In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐2839
MARIA EUDOFILIA ARIAS,
Petitioner,
v.
LORETTA E. LYNCH,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A087 774 871
____________________
ARGUED OCTOBER 30, 2015 — DECIDED AUGUST 24, 2016
____________________
Before POSNER, RIPPLE, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Petitioner Maria Eudofilia Arias
came to this country without authorization in 2000. She has
raised three children here. Her longtime employer calls her an
“excellent employee.” She now faces removal from the United
States after the Board of Immigration Appeals characterized
her sole criminal conviction—falsely using a social security
number to work—as a “crime involving moral turpitude.”
2 No. 14‐2839
This characterization bars Arias from seeking discretionary
cancellation of removal under 8 U.S.C. § 1229b(b)(1). Arias
has petitioned for review of the removal order.
We grant the petition and remand the case to the Board for
further proceedings. Arias was convicted under a statute
making it a federal crime to misrepresent a social security
number to be one’s own “for any … purpose.” 42 U.S.C.
§ 408(a)(7)(B) (emphasis added). Many violations of that stat‐
ute would amount to crimes involving moral turpitude. For
both legal and pragmatic reasons, though, we doubt that
every violation of the statute necessarily qualifies as a crime
involving moral turpitude.
We remand this case on two narrower grounds. First, the
Board misapplied the framework for identifying crimes in‐
volving moral turpitude that it was bound to apply at the time
of its decision. See Matter of Silva‐Trevino (Silva‐Trevino I), 24 I.
& N. Dec. 687 (Att’y Gen. 2008) (establishing framework).
Then, after the Board’s decision but before Arias’s petition for
our review became ripe for decision, the Attorney General va‐
cated the Silva‐Trevino I framework in its entirety. See Matter
of Silva‐Trevino (Silva‐Trevino II), 26 I. & N. Dec. 550, 554 (Att’y
Gen. 2015). Given the Board’s legal error and the current vac‐
uum of authoritative guidance on how the Board should de‐
termine whether a crime involves moral turpitude, we re‐
mand to the Board to reconsider Arias’s case.
In Part I, we recount the factual and procedural back‐
ground of this case. In Part II, we examine the difficulty in
treating violations of § 408(a)(7)(B) categorically as crimes in‐
volving moral turpitude. In Part III, we explain the reasons for
our remand based on the Board’s legal error and the current
No. 14‐2839 3
uncertainty about how the Board should decide whether a
conviction is for a crime involving moral turpitude.
I. Factual and Legal Background
Since coming to the United States from Ecuador without
authorization in 2000, Arias has worked for the Grabill Cabi‐
net Company in Grabill, Indiana. The company called Arias
an “excellent employee” in a letter Arias submitted to the im‐
migration court in support of her application for cancellation
of removal. To work for Grabill Cabinet, Arias provided a
false social security number. She has presented evidence that
she has filed an income tax return for every year she has been
in the United States through 2012.
Arias has also raised a family in the United States. Arias
and her husband have been married since 1989. Their three
children have grown up in the United States. The two younger
children, five and fourteen years old, are United States citi‐
zens. Her oldest child, twenty‐six years old, was born in Ec‐
uador but has received relief from removal through the De‐
ferred Action for Childhood Arrivals program.
In 2010, Arias was charged in federal court with falsely us‐
ing a social security number to work for Grabill Cabinet in
violation of 42 U.S.C. § 408(a)(7)(B). Section 408(a)(7)(B)
makes it a crime to misrepresent a social security number to
be one’s own to obtain a benefit or “for any other purpose.”
Arias pled guilty and was sentenced to just about the lightest
felony sentence one is likely to find in modern federal prac‐
tice: one year of probation and a $100 special assessment. Af‐
ter Arias completed her probation successfully, she received
employment authorization and Grabill Cabinet rehired her. In
4 No. 14‐2839
the letter from the company that Arias submitted to the immi‐
gration court, Grabill Cabinet said that it “did not have any
problems” welcoming her back to her old job. Her indictment
charged Arias with an “intent to deceive Grabill,” although it
is evident that Grabill itself did not have a problem with
Arias’s deception and does not view itself as a victim. There
is no indication in the record that Arias has broken any state
or federal laws other than her unauthorized immigration into
this country and false use of a social security number to work.
In 2010, Arias received a notice to appear for removal pro‐
ceedings. She admitted removability but applied for cancella‐
tion of removal under 8 U.S.C. § 1229b(b)(1). The Attorney
General may cancel the removal of unauthorized immigrants
who have been in the United States for at least ten years and
who can show that their removal would cause “exceptional
and extremely unusual hardship” to their children, spouses,
or parents who are United States citizens, among other re‐
quirements. Id.
Such discretionary cancellation is barred, however, if the
immigrant has been convicted of a “crime involving moral
turpitude.” 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1229b(b)(1)(C).
“Moral turpitude” is not defined in the statute. The Board and
federal courts have labored for generations to provide a work‐
able definition. See generally Jordan v. De George, 341 U.S. 223,
227–29 (1951) (holding that conspiracy to evade payment of
liquor tax was crime involving moral turpitude, and noting
that all varieties of fraud are treated likewise); id. at 232–45
(Jackson, J., dissenting) (“moral turpitude” is too vague to
support deportation).
The immigration judge held that Arias’s crime of convic‐
tion was a crime involving moral turpitude. The judge relied
No. 14‐2839 5
on two of this circuit’s cases: Marin‐Rodriguez v. Holder, 710
F.3d 734 (7th Cir. 2013), and Miranda‐Murillo v. Holder, 502 F.
App’x 610 (7th Cir. 2013), a non‐precedential order. A one‐
member panel of the Board affirmed. The Board said it was
using the categorical approach, the first step in the now‐va‐
cated Silva‐Trevino I framework, to determine that a violation
of § 408(a)(7)(B) necessarily involves moral turpitude. See
Silva‐Trevino I, 24 I. & N. Dec. at 689–90. Citing this court’s
opinion in Marin‐Rodriguez, 710 F.3d at 738, the Board held:
“An intent to deceive for the purpose of wrongfully obtaining
a benefit is an element of the offense, and therefore the offense
is categorically a crime involving moral turpitude.”
Arias petitioned for judicial review of the Board’s decision
denying cancellation of removal. Under 8 U.S.C.
§ 1252(a)(2)(D), we have jurisdiction to review the legal ques‐
tion whether a crime involves moral turpitude. Lagunas‐Sal‐
gado v. Holder, 584 F.3d 707, 710 (7th Cir. 2009). Arias argues
that her crime of conviction does not categorically involve
moral turpitude because, while the statute requires deception,
it does not always require fraud, which necessarily involves
detriment to the person or entity defrauded. Arias presented
these arguments to the Board sufficiently to allow our review,
and, in any case, the Board’s discussion of deceit in the context
of moral turpitude opens up that issue for our review. See
Arobelidze v. Holder, 653 F.3d 513, 517 (7th Cir. 2011); Juarez v.
Holder, 599 F.3d 560, 564 n.3 (7th Cir. 2010).
II. Crimes Involving Moral Turpitude
The issue is whether a violation of 42 U.S.C. § 408(a)(7)(B)
is a crime involving moral turpitude. We have not decided the
issue in a precedential opinion, and other circuits are split.
6 No. 14‐2839
The Fifth and Eighth Circuits have said yes (including opin‐
ions regarding the closely related subparagraph,
§ 408(a)(7)(A)). Guardado‐Garcia v. Holder, 615 F.3d 900, 901–02
(8th Cir. 2010); Lateef v. Department of Homeland Security, 592
F.3d 926, 929 (8th Cir. 2010) (§ 408(a)(7)(A)); Hyder v. Keisler,
506 F.3d 388, 392 (5th Cir. 2007) (§ 408(a)(7)(A)). The Ninth
Circuit has said no. Beltran‐Tirado v. I.N.S., 213 F.3d 1179, 1184
(9th Cir. 2000).
The Board has defined a crime involving moral turpitude
as “conduct that shocks the public conscience as being inher‐
ently base, vile, or depraved, and contrary to the accepted
rules of morality and the duties owed between persons or to
society in general.” In re Solon, 24 I. & N. Dec. 239, 240 (BIA
2007) (citation and internal quotation marks omitted). We
have adopted definitions substantively in line with the
Board’s. See, e.g., Sanchez v. Holder, 757 F.3d 712, 715 (7th Cir.
2014); see also Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th Cir.
2005) (“We have recently stated that a crime of moral turpi‐
tude is one that is deliberately committed and ‘serious,’ either
in terms of the magnitude of the loss that it causes or the in‐
dignation that it arouses in the law‐abiding public.”), over‐
ruled on other grounds by Ali v. Mukasey, 521 F.3d 737, 743
(7th Cir. 2008); see generally Julia Ann Simon‐Kerr, Moral Tur‐
pitude, 2012 Utah L. Rev. 1001, 1044–68 (2012) (recounting his‐
tory of moral turpitude as a concept in immigration law).
Taking the Board’s definition at face value, it is difficult to
see how a violation of § 408(a)(7)(B) is categorically a crime
involving moral turpitude. In fact, the Board reached its deci‐
sion in this case by misstating the provisions of the statute.
The Board wrote incorrectly that § 408(a)(7)(B) has as a neces‐
No. 14‐2839 7
sary element an “intent to deceive for the purpose of wrong‐
fully obtaining a benefit.” That is not correct. The statute crim‐
inalizes falsely representing a social security number to be
one’s own for purposes of obtaining various social security
benefits but also “for any other purpose.”
It is not difficult to imagine some purposes for which
falsely using a social security number would not be “inher‐
ently base, vile, or depraved.” For example, hospitals and
other health care providers often ask for patients’ social secu‐
rity numbers. Would it be “inherently base, vile, or depraved”
for a person without a social security number to take a child
who has fallen ill to a hospital and to give a false social secu‐
rity number to obtain treatment for her sick child, knowing
she is ready, willing, and able to pay for the care? Not unless
the terms “base, vile, or depraved” have ceased to have any
real meaning.
Courts and the Board do not always apply the above defi‐
nition according to its literal terms. They instead often use
two heuristics to decide what is “inherently base, vile, or de‐
praved” and what is not. First, crimes that are malum in se (in‐
herently wrong), as opposed to malum prohibitum (wrong only
because prohibited), are often said to involve moral turpitude.
See, e.g., Padilla, 397 F.3d at 1020; In re Fualaau, 21 I. & N. Dec.
475, 477 (BIA 1996) (“Moral turpitude has been defined as an
act which is per se morally reprehensible and intrinsically
wrong, or malum in se, so it is the nature of the act itself and
not the statutory prohibition of it which renders a crime one
of moral turpitude.”); Matter of Flores, 17 I. & N. Dec. 225, 227
(BIA 1980). Second, courts and the Board have focused on the
presence of a “vicious motive” or an “evil intent” to deter‐
8 No. 14‐2839
mine whether a crime involves moral turpitude. See, e.g., Fer‐
nandez‐Ruiz v. Gonzales, 468 F.3d 1159, 1165–66 (9th Cir. 2006);
Partyka v. Attorney General, 417 F.3d 408, 413 (3d Cir. 2005); Flo‐
res, 17 I. & N. Dec. at 227 (“The test to determine if a crime
involves moral turpitude is whether the act is accompanied
by a vicious motive or a corrupt mind.”); see generally Simon‐
Kerr, supra, 2012 Utah L. Rev. at 1059–68 (recounting history
of scienter test for moral turpitude).
The broad “any other purpose” term in § 408(a)(7)(B)
makes it difficult to see how a violation of the statue could
categorically involve evil intent or be malum in se. There need
not be any evil intent in the hypothetical about a parent using
a false social security number to secure medical care for a sick
child, unless deception without more, no matter how admira‐
ble the goal, involves evil intent (i.e., moral turpitude). Along
those same lines, it seems like giving a false social security
number “for any purpose” should not be categorically ma‐
lum in se or inherently wrong. The Ninth Circuit has held that
a violation of § 408(a)(7)(B) is not malum in se. Beltran‐Tirado,
213 F.3d at 1183–84 (reasoning that Congress could not have
intended violations of § 408(a)(7)(B) to be crimes involving
moral turpitude because of legislative history indicating that
unauthorized immigrants exempt from prosecution under
§ 408 under an amnesty program should not be considered to
have exhibited moral turpitude). But see Marin‐Rodriguez, 710
F.3d at 740–41 (rejecting Beltran‐Tirado’s legislative history ar‐
gument).
We acknowledge that the Board’s holding that Arias’s vio‐
lation of § 408(a)(7)(B) categorically is a crime involving moral
turpitude does have a basis in law. Despite the confusion
about how to determine what moral turpitude is, there is a
No. 14‐2839 9
consensus that fraud is close to the core of moral turpitude. In
Jordan v. De George, the Supreme Court rejected an argument
that the moral turpitude standard was unconstitutionally
vague in the case of an immigrant facing deportation for con‐
spiring to defraud the United States of liquor taxes. The Court
reasoned: “Whatever else the phrase ‘crime involving moral
turpitude’ may mean in peripheral cases, the decided cases
make it plain that crimes in which fraud was an ingredient
have always been regarded as involving moral turpitude.”
341 U.S. at 232; see also Simon‐Kerr, supra, 2012 Utah L. Rev.
at 1008 (arguing that legal concept of moral turpitude devel‐
oped from eighteenth‐ and nineteenth‐century “honor
norms” and therefore includes “oath‐breaking, fraud, and
their extensions” as part of its “core of settled meaning”) (in‐
ternal quotation marks omitted).
We and other courts have sometimes used broader lan‐
guage, writing that any crime involving the larger concept of
“deception,” in contrast to the narrower concept of fraud, in‐
volves moral turpitude. See, e.g., Marin‐Rodriguez, 710 F.3d at
738 (“Crimes entailing an intent to deceive or defraud are un‐
questionably morally turpitudinous.”); Guardado‐Garcia, 615
F.3d at 902 (“Crimes involving the intent to deceive or defraud
are generally considered to involve moral turpitude.”) (cita‐
tion and internal quotation marks omitted); Hyder, 506 F.3d at
391 (“We have repeatedly emphasized that crimes whose es‐
sential elements involve fraud or deception tend to be
CIMTs.”); 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 turpi‐
tude.’”). In Padilla, in deciding that obstruction of justice was
a crime involving moral turpitude, we wrote: “Crimes that do
not involve fraud, but that include dishonesty or lying as an
10 No. 14‐2839
essential element also tend to involve moral turpitude.” 397
F.3d at 1020 (citation and internal quotation marks omitted).
But note the qualifier, “tend to.” Despite the broad lan‐
guage, cases finding crimes of moral turpitude based on de‐
ception rely on other aggravating factors, especially actual or
intended harm to others. See Abdelqadar, 413 F.3d at 670 (buy‐
ing food stamps for cash from proper recipients); Padilla, 397
F.3d at 1017–18 (obstruction of justice by giving false infor‐
mation to police officer); see also Guardado‐Garcia, 615 F.3d at
902 (using false social security number to gain access to secure
area of major airport).
There is also a basis in Board precedents, which are also
entitled to our deference, for the idea that a crime involving
moral turpitude requires more than simple dishonesty. In tort
law, liability for fraud requires loss to the person defrauded.
See Restatement (Second) of Torts § 531. Some Board prece‐
dents seem to follow this distinction. For example, in Matter
of Delagadillo, the Board held that the violation of a Mexican
anti‐fraud statute was not categorically a crime involving
moral turpitude. 15 I. & N. Dec. 395, 396–97 (BIA 1975). The
Board reasoned that the statute as written did not “require the
taking of another’s property.” Id. at 396. Because the statute
“could therefore punish any act of deception used in retriev‐
ing one’s own property” it did not categorically involve moral
turpitude. Id. The Board then looked to the specific facts of the
conviction at issue. The Board held that the immigrant’s ac‐
tions—fabrication of a property transfer “in an unsuccessful
attempt to reduce his wife’s potential settlement in a divorce
action”—was not “so base or vile as to be deemed morally
turpitudinous under United States standards.” Id. at 397. Sim‐
ilarly, in Matter of B— M—, the Board held that making a false
No. 14‐2839 11
statement to an immigration inspector was not a crime involv‐
ing moral turpitude because “the offense may have consisted
only of a false and not a fraudulent statement.” 6 I. & N. Dec.
806, 808 (BIA 1955). But see Matter of P‐‐‐‐‐, 6 I. & N. Dec. 795,
798 (BIA 1955) (holding that conviction under statute contain‐
ing “inherent intent to deceive or mislead” was crime involv‐
ing moral turpitude).
Arias’s case brings into focus the troubling results that
would follow from a rule that every crime that involves any
element of deception involves moral turpitude. As of 2014,
unauthorized immigrants made up about five percent of the
United States labor force. Jens Manuel Krogstad & Jeffrey S.
Passel, 5 Facts About Illegal Immigration in the U.S., Pew Re‐
search Center (November 19, 2015), available at http:
//www.pewresearch.org/fact‐tank/2015/11/19/5‐facts‐about‐
illegal‐immigration‐in‐the‐u‐s. Has every one of those mil‐
lions of workers who gives a social security number to her
employer committed a crime involving moral turpitude?
Those persons are removable because they are not in the
United States lawfully. The issue for Arias and all the others
is whether they are barred from even discretionary relief be‐
cause they have provided false social security numbers so that
they can work and pay taxes.
It seems inconsistent with the terms “base, vile, or de‐
praved” to hold that an unauthorized immigrant who uses a
false social security number so that she can hold a job, pay
taxes, and support her family would be guilty of a crime in‐
volving moral turpitude, while an unauthorized immigrant
who is paid solely in cash under the table and does not pay
any taxes would not necessarily be guilty of a crime involving
12 No. 14‐2839
moral turpitude. A rule that all crimes that involve any ele‐
ment of deception categorically involve moral turpitude
would produce results at odds with the accepted definition of
moral turpitude as conduct that is “inherently base, vile, or
depraved.” At the same time, there is significant precedent in‐
dicating that deceptive conduct is morally turpitudinous. In
the end, though, we do not need to try to resolve this conflict
definitively in this case. As we explain next, we remand be‐
cause of the unsettled state of the law regarding how the
Board must go about determining which crimes involve
moral turpitude.
III. The Changing Legal Framework
Given the difficulty that courts and the Board have had in
defining the boundaries of moral turpitude, perhaps we
should not be surprised to find great uncertainty regarding
how the Board should decide whether an immigrant has been
convicted of a crime involving moral turpitude. In between
the Board’s order and the briefing in Arias’s petition for our
review, the Attorney General vacated the order that had set
the approach the Board used to determine that Arias’s crime
involved moral turpitude. No replacement framework has yet
emerged. The current uncertainty about method and an error
the Board made in applying the old framework warrant a re‐
mand to the Board to reconsider Arias’s conviction under a
new framework the Board adopts or the Attorney General
mandates. See Mata‐Guerrero v. Holder, 627 F.3d 256, 257 (7th
Cir. 2010) (remanding to the Board a decision that a crime in‐
volved moral turpitude because Board had used an approach
that had since been replaced by Silva‐Trevino I framework).
No. 14‐2839 13
In 2008, the Attorney General established a three‐step pro‐
cess for determining whether a crime involved moral turpi‐
tude. See Silva‐Trevino I, 24 I. & N. Dec. 687 (Att’y Gen. 2008).
Step one of Silva‐Trevino I used the categorical approach, look‐
ing to the elements of the statute of conviction to determine
whether there is a “realistic probability” that the statute could
be applied to conduct that does not involve moral turpitude.
Where step one was inconclusive, step two looked beyond the
statutory elements to records of conviction, such as charging
documents, jury instructions, and guilty plea agreements and
transcripts to see if the defendant’s crime involved moral tur‐
pitude. Where that was also inconclusive, step three allowed
an immigration judge or the Board to consider additional ev‐
idence regarding the defendant’s actual conduct.
We approved the Silva‐Trevino I approach. Sanchez v.
Holder, 757 F.3d 712, 718 (7th Cir. 2014); Mata‐Guerrero, 627
F.3d at 260; see also Bobadilla v. Holder, 679 F.3d 1052, 1057 (8th
Cir. 2012). Some other circuits, however, held that allowing an
immigration judge to look beyond the record of conviction vi‐
olated the unambiguous language of the statute. See, e.g.,
Silva‐Trevino v. Holder, 742 F.3d 197, 198 (5th Cir. 2014); Olivas‐
Motta v. Holder, 746 F.3d 907, 916 (9th Cir. 2013); Prudencio v.
Holder, 669 F.3d 472, 484 (4th Cir. 2012). In light of these other
circuits’ decisions, the Attorney General vacated Silva‐Trevino
I and directed the Board to address in appropriate cases how
“adjudicators are to determine whether a particular criminal
offense is a crime involving moral turpitude” under the Im‐
migration and Nationality Act. Silva‐Trevino II, 26 I. & N. Dec.
550, 553 (Att’y Gen. 2015). The Board has not yet acted on that
instruction, leaving a vacuum of authority regarding how it
should determine whether a crime involves moral turpitude.
14 No. 14‐2839
To add to the confusion, the Board did not correctly apply
the Silva‐Trevino I framework in its opinion holding that
Arias’s violation of § 408(a)(7)(B) involved moral turpitude.
The Board selectively quoted the statute and then stated: “An
intent to deceive for the purpose of wrongfully obtaining a
benefit is an element of the offense, and therefore the offense
is categorically a crime involving moral turpitude.” As noted
above, § 408(a)(7)(B) criminalizes false use of a social security
number not only to obtain a benefit but also “for any other
purpose.” The Board rephrased the statute to fit Arias’s par‐
ticular circumstances, which indicates that the Board looked
beyond the statute to determine that Arias’s crime of convic‐
tion involved moral turpitude. This was permissible under
Silva‐Trevino I, but only if examination of the statute proved
inconclusive. Silva‐Trevino I, 24 I. & N. Dec. at 690.1
The Board failed to analyze whether the statute was incon‐
clusive before looking beyond the elements of the statute. This
was an error under Silva‐Trevino I. It is unclear whether it
would be an error now. Since Silva‐Trevino II, it is uncertain
whether and under what circumstances the Board will be per‐
mitted to look beyond the elements of the statute. In addition,
in light of Silva‐Trevino II, our decision today does not amount
to overruling our earlier opinion in Marin‐Rodriguez. 710 F.3d
734. That decision was grounded in the now‐vacated frame‐
work of Silva‐Trevino I. Because the Silva‐Trevino I framework
1 Although the Board’s interpretation of whether a crime involves
moral turpitude for the purposes of the Immigration and Nationality Act
is often entitled to Chevron deference, Ali v. Mukasey, 521 F.3d 737, 739 (7th
Cir. 2008), Chevron deference does not protect clear legal errors such as the
Board’s misapplication of the Silva‐Trevino I framework or misstatement
regarding the contents of 42 U.S.C. § 408(a)(7)(B).
No. 14‐2839 15
has since been vacated and the Attorney General has directed
the Board to determine a new framework for judging which
crimes involve moral turpitude, we REMAND to the Board to
consider Arias’s case under an appropriate legal framework
for judging moral turpitude.
16 No. 14‐2839
POSNER, Circuit Judge, concurring in the judgment. I agree
that we should grant the petition and therefore remand the
case to the Board of Immigration Appeals for reconsidera‐
tion of the Board’s refusal to cancel the order that the peti‐
tioner be removed (deported) from the United States.
I do not however agree with the respect that Judge Ham‐
ilton’s opinion accords the concept of “moral turpitude.” It is
preposterous that that stale, antiquated, and, worse, mean‐
ingless phrase should continue to be a part of American law.
Its meaninglessness is well illustrated by this case; and even
if it is to be retained in immigration law it was misapplied
by the Board of Immigration Appeals.
The concept plays a particularly malign role in immigra‐
tion adjudication, as this case illustrates, because conviction
of a crime involving moral turpitude bars the Attorney Gen‐
eral from canceling the removal, or adjusting the status, of
an alien. See 8 U.S.C. §§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(I).
The term “crime involving moral turpitude” first ap‐
peared in Brooker v. Coffin, 5 Johns. 188 (N.Y. 1809); see Note,
“Crimes Involving Moral Turpitude,” 43 Harv. L. Rev. 117,
118 n. 7 (1929). Without defining the term, the court con‐
cluded that prostitution and other disorderly‐conduct of‐
fenses were not crimes of moral turpitude, and therefore
falsely accusing someone of such an offense could not sup‐
port a suit for slander. Brooker v. Coffin, supra, 5 Johns. at 191–
92. But the term appeared rarely in case law until legislators
began to invoke it, notably in the closing years of the nine‐
teenth century, when in the Act of March 3, 1891, ch. 551,
51st Cong., 2d Sess., Congress, worried by the swelling tide
of immigration to the United States, forbade the admission,
among other categories of disfavored aliens (such as polyg‐
No. 14‐2839 17
amists), of aliens “who have been convicted of a felony or
other infamous crime or misdemeanor involving moral tur‐
pitude.” Why Congress chose the term “moral turpitude” to
describe crimes that should bar aliens is unclear because
there was no attempt to explain it either in the statute itself
or in the legislative history. See Staff of House Committee on
the Judiciary, 100th Cong., Grounds for Exclusion of Aliens
Under the Immigration and Nationality Act: Historical Back‐
ground and Analysis 10 (Comm. Print. 1988).
Congress has never defined “moral turpitude,” but
courts and the immigration agencies have tended to adopt a
slight variant of the definition in Black’s Law Dictionary: an
“act of baseness, vileness, or the depravity in private and so‐
cial duties which man owes to his fellow man, or to society
in general … . [An] act or behavior that gravely violates
moral sentiment or accepted moral standards of [the] com‐
munity and is a morally culpable quality held to be present
in some criminal offenses as distinguished from others.”
Black’s Law Dictionary 1008–09 (6th ed. 1990). Thus Lagunas‐
Salgado v. Holder, 584 F.3d 707, 710 (7th Cir. 2009), remarked
that “the BIA has described a crime of moral turpitude as
including ‘conduct that shocks the public conscience as be‐
ing inherently base, vile, or depraved, and contrary to the
accepted rules of morality and the duties owed between per‐
sons or to society in general.’” The most recent edition of
Black’s offers a simpler but broader definition: “conduct that
is contrary to justice, honesty, or morality; esp., an act that
demonstrates depravity.” Black’s Law Dictionary 1163 (10th
ed. 2014).
It’s difficult to make sense of these definitions, which ap‐
proach gibberish yet are quoted deferentially in countless
18 No. 14‐2839
modern opinions. See, e.g., Blake v. Carbone, 489 F.3d 88, 103
(2d Cir. 2007); De Leon‐Reynoso v. Ashcroft, 293 F.3d 633, 636
(3d Cir. 2002); Hamdan v. INS, 98 F.3d 183, 186 (5th Cir. 1996);
In re Solon, 24 I. & N. Dec. 239, 240 (BIA 2007); In re Ajami, 22
I. & N. Dec. 949, 950 (BIA 1999). What does “the public con‐
science” mean? What does “inherently base, vile, or de‐
praved”—words that have virtually dropped from the vo‐
cabulary of modern Americans—mean and how do any of
these terms differ from “contrary to the accepted rules of
morality”? How for that matter do the “accepted rules of
morality” differ from “the duties owed between persons or
to society in general”? And—urgently—what is “depravi‐
ty”? A partial list of its synonyms, according to a Google
search, includes corruption, vice, perversion, deviance, de‐
generacy, immorality, debauchery, dissipation, profligacy,
licentiousness, lechery, prurience, obscenity, indecency, a
wicked or morally corrupt act, the innate corruption of hu‐
man nature due to original sin, moral perversion, bestiality,
flagitiousness, and putrefaction.
The definitions constitute a list of antiquated synonyms
for bad character, and why does the legal profession cling to
antiquated synonyms? Why are we so backward‐looking?
The answer lies in the American legal culture—in the fact
that law is backward‐looking, that the legal profession revels
in antiquity, cherishes jargon, and lacks respect for proper
English usage—“base or vile” is not an expression used by
sophisticated speakers of modern English, or for that matter
unsophisticated, and the word “turpitude” has disappeared
from the language as spoken and written today. The lan‐
guage I quoted from Black’s—who talks like that? Who needs
to talk like that? Lawyers apparently, and they go a step fur‐
No. 14‐2839 19
ther into the lexical mud by intoning an adjectival form of
“turpitude”: “turpitudinous.”
We suggested in Mei v. Ashcroft, 393 F.3d 737, 741 (7th
Cir. 2004)—a case that hinted at misgivings about the utility
of moral turpitude as a criminal category—that the distinc‐
tion between crimes that are and crimes that are not crimes
of moral turpitude
corresponds, as noted in Beltran‐Tirado v. INS, 213 F.3d
1179, 1184 (9th Cir. 2000), and Orlando v. Robinson, 262 F.2d
850, 851 (7th Cir. 1959), to the distinction between crimes
that are malum in se and crimes that are malum prohibi‐
tum. The former refer to crimes that because they violate
the society’s basic moral norms are known by everyone to
be wrongful, the latter to crimes that are not intuitively
known to be wrongful. United States v. Urfer, 287 F.3d 663,
666 (7th Cir. 2002); United States v. Beavers, 206 F.3d 706,
710 (6th Cir. 2000) (“the lack of intuitive wrongfulness is
the hallmark of all laws that are malum prohibitum”). In ap‐
plication, however, the distinction turns out to be paper
thin. In South Carolina, for example, simple possession of
cocaine is classified as a crime involving moral turpitude,
State v. Major, 301 S.C. 181, 391 S.E.2d 235, 237 (1990), but
simple possession of marijuana is not. State v. Harvey, 275
S.C. 225, 268 S.E.2d 587, 588 (1980). An alien convicted of
making false statements on an employment application
and using a fake Social Security number was held in Bel‐
tran‐Tirado v. INS, supra, not to have committed a crime in‐
volving moral turpitude, but the crime of making false
statements in a driverʹs license application was held in Zai‐
tona v. INS, 9 F.3d 432 (6th Cir. 1993), to involve moral tur‐
pitude. The holdings of the Board of Immigration Appeals
are consistent with regard to some crimes but “there are a
number of miscellaneous cases involving indecent acts,
20 No. 14‐2839
gambling, perjury, and other crimes where the findings of
moral turpitude vary widely.” Toutounjian v. INS, 959 F.
Supp. 598, 603 (W.D.N.Y. 1997).
The background that I have sketched may help prepare
the reader for the mysterious ways in which the federal gov‐
ernment classifies crimes against itself (for that is the nature
of the crime that the petitioner in this case, Maria Arias,
committed—a crime against the government) as “turpitudi‐
nous” or not.
The U.S. Department of State Foreign Affairs Manual (FAM),
in Volume 9 Visas, 9 FAM 40.21(a) N2.3‐2 Crimes Commit‐
ted Against Governmental Authority (2015), divides crimes
against government into those that are, and those that are
not, crimes of moral turpitude:
a. Crimes committed against governmental authority
which fall within the definition of moral turpitude include:
(1) Bribery;
(2) Counterfeiting;
(3) Fraud against revenue or other government functions;
(4) Mail fraud;
(5) Perjury;
(6) Harboring a fugitive from justice (with guilty
knowledge); and
(7) Tax evasion (willful).
b. Crimes committed against governmental authority,
which would not constitute moral turpitude for visa‐
issuance purposes, are, in general, violation of laws which
are regulatory in character and which do not involve the
element of fraud or other evil intent. The following list as‐
sumes that the statutes involved do not require the show‐
ing of an intent to defraud, or evil intent:
No. 14‐2839 21
(1) Black market violations;
(2) Breach of the peace;
(3) Carrying a concealed weapon;
(4) Desertion from the Armed Forces;
(5) Disorderly conduct;
(6) Drunk or reckless driving;
(7) Drunkenness;
(8) Escape from prison;
(9) Failure to report for military induction;
(10) False statements (not amounting to perjury or involv‐
ing fraud);
(11) Firearms violations;
(12) Gambling violations;
(13) Immigration violations;
(14) Liquor violations;
(15) Loan sharking;
(16) Lottery violations;
(17) Possessing burglar tools (without intent to commit
burglary);
(18) Smuggling and customs violations (where intent to
commit fraud is absent);
(19) Tax evasion (without intent to defraud); and
(20) Vagrancy.
The division between the two lists is arbitrary. The first is
open‐ended and therefore provides incomplete guidance on
how to avoid committing a crime of moral turpitude against
the government. The second list, the list of crimes that do not
involve moral turpitude, includes a number of crimes that
are as serious, as “turpitudinous”—one steeped in the jargon
of crimes of moral turpitude might say—as those in the first
list: desertion from the Armed Forces, prison escape, smug‐
gling, and failure to report for military induction (i.e., draft
dodging, when there is a draft). Some of the crimes in the
second list make no sense, such as possessing burglar tools
22 No. 14‐2839
without intent to commit burglary and committing tax eva‐
sion without intent to defraud. Others are defined so broad‐
ly as to include criminal behavior serious enough to belong
on the first list, examples being breach of the peace, firearms
violations, and loan sharking. The pair of lists seems the
product of a disordered mind. They make no sense.
The petitioner’s crime was the use of a social security
number that had been assigned to another person by the So‐
cial Security Administration. That was a felony. 42 U.S.C.
§ 408(a)(7)(B). She had used the number to obtain a job.
There is no indication that had she not done this, an Ameri‐
can citizen would have gotten the job in her stead rather
than one of the 10 or 11 million other illegal aliens who live
in the United States and like Arias need to work in order to
support themselves. The statute does not require proof of
intent to cause harm—an absence that one would think
would negate an inference of moral turpitude. Nor is it re‐
quired that the violation be material; nor was there proof in
this case that the violation wrongfully deprived anyone of
social security benefits or increased the expenses of govern‐
ment. Unsurprisingly Arias was punished very lightly: she
was merely placed on probation for a year and assessed
$100, which is the mandatory assessment for felony convic‐
tions. See 18 U.S.C. § 3013. So: no incarceration, no fine, just
a year’s probation and an assessment equivalent to the
amount of money she earns in 9.1 hours of work (for her
wage is $10.97 per hour).
Conceivably her very light sentence reflects in part the
fact that she has two young children, has worked without
incident since coming to the United States in 2000, and has
paid federal income tax. Or maybe the judge thought her
No. 14‐2839 23
crime trivial, as do I. (Has the Justice Department nothing
better to do with its limited resources than prosecute a
mouse? Has prosecutorial discretion flown out the win‐
dow?) She did not steal or invent the social security number;
it was given her by the persons who smuggled her into the
United States.
After completing her probation she was allowed to re‐
sume her employment with the same company she’d
worked for until her arrest, and she obtained a glowing let‐
ter of support from the general manager. She does manual
work for the company, described by the general manager as
“sealer sanding doors, wear thru and working with specialty
paints.” It is the kind of work that illegal immigrants typical‐
ly do, because it is not pleasant work and it is not well paid.
To prosecute and deport such a harmless person (to Ec‐
uador, her country of origin)—indeed a productive resident
of the United States—would be a waste of taxpayers’ money,
but to deport her on the ground that her crime was one of
moral turpitude would be downright ridiculous. The crime
she committed does not appear in the State Department’s list
of crimes of moral turpitude, and it is less serious than many
of the crimes in the second list (those that are not crimes of
moral turpitude). It is somewhat similar to crime category 13
in the second list—“immigration violations”—but she was
not convicted of violating immigration law, but instead of
violating a section of 42 U.S. Code, Chapter 7, Subchapter II.
The title of the subchapter is “Federal Old‐Age, Survivors,
and Disability Insurance Benefits.” Her crime could also be
placed in category 10 on the second list—“false statements
(not amounting to perjury or involving fraud).” The State
24 No. 14‐2839
Department explicitly tells us that false statements do not
constitute crimes of moral turpitude.
And yet the government argues that the petitioner’s con‐
duct was “deceptive” and therefore a crime of “moral turpi‐
tude.” But glance again at the second list, the list of crimes
that are not crimes of moral turpitude. In addition to crime
10—“false statements”—which by definition involves decep‐
tion, crimes 1, 3, 4, 15, 18, and 19 on that list may also in‐
volve deception. When a panel of this court said in Marin‐
Rodriguez v. Holder, 710 F.3d 734, 738 (7th Cir. 2013), a case
factually almost identical to this one, that “crimes entailing
an intent to deceive or defraud are unquestionably morally
turpitudinous,” it was deviating from the Manual without
explanation.
Interestingly, the immigration judge in our case said that
“unfortunately” the Seventh Circuit had ruled in Marin‐
Rodriguez that the type of conviction involved in Arias’s case
was “inherently turpitudinous.” The judge’s instincts were
sound, but she felt bound by our decision. The Board of Im‐
migration Appeals affirmed her ruling primarily on the au‐
thority of Marin‐Rodriguez. But Marin‐Rodriguez was wrong
and should be overruled. The court had no basis for rejecting
what for a change was proper guidance from the State De‐
partment’s Manual.
The idea that fraudulent intent colors any crime “turpi‐
tudinous” had received its authoritative modern statement
in Jordan v. De George, 341 U.S. 223 (1951), like this a deporta‐
tion case, where we read for example that “fraud has con‐
sistently 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.”
No. 14‐2839 25
Id. at 229. But notice that the word used by the Court to de‐
scribe a crime of moral turpitude was “fraud,” not “decep‐
tion,” and De George was a fraud case in the core sense of
”fraud”: it was a conspiracy to defraud the federal govern‐
ment of tax revenues.
Yet, though it was a much stronger case for deportation
than this case, the majority opinion evoked a remarkable
dissent by Justice Jackson, id. at 232–245, joined by Justices
Black and Frankfurter. The dissent picked apart the concept
of “moral turpitude.” It exposed its emptiness (“Congress
did not see fit to state what meaning it attributes to the
phrase ‘crime involving moral turpitude.’ It is not one which
has settled significance from being words of art in the pro‐
fession. If we go to the dictionaries, the last resort of the baf‐
fled judge, we learn little except that the expression is re‐
dundant, for turpitude alone means moral wickedness or
depravity and moral turpitude seems to mean little more
than morally immoral. The Government confesses that it is ‘a
term that is not clearly defined,’ and says: ‘the various defi‐
nitions of moral turpitude provide no exact test by which we
can classify the specific offenses here involved.’ Except for
the Court’s opinion, there appears to be universal recogni‐
tion that we have here an undefined and undefinable stand‐
ard”). Id. at 234–235. And the dissent argued convincingly
that deportation was an extreme sanction to impose on De
George, the alien, without a more definite standard guiding
its imposition. See id. at 240–242.
Alas, a great dissent by a great Justice has been forgotten.
The concept of moral turpitude, in all its vagueness, rife with
contradiction, a fossil, an embarrassment to a modern legal
system, continues to do its dirty work. Even so, and de‐
26 No. 14‐2839
spite the precedent of Marin‐Rodriguez, there is a route to jus‐
tice in this case. It is to recognize that this is not a fraud case.
Although convicted of a crime against the government, the
petitioner, unlike her predecessor De George, was not seek‐
ing any money from the government. So far as appears her
crime harmed no one, least of all the government though it is
the “victim” of her crime, and so even the muddled over‐
broad Foreign Affairs Manual provides no basis for classifying
her crime as one of moral turpitude. This case is identical to
Beltran‐Tirado v. INS, supra, where the Ninth Circuit held that
using a false social security number on an employment veri‐
fication form in order to obtain employment was not a crime
of moral turpitude. Consider, too, In re Delagadillo, 15 I. & N.
Dec. 395 (BIA 1975), where the Board of Immigration Ap‐
peals held that an applicant for admission to the United
States who had “fabricated a property transfer in an unsuc‐
cessful attempt to reduce his wife’s potential settlement in a
divorce action” had not committed a crime “so base or vile as
to be deemed morally turpitudinous.” The Ninth Circuit and
the Board of Immigration Appeals recognized in these cases,
as the State Department does in its manual, that deception
alone is not enough to make a crime one of moral turpitude.
Our prior cases that have purported to extend De George’s
fraud rule to cover any deception have generally done so in
dicta, because the cases involved more than simple decep‐
tion. See Abdelqadar v. Gonzales, 413 F.3d 668, 671 (7th Cir.
2005); Padilla v. Gonzales, 397 F.3d 1016, 1017–18, 1020–21 (7th
Cir. 2005).
In Lagunas‐Salgado v. Holder, 584 F.3d 707 (7th Cir. 2009),
an alien had been convicted of making “false Social Security
and alien registration cards so that others could find em‐
ployment.” Id. at 708. The Board of Immigration Appeals
No. 14‐2839 27
deemed his crime one of moral turpitude and a panel of this
court affirmed. It was a more serious crime than our peti‐
tioner’s, because Lagunas‐Salgado had sold false papers to
about 50 people, some for as much as $100; and he was sen‐
tenced to five months in prison and two years of probation, a
much heavier sentence than Arias received. The panel opin‐
ion in Lagunas‐Salgado remarks with apparent approval the
BIA’s conclusion “that petty larceny and issuing a worthless
check involve moral turpitude” but that “crimes such as im‐
porting, selling, or possessing drugs do not involve moral
turpitude because evil intent is not an element of the of‐
fense.” Id. at 710. That is an absurd distinction, given that the
congressional mandate is to identify crimes that are morally
reprehensible and thus a proper ground for deportation.
Yet the approach I’m suggesting derives support from
Lagunas‐Salgado. The panel was emphatic that it was a fraud
case, 584 F.3d at 711–12, and I read Jordan v. De George to
hold that crimes of fraud are ipso facto crimes of moral turpi‐
tude. Lagunas‐Salgado gave away some of his false docu‐
ments but sold others, and was “deceiving the government”
because “he knew the persons receiving the false documents
would use them in an attempt to obtain work that they could
not otherwise lawfully obtain.” Id. at 712. The petitioner in
our case did not forge documents, let alone for gift or sale to
other persons. The impact of her conduct on her “victim,”
the U.S. Government, was negligible, as reflected in the
nominal sentence that she received relative to the heavier
(though still light) sentence imposed on Lagunas‐Salgado.
Marin‐Rodriguez is closer to our case, but the alien in that
case had been convicted under a different statute, 18 U.S.C.
§ 1546, which is entitled “Fraud and misuse of visas, per‐
28 No. 14‐2839
mits, and other documents,” authorizes sentences of up to 10
years in prison (even longer if the offense was committed in
connection with drug trafficking or terrorism), and thus
punishes more heavily conduct more reprobated than the
conduct in which the petitioner in this case engaged. The
court in Marin‐Rodriguez was mistaken, however, as I’ve
said, in assuming that all deceptive acts, no matter how
harmless, are crimes of moral turpitude. See 710 F.3d at 738.
It based that proposition on De George, Abdelqadar, and Pa‐
dilla, despite the fact that none of those cases involved harm‐
less deception.
If anything is clear it’s that “crime of moral turpitude”
shouldn’t be defined by invoking broad categorical rules
that sweep in harmless conduct. Yet that’s what the Board of
Immigration Appeals did in this case, in upholding the im‐
migration judge’s conclusion that the petitioner had commit‐
ted a crime of moral turpitude; it said that a violation of 42
U.S.C § 408(a)(7)(B) is “categorically a crime involving moral
turpitude.”