* Ninth Circuit says no categorical "moral turpitude"
* Mexico native said removal would cause family hardship
By Jonathan Stempel
NEW YORK, Feb 10 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
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)