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The 9th U.S. Circuit Court of Appeals has returned an illegal alien’s case to lower court after determining that kidnapping is not a sufficiently bad crime to require a convict’s deportation.
Officials at Judicial Watch, the government watchdog organization, said it may “seem like a bad joke,” but confirmed the court “spared an illegal immigrant convicted of kidnapping from deportation” because kidnapping is “not necessarily a crime of moral turpitude.”
Judicial Watch said it’s not the first time the 9th Circuit has “been kind to illegal immigrants with criminal records.”
“In separate 2010 rulings it spared an illegal alien from Mexico and a gangbanger from El Salvador – both convicted of serious crimes – from deportation,” Judicial Watch said.
“A few years earlier the 9th Circuit reversed a lower court ruling calling for the deportation of a Mexican immigrant convicted of having sex with a minor. In that ruling, the 9th Circuit claimed that while the crime violated state law and was unwise and socially unacceptable, it wasn’t base, vile or depraved enough to warrant deportation.”
The new case was highlighted in Judicial Watch’s Corruption Chronicles.
“The decision, issued this week by the famously liberal 9th Circuit Court of Appeals, rambles on for 27 pages and is almost comical,” Judicial Watch wrote.
Said the court opinion. “This undoubtedly appears to be a difficult question at first glance. Kidnapping is a serious crime, and our instincts may be that it would meet the moral turpitude definition. Not all serious crimes meet [the moral turpitude] standard, however. … Even for serious offenses, we must look to the specific elements of the statute of conviction and compare them to the definition of crimes involving moral turpitude. Here, the elements of simple kidnapping …. do not categorically have anything in common with the type of crime we have normally held to involve moral turpitude.”
The judges continued, “It can be committed without any intention of harming anyone, it need not result in actual harm, and it does not necessarily involve a protected class of victim. Only truly unconscionable conduct surpasses the threshold of moral turpitude.”
Said the judges, “Simple kidnapping, as interpreted by California courts, does not surpass that threshold. California courts have in fact applied the simple kidnapping statute to conduct that is clearly not morally turpitudinous. Therefore, we hold that simple kidnapping … is not a categorical crime of moral turpitude.”
The case involved Javier Castrijon-Garcia, who petitioned for review from the Board of Immigration Appeals’ decision finding him eligible for deportation “based on the BIA’s holding that a conviction for simple kidnapping … is a categorical crime involving moral turpitude.”
The decision sent the case back to the lower court for a determination on whether there is moral turpitude involved in the case.
The judges noted Castrijon is a citizen of Mexico who entered the U.S. in 1989, and has lived in the states since. He has three U.S. citizen children.
He was charged in 2007 for being in the U.S. illegally, and then applied an order canceling plans for his deportation.
But government records showed “that in 1992 Castrijon pled guilty to attempted kidnapping … and received a suspended sentence of 300 days in jail and 36 months of probation. During a hearing before the immigration judge, he explained that the incident occurred while he was with friends and that he did not know the victim.”
The BIA identified kidnapping as a crime of moral turpitude because it “involves readiness to do evil and is an offense that grievously offends the moral code of mankind in its inherent nature.”
The statute under which Castrijon was convicted provides: “Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.”
Judicial Watch said the court’s ruling means “the ‘simple kidnapping’ that this illegal immigrant committed doesn’t necessarily involve such evil intent and harm therefore it doesn’t constitute moral turpitude.”
“Keep in mind that the BIA has already determined that kidnapping is a serious enough crime that merits deportation, so the court is essentially ordering it to make an exception or change the criminal code,” Judicial Watch said.