(CN) – A Mexican immigrant’s conviction for indecent exposure is not necessarily a crime of “moral turpitude” warranting deportation, the 9th Circuit ruled Wednesday. The court cited nude dancing as an example of indecent exposure that’s not so “base, vile and depraved” as to “shock the public conscience.”
Judge Stephen Reinhardt acknowledged that moral turpitude is a “nebulous” term, but said it was clear that not all conduct banned by California’s indecent exposure law falls under the definition of moral turpitude.
He said the “fluid boundaries” of that phrase “have moved away from the rigid imposition of austere moral values on society as a whole and substantially in the direction of affording tolerance and individual liberty to those whose moral attitudes differ from the contemporary majority’s.”
Victor Ocegueda Nunez has lived in the United States since 1993, is married and has three children, all of whom are U.S. citizens. In 2003 he was ordered to leave the country based on his illegal status.
He applied for cancellation of removal, claiming his deportation would cause extreme hardship for his wife and children.
The immigration judge found Nunez ineligible for relief based on his convictions for petty theft in 1995 and indecent exposure in 2003. Both were crimes of moral turpitude, the judge said, and two such convictions trigger deportation. The Board of Immigration Appeals affirmed.
But the 2-1 panel in San Francisco agreed with Nunez, saying his indecent exposure did not constitute a crime of moral turpitude or vile offensiveness.
Indecent exposure under California law “is not categorically a crime involving moral turpitude,” Reinhardt ruled, and Nunez should not have been found ineligible for cancellation on those grounds.
“There is simply no overall agreement on many issues of morality in contemporary society,” he wrote, granting Nunez’s petition for review.
Judge Jay Bybee dissented, attacking the cases cited by the majority involving California’s tolerance of nude dancing at bars and school children exposing themselves to each other.
“Whatever Nunez did to get himself convicted of indecent exposure,” Bybee wrote, “we can be fairly confident that it involved more than being a nude dancer at a bar or a ‘tasteless prank.'”