Behran Tirado v. INS, BELTRAN-TIRAD

• Citation: 213 F.3d 1179
• Decision Date: 31 May 2000
• Docket Number: No. 98-70783,BELTRAN-TIRAD,98-70783
• Parties: (9th Cir. 2000) Octaviaetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1179

213 F.3d 1179 (9th Cir. 2000)

Octavia BELTRAN-TIRADO,Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-70783

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted April 5, 2000

Filed May 31, 2000

[Copyrighted Material Omitted]

Jonathan D. Montag, Jan Joseph Bejar, San Diego, California, for the petitioner.

Nelda C. Reyna, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent.

Petition to Review a Decision of the Board of Immigration Appeals. I&NS No. A71-630-729

Before: William C. Canby, Jr., John T. Noonan, and William A. Fletcher, Circuit Judges.

Opinion by Judge Canby; Dissent by Judge Noonan

CANBY, Circuit Judge:

Octavia Beltran-Tirado, a Mexican national and citizen, lived in the United States for nineteen years using the name and Social Security number of a woman whose Social Security card Beltran apparently found on a bus. In 1991, Beltran was arrested and convicted of two crimes because she wrote her false Social Security number on an employment verification form in order to obtain employment. After she served her sentence, the U.S. Immigration and Naturalization Service ("INS") sought to deport her. Beltran then attempted to acquire lawful permanent residence in this country by applying for "registry" under 8 U.S.C. S 1259.¹ The Board of Immigration Appeals denied her request on the ground that her use of a false Social Security number constituted crimes of "moral turpitude," and that Beltran was therefore statutorily ineligible for registry. The Board also denied registry as a matter of discretion. We reverse. Beltran's crimes did not establish "moral turpitude" within the meaning of the Immigration and Nationality Act. Moreover, the Board's legal error in applying the statute infected its exercise of discretion; we therefore reverse and remand to the Board for a new exercise of discretion.

FACTUAL BACKGROUND

Beltran-Tirado is fifty years old and has lived in the United States since arriving here at age eighteen in 1968. ² For nineteen of her thirty-two years here, 1972-1991, Beltran lived under the assumed identity of Mary Lou Slavit. The real Mary Lou Slavit, who testified in this proceeding under her married name of Wingbermuehle, lives in Missouri. Beltran testified that she found Wingbermuehle's Social Security card on a bus. Beginning in 1972, Beltran used Wingbermuehle's Social Security card to obtain employment, get married twice, and obtain a driver's license, credit cards, and a HUD loan. She did not attempt to create any liability for Wingbermuehle in any of these transactions; Beltran used the card to establish her own credit.

Beltran's earnings, however, caused the Internal Revenue Service to question Wingbermuehle about unreported income. In 1988, Wingbermuehle called Beltran at Beltran's place of work and asked her to stop identifying herself as Wingbermuehle. Beltran persisted. In April 1991, Beltran was arrested and subsequently convicted of using a false attestation on an employment verification form in violation of 18 U.S.C. S 1546(b)(3) and of falsely representing a Social Security number in violation of 42 U.S.C. S 408(g)(2) (1988) (recodified at 42 U.S.C. S 408(a)(7)(B)). These two convictions were predicated on a single set of facts -Beltran's false attestation on an employment verification form for the purpose of obtaining employment at a restaurant in California. Beltran was sentenced to ninety days imprisonment, ninety days in a halfway house, and five years probation.

After the INS moved to deport her in 1993, Beltran sought relief by applying for registry, suspension of deportation, and voluntary departure. See Immigration and Nationality Act ("INA"), SS 249, 244(a), 244(e), 8 U.S.C. SS 1259, 1254(a), 1254(e) (1994). The immigration judge denied all three requests. The Board conducted a de novo review of Beltran's case and similarly denied Beltran relief with respect to all three applications. For each application, the Board not only found that Beltran did not meet the statutory requirements for relief, but it also denied relief as a matter of discretion. Beltran now seeks review of all three denials of relief.

JURISDICTION

Beltran's petition is subject to the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA").³ For that reason, we are precluded entirely from granting relief on two of Beltran's three claims. Section 309(c)(4)(E) of the transitional rules deprives us of jurisdiction to review the Board's discretionary denial of Beltran's applications for suspension of deportation and voluntary departure. See Kalaw v. INS, 133 F.3d 1147, 1152 (9th Cir. 1997). Beltran contends that this provision violates her due process rights, but we have previously rejected this argument, and do so here. See Antonio-Cruz v. INS , 147 F.3d 1129, 1131 (9th Cir. 1998). Because the Board's denial of suspension of deportation and its denial of voluntary departure are supported by the Board's exercise of discretion, we lack jurisdiction to review those rulings. See Kalaw, 133 F.3d at 1152; Antonio-Cruz, 147 F.3d at 1130.

IIRIRA does not, however, deprive us of jurisdiction to review the denial, discretionary or otherwise, of Beltran's application for registry.⁴ We have jurisdiction for that purpose under 8 U.S.C. S 1105a (1994) and S 309(c) of the transitional rules. We proceed, therefore, to address Beltran's registry claim.

APPLICATION FOR REGISTRY

1. Statutory eligibility

The registry statute, 8 U.S.C.S 1259, is a "remedial provision designed to regularize the status of long-resident aliens illegally in the country." Mrvica v. Esperdy, 376 U.S. 560, 569 (1964) (Goldberg, J., dissenting); see also Rodriguez-Barajas v. INS, 992 F.2d 94, 97 (7th Cir. 1993). Congress originally enacted the registry statute in 1929 and has updated it periodically since. It now applies to an alien who (1) "entered the United States prior to January 1, 1972," (2) has resided in the United States continuously since that time, (3) is a person of "good moral character, " and (4) is not ineligible for citizenship. 8 U.S.C. S 1259. ⁵ The Board concluded that Beltran foundered on the third element: because her two convictions represented crimes of "moral turpitude" under 8 U.S.C. S 1182(a)(2)(A), she could not demonstrate "good moral character" as that term is defined in 8 U.S.C. S 1101(f)(3).

The central question before us is whether Beltran's convictions under 18 U.S.C. S 1546(b)(3) (making false attestation on an employment verification form) and what is now 42 U.S.C. S 408(a)(7)(B) (1988) (using false Social Security number) constitute crimes of "moral turpitude " within the meaning of 8 U.S.C. S 1182(a)(2)(A). The text of the statute and federal decisional law provide no clear answer to this question. Congress spoke to this issue, however, in 1990 when it amended 42 U.S.C. S 408, one of the two sections under which Beltran was convicted. The amendment added a new subsection 408(d), which provided that aliens who had been granted permanent resident status under the amnesty or registry statutes were exempted from prosecution for certain past use of false Social Security numbers.⁶ The amendment does not apply in terms to Beltran, but its rationale illuminates the view of Congress concerning the lack of moral turpitude involved in Beltran's actions. In explaining the purpose of the exemption from prosecution, Congress's conference committee report states:

The Conferees intend that this exemption apply only to those individuals who use a false social security number to engage in otherwise lawful con duct. For example, an alien who used a false social security number in order to obtain employment which results in eligibility for social security benefits or the receipt of wage credits would be considered exempt from prosecution . . . .

. . . The Conferees believe that individuals who are provided exemption from prosecution under this proposal should not be considered to have exhibited moral turpitude with respect to the exempted acts for purposes of determinations made by the Immigration and Naturalization Service.

H.R. Conf. Rep. No. 101-964, at 948 (1990), reprinted in 1990 U.S.C.C.A.N. 2374, 2653 ("Conference Report"). These principles are relevant to Beltran's case. The crime of use of a false social security number, of which Beltran was convicted, is one of the crimes described in 42 U.S.C. S 408(a)(7), for which immunity is granted byS 408(d) to aliens who have been granted amnesty or registry. ⁷ Specifically, she "used a false social security number in order to obtain employment which results in eligibility for social security benefits or the receipt of wage credits . .. ." Conference Report at 948, 1990 U.S.C.C.A.N. at 2653.

Beltran's crime of false attestation was also addressed by the 1990 amendment to S 408. The exemption from prosecution in S 408(d)(1) applies, with exceptions not relevant here, to "any alleged conduct described in paragraph (6) or (7) of subsection (a)." That conduct includes false use of a Social Security number, which encompasses its use in such a document as an employment verification form. Thus the Conference Committee's comments apply both to the crime of use of a false Social Security number in violation of 42 U.S.C. S 408(a)(7)(B) and to the crime of false attestation with such a number in violation of 18 U.S.C. S 1546(b)(3).⁸

Of course, Beltran was not exempted from prosecution under S 408(d). The exemption grants immunity from future prosecution for past acts to persons who are granted permanent resident status under specified statutes, including the registry statute, 8 U.S.C. S 1259. Beltran was convicted before she sought registry.⁹ But the question before us is not whether Beltran should have been exempt from prosecution, but whether the crimes of which she was convicted involved moral...