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Long-Awaited Decision Ameliorates Some Sting from ‘Crimes Involving Moral Turpitude’

Dilip Patel


The Board of Immigration Appeals (BIA), the appellate-level administrative court for immigration matters, issued its long-awaited decision in Matter of Silva-Trevino III, re-establishing a uniform standard of analysis when determining if a crime is considered a “crime involving moral turpitude” (CIMT) for inadmissibility purposes. Under immigration laws, a foreign national who was convicted of a crime that is considered a CIMT can be barred from entry and other immigration benefits, including permanent residence; even green card holders convicted of a CIMT can be deported. The original case, Matter of Silva-Trevino I, had created in 2008 a controversial form of analysis that allowed the courts to look outside the record of conviction, including police reports, which can include hearsay and other non-relevant statements. The earlier case was a significant deviation from the generally accepted approaches that Silva-Trevino III now re-establishes, called the “categorical approach,” i.e., reviewing the statute of conviction, and the “modified categorical approach,” reviewing the record of conviction. Overall, this is a useful decision for practitioners and their foreign-national clients, and should help impart consistency in courts across the country as well as ensure that only relevant evidence is considered by the courts in determining whether a crime is a CIMT.

Is Using a Fake Social Security Number a Crime Involving Moral Turpitude? 7th Circuit Doesn’t Think So

A new opinion from the U.S. Court of Appeals for the Seventh Circuit, Arias v. Lynch, disagreed with the Board of Immigration Appeal’s (BIA) finding that using a false Social Security number (SSN) is a crime involving moral turpitude (CIMT) that prevents relief from removal. In the case, Ms. Arias had provided her employer a false SSN to gain employment. This was held by the immigration judge and the BIA to be a “turpitudinous” crime that prevented Arias from receiving relief.

The Seventh Circuit disagreed, noting that a crime involving moral turpitude has been defined as morally “base, vile, or depraved.” The court could find nothing in the record to describe Arias’s decision to supply her employer with a false SSN as base, vile, or depraved. Instead, it noted the inconsistency in the determination that a foreign national using a false SSN so that she could hold a job, pay taxes, and support her family constituted a CIMT – precluding removal relief – while an individual who works “under the table” and pays no taxes would not be guilty of the same type of offense and remains eligible for relief. In a concurring opinion, Judge Richard Posner questioned the relevance and legitimacy of the idea of a “crime involving moral turpitude,” stating the phrase was grossly outdated and nearly impossible to actually define with specific crimes. The BIA will reconsider the case upon remand and render a final decision. If it issues a decision it deems “precedential,” the ruling will affect the eligibility of removal relief for potentially thousands of foreign nationals, often undocumented immigrants, working with false Social Security numbers.

Marijuana Imbibers Beware

An admission of any drug use can cause an immigrant visa to be denied. This is because the immigration law states that an individual is inadmissible to the United States if he or she admits to the elements of a drug crime. In other words, a conviction is not necessary. Just admitting to prior drug use is sufficient.

Fortunately, USCIS does not routinely ask specifically about prior drug use at interviews for permanent residence or naturalization. However, consular officers abroad frequently do so at immigrant visa interviews, and there have been recent reports of Customs and Border Protection (CBP) officers asking such questions of noncitizens entering the United States. (Moreover, a person entering the U.S. at a port of entry might be asked by a CBP officer to share the contents of a cell phone or laptop, and must comply; he or she has no right to consult with an attorney.)

This issue, while in the immigration laws for decades, is becoming more problematic due to discrepancy between federal and state law with respect to marijuana use. A person who has previously spent time in a state where marijuana use is legal – Colorado, for example – might think that admitting to having used marijuana in that state is not going to cause a problem because it is legal there. In fact, if the CBP officer knows that the applicant was previously in a state known for legalized marijuana, the officer may be more likely to ask about marijuana use and to use any admission of such use to disqualify that person from entry. Also, even a noncriminal summons – payment of a fine for marijuana use – can result in exclusion or deportation from the United States.

Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email dilip.patel@bipc.com

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