Sunday, December 07, 2008

Mehboob: Crimes Involving Moral Turpitude Include Strict Liability Crimes Scoring High On The Depravity-Meter

Mehboob v. Mukasey
November 26, 2008
Judges Smith, Cowen, and District Judge Anne E. Thompson
Opinion by Judge Cowen

Michael S. Henry of Philadelphia argued for Mr. Mehboob. Jeffrey L. Menkin of OIL argued for the government.

Indecent assault under Pennsylvania law can be deemed a crime involving moral turpitude by the BIA and the Third Circuit denied the appeal.

IJ Sease and the BIA held that Mr. Mehboob committed a crime involving moral turpitude and in 2006, the Third Circuit overturned the decision and sent the case back to the BIA on a remand for a fuller explanation. Mehboob v. Att'y Gen., 175 Fed. Appx. 559 (3d Cir. 2006).

The Third Circuit joins the 1st, 2nd, 5th, and 8th Circuits to give some deference to the BIA's analysis of crimes involving moral turpitude. This is a circuit split with the Ninth Circuit, which reviews the issue de novo and does not give any deference to the BIA.

What is complex about this case is that well after the BIA made its ruling, the Attorney General recently and without any notice issued a ruling in 2008 that unexpectedly throws out a categorical approach that had been well-settled for many years and relied upon by many criminal defendants. This case does not touch that controversial issue -- in fact, it does not even acknowledge the Attorney General's recent decision.

Here, the BIA adopted a new category of crimes involving moral turpitude -- strict liability crimes where the conduct is so manifestly contrary to community mores that they have a presumption of moral culpability -- it is not just a regulatory public welfare offense that was created primarily for policy imperatives as opposed to close ties to universal community values. (How is something both universal and tied to a community -- unless the BIA is thinking of a community of all sentient beings in the universe?)

The Third Circuit does not explain how someone is supposed to analyze whether a strict liability offense was enacted to guard against behavior that is considered inherently antisocial and depraved. It is unclear what the antisocial-meter or depravity-meter should be.

The Third Circuit's ruling leaves much to be desired -- it does not give us a clear way to see whether the government has reached its goal (proving that the conduct in question ranks high on the antisocial-meter and the depravity-meter). It might have been better for the Third Circuit to remand the case to permit DHS and the immigrant present depravity experts and antisocial experts, along with experts who are in touch with qualities that are universal and tied to a community.


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