This week’s Wiggio title was in an email I received from Sarah Allar (ABCD) a few weeks ago regarding a BIA decision. The case, which was decided in January but is unpublished, analyzes whether making a false claim to U.S. citizenship makes the person inadmissible, and whether a person’s use of a Social Security number not belonging to him/her constitutes a crime involving moral turpitude (CIMT) and precludes a finding of good moral character.
The first issue that the Board of Immigration Appeals (BIA) looked at was whether the applicant was inadmissible for making a false claim to U.S. citizenship. This ground of inadmissibility is found in the INA at § 212(a)(6)(C)(ii) and does not require a conviction.
The Immigration Judge (IJ) and the Board looked at the facts, which included a grand jury indictment of the applicant for willfully and knowingly making false statements in an application for a U.S. passport. These statements included falsely claiming to be a U.S. citizen in an effort to procure a passport.
Although the indictment was eventually dismissed, the applicant has to prove “clearly and beyond doubt” that he is not inadmissible. The applicant did not produce any evidence to prove that he is admissible, including providing a copy of the passport application. Because of this, both the IJ and the Board agreed that he did not prove he was admissible.
CIMT/Good Moral Character
The applicant, who was in removal proceedings, applied for non-LPR Cancellation of Removal under INA § 240A(b)(1). One of the requirements of COR is to show that you have been a person of good moral character for the 10 years immediately preceding an application for COR.
In addition to the indictment for the passport application, the applicant was also convicted of Disclosure and Use of the Social Security Number of Another, under 42 U.S.C. § 408(a)(8). The IJ determined that this conviction was a CIMT and so the applicant was precluded from showing good moral character for the statutory 10 year period. However, the BIA took a different approach.
Upon looking at the statute, the Board determined that in the language of the statute, there is no element of fraud or deceit. Using previous cases, they determined that the applicant’s actual conduct (using the SSN for the passport application) is not the relevant piece of information. Instead, it is looking at the actual language of the statute and whether is contains inherent fraud.
The BIA determined that the statute does not, and so the applicant’s record does not establish a conviction for a CIMT and so there was still a possibility that the applicant could show good moral character. The BIA sent the case back to the IJ so that she could determine whether the applicant was eligible for COR.
When I read the decision, I had the same reaction as Sarah, and possibly many of you. How could using someone’s SSN for a passport not be fraudulent or deceitful, or fit exactly into the meaning of the words “crime involving moral turpitude?!”
Past cases and decisions have limited the information that a court may look at when determining whether a person’s offense fits into certain categories. Here, the IJ and BIA were limited to looking only at the specific part of the statute, which is somewhat generic: “Whoever- discloses, uses, or compels the disclosure of the social security number of any person in violation of the laws of the United States; shall be guilty of a felony and upon conviction thereof shall be fined under title 18 or imprisoned for not more than five years, or both.” 42 U.S.C. § 408(a)(8). Congress could have included elements of fraud or deceit in this statute, and indeed has in other sections, but for this particular section under which the applicant was convicted, there is not.
You can read the full decision here: scribd.com/doc/254102787/S-G-G-AXXX-XXX-730-BIA-Jan-2-2015