The 5^th Circuit Court of Appeals recently heard Hyder v. Keisler, which sought to determine if the actions by Hyder, the petitioner, constituted a misuse of a social security number obtained by fraud, a violation of 42 USC §408(a)(7)(A).

In 1999, Hyder was issued a social security card following a family member's submission of an application in Hyder's name, which falsely stated that he was lawfully present in the U.S. on a student visa. Although Hyder himself did not complete the application, the family member acted with Hyder's knowledge. In 2000, Hyder used the social security card to obtain a Texas driver's license and identification card. In June 2003, Hyder pleaded guilty to misuse of a social security number obtained by fraud in violation of 42 USC §408(a)(7)(A). Hyder was placed in removal proceedings and applied for cancellation of removal under INA §240A(b). The immigration judge concluded that Hyder's conviction constituted a crime involving moral turpitude which rendered him ineligible for relief. The BIA affirmed.

On review, the court considered whether the BIA properly classified misuse of a social security number under 42 USC §408(a)(7)(A) as a crime involving moral turpitude. A person may be convicted under 42 USC §408(a)(7)(A), if he or she "willfully, knowingly, and with intent to deceive," used a social security number that had been assigned on the basis of false information. As "moral turpitude" is not defined by the INA, the court previously adopted the BIA's definition, which refers to conduct that "shocks the public conscience," is "inherently base, vile, or depraved," and is "contrary to the accepted rules of morality and the duties owed between persons or to society in general." Hamdan v. INS, 98 F.3d 183 (5th Cir. 1996). The court noted that it has also "repeatedly emphasized that crimes whose essential elements involve fraud or deception tend to be [crimes involving moral turpitude]." See Omagah v. Ashcroft, 288 F.3d 254, 260 (5th Cir. 2002) ("[c]rimes including dishonesty or lying as an essential element involve moral turpitude"); Fuentes-Cruz v. Gonzales, 489 F.3d 724 (5th Cir. 2007); Balogun v. Ashcroft, 270 F.3d 274 (5th Cir. 2001); Okabe v. INS, 671 F.2d 863 (5th Cir. 1982).

The court rejected Hyder's argument that the circumstances surrounding his conviction, along with his lack of a "vicious motive" or "corrupt mind" were inconsistent with a finding of moral turpitude. The court explained that in determining whether an offense involves moral turpitude, "[w]e concentrate on the 'inherent nature of the crime as defined in the statute concerned, rather than the circumstances surrounding the particular transgression.'" Omagah, 288 F.3d at 260 (quoting Okoro v. INS, 125 F.3d 920, 926 (5th Cir. 1982). The court explained that the statute of conviction requires that Hyder act "willfully, knowingly, and with intent to deceive," and as its "precedents make clear, such a crime falls well within [it's] understanding" of the definition of crimes involving moral turpitude.

In Beltran-Tirado v. INS, 213 F.3d 1179, 1183 (9th Cir. 2000), the Ninth Circuit held that falsely representing a social security number in violation of 42 USC §408(g)(2) (later recodified at 42 USC §408(a)(7)(B)), where the petitioner, a registry applicant, used the card to work and establish credit in the U.S., was not a crime involving moral turpitude. In so holding, the Ninth Circuit relied heavily on the legislative history of 42 USC §408(d) (now §408(e)), which provided that persons who have been granted permanent resident status under amnesty or registry statutes are exempt from prosecution for certain acts involving misuse of false social security numbers. Id. The court declined to follow Beltran-Tirado in exempting misuse of a social security number from moral turpitude status, noting that it is not binding precedent in the Fifth Circuit. The court also opined that in applying the exemption to a registry applicant (as opposed to persons granted permanent resident status through registry), the Ninth Circuit appeared to have "expanded the exemption beyond what Congress intended." Moreover, the petitioner in the present case does not fall within the class of persons described in 42 USC §408(e), as he is not himself a lawful permanent resident. The petition for review was denied.