*

This decision was originally issued as an “unpublished decision” filed on May 28, 2009. On

June 30, 2009, the court designated the opinion as one recommended for full-text publication.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0229p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

JOSE LUIS SERRATO-SOTO,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

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No. 08-4063

On Appeal from the Board of Immigration Appeals.

No. A075 903 417.

Submitted: April 23, 2009

Decided and Filed: May 28, 2009*

Before: SUHRHEINRICH, BATCHELDER, and SUTTON, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Barry L. Frager, THE FRAGER LAW FIRM, P.C., Memphis, Tennessee, for

Petitioner. Leslie McKay, Kristin K. Edison, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Respondent. 

_________________

OPINION

_________________

SUHRHEINRICH, Circuit Judge. Jose Serrato-Soto, under an order of removal to

Mexico, petitions for review of a final order of the Board of Immigration Appeals (BIA),

which held that Serrato-Soto was ineligible for voluntary departure because he was

convicted of a crime involving moral turpitude. Serrato-Soto argues that the BIA erred in

concluding that his earlier conviction in Mississippi state court for fraudulent use of a social

1
No. 08-4063 Serrato-Soto v. Holder Page 2

1

Serrato-Soto testified at a July 12, 2006 removal hearing that he entered in 1993, but the charge

contained in his Notice to Appear lists him as entering “on or about 2000.”

2

Serrato-Soto was also convicted of prostitution in Wisconsin in 1995 and theft in Texas in 1999.

security number or identifying information to obtain goods was a crime involving moral

turpitude as a matter of law. We disagree and, accordingly, DENY the petition. 

I. Background

Serrato-Soto is a native and citizen of Mexico who illegally entered the United States

in 1993.1 On January 7, 2004, Serrato-Soto was convicted of fraudulent use of

identification in Mississippi state court.2 On January 8, 2004, the Department of

Homeland Security (“DHS”) lodged a Notice to Appear before the Executive Office of

Immigration Review in Memphis, Tennessee, charging Serrato-Soto as removable for

being present in the United States without having been admitted or paroled pursuant to

§ 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C.

§ 1182(a)(6)(A)(i). 

On July 13, 2004, Serrato-Soto appeared at a preliminary hearing before an IJ.

Serrato-Soto admitted the factual allegations contained in his Notice to Appear and

conceded removability. Serrato-Soto also asked for an indefinite continuance to permit

the adjudication of a labor certificate, which the IJ denied. Serrato-Soto further

requested “pre-completion” voluntary departure in lieu of removal proceedings. See 8

U.S.C. § 1229c(a)(1) (permitting an alien to voluntarily depart the United States at the

alien’s own expense prior to the completion of removal proceedings). However, because

Serrato-Soto chose to reserve appeal of the denial of the continuance, the IJ held that he

was precluded from voluntary departure. See Matter of Cordova, 22 I. & N. Dec. 966,

969 (B.I.A. 1999) (holding that pre-completion voluntary departure was available to an

alien similarly situated to Serrato-Soto but that the alien must waive appeal of all issues);

8 C.F.R. § 1240.26(b)(1)(i)(D) (an alien may be granted voluntary departure only if,

inter alia, he waives appeal of all issues).
No. 08-4063 Serrato-Soto v. Holder Page 3

Serrato-Soto appealed to the BIA. On December 2, 2005, the BIA remanded for

a hearing on Serrato-Soto’s possible eligibility for “post-completion” voluntary

departure. 

On July 12, 2006, the IJ issued an oral decision denying Serrato-Soto’s

application for voluntary departure on the merits and ordering him removed to Mexico,

finding that Serrato-Soto’s 2004 conviction in Mississippi state court for fraudulent use

of a social security number was a crime involving moral turpitude, which precluded

Serrato-Soto from demonstrating the requisite good moral character necessary for

voluntary departure. Serrato-Soto again appealed to the BIA, this time arguing that the

2004 conviction did not involve moral turpitude. On July 31, 2008, the BIA, per curiam,

adopted and affirmed the IJ’s decision. 

II. Analysis

A. Jurisdiction

Serrato-Soto timely filed his petition for review on August 28, 2008, within 30

days of the BIA’s July 31, 2008 order. See 8 U.S.C. § 1252(b)(1). Pursuant to 8 U.S.C.

§ 1252(a)(2)(B)(i), this court lacks jurisdiction to review the denial of relief under

8 U.S.C. § 1229c, the statutory authority for voluntary departure. However,

§ 1252(a)(2)(D) restores jurisdiction to circuit courts to review constitutional claims and

questions of law raised in a petition for review of a removal order.

8 U.S.C. § 1252(a)(2)(D); Patel v. Gonzales, 470 F.3d 216, 219 (6th Cir. 2006). SerratoSoto’s argument presents a question of law, namely whether Serrato-Soto’s conviction

for fraudulent use of a social security number or identifying information, in violation of

Mississippi state law, is a crime involving moral turpitude. Accordingly, this Court has

jurisdiction.
No. 08-4063 Serrato-Soto v. Holder Page 4

3

INA § 240B(a)(1), 8 U.S.C. § 1229c(a)(1), which is not implicated here, provides the authority

for an alien to voluntarily depart the United States, at the alien’s own expense, prior to the conclusion of

removal proceedings.

B. Standard of Review

Where, as here, “the BIA expressly adopts and affirms the IJ’s decision but adds

comments of its own, we directly review the decision of the IJ while also considering the

additional comments made by the [BIA].” Elias v. Gonzales, 490 F.3d 444, 449 (6th Cir.

2007). We generally accord Chevron deference to the BIA’s reasonable construction of

the INA, Ramirez-Canales v. Mukasey, 517 F.3d 904, 908 (6th Cir. 2008), which

requires us to uphold the BIA’s construction unless it is “arbitrary, capricious, or

manifestly contrary to the statute.” Chevron v. Natural Res. Def. Council, 467 U.S. 837,

843-44 (1984). No deference is given, however, to the BIA’s interpretation of a state

criminal statute; that issue is reviewed de novo. Knapik v. Ashcroft, 384 F.3d 84, 87-88

(3d Cir. 2004). 

C. Statutory Eligibility for Post-Completion Voluntary Departure

Section 240B(b)(1) of the INA, 8 U.S.C. § 1229c(b)(1), provides authority for

an alien to seek post-completion voluntary departure.3 The alien may voluntarily depart

at his own expense if: (1) the alien has been physically present in the United States for

a period of at least one year immediately preceding the date the notice to appear was

served; (2) the alien is, and has been, a person of good moral character for at least five

years immediately preceding the application for voluntary departure; (3) the alien is not

deportable under 8 U.S.C. §§ 1227(a)(2)(A)(iii) or 1227(a)(4); and (4) the alien

establishes by clear and convincing evidence that the alien has the means to depart the

United States and intends to do so. INA §§ 240B(b)(1)(A)-(D); 8 U.S.C.

§§ 1229c(b)(1)(A)-(D).

The INA does not define “good moral character” but excludes eight categories

of aliens who may not demonstrate good moral character. See INA §§ 101(f)(1)-(9);

8 U.S.C. §§ 1101(f)(1)-(9). One category includes “[a] member of one or more of the

classes of persons . . . described in . . . [8 U.S.C. §§ 1182(a)(2)(A), (B)].” INA
No. 08-4063 Serrato-Soto v. Holder Page 5

§ 101(f)(3); 8 U.S.C. § 1101(f)(3). Section 1182(a)(2)(A)(i), in turn, includes “any alien

convicted of, or who admits having committed, or who admits committing acts which

constitute the essential elements of . . . a crime involving moral turpitude (other than a

purely political offense) or an attempt or conspiracy to commit such a crime . . . .”

8 U.S.C. § 1182(a)(2)(A)(i)(I); INA § 212(a)(2)(A)(i). “Moral turpitude” is not defined

in the INA. 

Serrato-Soto does not dispute that his 2004 conviction occurred within the fiveyear period before his July 2006 application for voluntary departure. Therefore, we need

only resolve the question of whether Serrato-Soto’s 2004 conviction for fraudulent use

of identification is a crime involving moral turpitude.

D. Serrato-Soto’s 2004 Conviction

The BIA has held that “a criminal offense involves ‘moral turpitude’ if the

relevant statute defines the offense in such a manner that it necessarily entails conduct

on the part of the offender that is inherently base, vile, or depraved, and contrary to

accepted rules of morality and the duties owed between persons or to society in general.”

Matter of Kochlani, 24 I. & N. Dec. 128, 129 (B.I.A. 2007). And “crimes that have a

specific intent to defraud as an element have always been found to involve moral

turpitude.” Id. at 130. Moreover, as the Supreme Court has explained, “fraud has

consistently been regarded as such a contaminating component in any crime that

American courts have, without exception, included such crimes within the scope of

moral turpitude.” Jordan v. De George, 341 U.S. 223, 229 (1951); see also Omagah v.

Ashcroft, 288 F.3d 254, 260 (5th Cir. 2002) (“In the wake of Jordan, the courts of

appeals have interpreted ‘moral turpitude’ as including a wide variety of crimes that

involve some fraud or deceit.”). 

To determine whether Serrato-Soto’s crime involves moral turpitude, this Court

employs the “categorical approach,” whereby we consider not whether the actual

conduct constitutes a crime involving moral turpitude, but “whether the full range of

conduct encompassed by the statute constitutes a crime of moral turpitude.” Cuevas-
No. 08-4063 Serrato-Soto v. Holder Page 6

Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir. 2005); see also Gonzales v. DuenasAlvarez, 549 U.S. 183, 186-87 (2007). Accordingly, “we look to the elements of the

statutory state offense, not to the specific facts. We rely on what the convicting court

must necessarily have found to support the conviction and not to other conduct in which

the defendant may have engaged in connection with the offense.” Wilson v. Ashcroft,

350 F.3d 377, 381-82 (3d Cir. 2003) (citation and quotation omitted); see also Matter

of Short, 20 I. & N. Dec. 136, 137 (B.I.A. 1989) (“It is the inherent nature of the crime

as defined by statute and interpreted by the courts and as limited and described by the

record of conviction which determines whether the offense is one involving moral

turpitude.”).

Serrato-Soto was convicted under Mississippi Code § 97-19-85. That section,

titled “Fraudulent use of social security number or identifying information to obtain

goods,” reads as follows:

(1) Any person who shall make or cause to be made any false statement

or representation as to his or another person’s identity, Social Security

account number, credit card number, debit card number or other

identifying information for the purpose of fraudulently obtaining or with

the intent to obtain goods, services or any thing of value, shall be guilty

of a felony and upon conviction thereof for a first offense shall be fined

not more than Five Thousand Dollars ($5,000.00) or imprisoned for a

term not to exceed five (5) years, or both. For a second or subsequent

offense such person, upon conviction, shall be fined not more than Ten

Thousand Dollars ($10,000.00) or imprisoned for a term not to exceed

ten (10) years, or both. In addition to the fines and imprisonment

provided in this section, a person convicted under this section shall be

ordered to pay restitution as provided in Section 99-37-1 et seq.

(2) A person is guilty of fraud under subsection (1) who:

(a) Shall furnish false information wilfully, knowingly and with intent

to deceive anyone as to his true identity or the true identity of another

person;

(b) Wilfully, knowingly, and with intent to deceive, uses a Social

Security account number to establish and maintain business or other

records; or
No. 08-4063 Serrato-Soto v. Holder Page 7

(c) With intent to deceive, falsely represents a number to be the Social

Security account number assigned to him or another person, when in

fact the number is not the Social Security account number assigned to

him or such other person; or

(d) Knowingly alters a Social Security card, buys or sells a Social

Security card or counterfeit or altered Social Security card, counterfeits

a Social Security card, or possesses a Social Security card or

counterfeit Social Security card with intent to sell or alter it.

MISS. CODE ANN. § 97-19-85.

Serrato-Soto’s record of conviction does not cite any particular subsection under

which he was charged and convicted. Even so, under any of the subsections, as defined

in the statute, Serrato-Soto must have acted “willfully,” “knowingly,” or “with intent to

deceive.” Id. Thus, Serrato-Soto was convicted of a crime that, in the ordinary case,

involves dishonesty as an essential element. See Duenas-Alvarez, 549 U.S. at 193;

Matter of Silva-Trevino, 24 I. & N. Dec. 687, 697-98 (A.G. 2008).

A person convicted under this Mississippi statute must also have used the

personal information in the course of some action with the intent of committing a crime

involving moral turpitude, including furnishing said information to another to hide a

person’s true identity, using the personal information for business purposes, falsely

portraying a social security number as his own, altering a social security card, or buying

or selling a legitimate or counterfeit social security card. MISS. CODE ANN. §§ 97-19-

85(2)(a)-(d). As such, Serrato-Soto’s conviction under this statute is outside the scope

of cases involving mere unlawful possession of illegal documents, which the BIA has

held does not involve moral turpitude. See, e.g., Matter of Serna, 20 I. & N. Dec. 579,

585-86 (B.I.A. 1992) (holding that mere possession of illegal documents, without intent

to use said documents fraudulently or unlawfully, is not a crime involving moral

turpitude). Accordingly, because Serrato-Soto’s crime has the intent to defraud and

some affirmative action beyond mere possession as essential elements, his crime falls

within this Circuit’s understanding of moral turpitude. See, e.g., Kabongo v. INS, 837

F.2d 753, 758 (6th Cir. 1988) (finding that alien’s convictions for making false

statements and obtaining government funds by fraud involved moral turpitude because
No. 08-4063 Serrato-Soto v. Holder Page 8

4

Serrato-Soto also argues that his crime of using another person’s identification is malum

prohibitum (prohibited by statute) instead of malum in se (inherently wrong), which removes it from the

category of crimes involving moral turpitude because malum prohibitum crimes do not necessarily involve

a specific evil intent. However, the BIA has explained that a crime may qualify as one of moral turpitude

even if the offense is malum prohibitum. See Matter of Torres-Varela, 23 I. & N. Dec. 78, 83 (B.I.A.

2001) (“[A]lthough crimes involving moral turpitude often involve an evil intent, such a specific intent is

not a prerequisite to finding that a crime involves moral turpitude. . . . While it is generally the case that

a crime that is ‘malum in se’ involves moral turpitude and that a ‘malum prohibitum’ offense does not, this

categorization is more a general rule than an absolute standard.”) 

5

“The registry statute, 8 U.S.C. § 1259, is a remedial provision designed to regularize the status

of long-resident aliens illegally in the country.” Beltran-Tirado, 213 F.3d at 1183 (citation and quotation

omitted). The statute applies to an alien who (1) entered the United States prior to January 1, 1972, (2) has

resided in the United States continuously since that time, (3) is a person of “good moral character,” and

(4) is not ineligible for citizenship. 8 U.S.C. § 1259.

the alien made dishonest statements); Zaitona v. INS, 9 F.3d 432, 437-38 (6th Cir. 1993)

(agreeing with a BIA determination that an alien’s conviction for making false

statements on a driver’s license application, in violation of Michigan statute, involved

moral turpitude because an element of the crime required the alien to “knowingly make

a false statement or knowingly conceal a material fact,” which amounted to fraud).

Serrato-Soto renews his argument, made unsuccessfully before the BIA, that we

should exempt misuse of social security numbers from the category of crimes involving

moral turpitude based upon the Ninth Circuit’s decision in Beltran-Tirado v. INS, 213

F.3d 1179 (9th Cir. 2000).4 In Beltran-Tirado, Beltran was convicted of falsely

representing a social security number in violation of 42 U.S.C. § 408(g)(2) (recodified

at 42 U.S.C. § 408(a)(7)(B)). Id. at 1182. The United States Immigration and

Naturalization Service moved to deport her. Beltran sought lawful permanent residence

by applying for “registry” under 8 U.S.C. § 1259.5

 The BIA denied her request on the

ground that her use of a false social security number constituted a crime involving moral

turpitude, which precluded her from demonstrating the statutory requirement of good

character. The Ninth Circuit reversed, holding that the use of a false social security

number to establish credit and work in the United States did not involve moral turpitude.

The court relied on the legislative history of 42 U.S.C. § 408(d) (recodified at 42 U.S.C.

§ 408(e)), which was added by amendment. That section provides that aliens who had

been granted permanent resident status under the amnesty or registry statutes were
No. 08-4063 Serrato-Soto v. Holder Page 9

exempted from prosecution for certain past use of social security numbers. 42 U.S.C.

§ 408(e); Beltran-Tirado, 213 F.3d at 1183. 

In explaining the purpose behind the exemption from prosecution, the Ninth

Circuit cited Congress’s conference committee report:

The Conferees intend that this exemption apply only to those individuals

who use a false social security number to engage in otherwise lawful

conduct. . . . 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. (quoting H.R. Rep. No. 101-964, at 948 (1990), reprinted in 1990 U.S.C.C.A.N.

2374, 2653). The Ninth Circuit recognized that the amendment did not apply to Beltran

but applied the conference committee’s rationale behind the amendment to find that

Beltran’s crimes did not involve moral turpitude. 213 F.3d at 1184.

The Fifth Circuit, in Hyder v. Keisler, 506 F.3d 388 (5th Cir. 2007), recently

addressed an analogous issue involving an alien convicted of misuse of a social security

number obtained by fraud and declined to follow Beltran-Tirado. As that court

reasoned, Beltran-Tirado “appears to have expanded a narrow exemption beyond what

Congress intended.” Id. at 393. The amendment and legislative history upon which the

Ninth Circuit relied applies to aliens who have already been granted status as lawful

permanent residents and only applies to future criminal prosecutions. 42 U.S.C.

§ 408(e). “The 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.” Hyder, 506 F.3d at 393. 

We agree with the Fifth Circuit’s decision and reasoning in Hyder and decline

to follow Beltran-Tirado. Additionally, we note that Serrato-Soto is not a lawful

permanent resident and, thus, does not fit within the classification of aliens described in

42 U.S.C. § 408(e) as contemplated in Beltran-Tirado. And in declining to follow

Beltran-Tirado, we do not disturb established Sixth Circuit precedent finding crimes of
No. 08-4063 Serrato-Soto v. Holder Page 10

fraud or dishonesty within the class of crimes involving moral turpitude. See, e.g.,

Kabongo, 837 F.2d at 758; Squires v. INS, 689 F.2d 1276, 1278 n.3 (6th Cir. 1982);

Zaitona, 9 F.3d at 437-38.

III. Conclusion

For the foregoing reasons, we DENY the petition.