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Wednesday, August 24, 2016

Ind. Decisions - 7th Circuit decides one Indiana case today, an immigration case

The ILB normally doesn't summarize immigration cases, but given the current high level of interest in immigation enforcment, this case may prove instructive.

Some quotes from an immigration decision from the 7th Circuit, involving an Indiana resident:

Since coming to the United States from Ecuador without authorization in 2000, Arias has worked for the Grabill Cabinet Company in Grabill, Indiana. The company called Arias an “excellent employee” in a letter Arias submitted to the immigration court in support of her application for cancellation of removal. To work for Grabill Cabinet, Arias 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.

Arias has also raised a family in the United States. Arias and her husband have been married since 1989. Their three children have grown up in the United States. The two younger children, five and fourteen years old, are United States citizens. Her oldest child, twenty‐six years old, was born in Ecuador but has received relief from removal through the Deferred Action for Childhood Arrivals program.

In 2010, Arias was charged in federal court with falsely using a social security number to work for Grabill Cabinet in violation of 42 U.S.C. § 408(a)(7)(B). Section 408(a)(7)(B) makes it a crime to misrepresent a social security number to be one’s own to obtain a benefit or “for any other purpose.” Arias pled guilty and was sentenced to just about the lightest felony sentence one is likely to find in modern federal prac‐tice: one year of probation and a $100 special assessment. After Arias completed her probation successfully, she received employment authorization and Grabill Cabinet rehired her. In 4 No. 14‐2839 the letter from the company that Arias submitted to the immigration court, Grabill Cabinet said that it “did not have any problems” welcoming her back to her old job. Her indictment charged Arias with an “intent to deceive Grabill,” although it is evident that Grabill itself did not have a problem with Arias’s deception and does not view itself as a victim. There is no indication in the record that Arias has broken any state or federal laws other than her unauthorized immigration into this country and false use of a social security number to work.

In 2010, Arias received a notice to appear for removal proceedings. She admitted removability but applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1). The Attorney General may cancel the removal of unauthorized immigrants who have been in the United States for at least ten years and who can show that their removal would cause “exceptional and extremely unusual hardship” to their children, spouses, or parents who are United States citizens, among other requirements. Id.

Such discretionary cancellation is barred, however, if the immigrant has been convicted of a “crime involving moral turpitude.” 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1229b(b)(1)(C). “Moral turpitude” is not defined in the statute. The Board and federal courts have labored for generations to provide a work‐ able definition. See generally Jordan v. De George, 341 U.S. 223, 227–29 (1951) (holding that conspiracy to evade payment of liquor tax was crime involving moral turpitude, and noting that all varieties of fraud are treated likewise); id. at 232–45 (Jackson, J., dissenting) (“moral turpitude” is too vague to support deportation).

The immigration judge held that Arias’s crime of conviction was a crime involving moral turpitude. The judge relied No. 14‐2839 5 on two of this circuit’s cases: Marin‐Rodriguez v. Holder, 710 F.3d 734 (7th Cir. 2013), and Miranda‐Murillo v. Holder, 502 F. App’x 610 (7th Cir. 2013), a non‐precedential order. A one‐member panel of the Board affirmed. * * *

Arias petitioned for judicial review of the Board’s decision denying cancellation of removal. Under 8 U.S.C. § 1252(a)(2)(D), we have jurisdiction to review the legal question whether a crime involves moral turpitude. * * *

The issue is whether a violation of 42 U.S.C. § 408(a)(7)(B) is a crime involving moral turpitude. We have not decided the issue in a precedential opinion, and other circuits are split.

Judge Hamilton authored the 28-page opinion in Maria Arias v. Loretta E. Lynch. Judge Posner's concurring opinion begins on p. 16:
I agree that we should grant the petition and therefore remand the case to the Board of Immigration Appeals for reconsidera‐ tion of the Board’s refusal to cancel the order that the peti‐ tioner be removed (deported) from the United States. I do not however agree with the respect that Judge Ham‐ ilton’s opinion accords the concept of “moral turpitude.” It is preposterous that that stale, antiquated, and, worse, mean‐ ingless phrase should continue to be a part of American law. Its meaninglessness is well illustrated by this case; and even if it is to be retained in immigration law it was misapplied by the Board of Immigration Appeals. The concept plays a particularly malign role in immigra‐ tion adjudication, as this case illustrates, because conviction of a crime involving moral turpitude bars the Attorney Gen‐ eral from canceling the removal, or adjusting the status, of an alien. See 8 U.S.C. §§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(I). * * *

If anything is clear it’s that “crime of moral turpitude” shouldn’t be defined by invoking broad categorical rules that sweep in harmless conduct. Yet that’s what the Board of Immigration Appeals did in this case, in upholding the im‐ migration judge’s conclusion that the petitioner had commit‐ ted a crime of moral turpitude; it said that a violation of 42 U.S.C § 408(a)(7)(B) is “categorically a crime involving moral turpitude.”

Posted by Marcia Oddi on August 24, 2016 04:08 PM
Posted to Ind. (7th Cir.) Decisions