New York Lawyer's Legal Updates

Dangers Of Using Unauthorized Social Security Number And Immigration

Author: New York Immigration Lawyer

The Fifth Circuit court has handed a dividing precedent on the case of Munoz-Rivera v Wilkinson. The case before the court was that of Fernando Munoz-Rivera, a Mexican born migrant who had passed into the US in 2010 with an unauthorized social security number. After five years, he was picked up by the USCIS and convicted under 42 U.S.C. § 408(a)(7)(B). The Department for Homeland Security moved to charge Munoz-Rivera as an alien guilty of a crime of moral turpitude (CIMT) under § 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, consequentially removing him from the US and barring any future attempt at re-entry. Munoz-Rivera denied committing a crime of a turpitudinous nature under its legal meaning and filed for cancellation of his removal. The case – centering on whether Munoz-Rivera had, in fact, committed a CIMT - found its way before the United States Court of Appeals for the Fifth Circuit.

Much of the court’s ruling hung on what constitutes acts of a turpitudinous nature. A great number of examples of what might constitute CIMTs are laid out in the INA and the foreign affairs manual. The examples given under the INA are not exhaustive and allow deference to judges, taking regard of individual circumstances for particular cases. That said, the ruling of Beltran-Tirado seemed to make it clear that the intention of Congress in laying out this list was to exempt immigrants entering the country with inauthentic social security documentation from those crimes listed as CIMTs under the statute. Apparently not. The court moved to disregard Munoz-Rivera’s review.

The court ignores the Beltran-Tirado precedent on the basis that the INA does not determine what moral turpitude, means other than offering its inexhaustive list. It leaves room for deference. The Fifth Circuit argues that the BIA’s interpretation should be held as sacrosanct and is central to this court’s finding:

Moral turpitude refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude. Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.

CIMTs of the sort related to misrepresentations or fraud are those related to offences committed with the intention to harm others, their property, or the state more widely. To be considered for an offence of moral turpitude of this type it has been commonly understood that the act must cause some harm to one party and confer a benefit on the other. Oh, and there must have been deceit. In this case, we have deception. But do we have the harm of the sort to constitute a CIMT?

Did Munoz-Rivera do any party harm to the extent that you might classify his crimes as turpitudinous? Did he benefit that greatly from his knowing deception? It was certainly not argued clearly by the court. Pointed arguments in relation to this very aspect are glazed over.

It was reasonably argued that a further aggravating factor was required in conjunction with any deception for the offense in question to be considered one of moral turpitude. Intent to defraud was dismissed by the court as a necessity for a crime of moral turpitude. In effect, intent to cause a great deal of harm was dismissed as being an element necessarily present in order to establish a crime as being a CIMT. The rationale for this was merely that of deference, to the BIAs interpretation of the meaning of moral turpitude. That was it pretty much it.

The court did wish to suffice the inevitability of criticism with this caveat. Despite the court deciding to hold full deliberative capacity over what constitutes a CIMT on this occasion - ignoring the list of CIMTs listed in statute and their qualifying factors - they suggested that Munoz-Rivera’s offense would still meet the criteria of being a CIMT by reference to § 408(a)(7)(B) and the definition of his conduct as being an obstruction of the function of government:

As the government correctly points out, the use of an unauthorized social security number "disrupts the ability of the government to oversee the management of social security accounts; impacts legitimate tax collection  efforts; and imposes a public cost in efforts to protect personal information." In other words, a § 408(a)(7)(B) offense necessarily harms the government.

This argumentation is incredibly narrow and takes no account of the relative harms and benefits of the crime committed - its circumstances or the relative circumstances of other aggravating CIMTs, within the context of their judgements. The court’s ruling takes no account of the notion of relativity in the context of harm, weighing this against the positive contribution of Munoz-Rivera – societally, economically, or otherwise. Latino migrants pay far more into the economy than they take out. Predominantly, they are positive contributors. If the amount of harm caused by using an unauthorized social security number were seen relativistically, then the court’s line of logic would fall immediately. Munoz-Rivera’s benefit to the US would outweigh the state’s loss. Besides that, I’m not sure skipping the border is intrinsically wrong by the BIA’s interpretation of moral turpitude. It surely may be regarded as a criminal offense, but I do not believe it is a CMIT.

All this analysis, of course, may seem irrelevant to unsophisticated immigrant, but it remains so only until a person’s life and future depend on which legal argument the judge is going to believe today...

Follow me on:

17 February 2021
Watch Our YouTube Channel Free Legal Videos

We use cookies to deliver our online services. Details of the cookies and other tracking technologies we use and instructions on how to disable them are set out in our Cookies Policy. By using this website you consent to our use of cookies.