Scholars Sidebar: Cheering for the Criminal Alien

Last week’s arrest of Cleveland Indians pitcher Fausto Carmona suggests that the Indians lineup card might need a makeover. The right-hander who won 19 games for Cleveland in 2007 and 13 in 2010 might not be who he says he is. Dominican authorities claim he’s actually 31-year-old Roberto Hernández Heredia, not the 28-year-old the Indians think he is.

The Dominican legal process has yet to run its course, but it doesn’t come as a surprise to baseball fans that a major league player has been accused of passing himself off as someone else. Life as a major leaguer earning millions of dollars is a powerful incentive and there is no shortage of highly talented impoverished teenagers willing to invent a younger self for the opportunity to realize that dream.

But as Carmona quickly learned last week, that dream can suddenly collapse. Not only is his $7 million salary for next season on hold, he’s likely to have difficulty getting back into the country once he settles his legal troubles in the Dominican Republic. Even assuming the Indians want a 31-year-old Heredia as much as a 28-year-old Carmona, U.S. immigration law might have a more powerful role dictating whether Cleveland fans get to see this former All Star in the lineup.

Carmona has been accused of knowingly lying about his name and age in violation of Dominican law. In a word, he has been accused of fraud. As an immigrant, it is up to him to prove that he is eligible to be admitted into the United States, including that he has not been convicted of a “crime involving moral turpitude.” Anyone who is not a U.S. citizen who has been convicted of a crime involving moral turpitude is barred from entering the country, unless they can convince the government to make an exception.

Part of immigration law since 1891, the moral turpitude provision includes all manner of crimes. It “refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general,” according to the immigration appellate court. At one time or another, turnstile jumping, writing a bad check, and using another name on U.S. passport application have been considered inherently base, vile, or depraved.

Carmona’s identity fraud charge seems to fall right at the core of the moral turpitude provision. In a 1951 decision, the Supreme Court explained, “crimes in which fraud was an ingredient have always been regarded as involving moral turpitude.” If the allegations are true, then Carmona lied about his identity for the very purpose of defrauding the Indians.

This would make him one of the more famous “criminal aliens” that the Department of Homeland Security and immigration restrictionists decry so frequently. In fiscal year 2010, DHS reported, it removed 168,532 “criminal aliens.” Many, like Carmona, have done nothing that would make most of us fear for our safety.

Few people would not invent a younger self for the chance to work hard playing a game they love under the bright lights of a major league ballpark and making millions upon millions of dollars in the process. Fewer still would judge a poor kid with no other way of escaping poverty who does that.

But the “criminal alien” of DHS statistics and restrictionists’ rhetoric makes no allowance for subtlety. Neither does immigration law. Among the 168,532 “criminal aliens” that DHS points to as evidence of its success making our communities safer are 30,808 convicted of traffic violations and 31,585 convicted of immigration-related crimes. Another 3,849 were convicted of fraudulent activities.

It might be time to add Carmona to that tally. If that happens, the only people who might sleep more comfortably are opposing batters. The rest of us, Indians fans or not, are unlikely to reap much benefit from having his $7 million arm and the taxes it accumulates stuck in the Dominican Republic.

***This appeared as a letter to the editor in the web edition of the Columbus Dispatch on February 7, 2012 with the title “Identity Fraud” and in the print edition of the Cleveland Plain Dear on February 11, 2012 with the title “Carmona’s ‘Crimes’ Could Cost Indians, Fans First Rate Pitcher.”