Fraud offenses and false use of social security number as CIMTs

MORE than a year ago, I discussed in an article the immigration consequences of using a false social security number. In Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000), the Ninth Circuit Court of Appeals held that convictions under 18 USC 1546(b), for false attestation on an employment verification form, and 42 USC 408(a)(7)(B), for falsely representing a Social Security number, are not crimes involving moral turpitude (CIMT).

We need to revisit Beltran-Tirado because recent decisions of the Ninth Circuit have clarified the scope of this ruling.

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. To determine whether a particular offense is a CIMT, the court must analyze the elements of this offense by comparing the statute that defines the offense with the court or BIA’s generic definition of moral turpitude. If the statute only prohibits conduct that involves moral turpitude, then such particular offense is categorically a CIMT.

In Beltran-Tirado, the petitioner used the Social Security number of another person in an employment verification form in order to obtain employment at a restaurant. Petitioner was convicted under 42 USC 408(a)(7)(B) for falsely representing a social security number. The Ninth Circuit held that this conviction is not a CIMT. The Court came to this conclusion by looking 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 Court held 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.

In Espino-Castillo v. Holder, No. 13-70756, slip op. (9th Cir. October 29, 2014), the Ninth Circuit clarified the significance of its ruling in Beltran-Tirado. In Espino-Castillo, the petitioner was convicted of forgery in violation of Arizona Revised Statutes (ARS) 13-2002. Petitioner argued that since the underlying conduct in his forgery conviction involved the use of false information to obtain employment, his conviction should not be considered a CIMT. Petitioner cited Beltran-Tirado in support of his argument.

However, since 1951, the Ninth Circuit has consistently held that a conviction for a fraud offense is a CIMT. How did the Court resolve what appears to be a conflict between its long established rule on fraud convictions and its ruling in Beltran-Tirado? The Ninth Circuit explained in Espino-Castillo that Beltran-Tirado is an isolated exception to the prevailing rule that a conviction for a fraud offense is categorically a CIMT. The Court further explained that Beltran-Tirado is grounded in the history and purpose of 42 USC 408, the specific federal social security statute under which Beltran had been convicted. The Court noted that although it has never overruled Beltran-Tirado, it has never cited its holding for any purpose beyond the application of 42 USC 408. Thus, before and after Beltran-Tirado, the Ninth Circuit has always treated fraud convictions as CIMTs.

In Hernandez De Martinez v. Holder, No. 11-72401, slip op. (9th Cir. October 24, 2014) the petitioner was convicted under ARS 13-2006(A)(1) for criminal impersonation by assuming a false identity with intent to defraud. Petitioner argued that her conviction was not a CIMT because she used a false Social Security number only to obtain employment. The Ninth Circuit rejected this argument and held that crimes with the element of “intent to defraud” such as a violation of ARS 13-2006(A)(1) are necessarily CIMTs. In Hernandez De Martinez, the Court did not mention Beltran-Tirado but the discussions came a few days later in Espino-Castillo.

Before the decisions in Hernandez De Martinez and Espino-Castillo some assumed that a conviction involving the false use of a Social Security number or the false use of any information for the purpose of obtaining employment is not a CIMT. This assumption appeared to have some merit based on the ruling in Beltran-Tirado.

However, Espino-Castillo has now clarified that the element of committing fraud to obtain employment is not the reason a conviction is not considered a CIMT. What exempts fraud from the rule that a fraud conviction is a CIMT is not the purpose of the fraud, but it depends on the statute under which the offense is punished. The Ninth Circuit has stated that, so far, only a conviction under 42 USC 408 is not a CIMT even though there might have been fraud involved. Thus, Beltran-Tirado provides a very narrow exception that would have very little application in most cases.

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Charles Medina practices immigration law. Visit his website at www.medinalawgroup.net for more details. This article provides general information only and does not provide legal advice on any specific matter or predict the outcome of any legal matter. It does not invite or create an attorney-client relationship.