Marin–Rodriguez v. Holder

• Citation: 710 F.3d 734
• Decision Date: 06 March 2013
• Docket Number: No. 12–2253.,12–2253.
• Parties: Jose Concepcion MARIN–RODRIGUEZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

710 F.3d 734

Jose Concepcion MARIN–RODRIGUEZ, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 12–2253.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 17, 2013.

Decided March 6, 2013.

David K. Link, Gragert, Hiebert, Gray & Link, Wichita, KS, for Petitioner.

Michael C. Heyse, OIL, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before MANION and TINDER, Circuit Judges, and LEE, District Judge. ^*

MANION, Circuit Judge.

Jose Concepcion Marin–Rodriguez, a citizen of Mexico, sought cancellation of removal because his removal would cause hardship for his children, who are United States citizens. Ultimately, an Immigration Judge concluded that Rodriguez was not eligible for cancellation of removal because he had a prior conviction for using a fraudulent Social Security card to obtain and maintain employment that amounted to a crime involving moral turpitude. The Board of Immigration Appeals affirmed, and Rodriguez now petitions this court for review. Because the agency did not err in classifying Rodriguez's conviction as one for a crime involving moral turpitude, we deny his petition.

I. Factual Background

Rodriguez illegally entered the United States in 1988. Due to a misdemeanor DUI conviction in 2005, he came to the attention of the Department of Homeland Security (“DHS”), which initiated the process of removing him. During this process, the DHS discovered that he had been using a social security card and number not assigned to him. Rodriguez was charged with and pleaded guilty to using a fraudulent Social Security card to obtain and maintain employment within the United States in violation of 18 U.S.C. § 1546(a). Rodriguez's guilty plea included the following stipulation:

The parties agree the facts constituting the offense to which the defendant is pleading guilty are as follows:

Between January 1999 and May 2005, the defendant, a citizen of Mexico who is not a citizen or national of the United States, used a social security card, knowing that card was not assigned to him and had been unlawfully obtained, to secure and maintain employment ... in Wichita, Sedgwiek County, Kansas. Such a document, when authentic, is evidence that a person is authorized to be employed in the United States. The defendant used the fraudulent card for that purpose.

At a subsequent hearing before an Immigration Judge (“IJ”), Rodriguez conceded removability, but sought cancellation of removal. The IJ's court was located in Chicago, Illinois, while Rodriguez appeared via tele-video from Kansas City, Missouri. Pursuant to the applicable regulations, see8 C.F.R. § 1003.47(c)–(d), the IJ ordered Rodriguez to submit a set of fingerprints needed to determine his identity and whether he had any disqualifying criminal convictions. Fifteen months later, at his next hearing, Rodriguez still had not complied with the IJ's order. Thus, another IJ (who was located in Kansas City, Missouri) deemed Rodriguez's application for cancellation of removal abandoned for his “failure to fulfill the requirements of his biometrics and biographic information check.” The IJ then ordered Rodriguez removed. Rodriguez appealed to the Board of Immigration Appeals (“Board”). While his appeal was pending, Rodriguez submitted a set of fingerprints and moved to remand. The Board deemed his motion untimely and dismissed his appeal. But then Rodriguez moved for reconsideration, and the Board granted this motion and remanded to the Immigration Court.

Before the IJ could rule, however, the DHS asked the Board to reconsider because Rodriguez had already been removed to Mexico. Concluding that it lacked jurisdiction, the Board granted the DHS' motion and withdrew its remand order. Rodriguez petitioned this court for relief. We held that the Board erred in ruling that it lacked jurisdiction, and we granted Rodriguez's petition and remanded to the Board. See Marin–Rodriguez v. Holder, 612 F.3d 591, 594–95 (7th Cir.2010). We observed, however, that our remand might provide little solace for Rodriguez because his section 1546(a) conviction could nevertheless frustrate his efforts to avoid removal. Id. The Board then remanded Rodriguez's immigration proceedings to the Immigration Court. A new IJ, also located in Kansas City, Missouri, issued a written decision ruling that Rodriguez was ineligible for cancellation of removal because his section 1546(a) conviction was for a crime involving moral turpitude. On appeal, the Board adopted and affirmed the IJ's decision. Rodriguez now petitions this court for review.¹

II. Discussion

On appeal, Rodriguez does not dispute that he would be ineligible for cancellation of removal if he was in fact convicted of a crime involving moral turpitude. See8 U.S.C. § 1229b(b)(1)(C). But Rodriguez contends that the agency erred in concluding that his conviction for using a fraudulent Social Security card to obtain and maintain employment in violation of section 1546(a) constitutes a crime involving moral turpitude. “Whether an alien's conviction is properly classified as a crime of moral turpitude is a question of law, so we may review it.” Lagunas–Salgado v. Holder, 584 F.3d 707, 710 (7th Cir.2009) (citing 8 U.S.C. § 1252(a)(2)(D)). While legal questions are usually reviewed de novo, “[o]ur review of an agency's determination of whether a particular crime should be classified as a crime of moral turpitude ordinarily is deferential under Chevron....” Mata–Guerrero v. Holder, 627 F.3d 256, 259 (7th Cir.2010). But we do not extend Chevron deference to non-precedential Board decisions that do not rely on binding board precedent. Arobelidze v. Holder, 653 F.3d 513, 520 (7th Cir.2011). Rather, such Board decisions are entitled only to Skidmore deference. Id. Therefore, because the Board opinion from which Rodriguez appeals is non-precedential, its interpretation of the immigration statutes and regulations is entitled to our respect—but only to the extent that interpretation has the “power to persuade.” Id.;Christensen v. Harris Cnty., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000).

The immigration statutes use but do not define the phrase “crime involving moral turpitude.” See8 U.S.C. § 1182(a)(2)(A)(i)(I); 8 U.S.C. § 1227(a)(2)(A)(i)(I). And until 2008, the “absence of an authoritative administrative methodology for resolving moral turpitude inquiries ha[d] resulted in different approaches across the country.” Silva–Trevino, 24 I. & N. Dec. 687, 693 (AG 2008). Thus, the agency would apply the law of the circuit in which an alien's case arose. Id. Like most circuits, our decisions generally applied the categorical and modified categorical framework adopted by Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), for applying recidivist enhancements in federal criminal prosecutions. See Ali v. Mukasey, 521 F.3d 737, 741, 742 n. † (7th Cir.2008); Hashish v. Gonzales, 442 F.3d 572, 575–76 (7th Cir.2006) (collecting cases). Under that approach, the decisionmaker would “determine whether a given crime necessarily involves moral turpitude by examining only the elements of the statute under which the alien was convicted and the record of conviction, not the circumstances surrounding the particular transgression.” Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th Cir.2005) (internal quotation marks omitted).

Then, in Ali v. Mukasey, we relied upon 8 U.S.C. § 1229a(c)(3)(B) and Babaisakov, 24 I. & N. Dec. 306 (BIA 2007), to hold that “when deciding how to classify convictions under criteria that go beyond the criminal charge—such as ... whether the crime is one of ‘moral turpitude’, the agency has the discretion to consider evidence beyond the charging papers and judgment of conviction.” 521 F.3d at 743. Subsequently, in 2008, the Attorney General relied upon Ali in adopting a hierarchical or sequential three-step inquiry to be used by the entire agency in deciding which crimes are morally turpitudinous. See Silva–Trevino, 24 I. & N. Dec. at 696–704. The first and second steps of this inquiry generally coincide with the categorical and modified categorical approaches, respectively. Id. However, the third step permits the IJ to consider any evidence beyond the statute and record of conviction, as in Ali. Id. This third step “is properly applied only where the record of conviction does not itself resolve the issue....” Ahortalejo–Guzman, 25 I. & N. Dec. 465, 468 (BIA 2011). We have determined that Silva–Trevino's entire framework is entitled to Chevron deference. ²See Mata–Guerrero, 627 F.3d at 260.³

Here, the agency applied the Silva–Trevino framework and concluded, at the first step, that section 1546(a) realistically encompasses some conduct that is not morally turpitudinous. At the second step, however, the agency found that Rodriguez's record of conviction establishes that his crime involved moral turpitude. That decision was correct.

Crimes entailing an intent to deceive or defraud are unquestionably morally turpitudinous. See Jordan v. De George, 341 U.S. 223, 232, 71 S.Ct. 703, 95 L.Ed. 886 (1951) (“[T]he decided cases make it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude.”); 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 turpitude.’ ”); Padilla, 397 F.3d at 1020–21 (collecting cases). And in Lagunas–Salgado v. Holder, we held that selling fraudulent immigration documents to illegal aliens is morally turpitudinous because it “involves inherently deceptive conduct.” 584 F.3d at 712. Similarly, other circuits have recognized that the use of false immigration documents involves the kind of deceit or fraud that renders a crime morally turpitudinous. See,...