by Claire Lisker*
A conviction for a “crime involving moral turpitude” renders an undocumented immigrant ineligible for cancellation of removal, a discretionary form of relief that the Attorney General may grant to individuals who have remained in the United States for ten or more years. This Contribution argues that falsifying a Social Security number, as criminalized under 42 U.S.C. § 408(a)(7)(B), is not a crime involving moral turpitude.
Undocumented immigrants at risk of deportation may have a narrow but golden lifeline: the opportunity for cancellation of removal. Under 8 U.S.C. § 1229b(b)(1), the Attorney General has discretion to cancel removal where the individual (i) has been continuously present in the United States for at least ten years, (ii) has demonstrated “good moral character” during that period, (iii) has not been convicted of certain enumerated offenses, and (iv) establishes their “removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.”1 One fails the “good moral character” requirement if they have committed a “crime involving moral turpitude” (“CIMT”), thereby becoming ineligible for cancellation of removal.2
Because the statute does not define “CIMT,” “courts have labored for generations to provide a workable definition” of “moral turpitude.”3 The consensus has long been that “moral turpitude” refers to “conduct that shocks the public conscience as being inherently base, vile, or depraved.”4 Courts also agree that “to involve moral turpitude, a crime requires two essential elements: reprehensible conduct and a culpable mental state,”5 with the latter requirement, a “corrupt scienter,” as a CIMT’s “touchstone.”6 To determine whether a criminal act constitutes a CIMT, courts apply the categorical approach: they examine the elements of the statute criminalizing the act rather than the specific facts underlying any individual’s conviction.7 So long as the “minimum conduct”8 or “least culpable conduct”9 punishable by the statute still falls within the CIMT definition, the offense is categorically a CIMT. Put differently, under what has been termed the “minimum-conduct test,”10 if the statute could be violated in a way that is not morally turpitudinous, the CIMT label cannot apply.
Despite these guiding metrics, courts stand divided on whether certain crimes are morally turpitudinous. One such crime is that of falsification of a Social Security number under 42 U.S.C. § 408(a)(7)(B).11 The statute imposes a felony conviction with a maximum sentence of five years12 on
whoever . . . for any . . . purpose . . . with intent to deceive, falsely represents a number to be the Social Security account number assigned by the Commissioner of Social Security to him or to another person, when in fact such number is not the Social Security account number assigned by the Commissioner of Social Security to him or to such other person.13
Courts that deem 42 U.S.C. § 408(a)(7)(B) violations to be morally turpitudinous “t[ake] it as given that a crime involving ‘fraud as an ingredient’ qualifies as a [CIMT],” harkening back to the 1951 Supreme Court case Jordan v. De George.14 When applying the minimum-conduct test to that theory, one must ask, “could someone commit [the] crime of conviction without fraud?”15 If the answer is “yes,” as this Contribution argues is the case for violations of 42 U.S.C. § 408(a)(7)(B), the crime cannot be deemed a CIMT.
Notably, some circuits have wavered on their prior CIMT classifications for violations of the statute, acknowledging the inadequacy of a categorical CIMT label for Social Security number falsification.16 Yet, a sharp circuit split remains, producing drastically inconsistent results: in some areas, a light criminal sentence is followed by the most extreme immigration consequence, whereas in others, the immigrant has a chance to continue the life they built with their family in the United States.17
This Contribution argues that courts should deem violations of 42 U.S.C. § 408(a)(7)(B) to not be morally turpitudinous. Such a determination aligns with the statute’s language, the definitions of fraud, and the purpose of CIMT categorizations.
First, 42 U.S.C. § 408(a)(7)(B) fails the minimum-conduct test because fraud is not one of its statutory elements. The statute “does not include fraud as an element or ingredient,”18 as it only requires an “intent to deceive,” and deceit is not synonymous with fraud. In writing statutes, Congress has explicitly treated these two terms as distinct.19 Were the crime of falsifying a Social Security number to require fraud—either exclusively or as an alternative to deceit—the statute would not have mentioned deceit alone. Indeed, courts have delineated that, to qualify as CIMTs, crimes “require more” than “dishonest and deceitful behavior,” such that “deceit must be paired with an intent to wrongfully extract some benefit or to cause a detriment.”20 By not requiring an intent to defraud, this crime can necessarily be committed without being “inherently base, vile, or depraved.”21 Furthermore, Black’s Law Dictionary defines fraud as “a knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment,”22 and the U.S. Department of State’s Foreign Affairs Manual adds that fraud generally involves not only “making false representation[s]” and “an intent to defraud,” but also “reliance on the false representation by the person defrauded.”23 Clearly, deception must be coupled with further ill intention—not required by 42 U.S.C. § 408(a)(7)(B)—to manifest fraud.
Of note, § 408(a)(7)(B) criminalizes falsifying a Social Security number “for any . . . purpose,” not only for “obtaining . . . [a] benefit to which [they] are not entitled” or “obtaining anything of value from any person.”24 Therefore, even if certain violations were to implicitly involve fraud, the statute can be violated without fraud. For example, one may need a Social Security number to access certain health services, and thus be moved to provide a false Social Security number to receive care.25 One may also falsify a Social Security number “by using a fictitious person’s name—say, Mickey Mouse—and a non-existent Social Security number solely for the purpose of getting a job, and not with the intent to cause loss to anyone”26 nor to extract an unearned benefit.27 Nor should the CIMT assessment differ if the Social Security number happens to belong to a real person, as this would subject the immigrant’s fate to chance,28 and CIMTs crucially punish a “corrupt scienter.”29 When one falsifies a Social Security number to obtain employment, the employer is not necessarily fooled in the first place,30 let alone deprived of anything.31 While the action is illegal, it does not rise to the level of being “accompanied by a vicious motive.”32 By being violable without fraud, therefore, 42 U.S.C. § 408(a)(7)(B) fails the minimum-conduct test.
Second, even accepting arguendo that all conduct punishable by § 408(a)(7)(B) involves fraud, not all fraud is morally turpitudinous. In Husky International Electronics, Inc. v. Ritz, the Supreme Court specified that in common law, “actual fraud” is that committed with “wrongful intent,” whereas “implied fraud” or fraud “in law” describes “acts of deception that ‘may exist without the imputation of bad faith or immorality.’”33 By definition, therefore, some types of fraud are not morally turpitudinous. At a minimum, the statute should require actual fraud or an intent to defraud in order for its violations to be designated CIMTs under De George’s “fraud as an ingredient” theory.
Nonetheless, declaring violations of § 408(a)(7)(B) to be CIMTs based on De George’s theory improperly expands De George’s reach in the first place.34 In his majority opinion in De George, Justice Vinson explicitly limited the Court’s holding, writing, “our inquiry in this case is narrowed to determining whether this particular offense involves moral turpitude. Whether or not certain other offenses involve moral turpitude is irrelevant and beside the point.”35 De George considered the crime of “conspiracy to defraud the United States of taxes on distilled spirits.”36 To impute its holding onto 42 U.S.C. § 408(a)(7)(B)—a statute that does not mention fraud and that immigrants often violate in order to work and pay taxes37—ignores De George’s bounds and factual context.
Lastly, deeming violations of 42 U.S.C. § 408(a)(7)(B) to be CIMTs contravenes the main function of CIMT categorization: to prevent cancellation of removal for those individuals who have committed such reprehensible and evil crimes,38 that even with ten or more years of continuous presence and family members to support, their expulsion from the United States should be virtually guaranteed.39 On the contrary, undocumented immigrants—those who lack work authorization and often have to produce Social Security numbers to procure employment—contribute about nine billion dollars in payroll taxes annually,40 a practice which the government facilitates.41 These tax contributions fund government programs like Medicare, from which undocumented immigrants cannot benefit, and, as the Chief Actuary of the Social Security Administration described in 2013, they generate “a net positive effect on Social Security financial status generally.”42 Systematically deporting these immigrants—if they are caught falsifying a Social Security number and convicted in the wrong circuit—not only harms the economy,43 but perversely imposes the harshest consequences on those attempting to contribute to their communities.44 These are not individuals behaving with the “evil or malicious intent” that the Board of Immigration Appeals has called the “essence of moral turpitude.”45
Classifying crimes such as falsification of a Social Security number under 42 U.S.C. § 408(a)(7)(B)—which requires an “intent to deceive” but can be violated without an intent to defraud—as CIMTs challenges the very power of the CIMT categorization itself. As the Ninth Circuit observed in Navarro-Lopez v. Gonzales,
[a]s the majority of crimes involve some element of dishonesty—from Enron executives operating massive fraud on the public to a twenty-year-old using his older brother’s ID to buy a beer—classifying all such crimes as involving moral turpitude would rob the phrase “moral turpitude” of any distinct meaning.46
Courts should be wary of sending immigration doctrine down such a slippery slope. The distinctions between actual fraud and implied fraud, and between fraud and dishonesty, must remain clear nationwide to safeguard the narrow purpose of CIMT designation.47
In accordance with the language of the statute, conceptions of fraud, and the function of CIMT designation, courts should uniformly and unequivocally hold that falsifying a Social Security number under 42 U.S.C. § 408(a)(7)(B) is not categorically a crime involving moral turpitude. Otherwise, if the Supreme Court continues to deny certiorari on the issue,48 it is Congress’s responsibility to issue statutory guidance on which crimes are morally turpitudinous.
* Claire Lisker is a J.D. Candidate (2023) at New York University School of Law. This Contribution is a commentary on the problem at the 2022 Asylum and Refugee Law Competition hosted by U.C. Davis School of Law. The question presented was whether an individual’s conviction under 42 U.S.C. § 408(a)(7)(8) qualified as a crime involving moral turpitude. This Contribution argues against such a categorization. The views expressed herein do not necessarily reflect the views of the author.
1. Meeting these eligibility requirements, however, does not guarantee cancellation of removal, as granting the relief is up to the Attorney General’s discretion, which is “limited by Congress’s command that no more than 4,000 removal orders may be cancelled each year.” Pereida v. Wilkinson, 141 S. Ct. 754, 762 (2021) (citing 8 U.S.C. § 1229b(e)).
2. 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1229b(b)(1)(C).
3. Rob Doersam, Punishing Harmless Conduct: Toward a New Definition of “Moral Turpitude” in Immigration Law, 79 Ohio St. L.J. 547, 551 (2018).
4. Matter of Short, 20 I. & N. Dec. 136, 139 (BIA 1989); see also Medina v. United States, 259 F.3d 220, 227 (4th Cir. 2001); Nicanor-Romero v. Mukasey, 523 F.3d 992, 1006 (9th Cir. 2008).
5. Matter of Wu, 27 I. & N. Dec. 8, 9 (BIA 2017) (quoting Matter of Silva-Trevino, 26 I. & N. Dec. 826, 833 (BIA 2016)).
6. Michel v. I.N.S., 206 F.3d 253, 263 (2d Cir. 2000).
7. Matter of Silva-Trevino, 26 I. & N. Dec. at 828; Gelin v. U.S. Attorney General, 837 F.3d 1236, 1241 (11th Cir. 2016); Granados v. Garland, 17 F.4th 475, 481 (4th Cir. 2021).
8. Flores-Molina v. Sessions, 850 F.3d 1150, 1158 (10th Cir. 2017) (citing Moncrieffe, 569 U.S. at 189).
9. Gelin, 837 F.3d at 1241.
10. See, e.g., Onduso v. Sessions, 877 F.3d 1073, 1075 (8th Cir. 2017).
11. For cases that have categorically deemed all violations of the statute to be CIMTs, see, for example, Hyder v. Keisler, 560 F.3d 388, 393 (5th Cir. 2007) (“[C]rimes involving intentional deception as an essential element are generally CIMTs.”); Marin-Rodriguez v. Holder, 710 F.3d 734, 738 (7th Cir. 2013) (“[C]rimes entailing an intent to deceive or defraud are unquestionably morally turpitudinous.”); Guardado-Garcia v. Holder, 613 F.3d 900, 902 (8th Cir. 2010) (“Intent to deceive for the purpose of wrongfully obtaining a benefit is an essential element of § 408(a)(7)(B).”); and Serrato-Soto v. Holder, 570 F.3d 686, 692 (6th Cir. 2009) (“[W]e do not disturb established Sixth Circuit precedent finding crimes of fraud or dishonesty within the class of crimes involving moral turpitude.”). For cases that have reached the opposite conclusion, see, for example, Zarate v. U.S. Attorney Gen., 26 F.4th 1196, 1207 (11th Cir. 2022) (explaining that courts categorically deeming violations of the statute to be CIMTs based on its “‘intent to deceive’ and dishonesty elements” failed to “recognize that fraud generally requires acting to obtain a benefit or cause a detriment,” and the statute “does not have fraud as a necessary element or ingredient”); Beltran-Tirado v. I.N.S., 213 F.3d 1179, 1184 (9th Cir. 2000) (holding that, based on the statute’s legislative history, “use of a false Social Security number to further otherwise legal behavior is not a crime of ‘moral turpitude’” in certain situations).
12. 42 U.S.C. § 408(a). In certain exceptional situations, the maximum sentence is ten years. This applies to “a person who receives a fee or other income for services performed in connection with any determination with respect to benefits under this subchapter (including a claimant representative, translator, or current or former employee of the Social Security Administration), or who is a physician or other health care provider who submits, or causes the submission of, medical or other evidence in connection with any such determination.” Id.
13. 42 U.S.C. § 408(a)(7)(B).
14. Pereida, 141 S. Ct. at 759–60 (quoting Jordan v. De George, 341 U.S. 223, 227 (1951)) (cleaned up); see also Zarate, 26 F.4th at 1202 (“[I]t seems to us that fraud may be a sui generis category necessarily involving moral turpitude.”); Guardado-Garcia, 615 F.3d at 902 (finding a violation of 42 U.S.C. § 408(a)(7)(B) to be a CIMT on the same basis).
15. Pereida, 141 S. Ct. at 762.
16. See, e.g., Arias v. Lynch, 834 F.3d 823, 824 (“[W]e doubt that every violation of the statute necessarily qualifies as a crime involving moral turpitude.”); Ahmed v. Holder, 324 F. App’x 82, 83 (2d Cir. 2009) (summary order) (“[W]e are not persuaded that [the defendant’s] conviction under 42 U.S.C. § 408(a)(7)(B) is of a crime involving moral turpitude.”).
17. See Nathaniel C. Crowley, Naked Dishonesty: Misuse of a Social Security Number for an Otherwise Legal Purpose May Not Be a Crime Involving Moral Turpitude After All, 15 San Diego Int’l L.J. 205, 210, 211 (2013) (explaining that undocumented immigrants “face a very great risk of removal once the moral turpitude label affixes” and “[i]t is quite problematic that in a noncitizen’s interaction with the United States as a foreigner, he would face a different immigration penalty for the same offense across different jurisdictions and judges within the United States”).
18. Zarate v. U.S. Attorney Gen., 26 F.4th 1196, 1202 (11th Cir. 2022).
19. See, e.g., 8 U.S.C. 1101(a)(48)(M)(i) (defining “aggravated felony” as “an offense that . . . (i) involves fraud or deceit” in which the loss exceeds $10,000) (emphasis added); 18 U.S.C. 670(a)(1) (prohibiting the “obtain[ing]” of certain medical products “by fraud or deception”); 15 U.S.C. 77q(a) (regulating the “[u]se of interstate commerce for purpose of fraud or deceit”); 7 U.S.C. 6b(e)(3) (making it unlawful for those who sell certain securities to engage in acts that “would operate as a fraud or deceit upon any person”). The two terms are not synonymous because, under the “surplusage” canon of statutory interpretation, “the court must give effect to every word,” such that each word in a statute adds meaning. Surplusage, Black’s Law Dictionary (11th ed. 2019).
20. Mendez v. Barr, 960 F.3d 80, 86, 88 (2d Cir. 2020) (holding that misprision of a felony is not a CIMT, in part because Congress did not include an intent to defraud in the statute, and therefore, although the crime could be committed with an intent to defraud, it is not necessarily done so in all circumstances); see also Ahmed v. Holder, 324 F. App’x 82, 83–84 (2d Cir. 2009) (summary order) (holding that violations of 42 U.S.C. § 408(a)(7)(B) are not categorically CIMTs, as distinguished from crimes in which one necessarily intends to disrupt government services).
21. Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir. 2006); see also Hirsch v. I.N.S., 308 F.2d 562, 567 (9th Cir. 1962) (noting that one may knowingly make false statements without them being fraudulent or with evil intent, rendering them not morally turpitudinous); cf. Matter of Serna, 20 I. & N. Dec. 579, 585 (BIA 1992) (holding that the possession of forged immigration documents in violation of 18 U.S.C. § 1546 is not a CIMT because “[a]lthough it requires knowledge that the immigration document was altered, such knowledge is not necessarily equated with the intention to use the document to defraud the United States Government”).
22. Fraud, Black’s Law Dictionary (11th ed. 2019).
23. U.S. Dep’t of State, Foreign Affs. Manual § 9 FAM § 302.3-2(B)(2)(c)(1)(a) (2022) https://fam.state.gov/search/viewer?format=html&query=moral%20turpitude&links=MORAL,TURPITUD&url=/FAM/09FAM/09FAM030203.html#M302_3_2_B_2.
24. 42 U.S.C. § 408(a)(7).
25. For example, in February 2021, CVS required that patients who registered for a COVID-19 vaccine on its website present their “insurance card, Social Security number and/or driver’s license number at the time of scheduling.” CVSHealth, We’re Expanding Community Access to COVID-19 Vaccines (Feb. 24, 2021), https://cvshealth.com/news-and-insights/articles/were-expanding-community-access-to-covid-19-vaccines. See also Arias v. Lynch, 834 F.3d 823, 826–27 (7th Cir. 2016) (rejecting the notion that it would be “inherently base, vile, or depraved” for a person to “give a false social security number to obtain treatment for her sick child, knowing she is ready, willing, and able to pay for the care”).
26. Ibarra-Hernandez v. Holder, 770 F.3d 1280, 1282 (9th Cir. 2014) (distinguishing an intent to obtain employment from an intent to defraud, in deeming violations of an Arizona statute, A.R.S. § 13-2008, not to be categorical CIMTs).
27. Put simply, an “intent [only] to obtain employment, [is] not [an intent] to defraud.” Id. at 1281; cf. Matter of B-, 7 I. & N. Dec. 342, 343–44 (BIA 1956) (finding fraud to be implicit where one “willfully and knowingly makes any false statement in an application for [a] passport”).
28. In Flores-Figueroa v. United States, the Supreme Court held that aggravated identity theft convictions require a showing that the defendant knew the false identification numbers belonged to another person. 556 U.S. 646, 647 (2009). An alternative interpretation would make a defendant’s sentence “depend on chance.” Id. at 661 (Alito, J., concurring in part and in the judgment).
29. Michel v. I.N.S., 206 F.3d 253, 263 (2d Cir. 2000) (emphasis added).
30. For example, in 2018, the Trump National Golf Club was accused of providing fake Social Security numbers and green cards to their undocumented employees. Alexandra Hutzler, Donald Trump’s New Jersey Golf Course Allegedly Gave Fake Green Cards, Social Security Numbers to Undocumented Employees, Newsweek (Dec. 29, 2018), https://www.newsweek.com/trump-golf-course-may-committed-immigration-crimes-1274608. Nor do employers necessarily feel cheated or victimized. In Lynch, the defendant who violated 42 U.S.C. § 408(a)(7)(B) was not removed from the country, and after she served her sentence and secured employment authorization, her employer readily rehired her, 834 F.3d at 825, and she also received a “glowing letter of support from the general manager,” id. at 834 (Posner, J., concurring in the judgment).
31. Employers can skirt legal consequences for hiring undocumented workers with relative ease, since it must be proven that they “knowingly” did so; most years, there have been twenty or fewer criminal prosecutions of this nature, and civil suits tend to result in low penalties. See Roy Maurer, Do Employers Face Consequences for Hiring Unauthorized Workers?, SHRM (Sept. 24, 2019), https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/do-employers-face-consequences-hiring-unauthorized-workers.aspx. The IRS has little incentive to investigate employers suspected of hiring employees with W-2s that do not match Social Security records, due to its limited resources and the comparably low $50 fine for a mismatch. Hunter Hallman, How Do Undocumented Immigrants Pay Federal Taxes? An Explainer, Bipartisan Policy Center (Mar. 28, 2018), https://bipartisanpolicy.org/blog/how-do-undocumented-immigrants-pay-federal-taxes-an-explainer/.
32. Matter of Perez-Contreras, 20 I. & N. Dec. 615, 618 (BIA 1992).
33. 578 U.S. 356, 360 (2016) (quoting Neal v. Clark, 95 U.S. 704, 709 (1878)); see also Fraud, Black’s Law Dictionary (11th ed. 2019) (distinguishing “actual fraud” from “fraud in law,” with the latter being that which “if sanctioned, would . . . secure an unconscionable advantage, irrespective of evidence of an actual intent to defraud”).
34. See, e.g., Marin-Rodriguez v. Holder, 710 F.3d 734, 738 (7th Cir. 2013) (mis-citing Jordan v. De George, 341 U.S. 223, 232 (1951), for the proposition that an intent to deceive or defraud makes a crime “unquestionably morally turpitudinous” despite the cited quotation only mentioning fraud).
35. De George, 341 U.S. at 226–27.
36. Id. at 223–24.
37. See, e.g., Lynch, 834 F.3d at 825 (“To work for [the employer], [the defendant] provided a false social security number. She has presented evidence that she has filed an income tax return for every year she has been in the United States through 2012.”); see also infra notes 43–45 and accompanying text.
38. See Crowley, supra note 17, at 212–13, for a discussion of how CIMTs were created to “prevent entry of the truly undesirable” to the United States, and separate them from the “desirable.”
39. Id. at 210 (“Although a finding of removability does not necessarily lead to ejection from the United States, an alien faces a very great risk of removal once the moral turpitude label affixes.”).
40. See Hallman, supra note 31.
41. In 1996, the Internal Revenue Service created Individual Taxpayer Identification Numbers, to allow for “individuals who are not eligible for a [Social Security number],” including individuals without lawful status, to file taxes. The Facts About the Individual Taxpayer Identification Number (ITIN), American Immigration Council (Mar. 14, 2022), https://www.americanimmigrationcouncil.org/research/facts-about-individual-taxpayer-identification-number-itin/. Additionally, the laws surrounding employment eligibility verification are permissive: employees are not required to show a Social Security card to prospective employers, most employers are not required to verify the employee’s information with a government entity, and employers are forbidden from “ask[ing] to see any specific or additional documents other than what the worker provides . . . .” Hallman, supra note 31.
42. Alexia Fernández Campbell, Trump Says Undocumented Immigrants Are an Economic Burden. They Pay Billions in Taxes., Vox (Oct. 25, 2018), https://www.vox.com/2018/4/13/17229018/undocumented-immigrants-pay-taxes/.
43. See Crowley, supra note 17, at 234–35, for a discussion of how “[c]lassifying the misuse of a Social Security number for an otherwise legal purpose as a crime involving moral turpitude” only exacerbates negative economic trends that result from driving out inexpensive immigrant labor “even in areas of high citizen unemployment.” See also Lynch, 834 F.3d at 834 (Posner J., concurring in the judgment) (considering the immigrant’s low-cost manual labor and the fact that she paid federal income tax, saying “[t]o prosecute and deport such a harmless person . . . indeed a productive resident of the United States . . . would be a waste of taxpayers’ money”).
44. See Lynch, 834 F.3d at 834 (Posner J., concurring) for a discussion on why this is “downright ridiculous.”
45. Matter of Flores, 17 I. & N. Dec. 225, 227 (BIA 1980); see also Matter of Perez-Contreras, 20 I. & N. Dec. at 618 (describing a CIMT as one with an act “accompanied by a vicious motive or a corrupt mind”); Matter of Abreu-Semino, 12 I. & N. Dec. 775, 777 (BIA 1968) (noting that “moral turpitude normally inheres in the intent”).
46. 503 F.3d 1063, 1069 (9th Cir. 2007) (overruled on other grounds).
47. Significantly, whether or not 42 U.S.C. § 408(a)(7)(B) violations are classified as CIMTs has no bearing on their being punishable as felonies.
48. See, e.g., Zavala v. Wilkinson, 839 F. App’x 34 (8th Cir. 2021), cert. denied, 142 S. Ct. 562 (2021).