481 F. App'x 611
11th Cir.2012Background
- Moreno-Silva, a Mexican native, entered the U.S. without inspection and sought cancellation of removal in 2006 based on family hardship.
- He alleged that his U.S. citizen wife and children would suffer exceptional hardship if he were removed.
- The IJ denied relief concluding Moreno-Silva’s 2005 SSN fraud conviction rendered him ineligible due to a crime involving moral turpitude (CIMT).
- The BIA affirmed, holding that section 408(a)(7)(B) offenses categorically constitute CIMTs because they involve deception.
- This court reviews the BIA decision (not the IJ’s) and, for CIMT questions, engages in de novo review with deference to reasonable BIA interpretation.
- The essential elements of Moreno-Silva’s offense are: false representation of a Social Security number, with intent to deceive, for any purpose.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 408(a)(7)(B) is categorically a CIMT | Moreno-Silva argues the statute’s elements do not necessarily involve moral turpitude. | BIA/Respondent contends the offense inherently involves dishonesty and false statements making it a CIMT. | Yes; the offense is a CIMT (dishonesty and false representation). |
| Proper standard of review for BIA CIMT determinations | Challenge to BIA’s interpretation of CIMT categorization as inappropriate or not reasonably applied. | Court should defer to a reasonable BIA interpretation and review de novo only for questions of law. | Court defers to reasonable BIA interpretation; reviews CIMT issues de novo. |
Key Cases Cited
- Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002) (inherent nature of offenses controls CIMT determination; dishonesty often conveys CIMT)
- Sosa-Martinez v. U.S. Att’y Gen., 420 F.3d 1338 (11th Cir. 2005) (deference to BIA interpretation when reasonable)
- Hernandez v. U. S. Att’y Gen., 513 F.3d 1336 (11th Cir. 2008) (review scope when BIA issues decision; de novo for legal questions)
- United States v. Harris, 376 F.3d 1282 (11th Cir. 2004) (essential elements of the offense; use statute to determine CIMT elements)