Arias v. Lynch, No. 14-2839 (7th Cir. 2016)
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Arias came to the U.S. without authorization in 2000. She has raised three children here and has consistently paid income tax. Her longtime employer calls her an “excellent employee.” Her sole criminal conviction, falsely using a social security number to work (42 U.S.C. 408(a)(7)(B)), was classified as a “crime involving moral turpitude” by the BIA, which disqualified Arias from seeking discretionary cancellation of removal under 8 U.S.C. 1229b(b)(1). The Seventh Circuit remanded for reconsideration. Many violations of the cited statute would amount to crimes involving moral turpitude, but for both legal and pragmatic reasons, it is unlikely that every violation of the statute necessarily qualifies as a crime involving moral turpitude. The BIA misapplied the framework for identifying crimes involving moral turpitude that it was bound to apply at the time of its decision; after the BIA’s decision, the Attorney General vacated that framework in its entirety. The court noted the current vacuum of authoritative guidance on how the Board should determine whether a crime involves moral turpitude.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 14 2839 MARIA EUDOFILIA ARIAS, Petitioner, v. LORETTA E. LYNCH, Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals. No. A087 774 871 ____________________ ARGUED OCTOBER 30, 2015 — DECIDED AUGUST 24, 2016 ____________________ Before POSNER, RIPPLE, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. Petitioner Maria Eudofilia Arias came to this country without authorization in 2000. She has raised three children here. Her longtime employer calls her an “excellent employee.” She now faces removal from the United States after the Board of Immigration Appeals characterized her sole criminal conviction—falsely using a social security number to work—as a “crime involving moral turpitude.” 2 No. 14 2839 This characterization bars Arias from seeking discretionary cancellation of removal under 8 U.S.C. § 1229b(b)(1). Arias has petitioned for review of the removal order. We grant the petition and remand the case to the Board for further proceedings. Arias was convicted under a statute making it a federal crime to misrepresent a social security number to be one’s own “for any … purpose.” 42 U.S.C. § 408(a)(7)(B) (emphasis added). Many violations of that stat ute would amount to crimes involving moral turpitude. For both legal and pragmatic reasons, though, we doubt that every violation of the statute necessarily qualifies as a crime involving moral turpitude. We remand this case on two narrower grounds. First, the Board misapplied the framework for identifying crimes in volving moral turpitude that it was bound to apply at the time of its decision. See Matter of Silva Trevino (Silva Trevino I), 24 I. & N. Dec. 687 (Att’y Gen. 2008) (establishing framework). Then, after the Board’s decision but before Arias’s petition for our review became ripe for decision, the Attorney General va cated the Silva Trevino I framework in its entirety. See Matter of Silva Trevino (Silva Trevino II), 26 I. & N. Dec. 550, 554 (Att’y Gen. 2015). Given the Board’s legal error and the current vac uum of authoritative guidance on how the Board should de termine whether a crime involves moral turpitude, we re mand to the Board to reconsider Arias’s case. In Part I, we recount the factual and procedural back ground of this case. In Part II, we examine the difficulty in treating violations of § 408(a)(7)(B) categorically as crimes in volving moral turpitude. In Part III, we explain the reasons for our remand based on the Board’s legal error and the current No. 14 2839 3 uncertainty about how the Board should decide whether a conviction is for a crime involving moral turpitude. I. Factual and Legal Background Since coming to the United States from Ecuador without authorization in 2000, Arias has worked for the Grabill Cabi net Company in Grabill, Indiana. The company called Arias an “excellent employee” in a letter Arias submitted to the im migration court in support of her application for cancellation of removal. To work for Grabill Cabinet, Arias provided a false social security number. She has presented evidence that she has filed an income tax return for every year she has been in the United States through 2012. Arias has also raised a family in the United States. Arias and her husband have been married since 1989. Their three children have grown up in the United States. The two younger children, five and fourteen years old, are United States citi zens. Her oldest child, twenty six years old, was born in Ec uador but has received relief from removal through the De ferred Action for Childhood Arrivals program. In 2010, Arias was charged in federal court with falsely us ing a social security number to work for Grabill Cabinet in violation of 42 U.S.C. § 408(a)(7)(B). Section 408(a)(7)(B) makes it a crime to misrepresent a social security number to be one’s own to obtain a benefit or “for any other purpose.” Arias pled guilty and was sentenced to just about the lightest felony sentence one is likely to find in modern federal prac tice: one year of probation and a $100 special assessment. Af ter Arias completed her probation successfully, she received employment authorization and Grabill Cabinet rehired her. In 4 No. 14 2839 the letter from the company that Arias submitted to the immi gration court, Grabill Cabinet said that it “did not have any problems” welcoming her back to her old job. Her indictment charged Arias with an “intent to deceive Grabill,” although it is evident that Grabill itself did not have a problem with Arias’s deception and does not view itself as a victim. There is no indication in the record that Arias has broken any state or federal laws other than her unauthorized immigration into this country and false use of a social security number to work. In 2010, Arias received a notice to appear for removal pro ceedings. She admitted removability but applied for cancella tion of removal under 8 U.S.C. § 1229b(b)(1). The Attorney General may cancel the removal of unauthorized immigrants who have been in the United States for at least ten years and who can show that their removal would cause “exceptional and extremely unusual hardship” to their children, spouses, or parents who are United States citizens, among other re quirements. Id. Such discretionary cancellation is barred, however, if the immigrant has been convicted of a “crime involving moral turpitude.” 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1229b(b)(1)(C). “Moral turpitude” is not defined in the statute. The Board and federal courts have labored for generations to provide a work able definition. See generally Jordan v. De George, 341 U.S. 223, 227–29 (1951) (holding that conspiracy to evade payment of liquor tax was crime involving moral turpitude, and noting that all varieties of fraud are treated likewise); id. at 232–45 (Jackson, J., dissenting) (“moral turpitude” is too vague to support deportation). The immigration judge held that Arias’s crime of convic tion was a crime involving moral turpitude. The judge relied No. 14 2839 5 on two of this circuit’s cases: Marin Rodriguez v. Holder, 710 F.3d 734 (7th Cir. 2013), and Miranda Murillo v. Holder, 502 F. App’x 610 (7th Cir. 2013), a non precedential order. A one member panel of the Board affirmed. The Board said it was using the categorical approach, the first step in the now va cated Silva Trevino I framework, to determine that a violation of § 408(a)(7)(B) necessarily involves moral turpitude. See Silva Trevino I, 24 I. & N. Dec. at 689–90. Citing this court’s opinion in Marin Rodriguez, 710 F.3d at 738, the Board held: “An intent to deceive for the purpose of wrongfully obtaining a benefit is an element of the offense, and therefore the offense is categorically a crime involving moral turpitude.” Arias petitioned for judicial review of the Board’s decision denying cancellation of removal. Under 8 U.S.C. § 1252(a)(2)(D), we have jurisdiction to review the legal ques tion whether a crime involves moral turpitude. Lagunas Sal gado v. Holder, 584 F.3d 707, 710 (7th Cir. 2009). Arias argues that her crime of conviction does not categorically involve moral turpitude because, while the statute requires deception, it does not always require fraud, which necessarily involves detriment to the person or entity defrauded. Arias presented these arguments to the Board sufficiently to allow our review, and, in any case, the Board’s discussion of deceit in the context of moral turpitude opens up that issue for our review. See Arobelidze v. Holder, 653 F.3d 513, 517 (7th Cir. 2011); Juarez v. Holder, 599 F.3d 560, 564 n.3 (7th Cir. 2010). II. Crimes Involving Moral Turpitude The issue is whether a violation of 42 U.S.C. § 408(a)(7)(B) is a crime involving moral turpitude. We have not decided the issue in a precedential opinion, and other circuits are split. 6 No. 14 2839 The Fifth and Eighth Circuits have said yes (including opin ions regarding the closely related subparagraph, § 408(a)(7)(A)). Guardado Garcia v. Holder, 615 F.3d 900, 901–02 (8th Cir. 2010); Lateef v. Department of Homeland Security, 592 F.3d 926, 929 (8th Cir. 2010) (§ 408(a)(7)(A)); Hyder v. Keisler, 506 F.3d 388, 392 (5th Cir. 2007) (§ 408(a)(7)(A)). The Ninth Circuit has said no. Beltran Tirado v. I.N.S., 213 F.3d 1179, 1184 (9th Cir. 2000). The Board has defined a crime involving moral turpitude as “conduct that shocks the public conscience as being inher ently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” In re Solon, 24 I. & N. Dec. 239, 240 (BIA 2007) (citation and internal quotation marks omitted). We have adopted definitions substantively in line with the Board’s. See, e.g., Sanchez v. Holder, 757 F.3d 712, 715 (7th Cir. 2014); see also Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th Cir. 2005) (“We have recently stated that a crime of moral turpi tude is one that is deliberately committed and ‘serious,’ either in terms of the magnitude of the loss that it causes or the in dignation that it arouses in the law abiding public.”), over ruled on other grounds by Ali v. Mukasey, 521 F.3d 737, 743 (7th Cir. 2008); see generally Julia Ann Simon Kerr, Moral Tur pitude, 2012 Utah L. Rev. 1001, 1044–68 (2012) (recounting his tory of moral turpitude as a concept in immigration law). Taking the Board’s definition at face value, it is difficult to see how a violation of § 408(a)(7)(B) is categorically a crime involving moral turpitude. In fact, the Board reached its deci sion in this case by misstating the provisions of the statute. The Board wrote incorrectly that § 408(a)(7)(B) has as a neces No. 14 2839 7 sary element an “intent to deceive for the purpose of wrong fully obtaining a benefit.” That is not correct. The statute crim inalizes falsely representing a social security number to be one’s own for purposes of obtaining various social security benefits but also “for any other purpose.” It is not difficult to imagine some purposes for which falsely using a social security number would not be “inher ently base, vile, or depraved.” For example, hospitals and other health care providers often ask for patients’ social secu rity numbers. Would it be “inherently base, vile, or depraved” for a person without a social security number to take a child who has fallen ill to a hospital and to give a false social secu rity number to obtain treatment for her sick child, knowing she is ready, willing, and able to pay for the care? Not unless the terms “base, vile, or depraved” have ceased to have any real meaning. Courts and the Board do not always apply the above defi nition according to its literal terms. They instead often use two heuristics to decide what is “inherently base, vile, or de praved” and what is not. First, crimes that are malum in se (in herently wrong), as opposed to malum prohibitum (wrong only because prohibited), are often said to involve moral turpitude. See, e.g., Padilla, 397 F.3d at 1020; In re Fualaau, 21 I. & N. Dec. 475, 477 (BIA 1996) (“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.”); Matter of Flores, 17 I. & N. Dec. 225, 227 (BIA 1980). Second, courts and the Board have focused on the presence of a “vicious motive” or an “evil intent” to deter 8 No. 14 2839 mine whether a crime involves moral turpitude. See, e.g., Fer nandez Ruiz v. Gonzales, 468 F.3d 1159, 1165–66 (9th Cir. 2006); Partyka v. Attorney General, 417 F.3d 408, 413 (3d Cir. 2005); Flo res, 17 I. & N. Dec. at 227 (“The test to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.”); see generally Simon Kerr, supra, 2012 Utah L. Rev. at 1059–68 (recounting history of scienter test for moral turpitude). The broad “any other purpose” term in § 408(a)(7)(B) makes it difficult to see how a violation of the statue could categorically involve evil intent or be malum in se. There need not be any evil intent in the hypothetical about a parent using a false social security number to secure medical care for a sick child, unless deception without more, no matter how admira ble the goal, involves evil intent (i.e., moral turpitude). Along those same lines, it seems like giving a false social security number “for any purpose” should not be categorically ma lum in se or inherently wrong. The Ninth Circuit has held that a violation of § 408(a)(7)(B) is not malum in se. Beltran Tirado, 213 F.3d at 1183–84 (reasoning that Congress could not have intended violations of § 408(a)(7)(B) to be crimes involving moral turpitude because of legislative history indicating that unauthorized immigrants exempt from prosecution under § 408 under an amnesty program should not be considered to have exhibited moral turpitude). But see Marin Rodriguez, 710 F.3d at 740–41 (rejecting Beltran Tirado’s legislative history ar gument). We acknowledge that the Board’s holding that Arias’s vio lation of § 408(a)(7)(B) categorically is a crime involving moral turpitude does have a basis in law. Despite the confusion about how to determine what moral turpitude is, there is a No. 14 2839 9 consensus that fraud is close to the core of moral turpitude. In Jordan v. De George, the Supreme Court rejected an argument that the moral turpitude standard was unconstitutionally vague in the case of an immigrant facing deportation for con spiring to defraud the United States of liquor taxes. The Court reasoned: “Whatever else the phrase ‘crime involving moral turpitude’ may mean in peripheral cases, the decided cases make it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude.” 341 U.S. at 232; see also Simon Kerr, supra, 2012 Utah L. Rev. at 1008 (arguing that legal concept of moral turpitude devel oped from eighteenth and nineteenth century “honor norms” and therefore includes “oath breaking, fraud, and their extensions” as part of its “core of settled meaning”) (in ternal quotation marks omitted). We and other courts have sometimes used broader lan guage, writing that any crime involving the larger concept of “deception,” in contrast to the narrower concept of fraud, in volves moral turpitude. See, e.g., Marin Rodriguez, 710 F.3d at 738 (“Crimes entailing an intent to deceive or defraud are un questionably morally turpitudinous.”); Guardado Garcia, 615 F.3d at 902 (“Crimes involving the intent to deceive or defraud are generally considered to involve moral turpitude.”) (cita tion and internal quotation marks omitted); Hyder, 506 F.3d at 391 (“We have repeatedly emphasized that crimes whose es sential elements involve fraud or deception tend to be CIMTs.”); Abdelqadar v. Gonzales, 413 F.3d 668, 671 (7th Cir. 2005) (“Crimes entailing deceit or false statement are within the core of the common law understanding of ‘moral turpi tude.’”). In Padilla, in deciding that obstruction of justice was a crime involving moral turpitude, we wrote: “Crimes that do not involve fraud, but that include dishonesty or lying as an 10 No. 14 2839 essential element also tend to involve moral turpitude.” 397 F.3d at 1020 (citation and internal quotation marks omitted). But note the qualifier, “tend to.” Despite the broad lan guage, cases finding crimes of moral turpitude based on de ception rely on other aggravating factors, especially actual or intended harm to others. See Abdelqadar, 413 F.3d at 670 (buy ing food stamps for cash from proper recipients); Padilla, 397 F.3d at 1017–18 (obstruction of justice by giving false infor mation to police officer); see also Guardado Garcia, 615 F.3d at 902 (using false social security number to gain access to secure area of major airport). There is also a basis in Board precedents, which are also entitled to our deference, for the idea that a crime involving moral turpitude requires more than simple dishonesty. In tort law, liability for fraud requires loss to the person defrauded. See Restatement (Second) of Torts § 531. Some Board prece dents seem to follow this distinction. For example, in Matter of Delagadillo, the Board held that the violation of a Mexican anti fraud statute was not categorically a crime involving moral turpitude. 15 I. & N. Dec. 395, 396–97 (BIA 1975). The Board reasoned that the statute as written did not “require the taking of another’s property.” Id. at 396. Because the statute “could therefore punish any act of deception used in retriev ing one’s own property” it did not categorically involve moral turpitude. Id. The Board then looked to the specific facts of the conviction at issue. The Board held that the immigrant’s ac tions—fabrication of a property transfer “in an unsuccessful attempt to reduce his wife’s potential settlement in a divorce action”—was not “so base or vile as to be deemed morally turpitudinous under United States standards.” Id. at 397. Sim ilarly, in Matter of B— M—, the Board held that making a false No. 14 2839 11 statement to an immigration inspector was not a crime involv ing moral turpitude because “the offense may have consisted only of a false and not a fraudulent statement.” 6 I. & N. Dec. 806, 808 (BIA 1955). But see Matter of P , 6 I. & N. Dec. 795, 798 (BIA 1955) (holding that conviction under statute contain ing “inherent intent to deceive or mislead” was crime involv ing moral turpitude). Arias’s case brings into focus the troubling results that would follow from a rule that every crime that involves any element of deception involves moral turpitude. As of 2014, unauthorized immigrants made up about five percent of the United States labor force. Jens Manuel Krogstad & Jeffrey S. Passel, 5 Facts About Illegal Immigration in the U.S., Pew Re search Center (November 19, 2015), available at http: //www.pewresearch.org/fact tank/2015/11/19/5 facts about illegal immigration in the u s. Has every one of those mil lions of workers who gives a social security number to her employer committed a crime involving moral turpitude? Those persons are removable because they are not in the United States lawfully. The issue for Arias and all the others is whether they are barred from even discretionary relief be cause they have provided false social security numbers so that they can work and pay taxes. It seems inconsistent with the terms “base, vile, or de praved” to hold that an unauthorized immigrant who uses a false social security number so that she can hold a job, pay taxes, and support her family would be guilty of a crime in volving moral turpitude, while an unauthorized immigrant who is paid solely in cash under the table and does not pay any taxes would not necessarily be guilty of a crime involving 12 No. 14 2839 moral turpitude. A rule that all crimes that involve any ele ment of deception categorically involve moral turpitude would produce results at odds with the accepted definition of moral turpitude as conduct that is “inherently base, vile, or depraved.” At the same time, there is significant precedent in dicating that deceptive conduct is morally turpitudinous. In the end, though, we do not need to try to resolve this conflict definitively in this case. As we explain next, we remand be cause of the unsettled state of the law regarding how the Board must go about determining which crimes involve moral turpitude. III. The Changing Legal Framework Given the difficulty that courts and the Board have had in defining the boundaries of moral turpitude, perhaps we should not be surprised to find great uncertainty regarding how the Board should decide whether an immigrant has been convicted of a crime involving moral turpitude. In between the Board’s order and the briefing in Arias’s petition for our review, the Attorney General vacated the order that had set the approach the Board used to determine that Arias’s crime involved moral turpitude. No replacement framework has yet emerged. The current uncertainty about method and an error the Board made in applying the old framework warrant a re mand to the Board to reconsider Arias’s conviction under a new framework the Board adopts or the Attorney General mandates. See Mata Guerrero v. Holder, 627 F.3d 256, 257 (7th Cir. 2010) (remanding to the Board a decision that a crime in volved moral turpitude because Board had used an approach that had since been replaced by Silva Trevino I framework). No. 14 2839 13 In 2008, the Attorney General established a three step pro cess for determining whether a crime involved moral turpi tude. See Silva Trevino I, 24 I. & N. Dec. 687 (Att’y Gen. 2008). Step one of Silva Trevino I used the categorical approach, look ing to the elements of the statute of conviction to determine whether there is a “realistic probability” that the statute could be applied to conduct that does not involve moral turpitude. Where step one was inconclusive, step two looked beyond the statutory elements to records of conviction, such as charging documents, jury instructions, and guilty plea agreements and transcripts to see if the defendant’s crime involved moral tur pitude. Where that was also inconclusive, step three allowed an immigration judge or the Board to consider additional ev idence regarding the defendant’s actual conduct. We approved the Silva Trevino I approach. Sanchez v. Holder, 757 F.3d 712, 718 (7th Cir. 2014); Mata Guerrero, 627 F.3d at 260; see also Bobadilla v. Holder, 679 F.3d 1052, 1057 (8th Cir. 2012). Some other circuits, however, held that allowing an immigration judge to look beyond the record of conviction vi olated the unambiguous language of the statute. See, e.g., Silva Trevino v. Holder, 742 F.3d 197, 198 (5th Cir. 2014); Olivas Motta v. Holder, 746 F.3d 907, 916 (9th Cir. 2013); Prudencio v. Holder, 669 F.3d 472, 484 (4th Cir. 2012). In light of these other circuits’ decisions, the Attorney General vacated Silva Trevino I and directed the Board to address in appropriate cases how “adjudicators are to determine whether a particular criminal offense is a crime involving moral turpitude” under the Im migration and Nationality Act. Silva Trevino II, 26 I. & N. Dec. 550, 553 (Att’y Gen. 2015). The Board has not yet acted on that instruction, leaving a vacuum of authority regarding how it should determine whether a crime involves moral turpitude. 14 No. 14 2839 To add to the confusion, the Board did not correctly apply the Silva Trevino I framework in its opinion holding that Arias’s violation of § 408(a)(7)(B) involved moral turpitude. The Board selectively quoted the statute and then stated: “An intent to deceive for the purpose of wrongfully obtaining a benefit is an element of the offense, and therefore the offense is categorically a crime involving moral turpitude.” As noted above, § 408(a)(7)(B) criminalizes false use of a social security number not only to obtain a benefit but also “for any other purpose.” The Board rephrased the statute to fit Arias’s par ticular circumstances, which indicates that the Board looked beyond the statute to determine that Arias’s crime of convic tion involved moral turpitude. This was permissible under Silva Trevino I, but only if examination of the statute proved inconclusive. Silva Trevino I, 24 I. & N. Dec. at 690.1 The Board failed to analyze whether the statute was incon clusive before looking beyond the elements of the statute. This was an error under Silva Trevino I. It is unclear whether it would be an error now. Since Silva Trevino II, it is uncertain whether and under what circumstances the Board will be per mitted to look beyond the elements of the statute. In addition, in light of Silva Trevino II, our decision today does not amount to overruling our earlier opinion in Marin Rodriguez. 710 F.3d 734. That decision was grounded in the now vacated frame work of Silva Trevino I. Because the Silva Trevino I framework 1 Although the Board’s interpretation of whether a crime involves moral turpitude for the purposes of the Immigration and Nationality Act is often entitled to Chevron deference, Ali v. Mukasey, 521 F.3d 737, 739 (7th Cir. 2008), Chevron deference does not protect clear legal errors such as the Board’s misapplication of the Silva Trevino I framework or misstatement regarding the contents of 42 U.S.C. § 408(a)(7)(B). No. 14 2839 15 has since been vacated and the Attorney General has directed the Board to determine a new framework for judging which crimes involve moral turpitude, we REMAND to the Board to consider Arias’s case under an appropriate legal framework for judging moral turpitude. 16 No. 14 2839 POSNER, Circuit Judge, concurring in the judgment. I agree that we should grant the petition and therefore remand the case to the Board of Immigration Appeals for reconsidera tion of the Board’s refusal to cancel the order that the peti tioner be removed (deported) from the United States. I do not however agree with the respect that Judge Ham ilton’s opinion accords the concept of “moral turpitude.” It is preposterous that that stale, antiquated, and, worse, mean ingless phrase should continue to be a part of American law. Its meaninglessness is well illustrated by this case; and even if it is to be retained in immigration law it was misapplied by the Board of Immigration Appeals. The concept plays a particularly malign role in immigra tion adjudication, as this case illustrates, because conviction of a crime involving moral turpitude bars the Attorney Gen eral from canceling the removal, or adjusting the status, of an alien. See 8 U.S.C. §§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(I). The term “crime involving moral turpitude” first ap peared in Brooker v. Coffin, 5 Johns. 188 (N.Y. 1809); see Note, “Crimes Involving Moral Turpitude,” 43 Harv. L. Rev. 117, 118 n. 7 (1929). Without defining the term, the court con cluded that prostitution and other disorderly conduct of fenses were not crimes of moral turpitude, and therefore falsely accusing someone of such an offense could not sup port a suit for slander. Brooker v. Coffin, supra, 5 Johns. at 191– 92. But the term appeared rarely in case law until legislators began to invoke it, notably in the closing years of the nine teenth century, when in the Act of March 3, 1891, ch. 551, 51st Cong., 2d Sess., Congress, worried by the swelling tide of immigration to the United States, forbade the admission, among other categories of disfavored aliens (such as polyg No. 14 2839 17 amists), of aliens “who have been convicted of a felony or other infamous crime or misdemeanor involving moral tur pitude.” Why Congress chose the term “moral turpitude” to describe crimes that should bar aliens is unclear because there was no attempt to explain it either in the statute itself or in the legislative history. See Staff of House Committee on the Judiciary, 100th Cong., Grounds for Exclusion of Aliens Under the Immigration and Nationality Act: Historical Back ground and Analysis 10 (Comm. Print. 1988). Congress has never defined “moral turpitude,” but courts and the immigration agencies have tended to adopt a slight variant of the definition in Black’s Law Dictionary: an “act of baseness, vileness, or the depravity in private and so cial duties which man owes to his fellow man, or to society in general … . [An] act or behavior that gravely violates moral sentiment or accepted moral standards of [the] com munity and is a morally culpable quality held to be present in some criminal offenses as distinguished from others.” Black’s Law Dictionary 1008–09 (6th ed. 1990). Thus Lagunas Salgado v. Holder, 584 F.3d 707, 710 (7th Cir. 2009), remarked that “the BIA has described a crime of moral turpitude as including ‘conduct that shocks the public conscience as be ing inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between per sons or to society in general.’” The most recent edition of Black’s offers a simpler but broader definition: “conduct that is contrary to justice, honesty, or morality; esp., an act that demonstrates depravity.” Black’s Law Dictionary 1163 (10th ed. 2014). It’s difficult to make sense of these definitions, which ap proach gibberish yet are quoted deferentially in countless 18 No. 14 2839 modern opinions. See, e.g., Blake v. Carbone, 489 F.3d 88, 103 (2d Cir. 2007); De Leon Reynoso v. Ashcroft, 293 F.3d 633, 636 (3d Cir. 2002); Hamdan v. INS, 98 F.3d 183, 186 (5th Cir. 1996); In re Solon, 24 I. & N. Dec. 239, 240 (BIA 2007); In re Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999). What does “the public con science” mean? What does “inherently base, vile, or de praved”—words that have virtually dropped from the vo cabulary of modern Americans—mean and how do any of these terms differ from “contrary to the accepted rules of morality”? How for that matter do the “accepted rules of morality” differ from “the duties owed between persons or to society in general”? And—urgently—what is “depravi ty”? A partial list of its synonyms, according to a Google search, includes corruption, vice, perversion, deviance, de generacy, immorality, debauchery, dissipation, profligacy, licentiousness, lechery, prurience, obscenity, indecency, a wicked or morally corrupt act, the innate corruption of hu man nature due to original sin, moral perversion, bestiality, flagitiousness, and putrefaction. The definitions constitute a list of antiquated synonyms for bad character, and why does the legal profession cling to antiquated synonyms? Why are we so backward looking? The answer lies in the American legal culture—in the fact that law is backward looking, that the legal profession revels in antiquity, cherishes jargon, and lacks respect for proper English usage—“base or vile” is not an expression used by sophisticated speakers of modern English, or for that matter unsophisticated, and the word “turpitude” has disappeared from the language as spoken and written today. The lan guage I quoted from Black’s—who talks like that? Who needs to talk like that? Lawyers apparently, and they go a step fur No. 14 2839 19 ther into the lexical mud by intoning an adjectival form of “turpitude”: “turpitudinous.” We suggested in Mei v. Ashcroft, 393 F.3d 737, 741 (7th Cir. 2004)—a case that hinted at misgivings about the utility of moral turpitude as a criminal category—that the distinc tion between crimes that are and crimes that are not crimes of moral turpitude corresponds, as noted in Beltran Tirado v. INS, 213 F.3d 1179, 1184 (9th Cir. 2000), and Orlando v. Robinson, 262 F.2d 850, 851 (7th Cir. 1959), to the distinction between crimes that are malum in se and crimes that are malum prohibi tum. The former refer to crimes that because they violate the society’s basic moral norms are known by everyone to be wrongful, the latter to crimes that are not intuitively known to be wrongful. United States v. Urfer, 287 F.3d 663, 666 (7th Cir. 2002); United States v. Beavers, 206 F.3d 706, 710 (6th Cir. 2000) (“the lack of intuitive wrongfulness is the hallmark of all laws that are malum prohibitum”). In ap plication, however, the distinction turns out to be paper thin. In South Carolina, for example, simple possession of cocaine is classified as a crime involving moral turpitude, State v. Major, 301 S.C. 181, 391 S.E.2d 235, 237 (1990), but simple possession of marijuana is not. State v. Harvey, 275 S.C. 225, 268 S.E.2d 587, 588 (1980). An alien convicted of making false statements on an employment application and using a fake Social Security number was held in Bel tran Tirado v. INS, supra, not to have committed a crime in volving moral turpitude, but the crime of making false statements in a driver s license application was held in Zai tona v. INS, 9 F.3d 432 (6th Cir. 1993), to involve moral tur pitude. The holdings of the Board of Immigration Appeals are consistent with regard to some crimes but “there are a number of miscellaneous cases involving indecent acts, 20 No. 14 2839 gambling, perjury, and other crimes where the findings of moral turpitude vary widely.” Toutounjian v. INS, 959 F. Supp. 598, 603 (W.D.N.Y. 1997). The background that I have sketched may help prepare the reader for the mysterious ways in which the federal gov ernment classifies crimes against itself (for that is the nature of the crime that the petitioner in this case, Maria Arias, committed—a crime against the government) as “turpitudi nous” or not. The U.S. Department of State Foreign Affairs Manual (FAM), in Volume 9 Visas, 9 FAM 40.21(a) N2.3 2 Crimes Commit ted Against Governmental Authority (2015), divides crimes against government into those that are, and those that are not, crimes of moral turpitude: a. Crimes committed against governmental authority which fall within the definition of moral turpitude include: (1) Bribery; (2) Counterfeiting; (3) Fraud against revenue or other government functions; (4) Mail fraud; (5) Perjury; (6) Harboring a fugitive from justice (with guilty knowledge); and (7) Tax evasion (willful). b. Crimes committed against governmental authority, which would not constitute moral turpitude for visa issuance purposes, are, in general, violation of laws which are regulatory in character and which do not involve the element of fraud or other evil intent. The following list as sumes that the statutes involved do not require the show ing of an intent to defraud, or evil intent: No. 14 2839 21 (1) Black market violations; (2) Breach of the peace; (3) Carrying a concealed weapon; (4) Desertion from the Armed Forces; (5) Disorderly conduct; (6) Drunk or reckless driving; (7) Drunkenness; (8) Escape from prison; (9) Failure to report for military induction; (10) False statements (not amounting to perjury or involv ing fraud); (11) Firearms violations; (12) Gambling violations; (13) Immigration violations; (14) Liquor violations; (15) Loan sharking; (16) Lottery violations; (17) Possessing burglar tools (without intent to commit burglary); (18) Smuggling and customs violations (where intent to commit fraud is absent); (19) Tax evasion (without intent to defraud); and (20) Vagrancy. The division between the two lists is arbitrary. The first is open ended and therefore provides incomplete guidance on how to avoid committing a crime of moral turpitude against the government. The second list, the list of crimes that do not involve moral turpitude, includes a number of crimes that are as serious, as “turpitudinous”—one steeped in the jargon of crimes of moral turpitude might say—as those in the first list: desertion from the Armed Forces, prison escape, smug gling, and failure to report for military induction (i.e., draft dodging, when there is a draft). Some of the crimes in the second list make no sense, such as possessing burglar tools 22 No. 14 2839 without intent to commit burglary and committing tax eva sion without intent to defraud. Others are defined so broad ly as to include criminal behavior serious enough to belong on the first list, examples being breach of the peace, firearms violations, and loan sharking. The pair of lists seems the product of a disordered mind. They make no sense. The petitioner’s crime was the use of a social security number that had been assigned to another person by the So cial Security Administration. That was a felony. 42 U.S.C. § 408(a)(7)(B). She had used the number to obtain a job. There is no indication that had she not done this, an Ameri can citizen would have gotten the job in her stead rather than one of the 10 or 11 million other illegal aliens who live in the United States and like Arias need to work in order to support themselves. The statute does not require proof of intent to cause harm—an absence that one would think would negate an inference of moral turpitude. Nor is it re quired that the violation be material; nor was there proof in this case that the violation wrongfully deprived anyone of social security benefits or increased the expenses of govern ment. Unsurprisingly Arias was punished very lightly: she was merely placed on probation for a year and assessed $100, which is the mandatory assessment for felony convic tions. See 18 U.S.C. § 3013. So: no incarceration, no fine, just a year’s probation and an assessment equivalent to the amount of money she earns in 9.1 hours of work (for her wage is $10.97 per hour). Conceivably her very light sentence reflects in part the fact that she has two young children, has worked without incident since coming to the United States in 2000, and has paid federal income tax. Or maybe the judge thought her No. 14 2839 23 crime trivial, as do I. (Has the Justice Department nothing better to do with its limited resources than prosecute a mouse? Has prosecutorial discretion flown out the win dow?) She did not steal or invent the social security number; it was given her by the persons who smuggled her into the United States. After completing her probation she was allowed to re sume her employment with the same company she’d worked for until her arrest, and she obtained a glowing let ter of support from the general manager. She does manual work for the company, described by the general manager as “sealer sanding doors, wear thru and working with specialty paints.” It is the kind of work that illegal immigrants typical ly do, because it is not pleasant work and it is not well paid. To prosecute and deport such a harmless person (to Ec uador, her country of origin)—indeed a productive resident of the United States—would be a waste of taxpayers’ money, but to deport her on the ground that her crime was one of moral turpitude would be downright ridiculous. The crime she committed does not appear in the State Department’s list of crimes of moral turpitude, and it is less serious than many of the crimes in the second list (those that are not crimes of moral turpitude). It is somewhat similar to crime category 13 in the second list—“immigration violations”—but she was not convicted of violating immigration law, but instead of violating a section of 42 U.S. Code, Chapter 7, Subchapter II. The title of the subchapter is “Federal Old Age, Survivors, and Disability Insurance Benefits.” Her crime could also be placed in category 10 on the second list—“false statements (not amounting to perjury or involving fraud).” The State 24 No. 14 2839 Department explicitly tells us that false statements do not constitute crimes of moral turpitude. And yet the government argues that the petitioner’s con duct was “deceptive” and therefore a crime of “moral turpi tude.” But glance again at the second list, the list of crimes that are not crimes of moral turpitude. In addition to crime 10—“false statements”—which by definition involves decep tion, crimes 1, 3, 4, 15, 18, and 19 on that list may also in volve deception. When a panel of this court said in Marin Rodriguez v. Holder, 710 F.3d 734, 738 (7th Cir. 2013), a case factually almost identical to this one, that “crimes entailing an intent to deceive or defraud are unquestionably morally turpitudinous,” it was deviating from the Manual without explanation. Interestingly, the immigration judge in our case said that “unfortunately” the Seventh Circuit had ruled in Marin Rodriguez that the type of conviction involved in Arias’s case was “inherently turpitudinous.” The judge’s instincts were sound, but she felt bound by our decision. The Board of Im migration Appeals affirmed her ruling primarily on the au thority of Marin Rodriguez. But Marin Rodriguez was wrong and should be overruled. The court had no basis for rejecting what for a change was proper guidance from the State De partment’s Manual. The idea that fraudulent intent colors any crime “turpi tudinous” had received its authoritative modern statement in Jordan v. De George, 341 U.S. 223 (1951), like this a deporta tion case, where we read for example that “fraud has con sistently 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.” No. 14 2839 25 Id. at 229. But notice that the word used by the Court to de scribe a crime of moral turpitude was “fraud,” not “decep tion,” and De George was a fraud case in the core sense of ”fraud”: it was a conspiracy to defraud the federal govern ment of tax revenues. Yet, though it was a much stronger case for deportation than this case, the majority opinion evoked a remarkable dissent by Justice Jackson, id. at 232–245, joined by Justices Black and Frankfurter. The dissent picked apart the concept of “moral turpitude.” It exposed its emptiness (“Congress did not see fit to state what meaning it attributes to the phrase ‘crime involving moral turpitude.’ It is not one which has settled significance from being words of art in the pro fession. If we go to the dictionaries, the last resort of the baf fled judge, we learn little except that the expression is re dundant, for turpitude alone means moral wickedness or depravity and moral turpitude seems to mean little more than morally immoral. The Government confesses that it is ‘a term that is not clearly defined,’ and says: ‘the various defi nitions of moral turpitude provide no exact test by which we can classify the specific offenses here involved.’ Except for the Court’s opinion, there appears to be universal recogni tion that we have here an undefined and undefinable stand ard”). Id. at 234–235. And the dissent argued convincingly that deportation was an extreme sanction to impose on De George, the alien, without a more definite standard guiding its imposition. See id. at 240–242. Alas, a great dissent by a great Justice has been forgotten. The concept of moral turpitude, in all its vagueness, rife with contradiction, a fossil, an embarrassment to a modern legal system, continues to do its dirty work. Even so, and de 26 No. 14 2839 spite the precedent of Marin Rodriguez, there is a route to jus tice in this case. It is to recognize that this is not a fraud case. Although convicted of a crime against the government, the petitioner, unlike her predecessor De George, was not seek ing any money from the government. So far as appears her crime harmed no one, least of all the government though it is the “victim” of her crime, and so even the muddled over broad Foreign Affairs Manual provides no basis for classifying her crime as one of moral turpitude. This case is identical to Beltran Tirado v. INS, supra, where the Ninth Circuit held that using a false social security number on an employment veri fication form in order to obtain employment was not a crime of moral turpitude. Consider, too, In re Delagadillo, 15 I. & N. Dec. 395 (BIA 1975), where the Board of Immigration Ap peals held that an applicant for admission to the United States who had “fabricated a property transfer in an unsuc cessful attempt to reduce his wife’s potential settlement in a divorce action” had not committed a crime “so base or vile as to be deemed morally turpitudinous.” The Ninth Circuit and the Board of Immigration Appeals recognized in these cases, as the State Department does in its manual, that deception alone is not enough to make a crime one of moral turpitude. Our prior cases that have purported to extend De George’s fraud rule to cover any deception have generally done so in dicta, because the cases involved more than simple decep tion. See Abdelqadar v. Gonzales, 413 F.3d 668, 671 (7th Cir. 2005); Padilla v. Gonzales, 397 F.3d 1016, 1017–18, 1020–21 (7th Cir. 2005). In Lagunas Salgado v. Holder, 584 F.3d 707 (7th Cir. 2009), an alien had been convicted of making “false Social Security and alien registration cards so that others could find em ployment.” Id. at 708. The Board of Immigration Appeals No. 14 2839 27 deemed his crime one of moral turpitude and a panel of this court affirmed. It was a more serious crime than our peti tioner’s, because Lagunas Salgado had sold false papers to about 50 people, some for as much as $100; and he was sen tenced to five months in prison and two years of probation, a much heavier sentence than Arias received. The panel opin ion in Lagunas Salgado remarks with apparent approval the BIA’s conclusion “that petty larceny and issuing a worthless check involve moral turpitude” but that “crimes such as im porting, selling, or possessing drugs do not involve moral turpitude because evil intent is not an element of the of fense.” Id. at 710. That is an absurd distinction, given that the congressional mandate is to identify crimes that are morally reprehensible and thus a proper ground for deportation. Yet the approach I’m suggesting derives support from Lagunas Salgado. The panel was emphatic that it was a fraud case, 584 F.3d at 711–12, and I read Jordan v. De George to hold that crimes of fraud are ipso facto crimes of moral turpi tude. Lagunas Salgado gave away some of his false docu ments but sold others, and was “deceiving the government” because “he knew the persons receiving the false documents would use them in an attempt to obtain work that they could not otherwise lawfully obtain.” Id. at 712. The petitioner in our case did not forge documents, let alone for gift or sale to other persons. The impact of her conduct on her “victim,” the U.S. Government, was negligible, as reflected in the nominal sentence that she received relative to the heavier (though still light) sentence imposed on Lagunas Salgado. Marin Rodriguez is closer to our case, but the alien in that case had been convicted under a different statute, 18 U.S.C. § 1546, which is entitled “Fraud and misuse of visas, per 28 No. 14 2839 mits, and other documents,” authorizes sentences of up to 10 years in prison (even longer if the offense was committed in connection with drug trafficking or terrorism), and thus punishes more heavily conduct more reprobated than the conduct in which the petitioner in this case engaged. The court in Marin Rodriguez was mistaken, however, as I’ve said, in assuming that all deceptive acts, no matter how harmless, are crimes of moral turpitude. See 710 F.3d at 738. It based that proposition on De George, Abdelqadar, and Pa dilla, despite the fact that none of those cases involved harm less deception. If anything is clear it’s that “crime of moral turpitude” shouldn’t be defined by invoking broad categorical rules that sweep in harmless conduct. Yet that’s what the Board of Immigration Appeals did in this case, in upholding the im migration judge’s conclusion that the petitioner had commit ted a crime of moral turpitude; it said that a violation of 42 U.S.C § 408(a)(7)(B) is “categorically a crime involving moral turpitude.”
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