Jennifer Nelson for ww.theindianalawyer.com

The 7^th Circuit Court of Appeals is concerned about the classification of every crime involving deception involving “moral turpitude,” which would prevent some unauthorized immigrants from seeking discretionary cancellation of removal under the law.

Maria Eudofilia Arias, who has been in the country illegally since 2000 and works at Grabill Cabinet Co. in Grabill, Indiana, was charged in federal court in 2010 with falsely using a Social Security number to work for Grabill. She pleaded guilty and was sentenced to “just about the lightest felony sentence one is likely to find in modern federal practice,” Judge David Hamilton wrote, one year of probation and a $100 special assessment. After completing probation and receiving employment authorization, Grabill rehired her. The company calls her an “excellent employee.”

Also in 2010, Arias received notice to appear for removal proceedings. She applied for cancellation of removal under 8 U.S.C. Section 1229b(b)(1). The attorney general of the United States may cancel the removal of unauthorized immigrants who have been in the country for at least 10 years and can show removal would cause exception and extremely unusual hardship to their children, spouses or parents who are U.S. citizens. Arias’ two youngest children are U.S. citizens.

The immigration judge held her crime was a crime involving moral turpitude, which then bars discretionary cancellation. The Board of Immigration Review upheld the finding.

Hamilton noted the conflict in this case, as the rule that all crimes involving any element of deception categorically involve moral turpitude would produce results at odds with the accepted definition of moral turpitude. But there is also significant precedent indicating that deceptive conduct is morally turpitudinous.

“Arias’s case brings into focus the troubling results that would follow from a rule that every crime that involves any element of deception involves moral turpitude. As of 2014, unauthorized immigrants made up about five percent of the United States labor force,” Judge David Hamilton wrote, citing the Pew Research Center. “Has every one of those millions of workers who gives a social security number to her employer committed a crime involving moral turpitude? Those persons are removable because they are not in the United States lawfully. The issue for Arias and all the others is whether they are barred from even discretionary relief because they have provided false social security numbers so that they can work and pay taxes.”

“It seems inconsistent with the terms ‘base, vile, or depraved’ to hold that an unauthorized immigrant who uses a false social security number so that she can hold a job, pay taxes, and support her family would be guilty of a crime involving moral turpitude, while an unauthorized immigrant who is paid solely in cash under the table and does not pay any taxes would not necessarily be guilty of a crime involving moral turpitude.”

The 7^th Circuit remanded the matter because of “the unsettled state of the law” regarding how the board must go about determining which crimes involve moral turpitude. In between the board’s order and the briefing in Arias’ petition for 7^th Circuit review, the attorney general of the United States vacated the order that had set the approach the board used to determine the crime involved moral turpitude. No replacement framework has yet emerged, Hamilton noted.

Judge Richard Posner wrote a concurring opinion, focusing on the concept of “moral turpitude.”

“It is preposterous that that stale, antiquated, and worse, meaningless phrase should continue to be a part of American law. Its meaningless 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,” he wrote.

“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 immigration judge’s conclusion that the petitioner had committed a crime of moral turpitude.”

The case is Maria Eudofilia Arias v. Loretta E. Lynch, attorney general of the United States, 14-2839.