An interesting case out of the Seventh Circuit came out last week that may be of interest to those undocumented immigrants who may have or who are currently using false or fake social security numbers. The decision, Arias v. Lynch, concerns whether Ms. Arias, who is currently in removal proceedings, is deportable on the basis of her conviction for using a fake social security number to work. In more technical terms, the issue is whether this crime, found in 42 U.S.C. 408(a)(7)(B) constitutes a Crime Involving Moral Turpitude (“CIMT”) which would not only pose a ground of deportability but also prevent her from applying for cancellation of removal. Although this case is from a different jurisdiction, the Court’s analysis of the issue is quite insightful and trenchant in exposing the arbitrary nature of CIMTs and how even educated attorneys and judges can make critical errors that directly impact the lives of people who have lived here for decades.
Ms. Arias’s case is chilling because her situation resembles so many peoples’ here, quietly doing their best to make a living here and provide for their children. See if this sounds familiar: here is somebody who entered the US in 2000 without inspection. She subsequently began working for a company through the use of a social security number that was not issued to her by the Social Security Administration. She has been married since 1989 and have three children, two of which are United States Citizens. After being charged in federal court with falsely using a social security number, she pled guilty and received an extremely light sentence of one year probation and a $100 fine. When she was able to receive work authorization, the company that she had worked for actually hired her back and even submitted a letter to the Court esteeming her as an “excellent employee.” The Immigration Court, however, determined that her conviction was a Crime Involving Moral Turpitude and hence, she was not eligible to apply for cancellation of removal, which requires, in addition to the 10 years physical presence here, no CIMT convictions. She appealed and even the Board of Immigration Appeals (“BIA”) also found the crime to be one “categorically” involving moral turpitude. Fortunately, the Seventh Circuit Court of Appeals saw things differently.
For those without a legal background, the decision may be hard to comprehend, although it is comparatively more readable than many court decisions out there. The gist of the Court’s ruling is that the particular crime in question is not something that always, “categorically,” involves moral turpitude. Although there are certainly some situations where it would, there are also other violations that conceivably don’t rise to the level of being something that is “inherently base, vile, or depraved”-the language normally associated with CIMTs. The particular statute that Ms. Arias was charged with and convicted of is actually quite broad and, as the Court correctly points out, makes it a crime to misrepresent a social security number to be one’s own to obtain a benefit or “for any other purpose.” What if, like Ms. Arias, the individual misused the social security number so that he/she could work and pay taxes? There is no question that such conduct is not wrong and rightfully should be against the law; however, such behavior cannot be fairly be characterized as inherently evil. The Court draws an important distinction between dishonesty and fraud, noting that while the two are often conflated, they do not necessarily involve the same mental intent.
Ms. Arias is not out of this nightmare yet. The Court’s ruling only remanded the case back to the lower court to analyze the conviction again to determine whether it is a CIMT. Assuming that it is not, she may then make the case to the Immigration Judge that she qualifies for Cancellation of Removal based on her long history of residence here and hardship to family.
In any case, undocumented immigrants should be cognizant of the risks associated with questionable conduct. Using someone else’s social security number or someone’s driver license may not seem like a big thing in the greater scheme of things, but there may be immigration ramifications beyond the illegality of the act itself.
The foregoing is general information/opinion only and not meant to substitute for legal advice. It does not create an attorney client relationship nor should it be relied upon as legal advice. If you need legal advice or counsel, please consult with a qualified immigration attorney.