* Ninth Circuit says no categorical "moral turpitude"
* Mexico native said removal would cause family hardship
By Jonathan Stempel
NEW YORK, Feb 10 (Reuters) - Nude dancing is not necessarily a crime of "moral turpitude" warranting deportation, a divided federal appeals court ruled.
Wednesday's 2-1 ruling by the Ninth Circuit Court of Appeals in San Francisco is a defeat for the federal government and a victory for Victor Ocegueda Nunez, who was seeking to avoid being sent back to his native Mexico.
A Justice Department spokesman said the government is reviewing the ruling. Cheryl Franke, a lawyer for Ocegueda, did not immediately return a call seeking comment.
According to the ruling, the government sought to deport Ocegueda, who had entered the country illegally in 1993, after he was convicted over a 10-year period of what it called two crimes of moral turpitude: petty theft and indecent exposure.
A federal immigration judge ordered Ocegueda's removal, and the Board of Immigration Appeals agreed. Ocegueda appealed, saying this would cause extreme hardship for his wife and three children, all of whom are U.S. citizens.
Writing for the Ninth Circuit, Judge Stephen Reinhardt wrote that while California's indecent exposure law punishes conduct that "offends the sensibilities of many, and perhaps most people," it does not "categorically" meet the federal standard for moral turpitude.
Citing a variety of case law, the judge also concluded that while the question of what constitutes moral turpitude is "nebulous," it is "as clear as can be" that nude dancing lies outside the definition.
"Erotic, completely nude dancing is offensive to many people," Reinhardt wrote. "It is not, however, so 'base, vile, and depraved' that it shocks the conscience."
Judge Jay Bybee dissented, accusing the majority of dismissing Ocegueda's conduct as "relatively harmless" without having any basis for its judgment.
"Whatever Ocegueda did to get himself convicted of indecent exposure, we can be fairly confident that it involved more than being a nude dancer at a bar or a 'tasteless prank,'" he wrote.
Bybee added that he was "quite confident that there is nude dancing going on in California bars even as I write this," and which yet is not resulting in arrests under California law.
Judge Milan Smith joined Reinhardt in the majority.
Reinhardt was appointed to the court by President Jimmy Carter. Bybee and Smith were appointed by President George W. Bush. The case was argued in April 2007.
The case is Ocegueda Nunez v. Holder, U.S. Ninth Circuit Court of Appeals, No. 06-70219. (Reporting by Jonathan Stempel; Additional reporting by James Vicini in Washington, D.C.; Editing by Gerald E. McCormick)