Full opinion text
FAGG, Circuit Judge. Myrisia Franklin, a Philippine citizen, was convicted of recklessly causing the death of her child, a crime classified as involuntary manslaughter under Mo.Rev.Stat. § 565.024.1(1) (Supp.1994). Under Missouri law, persons act recklessly when they “consciously disregard[ ] a substantial and unjustifiable risk that circumstances exist or that a result will follow, and [the] disregard constitutes a gross deviation from the standard of care [that] a reasonable person would exercise in the situation.” Mo.Rev.Stat. § 562.016.4 (Supp.1994). Following Franklin’s conviction, the Immigration and Naturalization Service brought deportation proceedings against Franklin under 8 U.S.C. § 1251(a)(2)(A)(i) (1994), which permits the deportation of an alien who is convicted of a “crime involving moral turpitude.” After a hearing, an immigration judge (IJ) decided Franklin’s crime involves moral turpitude and ordered Franklin deported. The Board of Immigration Appeals (BIA) affirmed the IJ’s decision. Contending she was not convicted of a crime involving moral turpitude, Franklin petitions for review. Whether a statute defines a crime that involves moral turpitude for deportation under § 1251(a)(2)(A)(i) is a question of federal law. Cabral v. INS, 15 F.3d 193, 196 n. 5 (1st Cir.1994). Like the BIA, we look to state law to determine the elements of the crime. Id. Otherwise, the consequences a state chooses to place on the conviction in its own courts under its own laws cannot control the consequences given to the conviction in a federal deportation proceeding. Yazdchi v. INS, 878 F.2d 166, 167 (5th Cir.) (per curiam), cert. denied, 493 U.S. 978, 110 S.Ct. 505, 107 L.Ed.2d 507 (1989). Contrary to Franklin’s view, we do not examine the factual circumstances surrounding her crime. Castle v. INS, 541 F.2d 1064, 1066 (4th Cir.1976) (per curiam). Thus, on de novo review we must decide whether the BIA has reasonably interpreted its statutory mandate to deport aliens convicted of crimes involving moral turpitude. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984); Arkansas AFL-CIO v. FCC, 11 F.3d 1430, 1440-41 (8th Cir.1993) (en banc). If the BIA’s interpretation is reasonable, “[we] cannot replace the agency’s judgment with [our] own.” Arkansas AFL-CIO, 11 F.3d at 1441. The Immigration and Nationality Act, 8 U.S.C. §§ 1101-1524 (1994), does not define the phrase “crime involving moral turpitude” and the Act’s legislative history does not shed any light on Congress’s intent. Cabral, 15 F.3d at 195. So “Congress left the [phrase] to future administrative and judicial interpretation.” Id. In filling this gap, the BIA decided years ago that when criminally reckless conduct requires a conscious disregard of a substantial and unjustifiable risk to the life or safety of others, although no harm was intended, the crime involves moral turpitude for immigration purposes. In re Medina, 15 I. & N.Dec. 611, 613-14 (BIA1976), aff'd sub nom. Medina-Luna v. INS, No. 76-1498, slip op. at 2 (7th Cir. Jan. 13, 1977) (unpublished opinion); In re Wojtkow, 18 I. & N.Dec. 111, 112-13 (BIA1981). Having consistently adhered to its view about crimes of reckless endangerment for nearly twenty years, the BIA’s interpretation is entitled to deference. See Arkansas AFL-CIO, 11 F.3d at 1441; Okoroha v. INS, 715 F.2d 380, 382 (8th Cir.1983). Because the Missouri definition of recklessness is nearly identical to the definitions in Medina and Wojtkow, the BIA applied the same interpretation in Franklin’s case. Although Franklin argued for a bright-line rule that involuntary manslaughter convictions do not involve moral turpitude, the BIA rejected her approach as unworkable in light of “the myriad [of] state classifications” for the crime. In re Franklin, No. [ A-XXXXXXXX ], 1994 WL 520990 (BIA Sept. 13, 1994). The BIA decided that it “must analyze the specific statute under which the alien [is] convicted on a case-by-case basis ... to determine whether the conviction is for a crime involving moral turpitude.” Id. After considering the Missouri statute under which Franklin was convicted as well as the relevant definition of recklessness, the BIA concluded that because Franklin’s crime “requires that she acted with a ‘conscious disregard of a substantial and unjustifiable risk,’ ... she has been convicted of a crime involving moral turpitude.” Id. (quoting Mo.Rev.Stat. § 562.016.4 (Supp. 1994)). Mindful that moral turpitude is a nebulous concept and there is ample room for differing definitions of the term, 3 Charles Gordon & Stanley Mailman, Immigration Law and Procedure § 71.05[1][d], at 71-146 to 71-149 (1994), we cannot say the BIA’s interpretation is unreasonable. Indeed, two other federal circuits have accepted the BIA’s finding of moral turpitude in criminally reckless conduct that is defined as the conscious disregard of a substantial and unjustifiable risk. Gutierrez-Chavez v. INS, No. 92-70104, 1993 WL 394916, at *2-5 (9th Cir. Oct. 6, 1993) (unpublished opinion); Medina-Luna v. INS, No. 76-1498, slip op. at 2 (7th Cir. Jan. 13, 1977) (unpublished opinion). We believe deference to the BIA’s view is particularly appropriate because applying the moral turpitude term in the context of the immigration laws entails “policy determinations [about deportation] that fall within the ambit of [the BIA’s] expertise.” Akindemowo v. INS, 61 F.3d 282, 285 (4th Cir.1995). In the framework of our deferential review, we cannot say the BIA has gone be^ yond the bounds of reasonableness in finding that an alien who recklessly causes the death of her child by consciously disregarding a substantial and unjustifiable risk to life has committed a crime that involves moral turpitude. Under the BIA’s longstanding definition of moral turpitude, Franklin’s crime can be fairly characterized as “ ‘ “an act of baseness, vileness, or depravity in the private and social duties which [persons] owe to [their] fellow [persons] or to society in general, [and is] contrary to the accepted and customary rule of right and duty between [persons].” ’ ” Marciano v. INS, 450 F.2d 1022, 1025 (8th Cir.1971) (quoted cases omitted), cert. denied, 405 U.S. 997, 92 S.Ct. 1260, 31 L.Ed.2d 466 (1972). We deny Franklin’s petition for review.
BENNETT, District Judge, dissenting. The deportation of Myrisia Franklin to the Philippines would be a miscarriage of justice. Before explaining why, I offer two observations based on extensive examination of deportation eases. First, such eases all too often receive from the BIA consideration that is both cursory and superficial. Second, the BIA often receives from the courts more deferential review than it is due. There are admittedly deportation cases that may be decided by the BIA with relative ease and dispatched with brevity. This is not such a case. The BIA must resist the temptation to dismiss deportation cases as treading all-too-familiar ground. Hiding in the apparently familiar landscape may be an issue that should send triers of fact and law up roads less traveled. This is such a case and compels such a journey. Because I conclude that neither the majority here nor the BIA below has applied the proper standards to determining whether Myrisia Franklin has been convicted of a crime involving moral turpitude, and hence is deportable, I dissent. I have three principal disagreements with the decisions in this cáse. ' First, I dissent from according the BIA deferential review of each of its determinations in this ease. Second, I dissent from the view that criminal recklessness can be a sufficient mental state to make a crime one in which moral turpitude necessarily inheres. Third, even if criminal recklessness could be deemed sufficient as that state of mind is sometimes defined, I find that neither the majority nor the BIA properly considered Missouri’s definition of the crime of which Myrisia Franklin was convicted in deciding that such a crime was one in which moral turpitude necessarily inheres. At bottom, I must conclude that involuntary manslaughter as defined under Missouri law simply is not a “crime involving moral turpitude,” subjecting an alien to deportation under § 241(a)(2)(A) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1251(a)(2)(A). Involuntary manslaughter has not been so viewed in more than two centuries of this country’s common law; the BIA’s decision below offers no reasoned basis for disregarding the exclusion of involuntary manslaughter from the realm of crimes involving moral turpitude in the common law and the BIA’s own prior decisions; involuntary manslaughter does not, as typically defined, involve the characteristic elements of a “crime involving moral turpitude”; and involuntary manslaughter certainly does not involve those characteristic elements as the crime is defined under Missouri law. I. THE GRAVITY OF DEPORTATION However, before I turn to these specific disagreements with the majority, I must first stress the gravity of the issue before the court. As the Supreme Court has emphasized on more than one occasion, “deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael, 332 U.S. 388 [68 S.Ct. 10, 92 L.Ed. 17 (1947) ]. It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty. To construe this statutory provision [former § 241(a)(4), now § 241(a)(2)(A) ] less generously to the alien might find support in logic. But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on [the alien’s] freedom beyond that which is required by the narrowest of several possible meanings of the words used.” Costello v. INS, 376 U.S. 120, 128, 84 S.Ct. 580, 585, 11 L.Ed.2d 559 (1964) (quoting Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433 (1948)); Rosenberg v. Fleuti, 374 U.S. 449, 458, 83 S.Ct. 1804, 1810, 10 L.Ed.2d 1000 (1963) (“the ‘interests at stake’ for the resident alien are ‘momentous,’ ” citing Delgadillo v. Carmichael, 332 U.S. 388, 391, 68 S.Ct. 10, 12, 92 L.Ed. 17 (1947), and DiPasquale v. Karnuth, 158 F.2d 878, 879 (2d Cir.1947)); Jordan v. DeGeorge, 341 U.S. 223, 231, 71 S.Ct. 703, 707-08, 95 L.Ed. 886 (1951) (also quoting Fong Haw Tan); Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433 (1948); Delgadillo v. Carmichael, 332 U.S. 388, 391, 68 S.Ct. 10, 12, 92 L.Ed. 17 (1947) (“[t]he stakes are indeed high and momentous for the alien who has acquired his residence here.”); Okoroha v. INS, 715 F.2d 380, 382 (8th Cir.1983) (“We are mindful that deportation is a harsh remedy,” citing Costello). The stakes in the present case are undeniably high. Furthermore, the BIA has held, and the courts have agreed, that for a crime to fit within the meaning of the statute that provides for deportation of aliens convicted of “crimes involving moral turpitude,” the alien must have been convicted of a crime that necessarily and inherently involves moral turpitude. Goldeshtein v. INS, 8 F.3d 645, 647 (9th Cir.1993); United States v. Chu Kong Yin, 935 F.2d 990, 1003 (9th Cir.1991); Wadman v. INS, 329 F.2d 812, 814 (9th Cir.1964); Tseung Chu v. Cornell, 247 F.2d 929, 935 (9th Cir.), cert. denied, 355 U.S. 892, 78 S.Ct. 265, 2 L.Ed.2d 190 (1957); Ablett v. Brownell, 240 F.2d 625 (D.C.Cir.1957); United States ex rel. Giglio v. Neelly, 208 F.2d 337 (7th Cir.1953); United States ex rel. Guarino v. Uhl, 107 F.2d 399 (2d Cir.1929). This case therefore involves both serious consequences for the alien and stringent requirements for the kind of criminal conduct on the part of the alien that can incur those consequences. II. STANDARD OF REVIEW Because I take issue with both the INS’s and the majority’s disposition of this ease, it is of critical importance that I first establish the proper standard of review by this court of the agency’s determination. On this question, I find that the majority has failed to appreciate what I believe to be a split in the circuits over what standard of review is applicable, or has extended deferential review of the INS’s interpretation of “moral turpitude” in this ease beyond its proper bounds. This may be attributable to a more general failure among the circuit courts of appeals to appreciate fully that the BIA’s determinations in deportation eases such as this involve interpretations of both federal and state law. When the BIA considers whether an alien should be deported pursuant to § 241(a)(2)(A), 8 U.S.C. § 1251(a)(2)(A), following the alien’s conviction of a state crime, the definition of “crime involving moral turpitude” under this section of the INA is a matter of federal law. See, e.g., Cabral v. INS, 15 F.3d 193, 196 n. 5 (1st Cir.1994). However, the elements and nature of the crime of which the alien has been convicted are matters of state law. See, e.g., Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 n. 2 (9th Cir.1994); Cabral, 15 F.3d at 196 n. 5 (citing In re H, 7 I. & N.Dec. 359, 360 (BIA1956)). A. “Reasonableness” Or ■ “De Novo” Review? Following a road well traveled, but rarely scrutinized, the majority has applied the standard of review for agency interpretations of statutes the agency is charged with implementing, citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). Pursuant to this standard of review, when a court is confronted with an instance in which neither Congress nor the statute in question provides guidance to the court for resolution of the correct interpretation of terms of the statute, the court may not automatically impose its own interpretation of the statute; instead, the court must apply the interpretation of. the agency charged with implementing the statute, provided the agency’s interpretation “is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. at 2782; see also Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 696-97, 111 S.Ct. 2524, 2533-34, 115 L.Ed.2d 604 (1991); Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 87, 95 S.Ct. 1470, 1485-86, 43 L.Ed.2d 731 (1975); Udall v. Tallman, 380 U.S. 1, 16-18, 85 S.Ct. 792, 801-02, 13 L.Ed.2d 616 (1965); Akindenovo v. INS, 61 F.3d 282, 284-85 (4th Cir.1995); and compare Mendoza v. INS, 16 F.3d 335, 337 (9th Cir.1994) (applying deferential review required by Chevron even though language of statute was plain and intent of Congress was therefore clear). Under Chevron, courts must accord the agency’s interpretation considerable deference, and “ ‘should not disturb [that interpretation] unless it appears from the statute or the legislative history that the accommodation is not one that Congress would have sanctioned.’ ” Chevron, 467 U.S. at 845, 104 S.Ct. at 2783 (quoting United States v. Shimer, 367 U.S. 374, 383, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961)); Akindenovo, 61 F.3d at 284-85. Thus, the court will defer to the agency’s interpretation if it is “rational and consistent with the statute.” NLRB v. United Food & Commercial Workers Union, Local 23, AFL-CIO, 484 U.S. 112, 123, 108 S.Ct. 413, 421, 98 L.Ed.2d 429 (1987); Chevron, 467 U.S. at 842-44, 104 S.Ct. at 2781-82 (describing the review as a determination of whether the agency’s interpretation is “reasonable”); Akindenovo, 61 F.3d at 284-85 (recognizing split in circuits over reasonableness of INS’s interpretation of “single scheme of criminal misconduct” in § 241(a)(2)(A)(ii), 8 U.S.C. § 1251(a)(2)(A)(ii)); Arkansas AFL-CIO v. FCC, 11 F.3d 1430, 1440-41 (8th Cir.1993) (en banc) (“reasonableness” is standard of review, and if the agency’s interpretation is “reasonable,” the court “cannot replace the agency’s judgment with [its] own.”). The INS argued for this standard of review in this case, citing Cabral v. INS, 15 F.3d 193, 194-95 (1st Cir.1994). In explaining what is required to overturn the INS’s interpretation of a deportation statute under Chevron’s “reasonableness” standard, the First Circuit Court of Appeals in Cabral held that “the interpretation given by the BIA is entitled to deference unless arbitrary, capricious, or manifestly contrary to the statute.” Cabral v. INS, 15 F.3d at 194; see also Mosquera-Perez v. INS, 3 F.3d 553, 555 (1st Cir.1993); Alvarez-Flores v. INS, 909 F.2d 1, 3 (1st Cir.1990) (rejecting a pure de novo review because Congress left gaps in the statute to agency interpretation). The Cabral court observed that although this standard is high, the court remains the final authority in matters of statutory interpretation and “ ‘must reject administrative constructions which are contrary to clear congressional intent.’ ” Cabral, 15 F.3d at 194 (quoting Mosquera-Perez, 3 F.3d at 555, in turn quoting Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. at 2781 n. 9). The reasonableness of the agency’s interpretation, under this standard of review, may be evidenced by the “reasoning process the [INS or BIA] followed in deciding where along the spectrum of possibilities” the proper definition of a statutory standard lies. See Jaramillo v. INS, 1 F.3d 1149, 1154 (11th Cir.1993) (en banc). The INS or the BIA has acted arbitrarily or capriciously if it “made a decision without a rational explanation, departed inexplicably from an established policy, or discriminated invidiously against a particular race or group.” Varela-Blanco v. INS, 18 F.3d 584, 587 (8th Cir.1994) (citing Rodriguez-Rivera v. INS, 993 F.2d 169, 170 (8th Cir.1993) (per curiam), for this standard in reviewing INS decision for abuse of discretion); Rodriguez-Rivera, 993 F.2d at 170 (also review of asserted abuse of discretion); see also Mahini v. INS, 779 F.2d 1419, 1420 (9th Cir.1986) (where review of agency action was for reasonableness, court looked to agency’s adherence to its own prior rulings). This standard of review was described in Cabral as “review de novo, according due deference to the BIA’s interpretation of the deportation statute,” see Cabral, 15 F.3d at 194; Mosquera-Perez, 3 F.3d at 554; Perl-era-Escobar v. INS, 894 F.2d 1292, 1296 (11th Cir.1990), but it is plain to me that where this court cannot come to its own, independent interpretation of state law, review is not de novo in any real sense. See Salve Regina College v. Russell, 499 U.S. 225, 237-38, 111 S.Ct. 1217, 1224-25, 113 L.Ed.2d 190 (1991) (finding that difference between deferential review and independent de novo review is that on independent review, the appellate court may reverse where it “would resolve an unsettled question of state law differently from the district court’s resolution, but cannot conclude that the district court’s determination constitutes clear error,” and holding that “[w]hen de novo review is compelled, no form of appellate deference is acceptable.”). Furthermore, the “de novo with deference” review in Cabral was based in part on the Supreme Court’s stated standard for review of an INS interpretation of a statutory standard stated in INS v. Jong Ha Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981) (per curiam), a pre-Chevron case. Cabral, 15 F.3d at 194. However, Jong Ha Wang did not involve judicial review of the INS’s interpretation of a purely statutory standard, but review of the INS’s interpretation of a matter specifically consigned by statute to the INS’s discretion. Jong Ha Wang, 450 U.S. at 145, 101 S.Ct. at 1031 (INS makes discretionary determination under § 244, 8 U.S.C. § 1254(a)(1), of whether “extreme hardship” should prevent deportation). Deference is obviously appropriate when the matter is consigned to the INS’s discretion in the first place; but that is not so here. The INS may well be charged with implementing the provisions for deportation for conviction of a “crime involving moral turpitude,” but the INS is not granted any discretion under § 241(a)(2)(A), 8 U.S.C. § 1251(a)(2)(A), in deciding whether a particular crime is one involving moral turpitude. Finally, the Cabral court’s principal authority for this standard of review, Mosqu-era-Perez, also did not involve review of a comparable issue. Although Mosquera-Per-ez did not involve review of a mátter in the INS’s discretion originally, nonetheless it involved review of a statutory construction of another provision of the immigration acts, § 243(h)(2)(B), 8 U.S.C. § 1253(h)(2)(B), concerning the question of whether an aggravated felony conviction constitutes an absolute bar to withholding deportation under that section. Mosquera-Perez, 3 F.3d at 554. Thus, the statute in question in Mosquera-Perez involved a purely federal question, i.e., construction of a federal statute by the federal agency charged with implementing that statute. No part of the meaning of the federal statutory standard nor its application in Mosquera-Perez concerned the definition of a crime under state law. I agree that a deferential review is appropriate in INS eases that properly fall within the parameters of a Chevron review. See Jaramillo, 1 F.3d at 1153 (“The Chevron rule of deference is fully applicable to the immi--gration area,” citing Jong Ha Wang as applying a similar standard of review in a pre-Chevron case). Deference is appropriate when the INS is granted discretion to decide a particular matter. For example, the INS is entitled to deferential review of its discretionary determination of whether or not an alien’s circumstances entitle the alien to relief from deportation under a statutory standard. See Jong Ha Wang, 450 U.S. at 145, 101 S.Ct. at 1031 (deferential review of INS’s discretionary determination under then § 244, 8 U.S.C. § 1254(a)(1), of whether “extreme hardship” should prevent deportation); Jaramillo, 1 F.3d at 1152-53 (another case cited for this deferential standard by the court in Cabral, but again involving the review of the INS’s discretionary denial of relief from deportation, this time under current § 212(c), 8 U.S.C. § 1182(c), which involved the question of when, the period of lawful unrelinquished domicile by the alien ended). Second, the INS is entitled to deference when it considers the meaning of terms in the statute it is charged with interpreting. Mosquera-Perez, 3 F.3d at 554 (deferential review of whether conviction- of an aggravated felony is an absolute bar to withholding of deportation under § 1253(h)(2)(B)). This is also a Chevron matter, and the meaning of the terms depends upon legislative history and federal agency and judicial interpretation. Similarly, I would find the deferential standard of review was appropriate as applied in Mendoza v. INS, 16 F.3d 335, 336 (9th Cir.1994), which considered the deportability of an alien depending on the meaning of “entry” in 8 U.S.C. § 1101(a)(13) and 8 U.S.C. § 1251(a)(2)(A)(i), because the meaning of the term at issue was exclusively a matter of federal law. In the present ease, I agree that this deferential standard of review is applicable to the INS’s, or BIA’s, resolution of one of the key questions with which it was presented, the proper definition of “crime involving moral turpitude” under § 241(a)(2)(A), 8 U.S.C. § 1251(a)(2)(A). The meaning of the phrase is a matter of federal law, based on Congressional intent so far as such intent can be perceived from the language of the statute or its legislative history, and, in the absence of such guidance, the meaning of the phrase is a matter for federal agency and federal judicial construction. See Chevron, 467 U.S. at 843, 104 S.Ct. at 2782; Cabral, 15 F.3d at 196 n. 5 (citing Babouris v. Esperdy, 269 F.2d 621, 623 (2d Cir.1959), cert. denied, 362 U.S. 913, 80 S.Ct. 662, 4 L.Ed.2d 620 (1960); Burr v. INS, 350 F.2d 87, 90 (9th Cir.1965), cert. denied, 383 U.S. 915, 86 S.Ct. 905, 15 L.Ed.2d 669 (1966)). By contrast, the Ninth Circuit Court of Appeals has held that whether or not a state statute defines a crime that necessarily involves moral turpitude for the purposes of the deportation provisions of § 241(a)(2)(A), 8 U.S.C. § 1251(a)(2)(A), is a question of law reviewed de novo, in the pure sense of that phrase — that is, without any deference to the decision below. See, e.g., Rodriguez-Herrera v. INS, 52 F.3d 238, 240 n. 4 (9th Cir.1995); Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir.1994); Goldeshtein v. INS, 8 F.3d 645, 647 n. 4 (9th Cir.1993); De La Cruz v. INS, 951 F.2d 226, 228 (9th Cir.1991) (per curiam); United States v. Chu Kong Yin, 935 F.2d 990, 1003-04 (9th Cir.1991); McNaughton v. INS, 612 F.2d 457, 459 (9th Cir.1980) (per curiam); Winestock v. INS, 576 F.2d 234, 235 (9th Cir.1978); Guerrero de Nodahl v. INS, 407 F.2d 1405, 1406-07 (9th Cir.1969). Indeed, these decisions do not make any mention in these circumstances of any deference to be accorded the agency’s determination. Thus, I perceive a split of authority, or, at least, a fundamental difference in approach to or perception of the issue, in appellate reviews of INS cases. Compare Cabral, 15 F.3d at 194 (review of BIA’s determination that alien has been convicted of a crime involving moral turpitude is reviewed under Chevron standards); with Rodriguez-Herrera, 52 F.3d at 240 n. 4 (review of BIA’s determination of whether or not a crime defined by state law is one involving moral turpitude is de novo). I explain that split as the result of the appellate courts either making or failing to make a distinction between construction of a federal statute by the agency charged with its implementation, on the one hand, and application of the federal statute so construed to a particular crime defined by state law, which involves construction of the state law as well, on the other hand. The Ninth Circuit Court of Appeals regards this latter situation as involving a question of law reviewed without any deference to the agency’s conclusions. Indeed, in the Ninth Circuit Court of Appeals cases cited above, the reviewing court did not even consider the “reasonableness” of the INS’s definition of “crime involving moral turpitude.” The court instead considered only whether the INS erred as a matter of law in concluding that the crime defined by state law was one that involved the essential elements of a crime involving moral turpitude as the INS, the BIA, and the federal courts had defined “crime involving moral turpitude.” Thus, when we turn to the question of the application of the INS’s definition of “crime involving moral turpitude” to a crime as defined by state law, I do not believe that the INS is entitled to any deference at all. I can see no difference, for purposes of the appropriate standard of appellate review, between the INS’s interpretation of state law defining a criminal offense, when the INS tries to determine whether a crime of the nature defined by that state law necessarily involves moral turpitude, and interpretation of state law by a federal district court. Although the former was reviewed deferentially until 1991, in this and a majority of other circuits, see, e.g., Parmenter v. FDIC, 925 F.2d 1088, 1092 (8th Cir.1991) (“[W]e defer to the district court’s interpretation of applicable state law,” citing Economy Fire & Cas. Co. v. Tri-State Ins. Co. of Minnesota, 827 F.2d 373, 375 (8th Cir.1987)); Ackley State Bank v. Thielke, 920 F.2d 521, 524 (8th Cir.1990) (“We give substantial weight to district judges and bankruptcy judges in interpreting state law,” citing Grenz Super Valu v. Fix, 566 F.2d 614, 615 (8th Cir.1977)); Norton v. St. Paul Fire & Marine Ins. Co., 902 F.2d 1355, 1357 (8th Cir.1990) (“In general, we accord substantial deference to a district court’s interpretation of the law of the state in which it sits.”), that is no longer the case. See, e.g., Michalski v. Bank of Am. Arizona, 66 F.3d 993, 995-96 (8th Cir.1995) (“[T]he district court’s interpretation of Minnesota law is ... subject to de novo review.”); Damron v. Herzog, 67 F.3d 211, 213 (9th Cir.1995) (“We review de novo the district court’s interpretation of state law.”); Ventura v. Titan Sports, Inc., 65 F.3d 725, 729 (8th Cir.1995) (“[w]e review the district court’s interpretation of Minnesota law de novo.”); Kostelec v. State Farm Fire & Cas. Co., 64 F.3d 1220, 1225 (8th Cir.1995) (“Of course, we review the district court’s interpretation of state law de novo.”). The reason for the change in the standard of appellate review of district court interpretations of state law is that, in 1991, the United States Supreme Court decided Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). In Salve Regina College, the Court rejected the rule of deference embraced by the majority of the circuit courts of appeals. Salve Regina College, 499 U.S. at 231, 111 S.Ct. at 1221. The Court concluded first that “[t]he obligation of responsible appellate jurisdiction implies the requisite authority to review independently a lower court’s determinations. Independent appellate review of legal issues best serves the dual goals of doctrinal coherence and economy of judicial administration.” Id. The court recognized that the function of the district courts is different from that of the appellate courts: District judges preside over fast-paced trials: Of necessity they devote much of their energy and resources to hearing witnesses and reviewing evidence. Similarly, the logistical burdens of trial advocacy limit the extent to which trial counsel is able to supplement the district judge’s legal research with memoranda and briefs. Thus, trial judges often must resolve complicated legal questions without benefit of “extended reflection [or] extensive information.” [ (Citation omitted) ]. Courts of appeals, on the other hand, are structurally suited to the collaborative judicial process that promotes decisional accuracy. With the record having been constructed below and settled for purposes of the appeal, appellate judges are able to devote their primary attention to legal issues. As questions of law become the focus of appellate review, it can be expected that the parties’ briefs will be refined to bring to bear on the legal issues more information and more comprehensive analysis than was provided for the district judge.... Independent appellate review necessarily entails a careful consideration of the district court’s legal analysis, and an efficient and sensitive appellate court at least will naturally consider this analysis in undertaking its review. Id. at 232, 111 S.Ct. at 1221. I find nothing about this description of the roles of the tribunals that is inapposite to the relationship between the BIA and the courts of appeals. Both the BIA and, of course, the INS more generally, have very significant case loads of “moral turpitude” cases in which factual issues and time pressures may significantly outweigh any immigration judge’s or BIA member’s ability to address complicated legal questions, such as the correct interpretation of state law. The BIA certainly has no more expertise or understanding of state law than does the district court, see Norton, 902 F.2d at 1357 (suggesting that district court’s “expertise” in interpreting the law of the state in which it sits is a basis for deferential appellate review), although it may well have fewer facilities to make a proper examination and interpretation of state law based upon interpretations by the state’s courts than does a district court. This factor would certainly suggest that the BIA should be accorded less deference in its interpretations of state law than is the district court. However," if the appellate court encounters a decision of either the BIA or a district court in which the tribunal’s “analytical sophistication and research have exhausted the state-law inquiry,” then “little more need be said in the appellate opinion.” Id. at 233, 111 S.Ct. at 1222. I see absolutely no reason why a federal agency or agency tribunal should be accorded more deference than a federal court in interpreting state law upon which its decisions may depend. Indeed, it strikes me as odd that one would suggest otherwise. In deciding whether a. crime defined by state law is a crime in which moral turpitude necessarily inheres, the BIA is performing precisely the same sort of interpretation of the requirements and meaning of state law as is a federal court interpreting and applying state law. In my opinion, therefore, when the question is whether a particular crime defined by state law fits within the federal standard for a “crime involving moral turpitude,” the state-law definition of the crime and whether that definition necessarily involves moral turpitude under the federal standard are questions of law that should be subject to pure de novo review without any deference to the INS’s conclusions. See, e.g., Rodriguez-Herrera, 52 F.3d at 240 n. 4; Gonzalez-Alvarado, 39 F.3d at 246; Goldeshtein, 8 F.3d at 647 n. 4; and compare Cabral, 15 F.3d at 196 (state law determines the elements of the offense of conviction, citing In re H, 71 I. & N.Dec. 359, 360 (BIA1956), but applying deferential review to INS’s application of standard to crime as defined by state law). I recognize that in Okoroha, the Eighth Circuit Court of Appeals also applied the deferential standard of review to the question of whether or not a particular crime was a “crime involving moral turpitude” for deportation purposes. Okoroha, 715 F.2d at 382 (citing Jong Ha Wang, 450 U.S. at 139, 101 S.Ct. at 1027). However, for the reasons stated here I would overrule Okoroha on this point. Nonetheless, I agree that, under the proper standard of review, the crime in question in Okoroha, possession of stolen mail, is indeed a “crime involving moral turpitude.” See Okoroha, 715 F.2d at 382 (knowledge that mail was stolen was an element of the offense, which therefore was a crime involving moral turpitude). To summarize in the light of issues before this court, in my view, whether the INS has properly defined “crime involving moral turpitude” is a matter in which the INS is entitled to deference as the agency charged with implementing the immigration statute. However, how the crime in question is defined under state law, and whether the nature of the crime under state law defines a crime that necessarily involves moral turpitude, are questions of law for the appellate court to review de novo with no deference to the INS’s conclusions whatsoever. B. The Basis For Determinations Although I disagree with giving any deference to the BIA’s or the INS’s conclusions about whether a particular crime is one necessarily involving moral turpitude, I agree with the majority that in determining whether the crime of which the alien has been convicted falls within one of the grounds for deportation under § 241(a)(2)(A), both the court and the BIA look only at the definition of the crime under state law, and not at the underlying facts and circumstances of the alien’s particular offense. Ramsey v. INS, 55 F.3d 580, 583 (11th Cir.1995) (interpretation of “aggravated felony” under § 241 (a)(2)(A)(iii), 8 U.S.C. § 1251(a)(2)(A)(iii)); Rodriguez-Herrera, 52 F.3d at 239-40 (interpretation of “moral turpitude” under § 241(a)(2)(A)(i) & (ii)); Gonzalez-Alvarado, 39 F.3d at 246 (“moral turpitude”); United States v. Reyes-Castro, 13 F.3d 377, 379 (10th Cir.1993) (“aggravated felony”); Goldeshtein, 8 F.3d at 647 (“moral turpitude”); McNaughton v. INS, 612 F.2d 457, 459 (9th Cir.1980) (“moral turpitude”); United States ex rel. Robinson v. Day, 51 F.2d 1022, 1022-23 (2d Cir.1931) (“moral turpitude”). Thus, in addition to the state-law definition of the crime charged, both the BIA and the reviewing court look only at the record of conviction, which includes the crime as described in the indictment or information, the plea, the verdict or judgment, and the sentence, but not any evidence offered in the case or other facts or circumstances involved. Cabral, 15 F.3d at 196 & n. 6; United States v. Chu Kong Yin, 935 F.2d 990, 1003 (9th Cir.1991) (BIA and reviewing court are limited to the record of conviction and may not look behind the record to the facts of the individual case); Alleyne v. U.S. INS, 879 F.2d 1177, 1185 (3d Cir.1989) (same); but see Kabongo v. INS, 837 F.2d 753, 758 (6th Cir.) (court looked at “facts of the present case, where petitioner has acknowledged his false statements and the statements made to defraud the United States Government,” to find that “the convie-tions may be considered as involving moral turpitude for purposes of denying voluntary departure.”), cert. denied, 488 U.S. 982, 109 S.Ct. 533, 102 L.Ed.2d 564 (1988); Wadman v. INS, 329 F.2d 812, 814 (9th Cir.1964) (“record of conviction” includes “the indictment or information, plea, verdict or judgment and sentence”); Matter of Ghunaim, 15 I. & N.Dec. 269, 270 (BIA1975) (record of conviction includes “charge or indictment, the plea, the judgment or verdict, and the sentence,” citing United States ex rel. Teper v. Miller, 87 F.Supp. 285, 287 (S.D.N.Y.1949)). Refusal to consider anything but a categorical definition of the crime involved appears to be almost universal in majority decisions. Thus, appellant’s arguments based on the facts in her specific case do not persuade me any more than they did the majority. Although I find universal agreement that the state law defining the criminal offense of which the alien has been convicted, and not the facts or circumstances involved in the individual alien’s ease, is the basis for determining whether or not the crime of which the alien has been convicted is one involving moral turpitude, I do not find universal agreement on what, precisely, is meant by “state law” defining the offense. The state law element is often stated in limited terms as the state statute defining the offense. See, e.g., Rodriguez-Herrera, 52 F.3d at 239 (“[W]e must focus on the crime categorically as defined by the [Washington] stat-ute_”); Gonzalez-Alvarado, 39 F.3d at 246 n. 2 (“[W]e consider the elements or nature of a crime as defined by the relevant statute, not the actual conduct that led to the conviction.”); Goldeshtein, 8 F.3d at 647. However, the state law definition of the crime has also been described as consisting of both the statute and decisions of the state’s highest court construing the statute. See, e.g., Grageda v. U.S. INS, 12 F.3d 919, 921 (9th Cir.1993) (“Whether a particular crime involves moral turpitude ‘is determined by the statutory definition or by the nature of the crime not by the specific conduct that resulted in the conviction,’ ” quoting McNaughton v. INS, 612 F.2d 457, 459 (9th Cir.1980)); Gutierrez-Chavez v. INS, 8 F.3d 26 (Table), 1993 WL 394916, **2-**3 (9th Cir.1993) (court looked to decisions of state’s highest court to determine proper interpretation of intent element of Alaska statute for purposes of determining whether crime of second degree theft was a “crime involving moral turpitude”); Holzapfel v. Wyrsch, 259 F.2d 890, 892 (3d Cir.1958) (looking to state case law to interpret a “relatively new and novel piece of legislation” defining a sex offense by statute). Our own circuit court of appeals has looked to the interpretation of statutorily-defined crimes by the state’s highest court in determining whether or not the crime so defined necessarily involves moral turpitude. Marciano v. INS, 450 F.2d 1022, 1024 (8th Cir.1971), cert. denied, 405 U.S. 997, 92 S.Ct. 1260, 31 L.Ed.2d 466 (1972). Nor has the BIA been reluctant to look to the decisions of the state’s highest court when interpreting the elements of the offense of which the alien is convicted to determine whether those elements include the necessary elements for the crime to be one that inherently involves moral turpitude. See, e.g., Matter of Ghunaim, 15 I. & N.Dec. 269, 270 (BIA1975) (looking at decisions of Ohio courts to determine whether the manslaughter statute in question included both voluntary and involuntary manslaughter, because involuntary manslaughter did not involve moral turpitude); Matter of Szegedi, 10 I. & N.Dec. 28, (BIA1962) (looking at decisions of Wisconsin Supreme Court to determine elements distinguishing degrees of murder and manslaughter in order to determine which crimes involved the necessary intent element to be crimes involving moral turpitude). I believe that a focus solely on the statutory language is improper, because it permits a “categorical” definition of the crime that may, in fact, be out of step with the case law of the state interpreting the statutory elements. This case, as I shall show, vividly demonstrates this problem. Looking at how a state’s highest court has construed the elements of a crime defined by a state statute comports with common sense and is the best way to insure that the constitutional requirement of a “uniform rule of naturalization,” U.S. Const, art. I, § 8, cl. 4, is met. Cf. Nemetz v. INS, 647 F.2d 432, 435 (4th Cir.1981) (reference to state statutes to determine whether a crime of moral turpitude had been committed by an alien seeking to prove his good moral character for purposes of naturalization undermined constitutional requirement of a “uniform rule of naturalization”). It is readily apparent that the highest courts of different states may construe nearly identical statutory language in different ways, and thus mere identity of statutory language does not necessarily indicate identical elements of the offenses, or identical meaning of those elements, as they are defined by comparable statutes. However, where the BIA and the reviewing courts look to the judicial interpretation of a criminal statute by the state’s highest court, the BIA and the reviewing court can determine whether the crime necessarily involves moral turpitude, not just whether it appears to define a crime in which moral turpitude necessarily inheres. Goldeshtein, 8 F.3d at 647 (crime must be one in which moral turpitude necessarily inheres); Chu Kong Yin, 935 F.2d 990, 1003 (9th Cir.1991) (same); Wadman v. INS, 329 F.2d 812, 814 (9th Cir.1964) (same); Tseung Chu v. Cornell, 247 F.2d 929, 935 (9th Cir.) (same), cert. denied, 355 U.S. 892, 78 S.Ct. 265, 2 L.Ed.2d 190 (1957). “Uniformity” would thereby be served, not undermined. The standard would be uniformly applied to the same category of criminal conduct, not just to crimes described in the same or similar language. Nor does looking to state judicial explications of the elements of an offense make the effect of the federal statute “depend upon the niceties and nuances of a state procedure.” Burr v. INS, 350 F.2d 87, 90 (9th Cir.1965); see also Babouris v. Esperdy, 269 F.2d 621, 623 (2d Cir.1959) (“It is not to be supposed that Congress intended an alien’s deportability to be determined by the various classifications of misconduct evolved by the states for jurisdictional or other internal application.”). The federal standard remains intact; state ease law is only relevant to deciding whether the crime does indeed involve the elements of moral turpitude required under the federal standard, as the crime is defined by the courts properly charged with interpreting the criminal statute in question and deciding cases under it. Having examined why I disagree with the majority on the question of what standard of review is applicable to which issues presented in this appeal, and the basis upon which the BIA’s and the appellate court’s decisions should be made, I will next turn to the opinion of the BIA that is under review here, then to the questions involved in deciding whether or not the BIA’s decision in this ease should stand. III. THE DECISION BELOW In the decision below, the BIA considered solely the issue of whether Franklin’s conviction for involuntary manslaughter under Missouri law had been for a crime involving moral turpitude as required by the applicable statute. The BIA defined moral turpitude as referring generally to “conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and duties owed between persons or to society in general,” citing two prior BIA decisions, Matter of Danesh, 19 I. & N.Dec. 669 (BIA1988), and Matter of Flores, 17 I. & N.Dec. 225, 227 (BIA1980). The BIA also recognized that moral turpitude has been defined as “an act which is per se morally reprehensible and intrinsically wrong, or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude,” citing Matter of P., 6 I. & N.Dec. 795 (BIA1955). The BIA found that the crime of which Franklin was convicted, involuntary manslaughter under Mo.Rev.Stat. § 565.024, involved “recklessly causing] the death of another person.” The BIA next found that Missouri’s statutory definition of “reckless” as “a conscious disregard of a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation,” Mo.Rev.Stat. § 562.016(4), necessarily involved moral turpitude as an element of the offense of which Myrisia Franklin had been convicted. The BIA’s decision was based on similar definitions of criminally reckless conduct found by the BIA to involve moral turpitude in two prior decisions, Matter of Medina, 15 I. & N.Dec. 611 (BIA 1976), aff'd sub nom. Medina-Luna v. INS, 547 F.2d 1171 (7th Cir.1977), and Matter of Wojtkow, 18 I. & N.Dec. 111 (BIA 1981). The BIA rejected the argument that its own prior cases had historically distinguished between voluntary and involuntary manslaughter, finding the former were crimes involving moral turpitude while the latter were not, on the ground that such decisions ante-dated the decisions holding that criminally reckless conduct could involve moral turpitude. The BIA also rejected a black-letter conclusion that involuntary manslaughter never involves moral turpitude, finding that the specific statute under which the alien was convicted must be examined on a ease-by-case basis. Finally, the BIA specifically overruled its prior cases holding that involuntary manslaughter is not a crime involving moral turpitude. IV. ANALYSIS I turn now to whether or not I would let stand the BIA’s decision in this case. I look first at the question of the propriety of the INS’s construction of the phrase “crime involving moral turpitude.” As I concluded above, this question is properly a matter reviewed under the Chevron standard to determine the “reasonableness” of the INS’s construction. An analysis of the reasonableness of the INS’s interpretation of the statute should be conducted in light of the legislative history and purpose of the statute. See, e.g., Chevron, 467 U.S. at 845, 104 S.Ct. at 2783; Ramsey, 55 F.3d at 582 (discussion of INS’s interpretation of “aggravated felony” in § 241(a)(2)(A)(iii) “begins with the text and relevant history” of the provision). However, all of the decisions I have examined that consider the meaning of moral turpitude have relied heavily on prior precedent to decide the reasonableness of including any category of crimes within that definition. I have no doubt that the reasonableness of the BIA’s interpretation should therefore also be tested in light of precedent, both BIA and judicial, or our system of judicial decision making and judicial review means nothing. See, e.g., Mahini v. INS, 779 F.2d 1419, 1420 (9th Cir.1986) (where review of agency action is for reasonableness, court looked to agency’s adherence to its own prior rulings). Furthermore, unlike the terms used in the Clean Air Act Amendments of 1977, which were the statutory provisions the meaning of which was at issue in Chevron, see Chevron, 467 U.S. at 840, 104 S.Ct. at 2780, the phrase “crime involving moral turpitude” has a long, history of meaning under the common law and the statutory law of the United States and the various states. It seems to me that it would be inappropriate to consider the reasonableness of the INS’s interpretation, even of this phrase in a statute the INS is charged with implementing, without giving due consideration to the meanings and elements of the phrase as found by the courts. A. Purpose And History The Supreme Court has observed that the “general legislative purpose” of the predecessor to the present § 241(a)(2)(A), former § 241(a)(4) of the Immigration and Nationality Act of 1952, was to “broaden the provisions governing deportation, ‘particularly those referring to criminal and subversive aliens.’” Costello, 376 U.S. at 125, 84 S.Ct. at 583 (citing Commentary on the Immigration and Nationality Act, Walter M. Bester-man, Legislative Assistant to the House Committee on the Judiciary, 8 U.S.C.A., pt. I, p. 61). However, the “moral turpitude” ground for deportation has a much longer history. The term “moral turpitude” first appeared in the Immigration Act of March 3, 1891, 26 Stat. 1084, which directed the exclusion of “persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude.” Jordan, 341 U.S. at 229, 71 S.Ct. at 707. The “moral turpitude” provision was reenacted in similar form in the Immigration Act of 1903, § 2, Act of March 3, 1903, 32 Stat. 1213, and again in the Immigration Act of 1907, § 2, Act of February 20, 1907, 34 Stat. 898. Id. Prior to the Act of 1952, the “moral turpitude” provision was found in § 19 of the Immigration Act of 1917, 8 U.S.C. § 155(a). See, e.g., Jordan, 341 U.S. at 224, 71 S.Ct. at 704. The “crime involving moral turpitude” provision of the immigration acts was § 241(a)(4) of the Act of 1952, 8 U.S.C. § 1251(a)(4). Costello, 376 U.S. at 125, 84 S.Ct. at 583. There the provision remained until passage of the Immigration Act of 1990, which revised and recodified the relevant provision to § 241(a)(2)(A), 8 U.S.C. § 1251(a)(2)(A). Rodriguez-Herrera, 52 F.3d at 239 n. 1; Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 n. 2 (9th Cir.1994). As the Supreme Court noted in Jordan, a decision considering whether the phrase “crime involving moral turpitude” lacked sufficiently definite standards to justify deportation proceedings, “moral turpitude” is an issue that arises in circumstances other than deportation proceedings: The term “moral turpitude” has deep roots in the law. The presence of moral turpitude has been used as a test in a variety of situations, including legislation governing the disbarment of attorneys and the revocation of medical licenses. Moral turpitude also has found judicial employment as a criterion in disqualifying and impeaching witnesses, in determining the measure of contribution between joint tort-feasors, and in deciding whether certain language is slanderous. Jordan, 341 U.S. at 227, 71 S.Ct. at 705-06 (footnotes omitted). The Supreme Court subsequently added to this list of uses of the “moral turpitude” standard when it considered a provision of the Alabama Constitution of 1901 which disqualified voters convicted of “any ... crime involving moral turpitude.” Hunter v. Underwood, 471 U.S. 222, 226, 105 S.Ct. 1916, 1919, 85 L.Ed.2d 222 (1985). More generally, one of the classic dichotomies of criminal law is the distinction between crimes that involve moral turpitude and those that do not. See generally New Jersey v. T.L.O., 469 U.S. 325, 379 n. 21, 105 S.Ct. 733, 763, n. 21, 83 L.Ed.2d 720 (1985) (Stevens, concurring in part and dissenting in part) (noting dichotomy in classification of crimes as “misdemeanors or felonies, malum prohibitum or malum in se, crimes that do not involve moral turpitude or those that do, and major and petty offenses,” citing generally W. LaFave, Handbook on Criminal Law § 6 (1972)); Kempe v. United States, 151 F.2d 680, 688 (8th Cir.1945) (noting that crimes have been divided according to their nature into crimes mala in se and crimes mala prohibita, and noting further that “[generally, but not always, crimes mala in se involve moral turpitude, while crimes mala prohibita do not.”); and compare Matter of P., 6 I. & N. Dec. 795 (BIA 1955) (cited by the BIA below for its definition of moral turpitude as “an act which is per se morally reprehensible and intrinsically wrong, or ma-lum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude,” thus equating crimes mala in se with crimes involving moral turpitude). Nonetheless, despite its use in a number of circumstances and presence as a standard for deportation in the immigration laws of the United States for just over a century, the meaning of the phrase “crime involving moral turpitude” has defied absolute definition. Jordan, 341 U.S. at 233, 71 S.Ct. at 709 (Jackson, J., dissenting). Athough there is general agreement that in order to be grounds for deportation, the crime of which the alien is convicted must be one that necessarily involves moral turpitude, see, e.g., Goldeshtein, 8 F.3d at 647 (crime must be one in which moral turpitude necessarily inheres); Chu Kong Yin, 935 F.2d at 1003 (same); Wadman, 329 F.2d at 814 (same); Tseung Chu, 247 F.2d at 935 (same); Ablett v. Brownell, 240 F.2d 625 (D.C.Cir.1957); United States ex rel. Giglio v. Neelly, 208 F.2d 337 (7th Cir.1953); United States ex rel. Guarino v. Uhl, 107 F.2d 399 (2d Cir.1939), courts have often had extreme difficulty determining whether specific crimes are crimes that meet this requirement. See, e.g., Dunn v. INS, 419 U.S. 919, 923, 95 S.Ct. 197, 199, 42 L.Ed.2d 156 (1974) (Stewart, J., dissenting from denial of certiorari) (“It is far from clear that refusing induction is a ‘crime involving moral turpitude.’ ”). B. Lack Of Congressional Guidance The difficulties faced by the courts and admittedly confronted by the INS are not entirely of their own making. As the dissenters in Jordan observed, and no court, to my knowledge, has ever disagreed, “The uncertainties of this statute do not originate in contrariety of judicial opinion. Congress knowingly conceived it in confusion.” Jordan, 341 U.S. at 233, 71 S.Ct. at 709 (Jackson, J., dissenting). Only a very few courts have looked to legislative history for some guidance on the meaning of the “moral turpitude” provision in the deportation acts, and all of these, like the dissenters in Jordan, have pointed to the comments of Rep. Sabath in the hearings of the House Committee on Immigration on what eventually became the Act of 1917: [Y]ou know that a crime involving moral turpitude has not been defined. No one can really say what is meant by saying a crime involving moral turpitude. Under some circumstances, larceny is considered a crime involving moral turpitude — that is, stealing. We have laws in some States under which picking out a chunk of coal on a railroad track is considered larceny or stealing. In some States it is considered a felony. Some States hold that every felony is a crime involving moral turpitude. In some places the stealing of a watermelon or a chicken is larceny. In some States the amount is not stated. Of course, if the larceny is of an article, or a thing which is less than $20 in value, it is a misdemeanor in some States, but in other States there is no distinction. Hearings before House Committee on Immigration and Naturalization on H.R. 10884, 64th Cong., 1st Sess. 8 (comments of Rep. Sabath); see also Jordan, 341 U.S. at 233-34, 71 S.Ct. at 709-10 (Jackson, J., dissenting) (quoting this passage); Cabral, 15 F.3d at 195 (quoting these comments and recognizing Justice Jackson’s quotation of them in support of the First Circuit Court of Appeals’ conclusion that “[t]he legislative history leaves no doubt ..'. that Congress left the term ‘crime involving moral turpitude’ to further administrative and judicial interpretation.”). Justice Jackson observed that “[d]e-spite this notice, Congress did not see fit to state what meaning it attributes to the phrase ‘crime involving moral turpitude.’ ” Id. at 234, 71 S.Ct. at 709. C. The Anecdotal Approach To Defining “Crimes Involving Moral Turpitude” In the face of the difficulty of determining what crimes involve moral turpitude and the lack of congressional guidance as to the meaning of the phrase, courts have approached the problem of defining the phrase “crime involving moral turpitude” in anecdotal fashion. Courts have found consistently that certain categories of crimes involve “moral turpitude,” but whether or not “moral turpitude” inheres in other categories of crimes has left courts if not lost, at least bewildered. I shall wander first through the safe ground in the “moral turpitude” landscape, before venturing, with no small trepidation, into the terra incognita which I believe is the place where this ease can be found. Some cases, as I said at the outset of this dissent, in which an alien is found deportable for commission of a crime assertedly involving moral turpitude, can be decided with relative ease and dispatched with brevity. Such “easy” cases are those in which the alien has been convicted of a crime with an element of fraud. Over four decades ago, the Supreme Court found that “[wjithout exception, federal and state courts have held that a crime in which fraud is an ingredient involves moral turpitude.” Jordan, 341 U.S. at 227, 71 S.Ct. at 706. Furthermore, [i]n every deportation case where fraud has been proved, federal courts have held that the crime in issue involved moral turpitude. This has been true in a variety of situations involving fraudulent conduct: obtaining goods under fraudulent pretenses; conspiracy to defraud by deceit and falsehood; forgery with intent to defraud; using the mails to defraud; execution of chattel mortgage with intent to defraud; concealing assets in bankruptcy; issuing checks with intent to defraud. In the state courts, crimes involving fraud have universally been held to involve moral turpitude. Moreover, there have been two other decisions by courts of appeals prior to the decision now under review on the question of whether the particular offense before us in this case [conspiracy to violate the internal revenue laws by possessing and concealing distilled spirits with intent to defraud the United States of taxes] involves moral turpitude within the meaning of § 19(a) of the Immigration Act.... In view of these decisions, it can be concluded that fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude. It is therefore clear, under an unbroken course of judicial decisions, that the crime of conspiring to defraud the United States is a “crime involving moral turpitude.” Id. at 227-29, 71 S.Ct. at 706-07; see also Izedonmwen v. INS, 37 F.3d 416, 417 (8th Cir.1994) (‘“crimes in which fraud was an ingredient have always been regarded as involving moral turpitude,’” quoting Jordan, 341 U.S. at 232, 71 S.Ct. at 708); Mendoza v. INS, 16 F.3d 335, 336 (9th Cir.1994) (no issue on appeal of whether welfare fraud constituted “crime involving moral turpitude”; issue was whether alien’s return after three-day departure constituted “entry” within meaning of 8 U.S.C. § 1101(a)(13) and 8 U.S.C. § 1251(a)(2)(A)(i)); Kabongo v. INS, 837 F.2d 753, 758 n. 8 (6th Cir.), cert. denied, 488 U.S. 982, 109 S.Ct. 533, 102 L.Ed.2d 564 (1988) (fraud crimes are always crimes involving moral turpitude); Winestock v. INS, 576 F.2d 234, 235 (9th Cir.1978) (same); Lozano-Giron v. INS, 506 F.2d 1073, 1077 (7th Cir.1974) (same); Burr v. INS, 350 F.2d 87, 91 (9th Cir.1965) (same). Indeed, for some courts, the absence of an element of fraudulent conduct from the definition of the crime has been sufficient to find that the crime was not one involving moral turpitude. See, e.g., Chaunt v. United States, 364 U.S. 350, 353, 81 S.Ct. 147, 149-50, 5 L.Ed.2d 120 (1960) (breach of peace not a crime involving moral turpitud