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Aug. 25 — The Board of Immigration Appeals wrongly held that an undocumented immigrant wasn’t eligible to have her removal canceled because she used a fake Social Security number to obtain work, the U.S. Court of Appeals for the Seventh Circuit ruled ( Arias v. Lynch , 2016 BL 275078, 7th Cir., No. 14-2839, 8/24/16 ).
Under the Immigration and Nationality Act, the attorney general has discretion to cancel an undocumented immigrant’s removal except in certain circumstances, such as where the immigrant is convicted of a “crime involving moral turpitude.”
The Seventh Circuit said the BIA was wrong to hold that the law immigrant Maria Arias violated—which prohibits using a false Social Security number to obtain a benefit or “for any other purpose”—categorically involves moral turpitude in all instances.
Although the appeals court in a 2-1 decision strongly suggested that an undocumented immigrant who uses a fake Social Security number to work, pay taxes and support his or her family isn’t engaging in “moral turpitude,” it nevertheless sent the case back to the BIA to conduct a new analysis in light of a change in administrative law that occurred after Arias appealed.
“I’m not convinced that whatever the agency comes up with will be sufficiently clear to solve the fundamental problem,” that the term “moral turpitude” is too vague and “doesn’t mean anything to people,” Arias’s attorney, Linda T. Coberly of Winston & Strawn in Chicago, told Bloomberg BNA Aug. 25.
The concept of moral turpitude has been “used in various ways in the immigration laws and in federal law,” Coberly said. “But when you look at that term it’s not obvious what it means.”
The government’s prior attempts at a clear definition haven’t been successful, and “I have serious concerns about whether it would be possible,” Coberly said. That raises serious due process concerns, she said.
The U.S. Supreme Court “has recognized that deportation is tantamount to exile,” and “that’s a pretty grave thing to do to a person,” Coberly said. The law therefore should be very clear as to what actions an immigrant might engage in that could produce such a result, she said.
And because “moral turpitude” is so hard to define, Coberly said it’s “possible” the courts ultimately will throw out that section of the INA entirely for being a due process violation.
In this case, the Seventh Circuit didn’t go that far, instead choosing to give the BIA another shot at coming up with a clear definition, she said.
According to the decision written by Judge David F. Hamilton and joined by Judge Kenneth F. Ripple, Arias came to the U.S. unlawfully in 2000 and used a fake Social Security number to work for Grabill Cabinet Co. in Indiana. She filed an income tax return for every year she worked, up through 2012. She is married and has three children, two of whom are U.S. citizens and the third a deferred action for childhood arrivals recipient.
In 2010, Arias pleaded guilty to using a Social Security number that didn’t belong to her to obtain a benefit or “for any other purpose,” in violation of 42 U.S.C. §408(a)(7)(B). When she completed her probation, she obtained a work permit and went back to work for Grabill Cabinet Co.
In removal proceedings, the immigration judge determined that this law was one “involving moral turpitude” and so she wasn’t entitled to cancellation of removal on account of hardship to her family. Relying on precedent that existed at the time, the board said Section 408(a)(7)(B) is categorically a crime involving moral turpitude and upheld Arias’s removal.
The Seventh Circuit disagreed with that analysis, stating that it would be hard to see every possible violation of Section 408(a)(7)(B) as necessarily involving moral turpitude.
It would be inconsistent with the BIA definition of that term—that such conduct is “base, vile, or depraved”—“to hold that an unauthorized immigrant who uses a false social security number so that she can hold a job, pay taxes, and support her family would be guilty of a crime involving moral turpitude, while an unauthorized immigrant who is paid solely in cash under the table and does not pay any taxes would not necessarily be guilty of a crime involving moral turpitude,” Hamilton wrote.
But the court said it need not decide what exactly constitutes moral turpitude in this instance.
After Arias appealed, the attorney general vacated the decision on which the BIA relied, and thus the framework for determining whether a crime is one of “moral turpitude.” That decision instructed the BIA to come up with a replacement approach, which it hasn’t yet done, the court said.
Therefore, the board should take a second look at Arias’s case to determine, under a new approach, whether her crime prevents her from having her removal canceled, the court said.
Judge Richard A. Posner concurred in the judgment, but wrote a lengthy opinion arguing that “moral turpitude” should be scrapped. “It is preposterous that stale, antiquated, and, worse, meaningless phrase should continue to be a part of American law,” he wrote.
Speaking of Arias in particular, Posner said “[t]o prosecute and deport such a harmless person (to Ecuador, her country of origin)—indeed a productive resident of the United States—would be a waste of taxpayers’ money, but to deport her on the ground that her crime was one of moral turpitude would be downright ridiculous.”
The Justice Department represented the attorney general.
To contact the reporter on this story: Laura D. Francis in Washington at email@example.com
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/Arias_v_Lynch_No_142839_2016_BL_275078_7th_Cir_Aug_24_2016_Court_.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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