834 F.3d 823 (7th Cir. 2016), 14-2839, Arias v. Lynch

• Citation: 834 F.3d 823
• Opinion Judge: Hamilton, Circuit Judge.
• Party Name: Maria Eudofilia Arias, Petitioner, v. Loretta E. Lynch, Attorney General of the United States, Respondent.
• Attorney: Linda T. Coberly, Attorney, Winston & Strawn LLP, Chicago, IL, for Petitioner. Edward C. Durant, OIL, John Frederick Stanton, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
• Judge Panel: Before Posner, Ripple, and Hamilton, Circuit Judges. Posner, Circuit Judge, concurring in the judgment.
• Case Date: August 24, 2016
• Court: United States Courts of Appeals, U.S. Court of Appeals — Seventh Circuit

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834 F.3d 823 (7th Cir. 2016)

Maria Eudofilia Arias, Petitioner,

v.

Loretta E. Lynch, Attorney General of the United States, Respondent.

No. 14-2839

United States Court of Appeals, Seventh Circuit

August 24, 2016

Argued October 30, 2015

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Petition for Review of an Order of the Board of Immigration Appeals. No. A087 774 871

Linda T. Coberly, Attorney, Winston & Strawn LLP, Chicago, IL, for Petitioner.

Edward C. Durant, OIL, John Frederick Stanton, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before Posner, Ripple, and Hamilton, Circuit Judges.

OPINION

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.” 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 statute 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 involving 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 vacated 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 vacuum of authoritative guidance on how the Board should determine whether a crime involves moral turpitude, we remand to the Board to reconsider Arias’s case.

In Part I, we recount the factual and procedural background of this case. In Part II, we examine the difficulty in treating violations of § 408(a)(7)(B) categorically as crimes involving moral turpitude. In Part III, we explain the reasons for our remand based on the Board’s legal error and the current 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 Cabinet Company in Grabill, Indiana. The company called Arias an “ excellent employee” in a

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letter Arias submitted to the immigration 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 citizens. Her oldest child, twenty-six years old, was born in Ecuador but has received relief from removal through the Deferred Action for Childhood Arrivals program.

In 2010, Arias was charged in federal court with falsely using 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 practice: one year of probation and a $100 special assessment. After Arias completed her probation successfully, she received employment authorization and Grabill Cabinet rehired her. In the letter from the company that Arias submitted to the immigration 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 proceedings. She admitted removability but applied for cancellation 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 requirements. 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 workable definition. See generally Jordan v. De George, 341 U.S. 223, 227-29, 71 S.Ct. 703, 95 L.Ed. 886 (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, 71 S.Ct. 703 (Jackson, J., dissenting) (“ moral turpitude” is too vague to support deportation).

The immigration judge held that Arias’s crime of conviction was a crime involving moral turpitude. The judge relied on two of this circuit’s cases: Marin-Rodriguez v. Holder, 710 F.3d 734 (7th Cir. 2013), and Miranda-Murillo v. Holder, 502 Fed.Appx. 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-vacated 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

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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 question whether a crime involves moral turpitude. Lagunas-Salgado 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. The Fifth and Eighth Circuits have said yes (including opinions 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 inherently 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 turpitude is one that is deliberately committed and ‘ serious,’ either in terms of the magnitude of the loss that it causes or the indignation that it arouses in the law-abiding public.” ), overruled on other grounds by Ali v. Mukasey, 521 F.3d 737, 743 (7th Cir. 2008); see generally Julia Ann Simon-Kerr, Moral Turpitude, 2012 Utah L.Rev. 1001, 1044-68 (2012) (recounting history 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...