Jose Marin-Rodriguez v. Eric Holder, Jr. , 710 F.3d 734 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2253
JOSE C ONCEPCION M ARIN -R ODRIGUEZ,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
On Petition for Review of an Order of
the Board of Immigration Appeals.
No. A098 725 619
A RGUED JANUARY 17, 2013—D ECIDED M ARCH 6, 2013
Before M ANION and T INDER, Circuit Judges, and L EE,
District Judge. Œ
M ANION, Circuit Judge. Jose Concepcion Marin-Rodri-
guez, a citizen of Mexico, sought cancellation of removal
because his removal would cause hardship for his
Œ
Honorable John Z. Lee, of the Northern District of Illinois,
sitting by designation.
2 No. 12-2253
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 Immi-
gration 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
No. 12-2253 3
unlawfully obtained, to secure and maintain employ-
ment . . . 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, see 8 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 re-
moved. Rodriguez appealed to the Board of Immigration
Appeals (“Board”). While his appeal was pending, Rodri-
guez submitted a set of fingerprints and moved to re-
mand. The Board deemed his motion untimely and dis-
missed his appeal. But then Rodriguez moved for recon-
sideration, and the Board granted this motion and re-
manded to the Immigration Court.
Before the IJ could rule, however, the DHS asked the
Board to reconsider because Rodriguez had already been
4 No. 12-2253
removed to Mexico. Concluding that it lacked jurisdic-
tion, 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 can-
cellation of removal because his section 1546(a) convic-
tion was for a crime involving moral turpitude. On
appeal, the Board adopted and affirmed the IJ’s deci-
sion. 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. See
8 U.S.C. § 1229b(b)(1)(C). But Rodriguez contends that
1
Because Rodriguez and the conclusion of his immigration
proceedings were located in Missouri, the DHS observes in
its brief that the Eighth Circuit, rather than our circuit, is the
correct venue for this case. However, the agency expressly
waives any challenge to venue.
No. 12-2253 5
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 par-
ticular 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 (2000).
The immigration statutes use but do not define the
phrase “crime involving moral turpitude.” See 8 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 administra-
tive methodology for resolving moral turpitude
inquiries ha[d] resulted in different approaches across
the country.” Silva-Trevino, 24 I. & N. Dec. 687, 693 (AG
6 No. 12-2253
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 (1990), and Shepard v.
United States, 544 U.S. 13 (2005), for applying recidivist en-
hancements 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 convic-
tions 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 be-
yond 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 coin-
cide with the categorical and modified categorical ap-
No. 12-2253 7
proaches, 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 con-
viction does not itself resolve the issue . . . .”
Ahortalejo-Guzman, 25 I. & N. Dec. 465, 468 (BIA 2011).
We have determined that Silva-Trevino’s entire frame-
work is entitled to Chevron deference.2 See Mata-Guerrero,
627 F.3d at 260.3
2
In his brief, Rodriguez questions whether the third step of the
Silva-Trevino framework permits as broad a consideration of
additional evidence as permitted under the standard articulated
in Ali. Regardless, as discussed below, the agency resolved
Rodriguez’s case at the second step, and he was given an
opportunity to present any additional evidence he wished.
Rodriguez also expresses doubts about the continued vitality
of pre-Silva-Trevino decisions that held that convictions
under section 1546 for conduct involving deceit or misuse
of official documents were for crimes involving moral turpi-
tude. We need not address this quandary because, as we discuss
below, Rodriguez’s petition can be disposed of based on our
decision in Lagunas-Salgado, 584 F.3d at 712, which post-dates
Silva-Trevino.
3
A number of circuits have rejected the third step of the
Silva-Trevino framework. See Prudencio v. Holder, 669 F.3d 472,
484 (4th Cir. 2012); Fajardo v. Att’y Gen., 659 F.3d 1303, 1310
(11th Cir. 2011); Jean-Louis v. Att’y Gen., 582 F.3d 462, 482 (3d
Cir. 2009); see also Guardado-Garcia v. Holder, 615 F.3d 900,
902 (8th Cir. 2010) (“We are bound by our circuit’s precedent,
and to the extent Silva-Trevino is inconsistent, we adhere to
(continued...)
8 No. 12-2253
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 (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 under-
standing 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, e.g., Lateef v. Dep’t of Homeland Sec., 592 F.3d 926,
928, 931 (8th Cir. 2010) (holding alien’s conviction for
3
(...continued)
circuit law.”). However, as discussed below, the agency
resolved Rodriguez’s case at the second step (which is gen-
erally consistent with the modified categorical approach).
No. 12-2253 9
“using an unlawfully obtained social security number”
was for a crime involving moral turpitude); Omagah v.
Ashcroft, 288 F.3d 254, 261-62 (5th Cir. 2002) (affirming
Board ruling that “conspiracy to possess [illegal immigra-
tion documents] with intent to use does rise to the level
of moral turpitude . . . .”).
Here, Rodriguez’s record of conviction reveals that, as
part of his guilty plea, he admitted that he “used a
social security card, knowing that card was not assigned
to him and had been unlawfully obtained, to secure
and maintain employment . . . .” He also admitted that
he was aware that an authentic Social Security card
could be used as evidence that a person is authorized
to work in the United States. By knowingly presenting
a false Social Security card to an employer to obtain and
maintain unauthorized employment, Rodriguez not
only violated the law but also engaged in deceptive
conduct.
The deceptive nature of Rodriguez’s conduct is
even more explicit than that of the alien’s conduct in
Lagunas-Salgado. Here, Rodriguez’s use of a false Social
Security card was directly deceptive: he presented the
card to an employer with the intent to deceive that em-
ployer into thinking that he was legally employable. In
contrast, the alien in Lagunas-Salgado was not directly
deceiving anyone, but only selling false immigration
documents to aliens who could then use them for
deceptive purposes. See Lagunas-Salgado, 584 F.3d at 712(“That the recipients themselves were not deceived
does not change the fact that Lagunas-Salgado was
10 No. 12-2253
selling fraudulent Social Security cards and alien reg-
istration cards and placing them out into the world.”).
Lagunas-Salgado’s indirectly deceptive conduct was
“inherently deceptive” because of the risk that the aliens
purchasing the cards would use them deceptively—
exactly the sort of deceptive use, as it happens, in which
Rodriguez engaged. Consequently, Rodriguez’s directly
deceptive use of a false Social Security card to obtain
and maintain unauthorized employment a fortiori also
“involves inherently deceptive conduct.” 4 And, as we
already observed, crimes involving deceit are “within the
core of the common-law understanding of ‘moral turpi-
tude.’ ” Abdelqadar, 413 F.3d at 671. Therefore, we con-
clude that the agency did not err in holding that Rodri-
guez’s conviction was for a crime involving moral turpi-
tude.
Rodriguez’s arguments to the contrary are not persua-
sive. Certainly, as Rodriguez points out, Board prece-
4
Because Rodriguez’s conduct was inherently deceptive,
Lagunas-Salgado disposes of Rodriguez’s contention that it is
possible that he did not actually deceive his employer when he
presented his false Social Security card. His use of a false
Social Security card to obtain and maintain unauthorized
employment evidences an intent to deceive his employer
regardless of whether the employer was actually deceived. Cf.
Omagah, 288 F.3d at 261. In fact, Rodriguez carried the burden
of establishing his eligibility for cancellation, see 8 C.F.R.
§ 1240.8(d), yet he failed to offer any evidence that his
employer was not deceived or that he did not intend to deceive
his employer when he used the false Social Security card.
No. 12-2253 11
dent establishes that a conviction for merely possessing
an altered immigration document does not con-
stitute a crime involving moral turpitude because an
alien “might not have had the intent to use the al-
tered immigration document in his possession unlaw-
fully.” Serna, 20 I. & N. Dec. 579, 586 (BIA 1992). But, as
with the alien in Lagunas-Salgado, Rodriguez “was not
convicted of merely possessing a false document,” but
rather of using that false document in a way that
involved deception or the intent to deceive. 584 F.3d at
712. Similarly, Rodriguez’s arguments that his crime
was not base, vile, fraudulent, or malum in se are
without merit because, as we have explained, the agency
did not err in finding that his conduct involved deception,
and generally “a crime involving dishonesty or false
statement is considered to be one involving moral turpi-
tude.” Padilla, 397 F.3d at 1020 (quoting Itani v. Ashcroft,
298 F.3d 1213, 1215 (11th Cir. 2002) (internal quotation
marks omitted)); see also Lagunas-Salgado, 584 F.3d at
712; Lateef, 592 F.3d at 928, 931; Omagah, 288 F.3d at 261-62.
Rodriguez also argues that his conviction for using a
false Social Security card cannot be for a crime involving
moral turpitude unless the underlying conduct was also
illegal. Rodriguez contends that he only used the false
Social Security card to obtain and maintain employ-
ment, which is not illegal. 5 Rodriguez’s position is not
5
Rodriguez is correct that federal law does not impose crim-
inal penalties on illegal aliens merely because they work in
(continued...)
12 No. 12-2253
tenable in light of the rule that crimes involving deception
are morally turpitudinous. Furthermore, the Board deci-
sions cited by Rodriguez—Granados, 16 I. & N. Dec. 726(BIA 1979) (holding that possessing a concealed weapon
is not a crime involving moral turpitude), and S-, 6 I. & N.
Dec. 769 (BIA 1955) (holding that possessing instruments
of house-breaking is not a crime involving moral
turpitude)—are distinguishable because they involved con-
victions for merely possessing unlawful items. As we
explained above, possession is different from use. And,
unlike Rodriguez’s use of a false Social Security card,
merely possessing weapons or burglary implements
does not involve deception.
However, Rodriguez also relies on Beltran-Tirado v.
INS, 213 F.3d 1179, 1184 (9th Cir. 2000), wherein the
Ninth Circuit looked to the legislative history of 42
U.S.C. § 408(d)(1) 6 to rule that the “use of a false Social
Security number to further otherwise legal behavior is
not a crime of ‘moral turpitude’ . . . .” The Ninth
Circuit relied, specifically, upon a congressional con-
ference committee report stating that the exemption
5
(...continued)
the United States. See Arizona v. United States, 132 S. Ct. 2492,
2495 (2012). But that federal law imposes civil penalties on
such conduct when detected, and criminal as well as civil
penalties on employers who hire illegal aliens, demonstrates
that such conduct is far from innocent or praiseworthy—even
if ubiquitous.
6
Subsequently recodified at 42 U.S.C. § 408(e).
No. 12-2253 13
from prosecution provided by section 408(d)(1) only
applies “to those individuals who use a false social
security number to engage in otherwise lawful conduct.” 7
H.R. Conf. Rep. No. 101-964, at 948 (1990), reprinted in
1990 U.S.C.C.A.N. 2374, 2653. The report also states
that the “Conferees believe that individuals who are
provided exemption from prosecution under this
proposal should not be considered to have exhibited
moral turpitude with respect to the exempted acts for
purposes of determinations made by the Immigration
and Naturalization Service.” Id.However, the Fifth, Sixth, and Eighth circuits have all
declined to follow Beltran-Tirado. See Guardado-Garcia,
615 F.3d at 902-03; Serrato-Soto v. Holder, 570 F.3d 686, 692
(6th Cir. 2009); Hyder v. Keisler, 506 F.3d 388, 393 (5th
Cir. 2007). We now join those circuits in declining to
follow a decision that “appears to have expanded a
narrow exemption beyond what Congress intended.”
Hyder, 506 F.3d at 393. As Rodriguez concedes, section
408(d)(1) and its attendant legislative history do not
apply to him. And “[t]he mere fact that Congress chose
to exempt a certain class of aliens from prosecution for
certain acts does not necessarily mean that those acts
do not involve moral turpitude in other contexts.” Id.Furthermore, to adopt the reasoning in Beltran-Tirado
7
Rodriguez cites this report in his brief; but only for the
proposition that a crime cannot be morally turpitudinous if it
is not malum in se—an argument that we have addressed
above and need not belabor here.
14 No. 12-2253
would be to depart, at least partly, from our precedent
establishing that crimes of deceit and fraud involve moral
turpitude. See, e.g., Abdelqadar, 413 F.3d at 671; Padilla,
397 F.3d at 1020-21. We agree with the Fifth and Sixth
circuits that such a departure from our precedent
would not be appropriate. See Serrato-Soto, 570 F.3d at 692(“And in declining to follow Beltran-Tirado, we do not
disturb established Sixth Circuit precedent finding
crimes of fraud or dishonesty within the class of crimes
involving moral turpitude.”); Hyder, 506 F.3d at 393.
III. Conclusion
Because the agency correctly determined that Jose
Concepcion Marin-Rodriguez’s prior conviction for
using a fraudulent Social Security card to obtain and
maintain employment was for a crime involving
moral turpitude, we D ENY the petition for review.
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