Legislating Morality: Moral Theory and Turpitudinous Crimes in Immigration Jurisprudence
Congress could have framed the country’s immigration policies in any number of ways. In significant part, it opted to frame them in moral terms. The crime involving moral turpitude is among the most pervasive and pernicious classifications in immigration law. In the Immigration and Nationality Act, it is virtually ubiquitous, appearing everywhere from the deportability and mandatory detention grounds to the inadmissibility and naturalization grounds. In effect, it acts as a gatekeeper for those who wish to enter and remain in the country, obtain lawful permanent residence, travel abroad after admission, or become United States citizens. With limited exceptions, noncitizens cannot obtain, maintain, or expeditiously surpass temporary status or lawful permanent residence without avoiding “turpitudinous conduct.” This Article challenges the moral turpitude designation as a moral concept.
Legal scholars, legislators, and judges have leveled an abundance of critiques against the moral turpitude designation, particularly for its vague nature. Absent from this discussion, however, is a dedicated analysis of moral turpitude as it relates to established moral frameworks. Rather than rely on the vast intellectual tradition regarding questions of morality and ethics, the courts have opted instead for legal insularity, developing a specious approach to moral turpitude that is utterly incoherent in moral terms. The result is an arbitrary and anachronistic approach to determining whether conduct is turpitudinous. Serious consideration of the designation vis-à-vis moral theory casts considerable doubt on the virtually inscrutable standards that have evolved within moral turpitude jurisprudence.
Close analysis through the lens of moral theories, such as deontology, contractualism, and common morality, reveals why the crime involving moral turpitude should be eliminated from the country’s immigration laws. Under the pretense of protecting the country’s moral ethos, the legislature and courts have used the guise of morality to obfuscate an arbitrary mechanism of migration control. This Article demonstrates the limits of embedding explicit moral categories within the law and asserts that the judiciary has wielded morality as a proxy for its intent to exclude and remove broad swaths of noncitizens. Ultimately, a just immigration system must preclude the crime involving moral turpitude.
Abel Rodríguez & Jennifer A. Bulcock, Legislating Morality: Moral Theory and Turpitudinous Crimes in Immigration Jurisprudence, 53 Loy. L.A. L. Rev. 39 (2019).
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