Hyder v. Keisler

• Citation: 506 F.3d 388
• Decision Date: 25 October 2007
• Docket Number: No. 06-60644.,06-60644.
• Parties: Kashif HYDER, Petitioner, v. Peter D. KEISLER, Acting U.S. Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

506 F.3d 388

Kashif HYDER, Petitioner, v. Peter D. KEISLER, Acting U.S. Attorney General, Respondent.

No. 06-60644.

United States Court of Appeals, Fifth Circuit.

October 25, 2007.

Erum Jivani, George R. Willy, Sugar Land, TX, for Petitioner.

John Clifford Cunningham, Thomas Ward Hussey, Director, Norah Ascoli Schwarz, U.S. Dept. of Justice, Office of Immigration Litigation, Washington, DC, Kenneth Pasquerell, U.S. I.N.S., San Antonio, TX, Trey Lund, U.S. Immigration and Customs Enforcement, Field Office Director, Attn: Carl Perry, New Orleans, LA, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before REAVLEY, BARKSDALE and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Kashif Hyder ("Hyder"), a native and citizen of Pakistan, petitions this court for review of a decision of the Board of Immigration Appeals (BIA) affirming the immigration judge's denial of his application for cancellation of removal from the United States. Hyder pleaded guilty in 2003 to misusing a social security number obtained by fraud, in violation of 42 U.S.C. § 408(a)(7)(A) (2000). The immigration judge held that this offense was a crime involving moral turpitude ("CIMT"), thus rendering Hyder ineligible for a grant of cancellation of removal; the BIA affirmed. For the following reasons, we deny Hyder's petition for review.

I. FACTUAL AND PROCEDURAL BACKGROUND

Hyder entered the United States on June 13, 1985 as a nonimmigrant visitor with permission to remain until December 12, 1985. However, he remained in the United States beyond the authorized period. On September 24, 1999, when Hyder was seventeen years old, a family member acting with Hyder's knowledge signed and dated a social security application in Hyder's name. The application, which falsely stated that Hyder held a student visa that gave him lawful immigration status, led to the issuance of a social security card. On August 7, 2000, at the age of eighteen, Hyder used this social security card to obtain a Texas driver's license and Texas identification card.¹ Hyder claims that he was unaware that the social security card was fraudulent when these events occurred.

In September 2002, Hyder was indicted by the United States District Court for the Western District of Texas on one count of making a false claim to United States citizenship, see 18 U.S.C. § 911, and one count of misusing a social security number obtained by fraud, see 42 U.S.C. § 408(a)(7)(A). Pursuant to a plea agreement entered in June 2003, the false claim of citizenship count was dismissed, and Hyder was convicted of misuse of a social security number obtained by fraud. Hyder was sentenced to twelve months' probation.

In 2003 and 2004, the Department of Homeland Security ("DHS") charged Hyder with being subject to removal from the United States on several grounds, including two that Hyder conceded: (1) that he remained in the United States beyond the expiration of his authorized period of stay, see 8 U.S.C. § 1227(a)(1)(B); and (2) that, by obtaining employment for wages without authorization, he failed to maintain his status as nonimmigrant visitor, see 8 U.S.C. § 1227(a)(1)(C)(i).² Although he conceded that he was removable, Hyder applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1), which provides that the Attorney General has discretion to cancel the removal of deportable aliens who satisfy several conditions of eligibility. The immigration judge found that Hyder's conviction under 42 U.S.C. § 408(a)(7)(A) was a CIMT, rendering Hyder per se unable to satisfy the condition of "good moral character," as required by 8 U.S.C. § 1229b(b)(1)(B). Accordingly, on March 4, 2005, the immigration judge denied Hyder's application for cancellation of removal.

Hyder appealed the immigration judge's decision to the BIA. The BIA affirmed the immigration judge's conclusion that Hyder was ineligible for cancellation of removal, finding that a violation of § 408(a)(7)(A) was a CIMT that rendered him unable to satisfy the "good moral character" requirement. In addition, the BIA found that Hyder's conviction for a CIMT rendered him unable to meet a separate condition of eligibility — the requirement that the alien has not been convicted of offenses under certain statutory sections, one of which describes CIMTs. See 8 U.S.C. §§ 1229b(b)(1)(C) & 1182(a)(2)(A)(i)(I). Hyder petitions this court for review of the decision of the BIA, arguing that his conviction did not constitute a CIMT.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D) to review the question of law at issue in this case: whether the BIA properly classified the crime of misuse of a social security number under 42 U.S.C. § 408(a)(7)(A) as a CIMT. See Rodriguez-Castro v. Gonzales, 427 F.3d 316, 319 (5th Cir.2005). To review the BIA's finding that an alien has committed a CIMT, we use a two-part standard: "First, we accord `substantial deference to the BIA's interpretation of the [Immigration and Nationality Act]' and its definition of the phrase `moral turpitude.' Second, we review de novo whether the elements of a state or federal crime fit the BIA's definition of a CIMT." Smalley v. Ashcroft, 354 F.3d 332, 335-36 (5th Cir.2003) (internal citations omitted).

III. DISCUSSION

A. Statutory eligibility for cancellation of removal

The statute governing applications for cancellation of removal provides,

The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien —

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;

(B) has been a person of good moral character during such period;

(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and

(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

8 U.S.C. § 1229b(b)(1). The government concedes that Hyder satisfies conditions (A) and (D). The BIA found that Hyder did not meet condition (B) because a CIMT conviction establishes per se an absence of good moral character, see Omagah v. Ashcroft, 288 F.3d 254, 259 (5th Cir.2002), and that he did not meet condition (C) because § 1182(a)(2) specifically covers CIMTs. Therefore, the sole issue before us is whether Hyder's conviction for misuse of a social security number under 42 U.S.C. § 408(a)(7)(A) is a CIMT. Section 408(a)(7) provides that a person commits a felony who

for the purpose of obtaining anything of value from any person, or for any other purpose —

(A) willfully, knowingly, and with intent to deceive, uses a social security number, assigned by the Commissioner of Social Security . . . on the basis of false information furnished to the Commissioner of Social Security by him or by any other person . . . .

We have not previously considered whether, for immigration or other purposes, this offense is a CIMT.

B. The meaning of "moral turpitude"

"Moral turpitude" is not defined by the Immigration and Nationality Act. We have adopted the BIA's definition:

Moral turpitude refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. 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. Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.

Hamdan v. I.N.S., 98 F.3d 183, 186 (5th Cir.1996) (quoting the BIA's decision in that case) (internal citations omitted). Fifth Circuit case law sheds further light on the meaning of the term. We have repeatedly emphasized that crimes whose essential elements involve fraud or deception tend to be CIMTs. In Omagah, for example, we held that conspiracy to obtain, possess, and use illegal immigration documents is a CIMT because it involves intentional deceit. 288 F.3d at 261-62. We stated, "Crimes including dishonesty or lying as an essential element involve moral turpitude." Id. at 260; see also Fuentes-Cruz v. Gonzales, 489 F.3d 724, 726 (5th Cir.2007) (holding that transportation of individuals in a manner that is designed to conceal an individual from law enforcement agencies is a CIMT because it requires fraudulent intent); Balogun v. Ashcroft, 270 F.3d 274, 278-79 (5th Cir.2001) (holding that forgery and fraudulent use of credit cards were CIMTs); Okabe v. I.N.S., 671 F.2d 863, 865 (5th Cir.1982) (holding that offering a bribe is a CIMT because "a corrupt mind is an essential element of the offense"). Moreover, the Supreme Court has stated 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." Jordan v. DeGeorge, 341 U.S. 223, 229, 71 S.Ct. 703, 95 L.Ed. 886 (1951) (holding that the offense of evading liquor taxes is a CIMT).

Hyder contends that his crime does not fall within the above understanding of CIMT. He maintains that his crime was very minor, because it involved no distinct victim, affected only the state of Texas, and involved only a sentence of probation. He also argues that he did not have a "vicious motive" or "corrupt mind" when he obtained a driver's license using a social security card that a family member had obtained for him. He argues that the he did...