Zarate v. U.S. Attorney Gen.

• Decision Date: 18 February 2022
• Docket Number: No. 20-11654,20-11654
• Citation: 26 F.4th 1196
• Parties: Ruperto Hernandez ZARATE, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

26 F.4th 1196

Ruperto Hernandez ZARATE, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 20-11654

United States Court of Appeals, Eleventh Circuit.

Filed: February 18, 2022

Arnedo Silvano Valera, Arif & Associates, PC, Fairfax, VA, for Petitioner.

John Frederick Stanton, U.S. Department of Justice, Appellate Section, Office of Immigration Litigation, Washington, DC, Alfie Owens, DHS/ICE Office of Chief Counsel - ATL, Atlanta, GA, for Respondent.

Before Jordan, Jill Pryor, and Tjoflat, Circuit Judges.

Jordan, Circuit Judge:

Under federal law, a conviction for a "crime involving moral turpitude" (a CIMT) can have significant immigration consequences. For example, a person convicted of a CIMT is not eligible for the discretionary relief of cancellation of removal. See 8 U.S.C. §§ 1182(a)(2) & 1229b(b)(1)(c). The question presented in this appeal—one which has led to a circuit split—is whether a conviction for falsely representing a social security number, see 42 U.S.C. § 408(a)(7)(B), is a CIMT.

I

In 2019, Ruperto Hernandez Zarate—a citizen and national of Mexico—was convicted of violating 42 U.S.C. § 408(a)(7)(B) for using a social security card that was not his. As relevant here, that provision makes it a felony for someone "(7) ... for the purpose of obtaining anything of value from any person, or for any other purpose ... (B) with intent to deceive, [to] falsely represent[ ] a number to be the [S]ocial [S]ecurity account number assigned by the Commissioner of Social Security to him or to another person, when in fact such number is not the [S]ocial [S]ecurity account number assigned by the Commissioner of Social Security to him or to such other person[.]" 42 U.S.C. § 408(a)(7)(B).

An immigration judge ruled that Mr. Zarate was statutorily ineligible for cancellation of removal because his conviction under § 408(a)(7)(B) was for a CIMT, but otherwise would have granted him that relief. Mr. Zarate appealed to the Board of Immigration Appeals, which agreed with the immigration judge and dismissed the appeal. See A.R. at 3–5. The BIA explained that § 408(a)(7)(B) requires intent to deceive, and as a result Mr. Zarate's conviction was for a CIMT. Noting that the circuits were divided on the issue, it quoted our decision in Walker v. U.S. Att'y Gen. , 783 F.3d 1226, 1229 (11th Cir. 2015), for the proposition that, "[g]enerally, a crime involving dishonesty or false statement is considered to be one involving moral turpitude." The BIA did not, however, address whether a violation of § 407(a)(7)(B) is inherently base, vile, or depraved. And that, as we will later explain, is a significant omission.

II

We "review de novo the legal question of whether a[ ] conviction qualifies as a [CIMT]." Gelin v. U.S. Att'y Gen. , 837 F.3d 1236, 1240 (11th Cir. 2016). In determining whether a conviction is a CIMT, we employ the categorical approach (if the statute of conviction is not divisible and sets out alternative means of committing a single offense) or the modified categorical approach (if the statute of conviction is divisible and creates separate offenses). See Pereida v. Wilkinson , ––– U.S. ––––, 141 S. Ct. 754, 762–63, 209 L.Ed.2d 47 (2021) ; George v. U.S. Att'y Gen. , 953 F.3d 1300, 1303–04 (11th Cir. 2020). This means that "[w]hether a crime involves the depravity or fraud necessary to be one of moral turpitude depends on the inherent nature of the offense, as defined in the relevant statute, rather than the circumstances surrounding a defendant's particular conduct." Itani v. Ashcroft , 298 F.3d 1213, 1215–16 (11th Cir. 2002). See also Keungne v. U.S. Att'y Gen. , 561 F.3d 1281, 1284 (11th Cir. 2009) ("In other words, the determination that a crime involves moral turpitude is made categorically, based on the statutory definition or nature of the crime, not the specific conduct predicating a particular conviction."). We ask whether the "least culpable conduct necessary to sustain a conviction under the statute meets the standard of a crime involving moral turpitude." Gelin , 837 F.3d at 1241 (internal quotation marks and citation omitted).¹

III

CIMTs have been part of the immigration lexicon since the late 19th century, initially appearing in laws providing for the exclusion of certain categories of persons from the United States. See generally Jordan v. De George , 341 U.S. 223, 229 n.14, 71 S.Ct. 703, 95 L.Ed. 886 (1951). Remarkably, however, the term "moral turpitude" has never been defined by federal statute or rule, and its contours have been left to case-by-case adjudication by administrative and judicial tribunals for over a century. Because "moral turpitude" had its legal origins in defamation law as 19th-century common-law courts sought a manageable test for slander and libel per se, see Julia Ann Simon-Kerr, Moral Turpitude , 2012 Utah L. Rev. 1001, 1010–25 (2012), the term has proven amorphous (and difficult to define and confine) in the immigration arena.

The BIA has, understandably, described "moral turpitude" as a "nebulous concept." In re Tran , 21 I. & N. Dec. 291, 292 (BIA 1996). That may be a kind characterization. As one commentator has put it, "[t]he term ‘moral turpitude’ is probably incapable of precise definition in a legal sense, since it basically involves moral or ethical judgments." Annotation, What Constitutes "Crime Involving Moral Turpitude" Within Meaning of [§§] 212(a)(9) and 241(a)(4) of Immigration and Nationality Act (8 U.S.C.A. [§§] 1182(a)(9), 1251(a)(4)), and Similar Predecessor Statutes Providing for Exclusion or Deportation of Aliens Convicted of Such Crime[s] , 23 A.L.R. Fed. 480, § 2[a] (1975 & 2021 Supp.). Some have remarked that, to the extent that definitions of the term exist, "[i]t's difficult to make sense of ... [them]." Arias v. Lynch , 834 F.3d 823, 831 (7th Cir. 2016) (Posner, J., concurring in the judgment).

Nevertheless, the Supreme Court has held that the term "moral turpitude" is not unconstitutionally vague. "Whatever else" it "may mean in peripheral cases," the Court said, case law "make[s] it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude." De George , 341 U.S. at 232, 71 S.Ct. 703.²

So what exactly does "moral turpitude" mean? We turn to that question next.

A

According to the BIA, "moral turpitude" refers to "conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. To involve moral turpitude, a crime requires two essential elements: reprehensible conduct and a culpable mental state." Matter of Silva-Trevino , 26 I. & N. Dec. 826, 833–34 (BIA 2016) (internal quotation marks and citation omitted). We give deference to the BIA's definition, as well as to its application of that definition in precedential opinions. See Negusie v. Holder , 555 U.S. 511, 516–17, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009) ; Arevalo v. U.S. Att'y Gen. , 872 F.3d 1184, 1187–88 (11th Cir. 2017).

Our cases similarly explain that moral turpitude involves "an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." Smith v. U.S. Att'y Gen. , 983 F.3d 1206, 1210 (11th Cir. 2020) (quoting Keungne , 561 F.3d at 1284 ). This is basically the definition first used by federal courts—including the former Fifth Circuit—in immigration cases addressing moral turpitude in the early 20th century. See, e.g., Coykendall v. Skrmetta , 22 F.2d 120, 120–21 (5th Cir. 1927) ; Ex parte Machida , 277 F. 239, 241 (W.D. Wash. 1921) ; United States v. Uhl , 203 F. 152, 154 (S.D.N.Y. 1913), aff'd , 210 F. 860 (2d Cir. 1914). Accord 1 John Bouvier, Bouvier's Law Dictionary and Concise Encyclopedia 846 (1914) (explaining that moral turpitude, "as ground of exclusion of an alien, means an act of baseness, vileness or depravity in the private and social duties which one owes to society, and as applied to offenses includes only such crimes as manifest personal depravity or baseness"); 5 Judicial and Statutory Definitions of Words and Phrases 4581 (West 1904) (defining moral turpitude as "anything done contrary to justice, honesty, principle, or good morals").³

Consistent with the two elements identified by the BIA—reprehensible conduct and a culpable mental state—we agree with the Fourth Circuit that "by using the phrase ‘involving moral turpitude’ to define a qualifying crime, Congress meant to refer to more than simply the wrong inherent in violating [a] statute. Otherwise, the requirement that moral turpitude be involved would be superfluous. It follows, therefore, that a crime involving moral turpitude must involve conduct that not only violates a statute but also independently violates a moral norm." Mohamed v. Holder , 769 F.3d 885, 888 (4th Cir. 2014). Indeed, that is the view we expressed in our early immigration cases addressing the concept of moral turpitude. See Skrmetta , 22 F.2d at 121 ("From the fact that those acts have by statute been made punishable as crimes it does not follow that they are inherently immoral, or involve moral turpitude, within the meaning of the provision in question."); Guarneri v. Kessler , 98 F.2d 580, 581 (5th Cir. 1938) ("All federal offenses are statutory but that does not fix their inherent nature.").

Our survey of the legal landscape indicates that fraud offenses are—rightly or wrongly—categorically deemed to involve moral turpitude. As noted, the Supreme Court in De George rejected a vagueness challenge to the phrase "involving moral turpitude" by explaining that "crimes in which fraud was an ingredient have always been regarded as involving moral turpitude." De George , 341 U.S. at 232, 71 S.Ct. 703. Given that pronouncement, it would be inappropriate for us (regardless of our own views) to now declare that fraud offenses are not always CIMTs.

Based on De...