Victor Nunez is an illegal alien from Mexico. Two years after arriving in the United States, he was convicted of petty theft for shoplifting. Then, he was convicted of a much more serious crime: He exposed himself in public. But even that wasn’t enough to have him removed from the country.
After a decade of his illegal presence, the Department of Homeland Security finally brought immigration charges to remove him from the United States. Crimes of “moral turpitude,” like exposing your genitals to children, are supposed to result in certain deportation.
The Immigration Judge denied his application, and the Board of Immigration Appeals affirmed, finding that he had two convictions for “crimes involving moral turpitude,” which under the immigration laws, makes one ineligible for the green card Nunez was seeking. Nunez was on a fast track back to Mexico.
But Nunez appealed, claiming that his conviction for indecent exposure was not a crime involving moral turpitude. To be convicted of this crime under California law, the offender must be shown to have willfully exposed his private parts in a public place or in a place where there are unwilling persons. Under the law, he also must “intentionally direct attention to his genitals for sexual purposes.” For his conviction, it was necessary for the government to show that Nunez intended to direct attention to his genitals for sexual purposes; his conviction demonstrates, specifically, that he sought to sexually arouse or gratify himself or his victim.
But to the Ninth Circuit Court of Appeals based in San Francisco, there was no “moral turpitude” evident in Nunez’s crime. In an opinion by Judge Stephen Reinhardt, the deportation order was reversed. Nunez gets to stay. Reinhardt reasoned that indecent exposure is not necessarily a crime involving moral turpitude.
This decision demonstrates a pervasive relativism that is infecting American jurisprudence, and most of the public has no idea it is happening. The law used to be about objective right and objective wrong. The plain meaning of words governed the law.
Judge Reinhardt downplays the seriousness and immoral nature of the crime, saying for example that what constitutes moral turpitude is “amorphous” and “could well divide residents of red states from residents of blue states.”
That’s comforting. I’m glad I don’t have to raise my children in the blue states if Judge Reinhardt is right.
It is true that the Obama Justice Department defended the ruling of the Immigration Judge and the Board before the Ninth Circuit, and would undoubtedly express disappointment over the decision. But if so, why has it done nothing to continue to fight the case? The Eric Holder Justice Department never even sought rehearing en banc (asking all the judges on the Ninth Circuit Court of Appeals to rehear the case), or asked the Supreme Court to take the case and reverse Judge Reinhardt.
Does the Justice Department share Judge Reinhardt’s view that an illegal immigrant’s public exposure of his genitals does not satisfy the term “moral turpitude” thereby meriting deportation?
Why didn’t it appeal? The decision is far outside of the mainstream and not consistent even with the left-of-center California Supreme Court’s interpretation of sexual crimes. In fact, it is even inconsistent with an en banc decision of the Ninth Circuit from last year, Marmolejo-Campos v. Holder. The entire Ninth Circuit held that what constitutes moral turpitude should be decided by the Board of Immigration appeals, not Judge Stephen Reinhardt.
So why doesn’t the Department of Justice appeal Judge Reinhardt’s opinion about indecent exposure by illegal aliens? Does Attorney General Eric Holder agree with it?
Of course, Judge Reinhardt does not have the best record when his cases are appealed to the Supreme Court. The Ninth is reversed by the Supreme Court more than any other. Even when writing for a unanimous Ninth Circuit, Judge Reinhardt may be the judge most reversed by the Supreme Court.
The Obama Administration claims that it is vigorously enforcing the nation’s immigration laws. The Justice Department’s unprecedented lawsuit against Arizona for trying to address illegal immigration proves otherwise. It has also been exposed through the release of internal memos that show the Obama Administration making contingency plans to implement amnesty by administrative fiat if the Congress fails to pass comprehensive immigration reform.
The Administration has already begun implementing those plans through formal new DHS directives to its career enforcement officials, ordering them not to enforce the immigration laws for what it calls “minor vehicular offenses,” if they were committed by illegal aliens who have received a high school diploma and attended two years of college. In other words, if they satisfy the amnesty requirements of a proposed law not yet passed by Congress called the DREAM Act, the DHS orders an effective amnesty.
That’s right, the Administration is enforcing a policy that has yet to pass Congress. Welcome to Legal Wonderland. Curiouser and curiouser it is.
When questioned about administrative amnesty proposals, the DHS press flunkies say “DHS will not grant deferred action or humanitarian parole to the nation's illegal immigrant population." They say they will not suspend enforcement of immigration laws. And in truth, they don’t suspend the current laws for ALL illegal aliens, only for some.
They are giving breaks to a larger and select groups of illegal aliens. This is worse than a backdoor amnesty. This is a backdoor amnesty that flaunts the rule of law. No matter your individual beliefs about immigration policy, in a nation governed by the rule of law, as passed by Congress, we should all agree the Executive Branch can’t suspend laws they simply disagree with.
The Administration has never openly stated they are suspending the enforcement of the immigration laws against sexual offenders, and in fact claims that serious criminals are its highest priority. Yet, the Justice Department is doing nothing to fight extreme pro-criminal alien decisions like this one from Judge Reinhardt.
And this case is certainly not unique among Ninth Circuit decisions rejecting government efforts to remove criminal aliens for sexual crimes. In May, the Ninth Circuit ruled in Rivera-Cuartas v. Holder, that an Arizona statue that made sexual conduct with a minor under the age of 18 years old illegal is not always “sexual abuse of a minor.” This, despite the reality that under federal law such behavior is considered an aggravated felony and almost always results in removal from the United States. The Holder Justice Department has not fought back and appealed this bad decision either.
The Obama Administration’s failure to vigorously enforce the immigration laws is becoming increasingly clear, and its failure to appeal bad decisions protecting sexual offenders like Nunez is dangerous. Department of Justice inaction will prevent many other sexual offenders from being removed from the country, at least if they live in the Ninth Circuit. DOJ inaction speaks louder than spin.
Judge Reinhardt is quoted as once saying in reference to the Supreme Court, “They can’t catch them all.” He is right about that, especially if the Justice Department doesn’t even try.
FamilySecurityMatters.org Contributing Editor J. Christian Adams is an election law attorney and was formerly with the Department of Justice Voting Section. He resigned after the Justice Department dropped already won voter intimidation charges against the New Black Panther Party. His website is www.electionlawcenter.com.