Munoz-Rivera v. Rosen ( 2021 )

Case: 19-60376 Document: 00515721462 Page: 1 Date Filed: 01/27/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 27, 2021
No. 19-60376 Lyle W. Cayce
Clerk
Fernando Munoz-Rivera, also known as Fernando
Rivera Munoz, also known as Martin Alvarez, also
known as Edgar Gonzalez-Munoz, also known as Rivera
Munoz,
Petitioner,
versus
Robert M. Wilkinson, Acting U.S. Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Before Owen, Chief Judge, and Graves and Ho, Circuit Judges.
Per Curiam:
The question presented in this case is whether the use of an
unauthorized social security number constitutes a crime involving moral
turpitude (CIMT) such that Fernando Munoz-Rivera is ineligible for
cancellation of his removal to Mexico. Because we answer in the affirmative,
we dismiss the petition for review.
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No. 19-60376
I
Fernando Munoz-Rivera, a Mexican citizen, entered the United
States near Laredo, Texas in 2010 without being admitted or paroled. In
2015, Munoz-Rivera was convicted of the use of an unauthorized social
security number in violation of 42 U.S.C. § 408(a)(7)(B). The Department
of Homeland Security later charged Munoz-Rivera with being removable as
an alien convicted of a CIMT under § 212(a)(2)(A)(i)(I) of the Immigration
and Nationality Act (INA), 8 U.S.C. § 1182(a)(2)(A)(i)(I). Munoz-Rivera
denied the charge, asserting that he had not been convicted of a CIMT and
that he intended to seek cancellation of removal under §240A(b)(1) of the
INA, 8 U.S.C. § 1229b(b)(1).
After allowing the parties to brief whether the § 408(a)(7)(B) offense
constitutes a CIMT, the Immigration Judge (IJ) agreed with the
Government, sustaining the charges against Munoz-Rivera, pretermitting his
application for cancellation of removal, and ordering that he be removed.
The Board of Immigration Appeals (BIA) dismissed Munoz-Rivera’s appeal,
agreeing with the IJ that Munoz-Rivera was ineligible for cancellation of
removal because his conviction for use of an unauthorized social security
number was a CIMT. Munoz-Rivera filed a timely petition for review.
II
This court reviews de novo the BIA’s determination of whether an
offense qualifies as a CIMT but defers to the BIA’s interpretation of the term
“moral turpitude.” 1 Our court has observed that “[t]he INA does not define
the term ‘moral turpitude’ and legislative history does not reveal
congressional intent regarding which crimes are turpitudinous. Instead,
1
Villegas-Sarabia v. Sessions, 874 F.3d 871, 877 (5th Cir. 2017).
2
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Congress left the interpretation of this provision to the BIA and
interpretation of its application to state and federal laws to the federal
courts.” 2
Under 8 U.S.C. § 1182(a)(2)(A)(i)(I), an alien is inadmissible into the
United States if she has been convicted of a CIMT. 3 Section 1229b provides
that an alien is ineligible for cancellation of her removal if she has been
convicted of an offense under § 1182(a)(2). 4 Thus, if the offense of which
Munoz-Rivera was convicted constitutes a CIMT, Munoz-Rivera is
pretermitted from applying for cancellation of his removal, we are without
jurisdiction to review the removal order, and the petition for review must be
dismissed. 5
The criminal statute at issue provides:
Whoever—
(7) for the purpose of causing an increase in payment
authorized under this subchapter (or any other program
financed in whole or in part from Federal funds), or for the
purpose of causing a payment under this subchapter (or any
such other program) to be made when no payment is
authorized thereunder, or for the purpose of obtaining (for
himself or any other person) any payment or any other benefit
to which he (or such other person) is not entitled, or for the
purpose of obtaining anything of value from any person, or for
any other purpose—
2
Rodriguez-Castro v. Gonzales, 427 F.3d 316, 319-20 (5th Cir. 2005) (internal quo-
tation marks and citations omitted).
3
8 U.S.C. § 1182(a)(2)(A)(i)(I).
4
8 U.S.C. § 1229b(b)(1)(C).
5
See 8 U.S.C. § 1252(a)(2)(C); Fuentes-Cruz v. Gonzales, 489 F.3d 724, 727 (5th
Cir. 2007) (per curiam).
3
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(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 or to another person,
when in fact such number is not the social security account
number assigned by the Commissioner of Social Security to
him or to such other person . . . shall be guilty of a felony . . . . 6
Deferring to the BIA’s interpretation, we have explained:
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. 7
“This court uses a categorical approach to determine whether a
particular crime meets the BIA’s definition of a CIMT.” 8 The categorical
approach “focuses on the inherent nature of the crime, as defined in the
statute . . . rather than the circumstances surrounding the particular
transgression.” 9 “When applying the categorical approach, the statute must
be read as the minimum criminal conduct necessary to sustain a conviction
under the statute.” 10 For Munoz-Rivera to have committed a CIMT,
6
42 U.S.C. § 408(a)(7)(B).
7
Omagah v. Ashcroft, 288 F.3d 254, 259-60 (5th Cir. 2002) (quoting Hamdan v.
INS, 98 F.3d 183, 186 (5th Cir. 1996)).
8
Villegas-Sarabia v. Sessions, 874 F.3d 871, 877 (5th Cir. 2017).
9
Id. (quoting Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir. 2006)).
10
Id. (quoting Rodriguez-Castro v. Gonzales, 427 F.3d 316, 320 (5th Cir. 2005)).
4
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therefore, the minimum conduct criminalized under § 408(a)(7)(B) must
constitute moral turpitude.
Under this court’s precedents, the § 408(a)(7)(B) offense
categorically constitutes a CIMT. “This Court has repeatedly held that
crimes including an element of intentional deception are crimes involving
moral turpitude.” 11 Similarly, “[t]his court’s precedent firmly establishes
that ‘[c]rimes including dishonesty or lying as an essential element involve
moral turpitude.’” 12 A § 408(a)(7)(B) offense necessarily involves
intentional deception: a person commits the offense if, “with intent to
deceive”, she “falsely represents a number to be the social security account
number . . assigned . . . to [her] or to another person” when that number has
not been assigned to her or such other person. 13 The offense is a CIMT
rendering Munoz-Rivera ineligible for cancellation of his removal.
Our decision in Hyder v. Keisler 14 further supports our conclusion. In
that case, the court held that § 408(a)(7)(B)’s sister offense, § 408(a)(7)(A),
constituted a CIMT. 15 Subsection (A) provides that one commits a felony if
she:
for any other purpose—
(A) willfully, knowingly, and with intent to deceive, uses
a social security account number, assigned by the
Commissioner of Social Security . . . on the basis of false
11
Fuentes-Cruz v. Gonzales, 489 F.3d 724, 726 (5th Cir. 2007) (per curiam).
12
Villegas-Sarabia, 874 F.3d at 881 (second alteration in original) (quoting Hyder v.
Keisler, 506 F.3d 388, 391 (5th Cir. 2007)).
13
See 42 U.S.C. § 408(a)(7)(B).
14
506 F.3d 388 (5th Cir. 2007).
15
Id. at 393.
5
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information furnished to the Commissioner of Social
Security by h[er] or by any other person . . . . 16
The court reasoned: “Hyder was convicted of a crime that involves
dishonesty as an essential element. As our precedents make clear, such a
crime falls well within this circuit’s understanding of the definition of
CIMT.” 17 Just as § 408(a)(7)(A) involves dishonesty as an essential
element, so too does § 408(a)(7)(B).
Munoz-Rivera argues that the broad statutory language, criminalizing
the use of an unauthorized social security number for “any . . . purpose,”
could include a non-turpitudinous purpose, and therefore the crime is not
categorically one involving moral turpitude. However, the same “any . . .
purpose” language applied to the § 408(a)(7)(A) offense discussed in Hyder,
and the court nevertheless held that the offense was a CIMT. 18 The reason
is simple: “[i]n determining whether an offense is a CIMT, ‘[w]e concentrate
on the inherent nature of the crime, as defined in the statute concerned,
rather than the circumstances surrounding the particular transgression.’” 19
In other words, as the BIA recognized, “the conduct considered
turpitudinous is the intentional deception itself, regardless of the purpose of
the deception.” “The particular circumstances surrounding [Munoz-
Rivera’s] conviction, such as the light sentence and his possible lack of a
‘vicious motive,’ are not relevant to our analysis.” 20
16
42 U.S.C. § 408(a)(7)(A).
17
Hyder, 506 F.3d at 392.
18
Id. at 390-91.
19
Id. at 391 (second alteration in original) (quoting Omagah v. Ashcroft, 288 F.3d
254, 260 (5th Cir. 2002)).
20
Hyder, 506 F.3d at 392.
6
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Munoz-Rivera argues that the offense cannot categorically constitute
a CIMT unless the deception is accompanied by some further aggravating
element, “such as either an element involving the specific intent to defraud
the government or an element which necessarily causes harm to another
person directly or to the government and society at large by impairing or
obstructing a function of the government.” Munoz-Rivera bases this
argument on the at-times qualified language this court has used in its analysis
of the relationship between deception and moral turpitude. 21 However,
Munoz-Rivera fails to appreciate that both this court and the BIA—to which
we accord “considerable deference” in interpreting moral turpitude 22—
understand the offender’s deceptive intent to be dispositive. 23 In other
words, deceptive intent is sufficient for an offense to constitute a CIMT.
Assuming, arguendo, that conviction under the operative statute
requires a further aggravating element beyond deceptive intent, we are
satisfied that such an element is present. Conviction under § 408(a)(7)(B)
necessarily involves conduct that obstructs the function of government. As
the government correctly points out, the use of an unauthorized social
security number “disrupts the ability of the government to oversee the
management of social security accounts; impacts legitimate tax collection
21
See, e.g., id. at 391 (“We have repeatedly emphasized that crimes whose essential
elements involve fraud or deception tend to be CIMTs.” (emphasis added)).
22
Mercado v. Lynch, 823 F.3d 276, 278 (5th Cir. 2016) (per curiam) (internal
quotation marks omitted) (quoting Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007)).
23
See Villegas-Sarabia v. Sessions, 874 F.3d 871, 881 (5th Cir. 2017) (specifically
holding that misprision of a felony is a CIMT because it “necessarily entails deceit” (inter-
nal quotation marks and citation omitted)); In re Jurado-Delgado, 24 I. & N. Dec. 29, 35
(BIA 2006) (“[T]he intent to mislead . . . is the controlling factor.”).
7
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efforts; and imposes a public cost in efforts to protect personal information.”
In other words, a § 408(a)(7)(B) offense necessarily harms the government. 24
We are mindful of circuit disagreement as to whether § 408(a)(7)(B)
constitutes a CIMT. 25 However, in Hyder, we specifically rejected the Ninth
Circuit’s holding in Beltran-Tirado. 26 In Beltran-Tirado, the Ninth Circuit
considered the precise issue before this court today: whether a violation of 42
U.S.C. § 408(g)(2), recodified as § 408(a)(7)(B), constitutes a CIMT. The
Hyder court “decline[d] to follow Beltran-Tirado in exempting social security
number misuse from CIMT status” because “to follow the Ninth Circuit’s
reasoning would require us to ignore our existing precedents, which establish
that crimes involving intentional deception as an essential element are
generally CIMTs.” 27 We once again decline to follow Beltran-Tirado.
* * *
Munoz-Rivera was convicted of an offense that categorically involves
moral turpitude. Thus, his application for cancellation of removal is
pretermitted. We DISMISS his petition for review.
24
Cf. Hyder, 506 F.3d at 392 (“Moreover, the fact that the government was the
only victim does not negate a finding that the offense is a CIMT . . . .”).
25
Compare Moreno-Silva v. U.S. Att’y Gen., 481 F. App’x 611, 613 (11th Cir. 2012)
(per curiam) (holding that the BIA reasonably interpreted § 408(a)(7)(B) crimes to
categorically constitute CIMTs), and Guardado-Garcia v. Holder, 615 F.3d 900, 903 (8th
Cir. 2010) (holding the same), with Arias v. Lynch, 834 F.3d 823, 824 (7th Cir. 2016) (“[W]e
doubt that every violation of the statute necessarily qualifies as a crime involving moral
turpitude.”), and Ahmed v. Holder, 324 F. App’x 82, 83 (2d Cir. 2009) (“We are not
persuaded that Syed Iqbal Ahmed’s conviction under 42 U.S.C. § 408(a)(7)(B) is of a
crime involving moral turpitude.”), and Beltran-Tirado v. INS, 213 F.3d 1179, 1186 (9th Cir.
2000) (holding that the BIA “erred” in determining that the petitioner’s § 408(a)(7)(B)
convictions established moral turpitude).
26
Hyder, 506 F.3d at 393.
27
Id.8