Split Widened: Is Use of a Fake Social Security Card for Employment Morally Turpitudinous?

Per Marin-Rodriguez v. Holder (7th Cir. Mar. 6, 2013)

This Seventh Circuit opinion widens one split, while continuing another.

The first, already extant split concerns whether immigration courts (IJs or the BIA) may consider material outside the record of conviction when determining whether a crime constitutes a crime of moral turpitude.  This blog already discussed the split here.  In brief, the CA7 and the Attorney General have concluded that, because the immigration context does not raise Sixth Amendment concerns, immigration courts should not be limited to the categorical and modified-categorical approaches to past convictions.  (p. 6-7.)  The CAs 3, 4, 8, and 11 have rejected this position.  (Id. at n.3.)  For the reasons discussed in my prior post, I am persuaded by the minority of the CA7 and AG, although the majority also has strong arguments (primarily based on a 1951 Supreme Court precedent holding that the words "moral turpitude" had a positive and fixed meaning).  To say the least, this is an issue ripe for certiorari review.

But not in this case.  This case did not even reach outside the modified categorical approach, which revealed that the alien had used a fake social security card for employment.  The CA7 joins with the CAs 5, 6, and 8 in determining that such fraudulent actions necessarily involve moral turpitude, because the false social security card is used to deceive the employer, or anyone examining the employer's records.  (Fraud is a prototypical example of moral turpitude.)  The minority--only the CA 9--relies on an entirely different statute, 42 U.S.C. 408(e)), which grants amnesty for having previously used false social security cards to aliens granted citizenship.  The CA9 believes that the exemption demonstrates that the use of a false social security card is only malum prohibitum, and not malum in se.  I would conclude the opposite.  The amnesty demonstrates that the use of a false social security card is malum in se, but to be forgiven when the alien is given a new shot at becoming a law-abiding citizen.

In all, a correct--and well-written--opinion by Judge Manion, but certainly some issues that may warrant certiorari review if a better vehicle presents itself.