Serrato-Soto v. Holder (6th Cir. 5/28/09)
SUHRHEINRICH, Batchelder, Sutton
Petitioner was convicted in Mississippi state court of using a fraudulent SSN to work. He asked the IJ to continue his case to permit approval of the Labor Cert; IJ denied. He then asked for VD - but wasn't willing to waive appeal of the I-140 issue, so he needed to show GMC for 5 years.
Held: fraudulent use of SSN is turpitudinous. The 6th cir cited the cases finding that fraud has traditionally been considered turpitudinous. Matter of Kochlani, 24 I. & N. Dec. 128, 130 (B.I.A. 2007) (“crimes that have a specific intent to defraud as an element have always been found to involve moral turpitude”); Jordan v. De George, 341 U.S. 223, 229 (1951) (“fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude”); Omagah v. Ashcroft, 288 F.3d 254, 260 (5th Cir. 2002) (“In the wake of Jordan, the courts of appeals have interpreted ‘moral turpitude’ as including a wide variety of crimes that involve some fraud or deceit”). And because this case involves "use," the Board's holding in Matter of Serna, 20 I. & N. Dec. 579, 585-86 (B.I.A. 1992) (mere possession of illegal documents, without intent to use said documents fraudulently or unlawfully, is not crime involving moral turpitude) is inapplicable.
The CtApp refused to follow the 9th cir's decision in Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000), which basically exempted the false use of SSN's from the usual CIMT analysis. Agreeing with the 5th cir, see Hyder v. Keisler, 506 F.3d 388 (5th Cir. 2007), the 6th cir found Beltran-Tirado distinguishable and refused to disturb its caselaw under which crimes involving dishonesty or fraud are per se turpitudinous.
[CR: But in the end, how could any undocumented person survive without some intentional fraud? Either one uses a false documents to do legitimate work, or one works in the "unofficial" market (where taxes are rarely paid, ergo tax fraud), or one works for an employer who engages in willful fraud to hire you (in which case you're an accessory). This holding follows from case law, but it seems to ignore the position into which undocumented persons are placed by the laws which criminalize working in the US without a work permit. The only thing preventing this analysis from having further and harsher effect is the use of prosecutorial discretion, whereby prosecutors are usually reasonable enough not to charge this sort of conduct criminally - but in some jurisdictions, perhaps Mississippi, it might seem reasonable to harshly criminalize being undocumented.]