Immigration Consequences of Using a False Social Security Number

Using a false social security number is one way to obtain unauthorized employment. You might have heard how some undocumented aliens make up social security numbers or use the numbers of other people without permission. You might think this conduct is relatively harmless but it has criminal and immigration consequences. It is often punished under 18 USC 1546(b) for false attestation on an employment verification form, or 42 USC 408(a)(7)(A) for misusing a social security number obtained by fraud, or 42 USC 408(a)(7)(B) for falsely representing a social security number. A conviction for any of these offenses might have immigration consequences in the sense that it could be considered a crime involving moral turpitude (CIMT), which is a ground for inadmissibility that would bar an alien from getting a green card. If an alien admits committing these offenses, he could still be inadmissible even without a conviction.

The Ninth Circuit Court of Appeals (which covers California, among others) in Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000), held that convictions under 18 USC 1546(b) and 42 USC 408(a)(7)(B) are not CIMTs. In contrast, the Fifth Circuit (which covers Texas) in Hyder v. Keisler, 506 F.3d 388 (5th Cir. 2007), the Sixth Circuit (which covers Tennessee) in Serrato-Soto v. Holder, 570 F.3d 686 (6th Cir. 2009), the Seventh Circuit (which cover Illinois) in Marin-Rodriguez v. Holder, No. 12-2253, slip op. (7th Cir. March 6, 2013), and the Eight Circuit (which covers Missouri) in Lateef v. DHS, 592 F.3d 926 (8th Cir. 2010) and Guardado-Garcia v. Holder, 615 F.3d 900 (8th Cir. 2010) all refused to follow Beltran-Tirado and held that convictions under 18 USC 1546(b), 42 USC 408(a)(7)(A), or 42 USC 408(a)(7)(B) are CIMTs.

To understand this difference in opinion, we must first know what is a CIMT. The Ninth Circuit defines a CIMT as a crime involving (1) fraud or (2) conduct that (a) is vile, base, or depraved and (b) violates accepted moral standards. Other circuits such as the Fifth Circuit emphasize that crimes whose essential elements involve fraud or deception tend be CIMTs. All circuits agree that fraud is the contaminating component in any crime considered a CIMT.

Based on this premise, the Fifth Circuit in Hyder held that a conviction under 42 USC 408(a)(7)(A) is a CIMT because an individual must use a social security number with intent to deceive in order to be convicted under this law. Hence, the Fifth Circuit found that 42 USC 408(a)(7)(A) involves an element of dishonesty.

On the other hand, the Ninth Circuit in Beltran-Tirado held that a conviction under 42 USC 408(a)(7)(B) for falsely representing a social security number with intent to deceive is not a CIMT based on an interesting rationale. The Court looked at a related provision, 42 USC 408(d), which exempted aliens granted permanent residence through the registry and amnesty programs from prosecution for past use of social security numbers. The Ninth Circuit concluded that Congress’s rationale for 42 USC 408(d) supports the general principle that the use of a false security number to engage in otherwise lawful conduct such as obtaining employment is not a CIMT.

The Fifth Circuit and all the other circuits that have rejected the ruling in Beltran-Tirado were quick to point out that the Ninth Circuit expanded the narrow exemption in 42 USC 408(d) beyond what Congress intended. These circuits explained that the mere fact that Congress chose to exempt registry and amnesty beneficiaries from prosecution for past use of false social security numbers does not mean that these acts do not involve moral turpitude in other contexts. However, the Ninth Circuit reasoned that the underlying conduct of one who was granted immunity from prosecution under 42 USC 408(d) and one who was convicted under 42 USC 408(a)(7)(B) are the same.

The Ninth Circuit believes that Congress granted the exemption in 42 USC 408(d) because using a false social security number for lawful conduct is not a CIMT. The Ninth Circuit agrees with other circuits that crimes involving fraud are CIMTs. It also agrees that a crime is inherently fraudulent if it involves a knowingly false representation to gain something of value. However, the Ninth Circuit does not see the act of using a false social security number to gain employment as fraudulent even when it involves deceit. The other circuits see moral turpitude in any criminal conduct that involves dishonesty or deceit regardless of the objectives of the fraud.

So even if you’re desperate to find work, consider the consequences before you use another person’s social security number. If you reside within the jurisdiction of the Ninth Circuit, you may take comfort in its favorable ruling but you should also be concerned whether the Ninth Circuit can maintain its minority position amid the growing consensus among other circuits.