Frank George


Though admissibility and deportability decisions often hinge on whether a noncitizen has committed a crime involving moral turpitude (CIMT), the Immigration and Nationality Act (INA) neither defines “moral turpitude” nor establishes a framework with which to apply this language. As a result, courts have historically developed inconsistent applications of the act’s moral turpitude provisions. This Article explores the creation, collapse, and recreation of a uniform framework for the identification of CIMTs. After several circuit courts refused to give deference to the previous framework, the Board of Immigration Appeals (BIA) appropriately came to the following conclusion: the language of the INA demands that identification of a CIMT be based on a noncitizen’s conviction, not the specific conduct that led to the conviction. However, the BIA’s modern approach to identifying CIMTs remains problematic. First, its application of the realistic probability test lacks historical legal support. Second, this test places a heavy burden on noncitizens to prove that a crime is not a CIMT; this may violate the immigration lenity doctrine, which indicates that deportation statutes are to be construed strictly in favor of the noncitizen. Finally, it allows circuit courts to continue applying their existing precedent on the matter, effectively ensuring continued disparity among different courts’ frameworks for identifying CIMTs. For these reasons, I conclude that whether the BIA’s modern framework is owed deference by the circuit courts is immediately questionable. I, instead, advocate for application of the least culpable conduct test, which has a rich legal history and correctly places the burden of proving that a crime constitutes a CIMT on the government.