Jesus Moreno-Silva v. U.S. Attorney General , 481 F. App'x 611 ( 2012 )

Case: 11-11994 Date Filed: 07/24/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
No. 11-11994
Non-Argument Calendar
_____________________________
D. C. Docket No. A097-379-781
JESUS MORENO-SILVA,
a.k.a. Manuel De los Reyes
Petitioner,
versus
U. S. ATTORNEY GENERAL,
Respondent.
_________________________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________________________
(July 24, 2012)
Before HULL, EDMONDSON and BLACK, Circuit Judges.
PER CURIAM:
Jesus Moreno-Silva, a native and citizen of Mexico, petitions for review of
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the order of the Board of Immigration Appeals (“BIA”) affirming the Immigration
Judge’s (“IJ’s”) denial of cancellation of removal. No reversible error has been
shown; we deny the petition.
Moreno-Silva entered the United States without inspection. In 2006 -- after
the Department of Homeland Security charged him as removable -- Moreno-Silva
filed an application for cancellation of removal and adjustment of status. In
support of his application, he argued that his United States citizen wife and
children would experience exceptional hardship if he was removed to Mexico.
The IJ denied Moreno-Silva’s application, concluding that -- although he
had established that his family would suffer exceptional hardship -- his 2005
conviction for fraudulent use of a social security number, 42 U.S.C.
§ 408(a)(7)(B), constituted a crime involving moral turpitude, rendering him
ineligible for a grant of cancellation of removal under 8 U.S.C. § 1229b(b)(1).1
The BIA affirmed, concluding that a violation of section 408(a)(7)(B) is
1
Under U.S.C. § 1229b(b)(1), the Attorney General has discretion to cancel the removal of a
non-permanent resident who establishes these four things: (1) he has had continuous physical
presence in the United States for ten years; (2) he has been a person of good moral character
during those ten years; (3) he has not been convicted of one of several specified offenses; and (4)
his citizen spouse or child will suffer “exceptional and extremely unusual” hardship as a result of
his removal. A person fails to establish that he is a person of good moral character if he has been
convicted a of a crime involving moral turpitude. See 8 U.S.C. §§ 1101(f)(3); 1182(a)(2)(A).
2
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categorically a crime involving moral turpitude because it involves deception and
dishonesty as essential elements.2
We review the BIA’s decision in this case because the BIA did not
expressly adopt the IJ’s decision. See Hernandez v. U. S. Att’y Gen., 513 F.3d
1336, 1338-39 (11th Cir. 2008) (noting that “[w]hen the BIA issues a decision, we
review only that decision, except to the extent that the BIA expressly adopts the
IJ’s decision.”). When an alien seeking review of a removal order has been
convicted of a crime involving moral turpitude, our jurisdiction to review the
petition is limited to review of constitutional claims or questions of law. See 8
U.S.C. § 1252(a)(2)(C), (D). Although we review whether a crime involves moral
turpitude -- and other questions of law -- de novo, we will defer to the BIA’s
interpretation if it is reasonable. Sosa-Martinez v. U.S. Att’y Gen., 420 F.3d 1338,
1341 n.2 (11th Cir. 2005).
A crime of 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.’” Id. at 1341. To determine whether a petitioner’s
2
One BIA member dissented, arguing that an offense under section 408(a)(7)(B) was not
categorically a crime involving moral turpitude.
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conviction constitutes a crime involving moral turpitude, we look to “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). Crimes involving dishonesty or false
statement are considered generally to involve moral turpitude. Id. at 1215.
Section 408(a)(7)(B) provides that a person commits a felony when he
for the purpose of obtaining . . . any other benefit to which he . . . is
not entitled, . . . or for any other purpose -- . . .
(B) with intent to deceive, falsely represents a number to be the social
security account number assigned by the Commissioner of Social
Security to him . . . , when in fact such number is not the social
security account number assigned by the Commission of Social
Security to him . . . .
Thus, the essential elements of Moreno-Silva’s offense “are (1) false
representation of a Social Security number, (2) with intent to deceive, (3) for any
purpose.” United States v. Harris, 376 F.3d 1282, 1291 (11th Cir. 2004). Because
Moreno-Silva’s offense involved both dishonesty and the making of a false
statement, the BIA’s interpretation of that crime as one involving moral turpitude
is reasonable. See Itani, 298 F.3d at 1215.
PETITION DENIED.
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