Honorable John Z. Lee, of the Northern District of Illinois, 

sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2253

JOSE CONCEPCION MARIN-RODRIGUEZ,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

On Petition for Review of an Order of

the Board of Immigration Appeals.

No. A098 725 619

ARGUED JANUARY 17, 2013—DECIDED MARCH 6, 2013

Before MANION and TINDER, Circuit Judges, and LEE,

District Judge.

MANION, Circuit Judge. Jose Concepcion Marin-Rodriguez, a citizen of Mexico, sought cancellation of removal

because his removal would cause hardship for his
2 No. 12-2253

children, who are United States citizens. Ultimately, an

Immigration Judge concluded that Rodriguez was not

eligible for cancellation of removal because he had a

prior conviction for using a fraudulent Social Security

card to obtain and maintain employment that amounted

to a crime involving moral turpitude. The Board of Immigration Appeals affirmed, and Rodriguez now petitions

this court for review. Because the agency did not err in

classifying Rodriguez’s conviction as one for a crime

involving moral turpitude, we deny his petition.

I. Factual Background

Rodriguez illegally entered the United States in 1988.

Due to a misdemeanor DUI conviction in 2005, he came

to the attention of the Department of Homeland Security

(“DHS”), which initiated the process of removing him.

During this process, the DHS discovered that he had

been using a social security card and number not

assigned to him. Rodriguez was charged with and

pleaded guilty to using a fraudulent Social Security card

to obtain and maintain employment within the United

States in violation of 18 U.S.C. § 1546(a). Rodriguez’s

guilty plea included the following stipulation:

The parties agree the facts constituting the offense to

which the defendant is pleading guilty are as follows:

Between January 1999 and May 2005, the defendant, a

citizen of Mexico who is not a citizen or national of

the United States, used a social security card, knowing

that card was not assigned to him and had been
No. 12-2253 3

unlawfully obtained, to secure and maintain employment . . . in Wichita, Sedgwiek County, Kansas. Such

a document, when authentic, is evidence that a

person is authorized to be employed in the United

States. The defendant used the fraudulent card for

that purpose.

At a subsequent hearing before an Immigration

Judge (“IJ”), Rodriguez conceded removability, but

sought cancellation of removal. The IJ’s court was

located in Chicago, Illinois, while Rodriguez appeared via

tele-video from Kansas City, Missouri. Pursuant to the

applicable regulations, see 8 C.F.R. § 1003.47(c)-(d), the IJ

ordered Rodriguez to submit a set of fingerprints

needed to determine his identity and whether he had any

disqualifying criminal convictions. Fifteen months later,

at his next hearing, Rodriguez still had not complied

with the IJ’s order. Thus, another IJ (who was located in

Kansas City, Missouri) deemed Rodriguez’s application

for cancellation of removal abandoned for his “failure to

fulfill the requirements of his biometrics and biographic

information check.” The IJ then ordered Rodriguez removed. Rodriguez appealed to the Board of Immigration

Appeals (“Board”). While his appeal was pending, Rodriguez submitted a set of fingerprints and moved to remand. The Board deemed his motion untimely and dismissed his appeal. But then Rodriguez moved for reconsideration, and the Board granted this motion and remanded to the Immigration Court.

Before the IJ could rule, however, the DHS asked the

Board to reconsider because Rodriguez had already been
4 No. 12-2253

Because Rodriguez and the conclusion of his immigration 1

proceedings were located in Missouri, the DHS observes in

its brief that the Eighth Circuit, rather than our circuit, is the

correct venue for this case. However, the agency expressly

waives any challenge to venue.

removed to Mexico. Concluding that it lacked jurisdiction, the Board granted the DHS’ motion and withdrew

its remand order. Rodriguez petitioned this court for

relief. We held that the Board erred in ruling that it

lacked jurisdiction, and we granted Rodriguez’s petition

and remanded to the Board. See Marin-Rodriguez v.

Holder, 612 F.3d 591, 594-95 (7th Cir. 2010). We observed,

however, that our remand might provide little solace for

Rodriguez because his section 1546(a) conviction could

nevertheless frustrate his efforts to avoid removal. Id.

The Board then remanded Rodriguez’s immigration

proceedings to the Immigration Court. A new IJ, also

located in Kansas City, Missouri, issued a written

decision ruling that Rodriguez was ineligible for cancellation of removal because his section 1546(a) conviction was for a crime involving moral turpitude. On

appeal, the Board adopted and affirmed the IJ’s decision. Rodriguez now petitions this court for review.1

II. Discussion

On appeal, Rodriguez does not dispute that he would

be ineligible for cancellation of removal if he was in

fact convicted of a crime involving moral turpitude. See

8 U.S.C. § 1229b(b)(1)(C). But Rodriguez contends that
No. 12-2253 5

the agency erred in concluding that his conviction for

using a fraudulent Social Security card to obtain and

maintain employment in violation of section 1546(a)

constitutes a crime involving moral turpitude. “Whether

an alien’s conviction is properly classified as a crime

of moral turpitude is a question of law, so we may

review it.” Lagunas-Salgado v. Holder, 584 F.3d 707, 710

(7th Cir. 2009) (citing 8 U.S.C. § 1252(a)(2)(D)). While

legal questions are usually reviewed de novo, “[o]ur

review of an agency’s determination of whether a particular crime should be classified as a crime of moral

turpitude ordinarily is deferential under Chevron . . . .”

Mata-Guerrero v. Holder, 627 F.3d 256, 259 (7th Cir.

2010). But we do not extend Chevron deference to

non-precedential Board decisions that do not rely on

binding board precedent. Arobelidze v. Holder, 653 F.3d

513, 520 (7th Cir. 2011). Rather, such Board decisions

are entitled only to Skidmore deference. Id. Therefore,

because the Board opinion from which Rodriguez

appeals is non-precedential, its interpretation of the

immigration statutes and regulations is entitled to our

respect—but only to the extent that interpretation has

the “power to persuade.” Id.; Christensen v. Harris Cnty.,

529 U.S. 576, 587 (2000).

The immigration statutes use but do not define the

phrase “crime involving moral turpitude.” See 8 U.S.C.

§ 1182(a)(2)(A)(i)(I); 8 U.S.C. § 1227(a)(2)(A)(i)(I). And

until 2008, the “absence of an authoritative administrative methodology for resolving moral turpitude

inquiries ha[d] resulted in different approaches across

the country.” Silva-Trevino, 24 I. & N. Dec. 687, 693 (AG
6 No. 12-2253

2008). Thus, the agency would apply the law of the

circuit in which an alien’s case arose. Id. Like most

circuits, our decisions generally applied the categorical

and modified categorical framework adopted by Taylor v.

United States, 495 U.S. 575 (1990), and Shepard v.

United States, 544 U.S. 13 (2005), for applying recidivist enhancements in federal criminal prosecutions. See Ali v.

Mukasey, 521 F.3d 737, 741, 742 n.† (7th Cir. 2008); Hashish

v. Gonzales, 442 F.3d 572, 575-76 (7th Cir. 2006) (collecting

cases). Under that approach, the decisionmaker would

“determine whether a given crime necessarily involves

moral turpitude by examining only the elements of the

statute under which the alien was convicted and the

record of conviction, not the circumstances surrounding

the particular transgression.” Padilla v. Gonzales, 397

F.3d 1016, 1019 (7th Cir. 2005) (internal quotation marks

omitted).

Then, in Ali v. Mukasey, we relied upon 8 U.S.C.

§ 1229a(c)(3)(B) and Babaisakov, 24 I. & N. Dec. 306 (BIA

2007), to hold that “when deciding how to classify convictions under criteria that go beyond the criminal charge—

such as . . . whether the crime is one of ‘moral turpitude’,

the agency has the discretion to consider evidence beyond the charging papers and judgment of conviction.”

521 F.3d at 743. Subsequently, in 2008, the Attorney

General relied upon Ali in adopting a hierarchical

or sequential three-step inquiry to be used by the

entire agency in deciding which crimes are morally

turpitudinous. See Silva-Trevino, 24 I. & N. Dec. at 696-704.

The first and second steps of this inquiry generally coincide with the categorical and modified categorical ap-
No. 12-2253 7

In his brief, Rodriguez questions whether the third step of the 2

Silva-Trevino framework permits as broad a consideration of

additional evidence as permitted under the standard articulated

in Ali. Regardless, as discussed below, the agency resolved

Rodriguez’s case at the second step, and he was given an

opportunity to present any additional evidence he wished.

Rodriguez also expresses doubts about the continued vitality

of pre-Silva-Trevino decisions that held that convictions

under section 1546 for conduct involving deceit or misuse

of official documents were for crimes involving moral turpitude. We need not address this quandary because, as we discuss

below, Rodriguez’s petition can be disposed of based on our

decision in Lagunas-Salgado, 584 F.3d at 712, which post-dates

Silva-Trevino.

A number of circuits have rejected the third step of the 3

Silva-Trevino framework. See Prudencio v. Holder, 669 F.3d 472,

484 (4th Cir. 2012); Fajardo v. Att’y Gen., 659 F.3d 1303, 1310

(11th Cir. 2011); Jean-Louis v. Att’y Gen., 582 F.3d 462, 482 (3d

Cir. 2009); see also Guardado-Garcia v. Holder, 615 F.3d 900,

902 (8th Cir. 2010) (“We are bound by our circuit’s precedent,

and to the extent Silva-Trevino is inconsistent, we adhere to

(continued...)

proaches, respectively. Id. However, the third step

permits the IJ to consider any evidence beyond the

statute and record of conviction, as in Ali. Id. This third

step “is properly applied only where the record of conviction does not itself resolve the issue . . . .”

Ahortalejo-Guzman, 25 I. & N. Dec. 465, 468 (BIA 2011).

We have determined that Silva-Trevino’s entire framework is entitled to Chevron deference. See Mata-Guerrero,

2

627 F.3d at 260.3
8 No. 12-2253

(...continued) 3

circuit law.”). However, as discussed below, the agency

resolved Rodriguez’s case at the second step (which is generally consistent with the modified categorical approach).

Here, the agency applied the Silva-Trevino framework

and concluded, at the first step, that section 1546(a)

realistically encompasses some conduct that is not

morally turpitudinous. At the second step, however,

the agency found that Rodriguez’s record of conviction

establishes that his crime involved moral turpitude.

That decision was correct.

Crimes entailing an intent to deceive or defraud

are unquestionably morally turpitudinous. See Jordan v.

De George, 341 U.S. 223, 232 (1951) (“[T]he decided cases

make it plain that crimes in which fraud was an

ingredient have always been regarded as involving

moral turpitude.”); Abdelqadar v. Gonzales, 413 F.3d 668,

671 (7th Cir. 2005) (“Crimes entailing deceit or false

statement are within the core of the common-law understanding of ‘moral turpitude.’ ”); Padilla, 397 F.3d at 1020-

21 (collecting cases). And in Lagunas-Salgado v. Holder,

we held that selling fraudulent immigration documents

to illegal aliens is morally turpitudinous because it

“involves inherently deceptive conduct.” 584 F.3d at 712.

Similarly, other circuits have recognized that the use

of false immigration documents involves the kind of

deceit or fraud that renders a crime morally turpitudinous.

See, e.g., Lateef v. Dep’t of Homeland Sec., 592 F.3d 926,

928, 931 (8th Cir. 2010) (holding alien’s conviction for
No. 12-2253 9

“using an unlawfully obtained social security number”

was for a crime involving moral turpitude); Omagah v.

Ashcroft, 288 F.3d 254, 261-62 (5th Cir. 2002) (affirming

Board ruling that “conspiracy to possess [illegal immigration documents] with intent to use does rise to the level

of moral turpitude . . . .”).

Here, Rodriguez’s record of conviction reveals that, as

part of his guilty plea, he admitted that he “used a

social security card, knowing that card was not assigned

to him and had been unlawfully obtained, to secure

and maintain employment . . . .” He also admitted that

he was aware that an authentic Social Security card

could be used as evidence that a person is authorized

to work in the United States. By knowingly presenting

a false Social Security card to an employer to obtain and

maintain unauthorized employment, Rodriguez not

only violated the law but also engaged in deceptive

conduct.

The deceptive nature of Rodriguez’s conduct is

even more explicit than that of the alien’s conduct in

Lagunas-Salgado. Here, Rodriguez’s use of a false Social

Security card was directly deceptive: he presented the

card to an employer with the intent to deceive that employer into thinking that he was legally employable. In

contrast, the alien in Lagunas-Salgado was not directly

deceiving anyone, but only selling false immigration

documents to aliens who could then use them for

deceptive purposes. See Lagunas-Salgado, 584 F.3d at 712

(“That the recipients themselves were not deceived

does not change the fact that Lagunas-Salgado was
10 No. 12-2253

Because Rodriguez’s conduct was inherently deceptive, 4

Lagunas-Salgado disposes of Rodriguez’s contention that it is

possible that he did not actually deceive his employer when he

presented his false Social Security card. His use of a false

Social Security card to obtain and maintain unauthorized

employment evidences an intent to deceive his employer

regardless of whether the employer was actually deceived. Cf.

Omagah, 288 F.3d at 261. In fact, Rodriguez carried the burden

of establishing his eligibility for cancellation, see 8 C.F.R.

§ 1240.8(d), yet he failed to offer any evidence that his

employer was not deceived or that he did not intend to deceive

his employer when he used the false Social Security card. 

selling fraudulent Social Security cards and alien registration cards and placing them out into the world.”).

Lagunas-Salgado’s indirectly deceptive conduct was

“inherently deceptive” because of the risk that the aliens

purchasing the cards would use them deceptively—

exactly the sort of deceptive use, as it happens, in which

Rodriguez engaged. Consequently, Rodriguez’s directly

deceptive use of a false Social Security card to obtain

and maintain unauthorized employment a fortiori also

“involves inherently deceptive conduct.” And, as we 4

already observed, crimes involving deceit are “within the

core of the common-law understanding of ‘moral turpitude.’ ” Abdelqadar, 413 F.3d at 671. Therefore, we conclude that the agency did not err in holding that Rodriguez’s conviction was for a crime involving moral turpitude.

Rodriguez’s arguments to the contrary are not persuasive. Certainly, as Rodriguez points out, Board prece-
No. 12-2253 11

Rodriguez is correct that federal law does not impose crim- 5

inal penalties on illegal aliens merely because they work in

(continued...)

dent establishes that a conviction for merely possessing

an altered immigration document does not constitute a crime involving moral turpitude because an

alien “might not have had the intent to use the altered immigration document in his possession unlawfully.” Serna, 20 I. & N. Dec. 579, 586 (BIA 1992). But, as

with the alien in Lagunas-Salgado, Rodriguez “was not

convicted of merely possessing a false document,” but

rather of using that false document in a way that

involved deception or the intent to deceive. 584 F.3d at

712. Similarly, Rodriguez’s arguments that his crime

was not base, vile, fraudulent, or malum in se are

without merit because, as we have explained, the agency

did not err in finding that his conduct involved deception,

and generally “a crime involving dishonesty or false

statement is considered to be one involving moral turpitude.” Padilla, 397 F.3d at 1020 (quoting Itani v. Ashcroft,

298 F.3d 1213, 1215 (11th Cir. 2002) (internal quotation

marks omitted)); see also Lagunas-Salgado, 584 F.3d at

712; Lateef, 592 F.3d at 928, 931; Omagah, 288 F.3d at 261-62.

Rodriguez also argues that his conviction for using a

false Social Security card cannot be for a crime involving

moral turpitude unless the underlying conduct was also

illegal. Rodriguez contends that he only used the false

Social Security card to obtain and maintain employment, which is not illegal. Rodriguez’s position is not

5
12 No. 12-2253

(...continued) 5

the United States. See Arizona v. United States, 132 S. Ct. 2492,

2495 (2012). But that federal law imposes civil penalties on

such conduct when detected, and criminal as well as civil

penalties on employers who hire illegal aliens, demonstrates

that such conduct is far from innocent or praiseworthy—even

if ubiquitous.

Subsequently recodified at 42 U.S.C. § 408(e). 6

tenable in light of the rule that crimes involving deception

are morally turpitudinous. Furthermore, the Board decisions cited by Rodriguez—Granados, 16 I. & N. Dec. 726

(BIA 1979) (holding that possessing a concealed weapon

is not a crime involving moral turpitude), and S-, 6 I. & N.

Dec. 769 (BIA 1955) (holding that possessing instruments

of house-breaking is not a crime involving moral

turpitude)—are distinguishable because they involved convictions for merely possessing unlawful items. As we

explained above, possession is different from use. And,

unlike Rodriguez’s use of a false Social Security card,

merely possessing weapons or burglary implements

does not involve deception.

However, Rodriguez also relies on Beltran-Tirado v.

INS, 213 F.3d 1179, 1184 (9th Cir. 2000), wherein the

Ninth Circuit looked to the legislative history of 42

U.S.C. § 408(d)(1) to rule that the “use of a false Social 6

Security number to further otherwise legal behavior is

not a crime of ‘moral turpitude’ . . . .” The Ninth

Circuit relied, specifically, upon a congressional conference committee report stating that the exemption
No. 12-2253 13

Rodriguez cites this report in his brief; but only for the 7

proposition that a crime cannot be morally turpitudinous if it

is not malum in se—an argument that we have addressed

above and need not belabor here.

from prosecution provided by section 408(d)(1) only

applies “to those individuals who use a false social

security number to engage in otherwise lawful conduct.”7

H.R. Conf. Rep. No. 101-964, at 948 (1990), reprinted in

1990 U.S.C.C.A.N. 2374, 2653. The report also states

that the “Conferees believe that individuals who are

provided exemption from prosecution under this

proposal should not be considered to have exhibited

moral turpitude with respect to the exempted acts for

purposes of determinations made by the Immigration

and Naturalization Service.” Id.

However, the Fifth, Sixth, and Eighth circuits have all

declined to follow Beltran-Tirado. See Guardado-Garcia,

615 F.3d at 902-03; Serrato-Soto v. Holder, 570 F.3d 686, 692

(6th Cir. 2009); Hyder v. Keisler, 506 F.3d 388, 393 (5th

Cir. 2007). We now join those circuits in declining to

follow a decision that “appears to have expanded a

narrow exemption beyond what Congress intended.”

Hyder, 506 F.3d at 393. As Rodriguez concedes, section

408(d)(1) and its attendant legislative history do not

apply to him. And “[t]he mere fact that Congress chose

to exempt a certain class of aliens from prosecution for

certain acts does not necessarily mean that those acts

do not involve moral turpitude in other contexts.” Id.

Furthermore, to adopt the reasoning in Beltran-Tirado
14 No. 12-2253

would be to depart, at least partly, from our precedent

establishing that crimes of deceit and fraud involve moral

turpitude. See, e.g., Abdelqadar, 413 F.3d at 671; Padilla,

397 F.3d at 1020-21. We agree with the Fifth and Sixth

circuits that such a departure from our precedent

would not be appropriate. See Serrato-Soto, 570 F.3d at 692

(“And in declining to follow Beltran-Tirado, we do not

disturb established Sixth Circuit precedent finding

crimes of fraud or dishonesty within the class of crimes

involving moral turpitude.”); Hyder, 506 F.3d at 393.

III. Conclusion

Because the agency correctly determined that Jose

Concepcion Marin-Rodriguez’s prior conviction for

using a fraudulent Social Security card to obtain and

maintain employment was for a crime involving

moral turpitude, we DENY the petition for review.

3-6-13