Fernando entered the United States in 2010 without a valid visa. To be able to work in the United States, he used a social security number of another individual illegally. In 2015, he was convicted of the “use of an unauthorized social security number” in violation of federal law (42 USC 408(a)(7)(B). Later the Department of Homeland Security charged Fernando as being removable because his criminal conviction was considered as conviction of a crime against moral turpitude (CIMT). He was ordered removed by the Immigration Court as his cancellation of removal was denied. Fernando’s appeal to BIA was denied and on petition for review the 5th Circuit Court of Appeals affirmed the BIA decision.
In a similar case pending with the Supreme Court, the Pereida, a long time resident of the United States with U.S. citizen children was put in removal proceedings. He has an underlying case of unauthorized use of social security number but his criminal conviction was a misdemeanor state offense of criminal impersonation under the Nebraska criminal statute. The immigration court ordered him removed considering the conviction as a crime against moral turpitude. BIA affirmed the immigration judge’s decision. The case is still pending with the Supreme Court. Oral arguments were heard in October 2020 and no decision has yet been rendered.
Case to Case basis
While the two cases are similar in facts, the second case of Pereida was a state conviction while that of Fernando was clearly a federal crime. Legal arguments will be centered on whether the elements of the state crime corresponds to the federal offense listed on the Immigration and Nationality Act.
Conviction for unauthorized use of social security number is a crime against moral turpitude and is a deportable offense. But each case is different. The underlying offenses must be analyzed on whether they clearly fall under the federal offense grounds for removal. Also, legal counsels should be able to look into any post-convictions relief if they are available to lessen or erase the immigration consequences of the crime.
On President Biden’s first day of office, he issued an Executive Order revoking Trump’s 2017 Executive Order on Enhancing Public Safety in the Interior. Thus, ICE, USCIS and CBP released a Memorandum focusing only on removing individuals who are threats to national security, border security and public safety. Conviction of a crime against moral turpitude for unauthorized use of social security is a fraud offense and does not fall under these priorities. However, without clear directives from ICE, favorable discretion may or may not be exercised to not enforce removal of those with misdemeanor offenses and with strong family ties.
Pathway to Citizenship
In the meantime, it would be best for those still waiting to avail of the “pathway to citizenship” to be good citizens and to stay away from engaging in unlawful activities to avoid complicating future immigration applications. Or better yet, to have your case assessed if you have criminal case history to determine possible legal options of obtaining permanent resident status or availing of future options to “pathway to citizenship.”
