether a crime involves moral turpitude.