Ruperto Hernandez Zarate v. U.S. Attorney General

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 1 of 40

[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-11654

____________________

RUPERTO HERNANDEZ ZARATE,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A215-569-562

____________________

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 2 of 40

2 Opinion of the Court 20-11654

Before JORDAN, JILL PRYOR, and TJOFLAT, Circuit Judges.

JORDAN, Circuit Judge:

Under federal law, a conviction for a “crime involving moral

turpitude” (a CIMT) can have significant immigration conse-

quences. For example, a person convicted of a CIMT is not eligible

for the discretionary relief of cancellation of removal. See 8 U.S.C.

§§ 1182(a)(2) & 1229b(b)(1)(c). The question presented in this ap-

peal—one which has led to a circuit split—is whether a conviction

for falsely representing a social security number, see 42 U.S.C.

§ 408(a)(7)(B), is a CIMT.

I

In 2019, Ruperto Hernandez Zarate—a citizen and national

of Mexico—was convicted of violating 42 U.S.C. § 408(a)(7)(B) for

using a social security card that was not his. As relevant here, that

provision makes it a felony for someone “(7) . . . for the purpose of

obtaining anything of value from any person, or for any other pur-

pose . . . (B) with intent to deceive, [to] falsely represent[ ] a number

to be the [S]ocial [S]ecurity account number assigned by the Com-

missioner of Social Security to him or to another person, when in

fact such number is not the [S]ocial [S]ecurity account number as-

signed by the Commissioner of Social Security to him or to such

other person[.]” 42 U.S.C. § 408(a)(7)(B).

An immigration judge ruled that Mr. Zarate was statutorily

ineligible for cancellation of removal because his conviction under

§ 408(a)(7)(B) was for a CIMT, but otherwise would have granted

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 3 of 40

20-11654 Opinion of the Court 3

him that relief. Mr. Zarate appealed to the Board of Immigration

Appeals, which agreed with the immigration judge and dismissed

the appeal. See A.R. at 3–5. The BIA explained that § 408(a)(7)(B)

requires intent to deceive, and as a result Mr. Zarate’s conviction

was for a CIMT. Noting that the circuits were divided on the issue,

it quoted our decision in Walker v. U.S. Att’y Gen., 783 F.3d 1226,

1229 (11th Cir. 2015), for the proposition that, “[g]enerally, a crime

involving dishonesty or false statement is considered to be one in-

volving moral turpitude.” The BIA did not, however, address

whether a violation of § 407(a)(7)(B) is inherently base, vile, or de-

praved. And that, as we will later explain, is a significant omission.

II

We “review de novo the legal question of whether a[ ] con-

viction qualifies as a [CIMT].” Gelin v. U.S. Att’y Gen., 837 F.3d

1236, 1240 (11th Cir. 2016). In determining whether a conviction

is a CIMT, we employ the categorical approach (if the statute of

conviction is not divisible and sets out alternative means of com-

mitting a single offense) or the modified categorical approach (if

the statute of conviction is divisible and creates separate offenses).

See Pereida v. Wilkinson, 141 S. Ct. 754, 762–63 (2021); George v.

U.S. Att’y Gen., 953 F.3d 1300, 1303–04 (11th Cir. 2020). This

means that “[w]hether a crime involves the depravity or fraud nec-

essary to be one of moral turpitude depends on the inherent nature

of the offense, as defined in the relevant statute, rather than the

circumstances surrounding a defendant’s particular conduct.” Itani

v. Ashcroft, 298 F.3d 1213, 1215–16 (11th Cir. 2002). See also

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 4 of 40

4 Opinion of the Court 20-11654

Keungne v. U.S. Att’y Gen., 561 F.3d 1281, 1284 (11th Cir. 2009)

(“In other words, the determination that a crime involves moral

turpitude is made categorically, based on the statutory definition

or nature of the crime, not the specific conduct predicating a par-

ticular conviction.”). We ask whether the “least culpable conduct

necessary to sustain a conviction under the statute meets the stand-

ard of a crime involving moral turpitude.” Gelin, 837 F.3d at 1241

(internal quotation marks and citation omitted). 1

III

CIMTs have been part of the immigration lexicon since the

late 19th century, initially appearing in laws providing for the ex-

clusion of certain categories of persons from the United States. See

generally Jordan v. De George, 341 U.S. 223, 229 n.14 (1951). Re-

markably, however, the term “moral turpitude” has never been de-

fined by federal statute or rule, and its contours have been left to

case-by-case adjudication by administrative and judicial tribunals

for over a century. Because “moral turpitude” had its legal origins

in defamation law as 19th-century common-law courts sought a

1 Where the statute of conviction is divisible—i.e., where it sets out different

offenses—and some of the crimes set out in the statute involve moral turpi-

tude and others do not, the person must “prove that his actual, historical of-

fense of conviction” is not a CIMT. See Pereida, 141 S. Ct. at 763. Here, how-

ever, it is undisputed that Mr. Zarate was convicted under § 408(a)(7)(B). So

the question for us is a purely legal one: whether a conviction under that pro-

vision is a CIMT.

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 5 of 40

20-11654 Opinion of the Court 5

manageable test for slander and libel per se, see Julia Ann Simon-

Kerr, Moral Turpitude, 2012 Utah L. Rev. 1001, 1010–25 (2012), the

term has proven amorphous (and difficult to define and confine) in

the immigration arena.

The BIA has, understandably, described “moral turpitude”

as a “nebulous concept.” In re Tran, 21 I. & N. Dec. 291, 292 (BIA

1996). That may be a kind characterization. As one commentator

has put it, “[t]he term ‘moral turpitude’ is probably incapable of

precise definition in a legal sense, since it basically involves moral

or ethical judgments.” Annotation, What Constitutes “Crime In-

volving Moral Turpitude” Within Meaning of [§§] 212(a)(9) and

241(a)(4) of Immigration and Nationality Act (8 U.S.C.A.

[§§] 1182(a)(9), 1251(a)(4)), and Similar Predecessor Statutes

Providing for Exclusion or Deportation of Aliens Convicted of

Such Crime[s], 23 A.L.R. Fed. 480, § 2[a] (1975 & 2021 Supp.).

Some have remarked that, to the extent that definitions of the term

exist, “[i]t’s difficult to make sense of . . . [them].” Arias v. Lynch,

834 F.3d 823, 831 (7th Cir. 2016) (Posner, J., concurring in the judg-

ment).

Nevertheless, the Supreme Court has held that the term

“moral turpitude” is not unconstitutionally vague. “Whatever

else” it “may mean in peripheral cases,” the Court said, case law

“make[s] it plain that crimes in which fraud was an ingredient have

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 6 of 40

6 Opinion of the Court 20-11654

always been regarded as involving moral turpitude.” De George,

341 U.S. at 232. 2

2Justice Jackson, joined by Justices Frankfurter and Black, dissented in De

George because they believed that “the phrase ‘crime involving moral turpi-

tude,’ as found in the Immigration Act, has no sufficiently definite meaning to

be a constitutional standard for deportation.” 341 U.S. at 232 (Jackson, J., dis-

senting) (footnote omitted). As Justice Jackson put it in his distinctive prose,

the phrase “is not one which has settled significance from being words of art

in the profession. If we go to dictionaries, the last resort of the baffled judge,

we learn little except that the expression is redundant, for turpitude alone

means moral wickedness and 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] [e]xcept for the Court’s opinion, there

appears to be universal recognition that we have here an undefined and unde-

finable standard.” Id. at 234–35 (footnotes omitted). As to the government’s

suggestion that “moral turpitude” be measured against the moral standards

that prevail in contemporary society to determine immorality, Justice Jackson

had this response: “Can we accept ‘the moral standards that prevail in contem-

porary society’ as a sufficiently definite standard for the purposes of the Act?

This is a large country and acts that are regarded as criminal in some states are

lawful in others. We suspect that moral standards which prevail as to posses-

sion or sale of liquor that has evaded tax may not be uniform in all parts of the

country, nor in all levels of ‘contemporary society.’ How should we ascertain

the moral sentiments of masses of persons on any better basis than a guess?”

Id. at 237–38.

In our view, Justice Jackson got it right. And several of our colleagues in other

circuits agree. See Islas-Veloz v. Whitaker, 914 F.3d 1249, 1261 (9th Cir. 2019)

(Fletcher, J., concurring) (“Now, almost seventy years after De George, ‘moral

turpitude’ is as undefined and undefinable as ever . . . . It is time to recognize

another failed enterprise.”) (citation omitted); Arias, 834 F.3d at 835 (Posner,

J., concurring in the judgment) (“Alas, a great dissent by a great Justice has

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 7 of 40

20-11654 Opinion of the Court 7

So what exactly does “moral turpitude” mean? We turn to

that question next.

A

According to the BIA, “moral turpitude” refers to “conduct

that is inherently base, vile, or depraved, and contrary to the ac-

cepted rules of morality and the duties owed between persons or

to society in general. To involve moral turpitude, a crime requires

two essential elements: reprehensible conduct and a culpable men-

tal state.” Matter of Silva-Trevino, 26 I. & N. Dec. 826, 833–34 (BIA

2016) (internal quotation marks and citation omitted). We give

deference to the BIA’s definition, as well as to its application of that

definition in precedential opinions. See Negusie v. Holder, 555

U.S. 511, 516–17 (2009); Arevalo v. U.S. Att’y Gen., 872 F.3d 1184,

1187–88 (11th Cir. 2017).

Our cases similarly explain that moral turpitude involves “an

act of baseness, vileness, or depravity in the private and social du-

ties which a man owes to his fellow men, or to society in general,

contrary to the accepted and customary rule of right and duty be-

tween man and man.” Smith v. U.S. Att’y Gen., 983 F.3d 1206,

1210 (11th Cir. 2020) (quoting Keungne, 561 F.3d at 1284). This is

basically the definition first used by federal courts—including the

former Fifth Circuit—in immigration cases addressing moral turpi-

tude in the early 20th century. See, e.g., Coykendall v. Skrmetta,

been forgotten.”). But we are of course bound by the majority opinion in De

George.

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 8 of 40

8 Opinion of the Court 20-11654

22 F.2d 120, 120–21 (5th Cir. 1927); Ex parte Machida, 277 F. 239,

241 (W.D. Wash. 1921); United States v. Uhl, 203 F. 152, 154

(S.D.N.Y. 1913), aff’d, 210 F. 860 (2d Cir. 1914). Accord 1 John Bou-

vier, Bouvier’s Law Dictionary and Concise Encyclopedia 846

(1914) (explaining that moral turpitude, “as ground of exclusion of

an alien, means an act of baseness, vileness or depravity in the pri-

vate and social duties which one owes to society, and as applied to

offenses includes only such crimes as manifest personal depravity

or baseness”); 5 Judicial and Statutory Definitions of Words and

Phrases 4581 (West 1904) (defining moral turpitude as “anything

done contrary to justice, honesty, principle, or good morals”). 3

Consistent with the two elements identified by the BIA—

reprehensible conduct and a culpable mental state—we agree with

the Fourth Circuit that “by using the phrase ‘involving moral tur-

pitude’ to define a qualifying crime, Congress meant to refer to

more than simply the wrong inherent in violating [a] statute. Oth-

erwise, the requirement that moral turpitude be involved would

be superfluous. It follows, therefore, that a crime involving moral

turpitude must involve conduct that not only violates a statute but

also independently violates a moral norm.” Mohamed v. Holder,

769 F.3d 885, 888 (4th Cir. 2014). Indeed, that is the view we ex-

pressed in our early immigration cases addressing the concept of

3 For an early scholarly attempt to grapple with the concept of moral turpi-

tude, see Note, Crimes Involving Moral Turpitude, 43 Harv. L. Rev. 117

(1929).

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 9 of 40

20-11654 Opinion of the Court 9

moral turpitude. See Skrmetta, 22 F.2d at 121 (“From the fact that

those acts have by statute been made punishable as crimes it does

not follow that they are inherently immoral, or involve moral tur-

pitude, within the meaning of the provision in question.”); Guar-

neri v. Kessler, 98 F.2d 580, 581 (5th Cir. 1938) (“All federal offenses

are statutory but that does not fix their inherent nature.”).

Our survey of the legal landscape indicates that fraud of-

fenses are—rightly or wrongly—categorically deemed to involve

moral turpitude. As noted, the Supreme Court in De George re-

jected a vagueness challenge to the phrase “involving moral turpi-

tude” by explaining that “crimes in which fraud was an ingredient

have always been regarded as involving moral turpitude.” De

George, 341 U.S. at 232. Given that pronouncement, it would be

inappropriate for us (regardless of our own views) to now declare

that fraud offenses are not always CIMTs.

Based on De George, it seems to us that fraud may be a sui

generis category necessarily involving moral turpitude, and that

only non-fraud offenses must also satisfy the “inherently base, vile,

or depraved” requirement to constitute CIMTs. Such a conclusion,

we believe, is supported by a number of decisions from the BIA and

our sister circuits. See Garcia-Martinez v. Barr, 921 F.3d 674, 676

(7th Cir. 2019) (“The Supreme Court has held that crimes involving

fraud, for example, almost always involve moral turpitude.”);

Bobadilla v. Holder, 679 F.3d 1052, 1057 (8th Cir. 2012) (“The Su-

preme Court established in [De George] that a crime in which fraud

is an element is categorically a CIMT.”); Navarro-Lopez v.

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 10 of 40

10 Opinion of the Court 20-11654

Gonzales, 503 F.3d 1063, 1074 (9th Cir. 2007) (en banc) (Reinhardt,

J., concurring, joined by a majority of the en banc court) (“Crimes

of moral turpitude are of basically two types, those involving fraud

and those involving grave acts of baseness or depravity.”) (internal

quotation marks and citation omitted), overruled on other grounds

by United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir.

2011); Guarneri, 98 F.2d at 581 (“Fraud is an ingredient of the of-

fense [of smuggling] . . . . [T]o clandestinely introduce goods into

the United States with intent to defraud the revenue is dishonest

and fraudulent and involves moral turpitude.”); Mercer v. Lence,

96 F.2d 122, 124 (10th Cir. 1938) (“conspiring to defraud a person

by deceit and falsehood” is an “offense of moral turpitude”); Matter

of Kochlani, 24 I. & N. Dec. 128, 130 (BIA 2007) (“[C]rimes that

have a specific intent to defraud as an element have always been

found to involve moral turpitude.”). Cf. United States v. Smith,

420 F.2d 428, 432 (5th Cir. 1970) (addressing whether a prior con-

viction could be used for impeachment and explaining that a crime

involves moral turpitude if “the ingredient of fraud” is present). 4

4 Commentators largely seem to be in agreement. See, e.g., Lindsay M.

Kornegay & Evan Tsen Lee, Why Deporting Immigrants for “Crimes Involv-

ing Moral Turpitude” is Now Unconstitutional, 13 Duke J. Const. L. & Pub.

Pol. 47, 64 (2017) (“While the fraud precedents appear mixed, these cases can

be reconciled by focusing on whether fraudulent intent is an essential element

of the conviction.”); Brian C. Harms, Redefining “Crimes of Moral Turpi-

tude”: A Proposal to Congress, 15 Geo. Immigr. L. J. 259, 269 (2001) (“Crimes

of fraud against the government or its authority, like all crimes with an

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 11 of 40

20-11654 Opinion of the Court 11

Nevertheless, as explained below, this treatment of fraud of-

fenses does not help the government here. That is because under

the categorical approach the crime Mr. Zarate committed does not

include fraud as an element or ingredient.

B

Applying the categorical approach, we look to the elements

of 42 U.S.C. § 408(a)(7)(B), Mr. Zarate’s statute of conviction. See,

e.g., Keungne, 561 F.3d at 1284. We have explained that the “ele-

ments of [an] offense [under § 408(a)(7)(B)] are (1) false representa-

tion of a Social Security number, (2) with intent to deceive, (3) for

any purpose.” United States v. Harris, 376 F.3d 1282, 1291 (11th

Cir. 2004).

Fraud requires that a misrepresentation be made to obtain a

benefit from someone or cause a detriment to someone. See gen-

erally Restatement (Second) of Torts § 531 (A.L.I. 1977) (“One who

makes a fraudulent misrepresentation is subject to liability to the

persons . . . whom he intends or has reason to expect to act or to

refrain from action in reliance upon the misrepresentation, for pe-

cuniary loss suffered by them through their justifiable reliance in

element of fraud, are ‘crimes involving moral turpitude.’”). But see Navarro-

Lopez, 593 F.3d at 1069 (Pregerson, J., specially concurring) (asserting that

“[c]rimes involving fraud are not a per se category of crimes involving moral

turpitude” and “merely present examples of conduct that may fall under the

umbrella of inherently base and vile conduct that shocks the conscience”).

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 12 of 40

12 Opinion of the Court 20-11654

the type of transaction in which he intends or has reason to expect

their conduct to be influenced.”); Black’s Law Dictionary 775 (10th

ed. 2014) (defining fraud as a “knowing misrepresentation or know-

ing concealment of a material fact made to induce another to act

to his or her detriment”); Merriam-Webster’s Dictionary of Law

202 (2016) (defining fraud as “any act, expression, omission or con-

cealment calculated to deceive another to his or her disad-

vantage”). A violation of § 408(a)(7)(B) can sometimes be for the

“purpose of obtaining anything of value from any person”—which

would involve fraud—but under the categorical approach the

“least culpable conduct necessary to sustain a conviction,” Gelin,

837 F.3d at 1241 (citation omitted), is the false representation of the

Social Security number for “any other purpose,” i.e., for a non-

fraudulent purpose. See Harris, 376 F.3d at 1291.

In Mr. Zarate’s case, the BIA concluded that a violation of

§ 408(a)(7)(B) involves moral turpitude because the statute requires

intent to deceive. But that analysis is both inconsistent with BIA

precedent (which we discuss below) and incomplete because it fails

to address the second moral turpitude element: inherent baseness,

vileness, or depravity. As we explain, the BIA has long held that

non-fraud offenses involving deception are not automatically

CIMTs.

C

We start our discussion with the BIA’s treatment of offenses

which require deception or misrepresentation but not fraud. The

relevant decisions are Matter of M—, 1 I. & N. Dec. 619 (BIA 1943),

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 13 of 40

20-11654 Opinion of the Court 13

Matter of R—, 5 I. & N. Dec. 29 (BIA 1952), Matter of B—M—, 6

I. & N. Dec. 806 (BIA 1955), Matter of B—, 7 I. & N. Dec. 342 (BIA

1956), Matter of Espinosa, 10 I. & N. Dec. 98 (BIA 1962), Matter of

Marchena, 12 I. & N. Dec. 355 (BIA 1967), Matter of Flores, 17 I. &

N. Dec. 225 (BIA 1980), and In re Jurado-Delgado, 24 I. & N. Dec.

29 (BIA 2006). Each one remains good law today, and we discuss

them in detail.

As early as 1943, the BIA found that crimes involving a false

representation to the government could constitute CIMTs, even if

they lacked an explicit element of fraud, provided that the repre-

sentation was inherently fraudulent. In Matter of M—, the BIA

considered whether knowingly and deliberately making a false

statement as to citizenship in a Selective Service questionnaire for

the purpose of evading military service was a CIMT. See 1 I. & N.

Dec. at 619. The BIA found that it was because such a statement

was “akin to fraud, i.e., an endeavor to alter rights by deception.”

Id. at 621. In 1952, the BIA affirmed this decision in Matter of R—,

reiterating the inherently fraudulent nature of the offense and find-

ing strong support from the Supreme Court’s then-new decision in

De George. See 5 I. & N. Dec. at 38.

In Matter of B—M—, decided in 1955, the BIA addressed

whether a violation of 18 U.S.C. § 1001—a divisible false statement

statute which at the time set out three different crimes—neces-

sarily constituted a CIMT. See 6 I. & N. Dec. at 807–09. Although

it had previously ruled that a false statement in violation of § 1001

constituted a CIMT when the statement is made to obtain a

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 14 of 40

14 Opinion of the Court 20-11654

benefit, see Matter of P—, 6 I. & N. Dec. 193, 194 (BIA 1954) (ex-

tension of a visa to stay in the United States), the BIA concluded in

Matter of B—M— that applicable precedents “do not require a con-

clusion that every violation of . . . § 1001 necessarily involves the

element of fraud and we must, therefore, examine the statute to

determine whether the crime which the [person] is alleged to have

committed involves moral turpitude.” 6 I. & N. Dec. at 808. The

person in Matter of B—M— had been convicted under the second

clause of § 1001, which prohibited the making of any “false, ficti-

tious, or fraudulent statements or misrepresentations.” The BIA

explained, however, that “the fact that the word ‘fraudulent’ ap-

pears does not compel the conclusion that every offense under this

clause would involve moral turpitude since the offense may have

consisted only of a false and not a fraudulent statement.” Id. at 808.

See also id. at 809 (“Our decision in Matter of P— . . . was not in-

tended as a definitive ruling that all violations of 18 U.S.C. [§] 1001

necessarily involve moral turpitude, and any statements therein

which might indicate such a conclusion are hereby modified ac-

cordingly.”). Because the person in Matter of B—M— had not

made any fraudulent statement when falsely representing that she

was not employed by the United States, her false statement “did

not constitute a crime involving moral turpitude.” Id. at 809.

Seven years later, in Matter of Espinosa, the BIA again ad-

dressed whether a conviction for violation of 18 U.S.C. § 1001 con-

stituted a CIMT. It again ruled that a false statement or represen-

tation does not necessarily involve moral turpitude. In that

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 15 of 40

20-11654 Opinion of the Court 15

decision, the person was convicted under the third clause of § 1001,

which prohibited the making or use of “any false writing or docu-

ment knowing the same to contain any false, fictitious or fraudu-

lent statement or entry.” The BIA ruled that such a conviction did

not necessarily involve moral turpitude and could not “at the pre-

sent serve as the basis for deportation.” 10 I. & N. Dec. at 99. The

BIA also held that, even if the conviction had been under the sec-

ond clause of § 1001—for making any false, fictitious, or fraudulent

statements or misrepresentations—the offense was not a CIMT.

“[T]he simple answer lies in the fact that the record does not estab-

lish that there was a conviction for fraud rather than for false mis-

representation. The second clause of . . . § 1001 lists the commis-

sion of several acts which can constitute the crime. These acts are

set forth in the disjunctive . . . . Under such circumstances, there is

a question as to whether the conviction was based upon the exist-

ence of one element rather than another.” Id. at 99–100. 5

5 The BIA has since held that the current version of 18 U.S.C. § 1001(a)(2),

which prohibits knowingly and willfully making “any materially false, ficti-

tious, or fraudulent statement or representation” within the jurisdiction of the

federal government, is a CIMT because the false statement (1) must have “the

capacity to impair or pervert the functioning of a [g]overnment agency” and

(2) must be made with intent to deceive or mislead. See Matter of Pinzon, 26

I. & N. Dec. 189, 193 (BIA 2013). In so holding, the BIA expressly distinguished

prior decisions like Matter of Espinosa. See id. at 194 (“[T]he decisions the

respondent relies on addressed an earlier version of 18 U.S.C. § 1001 and are

therefore distinguishable.”). As one commentator has remarked, Matter of

Pinzon “reflects . . . an adjustment of decisional law consonant with a

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 16 of 40

16 Opinion of the Court 20-11654

Matter of Marchena, decided by the BIA in 1967, reaffirmed

the decision in Matter of B—M—. At issue in Matter of Marchena

was a conviction under the second clause of § 1001—the clause pro-

hibiting the making of any “false, fictitious, or fraudulent state-

ments or misrepresentations.” See 12 I. & N. Dec. at 356. The BIA

held that the minimum conduct proscribed by the clause was a false

statement and not a fraudulent one, and therefore the conviction

was not a CIMT: “On this record the conviction may have been for

making a false statement, and we may not assume that the plea of

guilty concerned a fraudulent statement. The crime cannot be held

to involve moral turpitude.” Id. at 357. 6

Less than a year after Matter of B—M— was decided, in Mat-

ter of B—, the BIA addressed a conviction under 18 U.S.C. § 1542

rewritten criminal statute.” Hans Christian Linnartz, Lies, Damn Lies, and

Lies Involving Moral Turpitude: When Does a False Statement Carry Immi-

gration Consequences?, 11 Charleston L. Rev. 665, 674–75 (2017).

6 Shortly before Matter of B—M— was issued, the BIA held that a violation of

a provision of the Food, Drug, and Cosmetic Act prohibiting certain actions

done “with intent to defraud or mislead,” such as selling margarine labeled as

butter, was a CIMT. See Matter of P—, 6 I. & N. Dec. 795, 797–98 (BIA 1955)

(emphasis removed). The BIA explained that, “[s]ince it has been determined

that 21 U.S.C. [§] 333(b) contains an inherent intent to deceive or mislead and

because moral turpitude inheres in the criminal intent, we conclude that the

offenses for which respondent was convicted in 1954 were inherently wrong

and morally reprehensible, not merely prohibited by statute of recent origin.”

Id. at 798. Although the BIA still cites Matter of P— occasionally for the defi-

nition of moral turpitude, its reasoning—if read broadly—is incompatible with

Matter of B—M— and its progeny.

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 17 of 40

20-11654 Opinion of the Court 17

for making a false statement “in an application for passport with

intent to induce or secure the issuance of a passport under the au-

thority of the United States, either for his own use or the use of

another.” Because the statute required proof that the false state-

ment be made for the purpose of inducing or securing a U.S. pass-

port—i.e., obtaining a benefit—the government had to show that

“the applicant must knowingly make a false statement with the spe-

cific intent that the false statement should be acted upon” by the

government. See 7 I. & N. Dec. at 343–44. “Fraud, therefore, must

be used in connection with the inducing or the securing of the is-

suance of the passport,” and as a result the offense “involves moral

turpitude.” Id. at 344.

In Matter of Acosta, a 1973 decision, the BIA similarly held

that a conviction under 18 U.S.C. § 922(a)(6)—for making a false

statement in the acquisition of a firearm—is a CIMT. 14 I. & N.

Dec. 338, 338–39 (BIA 1973). Citing Matter of B—, the BIA rea-

soned that a statement intended or likely to deceive a licensed fire-

arms dealer involves moral turpitude “because fraud and material-

ity are essential elements of the crime.” Id.

In 1980, the BIA held in Matter of Flores that a conviction

under 18 U.S.C. § 1426(b), which criminalizes uttering or selling

false or counterfeit paper relating to registry of aliens with

knowledge of their counterfeit nature, constituted a CIMT because

the criminalized conduct “inherently involves a deliberate decep-

tion of the government and an impairment of its lawful functions,”

making “fraudulent conduct . . . implicit in the statute.” 17 I. & N.

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 18 of 40

18 Opinion of the Court 20-11654

Dec. at 230. The BIA made clear that “it is not necessary that [a]

statute . . . include the usual phraseology concerning fraud in order

for it to involve moral turpitude,” so long as “fraud is so inextrica-

bly woven into the statute as to clearly be an ingredient of the

crime.” Id. at 228. In this way, Matter of Flores built out the prin-

ciple recognized in Matter of B—: crimes involving false statements

can lack a specific fraud element but still be inherently fraudulent—

and thus a CIMT under De George—depending on the nature of

the acts involved or the results intended.

In 2013, the BIA applied Matter of Flores in In re Jurado-Del-

gado to find that a Pennsylvania statute which criminalized making

a false statement with “intent to mislead a public servant in per-

forming his official function,” 18 Pa. Cons. Stat. § 4904(a), is a

CIMT. 24 I. & N. Dec. at 34. Though the BIA did not specifically

say the criminalized conduct was inherently fraudulent, it relied on

Matter of Flores, focused on the “intent to mislead,” and recog-

nized the moral turpitude involved in impairing and obstructing

government functions. See id. at 35. See also Ramirez v. Sessions,

887 F.3d 693, 704 (4th Cir. 2018) (“As the BIA’s rationale in Matter

of Jurado–Delgado suggests, an act of obstruction, standing alone,

does not categorically involve moral turpitude. In other words,

there must be some other aggravating element that pushes a mere

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 19 of 40

20-11654 Opinion of the Court 19

violation of the law into the territory of moral depravity.”) (citation

omitted). 7

These BIA decisions teach that making a false statement or

engaging in general deception is not necessarily the same thing as

fraud. See Matter of Correa-Garces, 20 I. & N. Dec. 451, 454 (BIA

1992) (“Crimes involving fraud are considered to be crimes involv-

ing moral turpitude,” while “[c]onvictions for making false state-

ments have been found to involve moral turpitude.”). As a result,

a violation of § 408(a)(7)(B) is not categorically a CIMT: “The intent

to deceive is not equivalent to the intent to defraud, which gener-

ally requires an intent to obtain some benefit or cause a detriment.

There are many situations in which a person may have the intent

to deceive without having the intent to defraud.” Ahmed v.

Holder, 324 F. App’x 82, 84 (2d Cir. 2009) (citation omitted). Ac-

cord Arias, 834 F.3d at 826 (“[I]t is difficult to see how a violation

of § 408(a)(7)(B) is categorically a crime involving moral turpitude

. . . . The statute criminalizes falsely representing a [S]ocial [S]ecu-

rity number to be one’s own for purposes of obtaining various

7 One unpublished BIA decision questions whether Matter of Marchena, Mat-

ter of Espinosa, and Matter of B—M— still hold precedential value in the wake

of Matter of Flores and its progeny. In re Hill, No. AXXX XX0 667, 2008 WL

5181745, at *2 n.1 (BIA Nov. 12, 2008). But this overreads Matter of Flores.

The consistent principle underlying all of the BIA’s decisions is that crimes

involving false statements which do not contain fraud as either an element or

ingredient, perhaps inherently, do not necessarily constitute CIMTs. This is

certainly not the case for a crime involving the making of a false statement

“for any purpose.”

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 20 of 40

20 Opinion of the Court 20-11654

[S]ocial [S]ecurity benefits but also ‘for any other purpose.’ It is not

difficult to imagine some purposes for which falsely using a [S]ocial

[S]ecurity number would not be ‘inherently base, vile, or de-

praved.’”); Beltran-Tirado v. I.N.S., 213 F.3d 1179, 1184–85 (9th Cir.

2000) (holding that § 408(a)(7)(B) is not a CIMT in part because the

acts it proscribes are “mala prohibita, not mala in se”). This con-

clusion is consistent with decisions from the Fourth and Tenth Cir-

cuits holding that violations of state and local identity theft laws

were not CIMTs when they lacked any ingredient of fraud or inter-

ference with a government function. See Nunez-Vasquez v. Barr,

965 F.3d 272, 286 (4th Cir. 2020) (“[T]he statute at issue here need

not involve fraud or harm to the government. Because a convic-

tion under Va. Code Ann. § 18.2–186.3(B1) does not require mor-

ally reprehensible conduct, Nunez-Vasquez’s identity theft convic-

tion is not a CIMT.”); Flores-Molina v. Sessions, 850 F.3d 1150,

1168 (10th Cir. 2017) (“For a false statement to violate [Denver Mu-

nicipal Code] § 38-40, it need not involve fraud, cause harm to the

government or anyone else, obtain a benefit for the speaker, or be

given with the intent to achieve any of these ends.”).

We recognize that the Fifth and Eighth Circuits have held

that a violation of § 408(a)(7)(B) is a CIMT, and that we have come

to the same conclusion in an unpublished opinion. See, e.g.,

Munoz-Rivera v. Wilkinson, 986 F.3d 587, 591 (5th Cir. 2021);

Moreno-Silva v. U.S. Att’y Gen., 481 F. App’x 611, 613 (11th Cir.

2012); Guardado-Garcia v. Holder, 615 F.3d 900, 902 (8th Cir.

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 21 of 40

20-11654 Opinion of the Court 21

2010). But we find these decisions unpersuasive for various rea-

sons.

First, both we and the Fifth Circuit failed to consider the nu-

merous BIA decisions discussed above, incorrectly relied on the

“intent to deceive” and dishonesty elements of the statute to de-

clare that moral turpitude is unequivocally involved, and did not

recognize that fraud generally requires acting to obtain a benefit or

cause a detriment. See Munoz-Rivera, 986 F.3d at 591; Moreno-

Silva, 481 F. App’x at 613. De George holds that fraud offenses are

categorically CIMTs, see 341 U.S. at 232, but it does not go further

than that. See Barrera-Lima v. Sessions, 901 F.3d 1108, 1122 (9th

Cir. 2018) (“We have repeatedly cautioned that . . . crimes other

than fraud must be more than serious; [they] must offend the most

fundamental moral values of society, or as some would say, shock

the public conscience.”) (internal quotation marks omitted); Arias,

837 F.3d at 835 (Posner, J., concurring in the judgment) (“[N]otice

that the word used by the Court [in De George] to describe a crime

of moral turpitude was ‘fraud,’ not ‘deception,’ and De George was

a fraud case in the core sense of ‘fraud’: it was a conspiracy to de-

fraud the federal government of tax revenues.”). And, to repeat

what we’ve said, under the categorical approach § 408(a)(7)(B) does

not have fraud as a necessary element or ingredient. The “mini-

mum conduct criminalized,” Munoz-Rivera, 986 F.3d at 591, is the

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 22 of 40

22 Opinion of the Court 20-11654

false representation of a Social Security number, with intent to de-

ceive, for “any purpose.” See Harris, 376 F.3d at 1291. 8

Second, the Eighth Circuit based its holding that a violation

of § 408(a)(7)(B) is a CIMT on the premise that “[i]ntent to deceive

for the purpose of wrongfully obtaining a benefit is an essential el-

ement of § 408(a)(7)(B).” Guardado-Garcia, 615 F.3d at 902. That

statutory premise, however, is mistaken. As we set out in Harris,

376 F.3d at 1291, the conduct proscribed by the statute can be un-

dertaken for “any purpose.” Under the categorical approach, that

means a violation of this provision does not have fraud as an ele-

ment or ingredient and therefore is not necessarily a CIMT. Again,

if the intent to deceive is not for the purpose of obtaining a benefit

or causing a detriment, moral turpitude is not automatically in-

volved.

Third, the BIA’s two-pronged moral turpitude standard re-

quires not just a culpable mental state, but also conduct that is rep-

rehensible, i.e., inherently base, vile, or depraved. See Silva-Tre-

vino, 26 I. & N. Dec. at 833–34. We give deference to the BIA’s

definition of moral turpitude, see Negusie, 555 U.S. at 516–17, and

it is inappropriate to conflate the BIA’s two requirements in non-

fraud scenarios so that one (a culpable mental state) automatically

8 The Sixth Circuit committed a similar mistake when it deemed a violation of

a Mississippi law prohibiting the fraudulent use of a Social Security number

with the intent to deceive to be a CIMT, though that statute lacked the same

“any purpose” language found in § 408(a)(7)(B). See Serrato-Soto v. Holder,

570 F.3d 686, 691 (6th Cir. 2009).

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 23 of 40

20-11654 Opinion of the Court 23

satisfies the other (moral reprehensibility). Our cases have for the

most part treated mental state and reprehensibility as separate con-

cepts, though recognizing that one can inform the other. See, e.g.,

Smith, 983 F.3d at 1211 (“The question before us is whether the

level of intent needed to commit the crime of vehicular homicide

in Florida is ‘sufficiently base, vile, or depraved’ to constitute a

crime involving moral turpitude.”). Moreover, an agency is gener-

ally required to “follow its own procedure” when the “rights of in-

dividuals are affected.” Hall v. Schweiker, 660 F.2d 116, 119 (5th

Cir. Unit A Sept. 9, 1981) (binding under Bonner v. City of Prichard,

661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)). In fact, we have

found that “[t]he BIA can . . . abuse its discretion by not following

its own precedents without providing a reasoned explanation for

doing so.” Ferreira v. U.S. Att’y Gen., 714 F.3d 1240, 1243 (11th

Cir. 2013). Here, the BIA erred by collapsing the two requirements

of moral turpitude into one.

Fourth, our earliest immigration cases did not use mens rea

as an independent and sufficient basis for a finding of moral turpi-

tude, and instead separately analyzed whether the statute of con-

viction was for an offense that was “inherently base, vile, or de-

praved, [and] contrary to accepted rules of morality.” See

Skrmetta, 22 F.2d at 120–21 (holding that making or possessing

wine for one’s own use was not a CIMT). In fact, we ruled that

illegal re-entry after deportation and failure to register for the

draft—offenses which involved some deception and deliberate and

intentional conduct against the United States—were not CIMTs.

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 24 of 40

24 Opinion of the Court 20-11654

See Rodriguez v. Campbell, 8 F.2d 983, 984 (5th Cir. 1925) (“The

appellant did not, within the meaning of the statute, commit a

crime involving moral turpitude by re-entering or attempting to re-

enter the United States from Mexico after she had been deported,

and without having been duly admitted and inspected.”); Pollard

v. United States, 261 F. 336, 337–38 (5th Cir. 1919) (holding in a

criminal case that violation of the Selective Service Act “was not

[an offense] involving moral turpitude”).

Language in some of our more recent cases may be read to

suggest that a culpable mental state in a crime involving dishonesty

is always enough to constitute moral turpitude regardless of moral

reprehensibility. See, e.g., Walker, 783 F.3d at 1229 (“Generally, a

crime involving dishonesty or false statement is considered to be

one involving moral turpitude.”); Itani, 298 F.3d at 1215 (same).

But such broad language is cabined by the word “generally,” which

does not mean “always” but rather “as a rule” or “usually.” See

The American Heritage Dictionary of the English Language 732

(4th ed. 2009). Moreover, the cases with such language involved

offenses with fraud as an element or ingredient. Walker concerned

the uttering of a forged instrument (requiring the intent to injure

or defraud another to obtain a monetary benefit), and Itani

concerned the misprision of a felony (requiring knowledge of a

crime and an active role in concealment for the benefit of another).

See Linnartz, Lies, 11 Charleston L. Rev. at 691 (“A genuinely evil

motivation, such as the intent to defraud or to pervert the course

of justice, seems to capture the idea of ‘moral turpitude,’ without

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 25 of 40

20-11654 Opinion of the Court 25

punishing those whose intentions are benign or whose falsehoods

[are] relatively harmless.”). Finally, such language—if taken

literally to mean that non-fraudulent deceit always involves moral

turpitude—would be inconsistent with the BIA’s decisions in

Matter of B—M—, Matter of B—, Matter of Espinosa, and Matter

of Marchena, as well as with our earliest cases addressing moral

turpitude. And where there is an intra-circuit conflict, we follow

our earliest precedents. See Walker v. Mortham, 158 F.3d 1177,

1188 (11th Cir. 1998).

Our holding today does not foreclose the possibility that a

conviction for a violation of § 408(a)(7)(B) may be a CIMT. But if

the BIA is going to hold that it is, it will need to do what it has so

far failed to do in Mr. Zarate’s case—it will have to apply its two-

pronged moral turpitude standard in toto and decide whether the

statute, under the categorical approach, involves conduct that is

“reprehensible,” i.e., conduct that is “inherently base, vile, or de-

praved, and contrary to the accepted rules of morality and the du-

ties owed between persons or to society in general.” Silva-Trevino,

26 I. & N. Dec. at 833–34 (internal quotation marks omitted). See

also Simon-Kerr, Moral Turpitude, 2012 Utah L. Rev. at 1007–08

(criticizing courts for “ignor[ing] community moral sentiments

when applying the [moral turpitude] standard”).

We remand to the BIA for that purpose.

IV

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 26 of 40

26 Opinion of the Court 20-11654

We grant Mr. Zarate’s petition, vacate the BIA’s decision,

and remand for further proceedings.

PETITION GRANTED.

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 27 of 40

20-11654 TJOFLAT, J., Concurring 1

TJOFLAT, Circuit Judge, Concurring:

I agree with the Court’s reasoning. I write separately to

highlight why and how 42 U.S.C. § 408(a)(7)(B) is analyzed under

the categorical approach. The case law in this Circuit and the Su-

preme Court’s jurisprudence on how to analyze statutes under the

categorical approach have left me scratching my head at times. To

help future litigants avoid that fate, I provide a brief analysis of the

categorical approach and its application in the immigration con-

text. I begin with the background on how we analyze statutes to

determine whether they include crimes involving moral turpitude.

Next, I lay out the structure of the statute at issue in this case and

determine that it is an indivisible statute. And, finally, I explain

why remand is appropriate in this case.

I.

When the Department of Homeland Security charges an in-

dividual as being removable under the Immigration and National-

ity Act, that individual may seek cancellation of removal under 8

U.S.C. § 1229b. In order to be eligible for cancellation of removal

as a nonpermanent resident, an individual has the burden of prov-

ing four things: 1) continuous presence in the United States for at

least ten years preceding the application, 2) good moral character,

3) no prior convictions, for among other things, crimes involving

moral turpitude, and 4) exceptional and extremely unusual hard-

ship to a qualifying relative if applicant is removed. See 8 U.S.C.

§ 1229b(b). At issue in this case is the third category, and the

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 28 of 40

2 TJOFLAT, J., Concurring 20-11654

question is whether a violation of 42 U.S.C. § 408(a)(7)(B), misuse

of a social security number, is a crime involving moral turpitude.

As Judge Jordan has so ably explained, a crime involving

moral turpitude falls into one of two buckets. That crime is either

inherently base, vile, or depraved, or that crime is one involving

fraud. See Itani v. Ashcroft, 298 F.3d 1213, 1215–16 (11th Cir. 2002).

Judge Jordan’s opinion highlights that fraud is more than just dis-

honesty. Common-law fraud means that an individual is being dis-

honest for the further purpose of gaining something of value or

causing a detriment to someone else. See Hammerschmidt v.

United States, 265 U.S. 182, 188, 44 S. Ct. 511, 512 (1924). And such

purpose must be an element of the statute at issue in order for a

crime to involve moral turpitude on fraud grounds. See Itani, 298

F.3d at 1215–16.

To determine whether a statute involves moral turpitude,

we apply the categorical approach.1 This means that we look at

the elements of the crime of conviction, not the facts of the case,

to determine whether the least egregious conduct under the statute

1 The categorical approach comes up in two contexts—prior convictions un-

der the Armed Career Criminal Act (“ACCA”) and moral turpitude in the im-

migration context. The Supreme Court has often used the same terminology

and logic in both contexts and applies the ACCA framework to the immigra-

tion context. See generally Pereida v. Wilkinson, 141 S. Ct. 754 (2021); Mathis

v. United States, 579 U.S. 500, 136 S. Ct. 2243 (2016); Nijhawan v. Holder, 557

U.S. 29, 129 S. Ct. 2294 (2009). For ease of explanation, I have not differenti-

ated between the two contexts in the following discussion.

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 29 of 40

20-11654 TJOFLAT, J., Concurring 3

necessarily involves fraud or is inherently base, vile, or depraved.

Typically, this is a straightforward exercise. Where only one crime

with one set of elements is included in the statute, that is, when the

statute is indivisible, we look at the essential elements of the crime.

If the lowest level conduct included in the statute is morally turpi-

tudinous, then we have a crime involving moral turpitude. If the

lowest level conduct included in the statute is not morally turpi-

tudinous, then we do not have a crime involving moral turpitude.

I will give an example. Suppose that common-law arson is

a crime involving moral turpitude. 2 And let us say that an individ-

ual seeking cancellation of removal has previously been convicted

of a state statute for arson that contained only the essential ele-

ments of arson: the willful and malicious burning of a dwelling

house of another. Wharton’s Criminal Law § 345 (C. Torcia 14th

ed. 1980). We can easily line up that state statute with our previous

determination that common-law arson is a crime involving moral

turpitude to find that the individual in the example committed a

crime involving moral turpitude without us ever looking at what

the individual did. We don’t know if he burned the Jones’ house

or the Smiths’ house or whether he used fireworks or a match to

2 For ease of discussion, let us assume that only common-law arson (and in

my later example, only common-law burglary) and not other variations of ar-

son (or burglary) count as crimes involving moral turpitude. I transposed

these examples from the ACCA context. Later, it will become apparent that

this stipulation is necessary to avoid an inquiry into the inherent baseness, vile-

ness, or depravity of each state statute throughout this discussion.

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 30 of 40

4 TJOFLAT, J., Concurring 20-11654

start the fire. But he was convicted under the state arson statute,

which is an indivisible statute that has one set of elements and de-

fines one crime. The least culpable conduct under the statute is

still common-law arson and is therefore morally turpitudinous. So,

the individual seeking cancellation of removal is pretermitted from

doing so because he has been convicted of a crime involving moral

turpitude. That is how indivisible statutes work under the categor-

ical approach.

But what about when the statute of conviction is divisible,

meaning that some of the conduct encompassed in the statute is

morally turpitudinous while other conduct encompassed in the

statute is not? When working with divisible statutes, we must be

careful to differentiate between divisibility with respect to alterna-

tive means of committing a crime listed in a statute and divisibility

with respect to alternative elements listed in a statute. When alter-

native means are listed, we still use the categorical approach, just

like we did above. But, when alternative elements are listed, we

use the modified categorical approach. In explaining how the mod-

ified categorical approach works, I want to lay out the difference

between alternative elements and alternative means and why dif-

ferent approaches are used between the two for determining

whether the conduct at issue is morally turpitudinous.

An element is something the prosecution has to prove in or-

der to sustain a conviction. A means is a way in which that crime

can be committed, and it is not legally significant. So, back to our

arson example. Arson is still a crime involving moral turpitude.

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 31 of 40

20-11654 TJOFLAT, J., Concurring 5

But now, let us say that the state statute for arson does not include

only the traditional elements of arson. It now reads that arson is

the willful and malicious or reckless burning of a dwelling house of

another by using flint, a match, explosives, friction, or any other

method. And let us say the state’s supreme court has told us that

the prosecution has to prove which mental state the defendant pos-

sessed to get a conviction. Now, we have two different crimes be-

cause of the two different mental states encompassed in the stat-

ute—one crime that is common-law arson and one that is not. The

prosecution must prove mental state, so the dichotomy between

“willful and malicious” and “reckless” is a dichotomy of elements.

But the enumeration of methods that could be used is a list of al-

ternative means.

In other words, the prosecution would not have to prove

that an arsonist used steel wool instead of flint to commit arson

under that state statute. As long as the prosecution can prove that

the individual willfully or recklessly burned somebody else’s house,

the prosecutor has got a conviction, and the prosecutor will not

have any more of a case if he can show that the defendant used

steel wool instead of the flint. That’s the essential difference be-

tween an element and a means: elements dictate what prosecutors

must prove; means do not. And the core of the categorical and

modified categorical approach is that we want to figure out what

the defendant was actually convicted of—what the prosecutor had

to prove to gain a conviction. The modified categorical approach

is simply a method of figuring that out. See Johnson v. United

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 32 of 40

6 TJOFLAT, J., Concurring 20-11654

States, 559 U.S. 133, 144, 130 S. Ct. 1265, 1273 (2010) (explaining

that the modified categorical approach “permits a court to deter-

mine which statutory phrase was the basis for the conviction by

consulting the trial record”).

With that background, I now turn to the application of the

modified categorical method. So, in the state statute where arson

can be committed willfully or recklessly, we have a divisible statute

with alternative elements, and so we must use the modified cate-

gorical approach. Here, we use a limited set of documents, often

called the Shepard documents, 3 in the record to determine whether

the defendant’s conduct was prosecuted as reckless or instead as

willful. If the documents reveal that the conduct of which the de-

fendant was convicted was reckless, the defendant will not have

been convicted of a crime involving moral turpitude. If, however,

the defendant was convicted of willfully burning someone else’s

house, he will have committed common-law arson, which we have

determined is a crime involving moral turpitude. That is the mod-

ified categorical approach.

We do not use that same approach, however, for determin-

ing which of the alternative means of starting the fire was used.

That is because to do so would tell us nothing about whether the

defendant had committed a morally turpitudinous act. Arson does

3 These include the indictment, jury instructions, plea agreement and collo-

quy, or other judicial record. Shepard v. United States, 544 U.S. 13, 26, 125 S.

Ct. 1254, 1263 (2005).

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 33 of 40

20-11654 TJOFLAT, J., Concurring 7

not require a specific method. So, determining from the charging

documents which method was actually used would not move the

ball forward in determining whether the conviction was for a crime

involving moral turpitude. We would use the categorical approach

as it applied to the means of commission, meaning that we would

look solely at the text of the statute itself to determine whether the

least culpable conduct would be morally turpitudinous, without

reference to the defendant’s actual conduct.

II.

Now, it gets more tricky when the line between means and

elements is fuzzy. See Simpson v. U.S. Att’y Gen., 7 F.4th 1046,

1055 (11th Cir. 2021) (“[I]t may sometimes be said that one man’s

means is another man’s elements.”). Let me give another example.

Suppose that common-law burglary (and only common-law bur-

glary) is a crime involving moral turpitude. Common-law burglary

is the “unlawful breaking and entering [of] a dwelling at night with

the intent to commit a felony.” Quarles v. United States, 139 S. Ct.

1872, 1876 (2019) (citing 4 W. Blackstone, Commentaries on the

Laws of England 224 (1769)). Now suppose a state statute defined

burglary as the unlawful breaking and entering into any building,

structure, or land, water, or air vehicle at night with the intent to

commit a felony.4 The state statute is broader than common-law

burglary. The question is whether the statutory alternatives are

4 My hypothetical statute is similar to the one at issue in Mathis, 136 S. Ct. at

2246.

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 34 of 40

8 TJOFLAT, J., Concurring 20-11654

elements or means. In other words, do we have five different

crimes, depending on the structure broken into, or do we have one

crime with one locational element that can be committed in five

different ways?

If it is five different crimes, we apply the modified categori-

cal approach. If it is one crime with five different means, we apply

the categorical approach. Under the modified categorical ap-

proach, some types of burglary covered under the state statute

would match with common-law burglary and thus be crimes in-

volving moral turpitude, while others would not. So, violating the

statute would sometimes be a crime involving moral turpitude,

and sometimes it would not. Under the categorical approach, the

least culpable conduct under the statute would be less than com-

mon-law burglary—for instance, breaking into a car rather than a

structure. And that means violating the state statute would never

be a crime involving moral turpitude. So, you see, that is why it

matters whether we apply the categorical or the modified categor-

ical approach to a statute. Applying the categorical approach will

on the whole lead to fewer findings of individuals having commit-

ted crimes involving moral turpitude.

In the case of the broader state burglary statute, the Su-

preme Court, over a bitter dissent, said that the different ways of

breaking in were means rather than elements because the state su-

preme court had defined the listed items as different methods ra-

ther than different elements. See Mathis v. United States, 136 S. Ct.

at 2250. The Court gave us a few rules of thumb to use to

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 35 of 40

20-11654 TJOFLAT, J., Concurring 9

determine whether statutory alternatives are means or elements:

1) see how the state supreme court has defined the elements; 2) see

if different statutory alternatives carry different penalties because

different penalties means the listed items are different elements; 3)

look at the statute itself to see if the statute identifies what a prose-

cutor must charge as elements; and 4) when all else fails, look at

the record of conviction solely to see whether the listed items are

elements. See id. at 2256. Although Mathis was dealing with a state

burglary statute, we apply the same logic and rules of thumb to

previous convictions under federal statutes, with the exception that

under the first rule of thumb we now look to how the Supreme

Court and our Circuit have defined the elements, instead of a state

supreme court’s interpretation. Cf. Nijhawan v. Holder, 557 U.S.

29, 129 S. Ct. 2294 (2009) (interpreting a federal statute for purposes

of the categorical approach); Itani, 298 F.3d at 1216 (looking at how

the federal courts had defined the statute to determine whether the

felony was a crime of moral turpitude).

III.

Now to the present case. The applicant in this case was pre-

viously convicted of 42 U.S.C. § 408(a)(7)(B). 5 The structure of the

statute is as follows:

5 As the Board of Immigration Appeals (“BIA”) explained, the statute is clearly

divisible as to the three subsections of subsection (7): (7)(A), (7)(B), and (7)(C).

The more difficult question, explored in this section, is whether subsection (7)

itself is divisible.

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 36 of 40

10 TJOFLAT, J., Concurring 20-11654

(a)IN GENERAL

Whoever—

(7) for the purpose of causing an increase in any

payment authorized under this subchapter (or any

other program financed in whole or in part from Fed-

eral funds), or for the purpose of causing a payment

under this subchapter (or any such other program) to

be made when no payment is authorized thereunder,

or for the purpose of obtaining (for himself or any

other person) any payment or any other benefit to

which he (or such other person) is not entitled, or for

the purpose of obtaining anything of value from

any person, or for any other purpose—

(B) with intent to deceive, falsely repre-

sents a number to be the social security ac-

count number assigned by the Commissioner

of Social Security to him or to another per-

son, when in fact such number is not the social

security account number assigned by the

Commissioner of Social Security to him or to

such other person.

42 U.S.C. § 408(a)(7)(B). At first glance, we see a list of statutory

alternatives in subsection (7) starting with the phrase “for the pur-

pose of.” Id.§ 408(a)(7). The question is, are these statutory alter-

natives elements or means? If the statutory alternatives are ele-

ments, then, by my count, we have at least five different crimes,

and therefore we must use the modified categorical approach. If

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 37 of 40

20-11654 TJOFLAT, J., Concurring 11

the statutory alternatives are means, then we have one crime with

five different methods of commission, and we must use the cate-

gorical approach.

The method we use is important because of how we have

defined crimes involving moral turpitude. As Judge Jordan rightly

explains and clarifies, crimes involving moral turpitude are either

fraud offenses or crimes that are inherently base, vile, or depraved.

And, as Judge Jordan again rightly explains, the wrinkle in this stat-

ute is the “for any other purpose” language at the end of subsection

(7), which suggests that somebody could violate the statute with-

out obtaining a benefit and therefore without committing fraud in

the traditional sense. 6 So, if we determine the statute is divisible

and we use the modified categorical approach, we figure out which

of the purposes the individual used the false social security number

for, and then we determine whether that specific offense is a crime

involving moral turpitude. If, however, we decide that the statute

is indivisible and we apply the categorical approach, then a

6 For example, in United States v. Perez-Campos, 329 F.3d 1214, 1215 (10th

Cir. 2003), a defendant was convicted of violating 42 U.S.C. § 408(a)(7)(B)

when he gave a social security number not belonging to him to the jail clerk

who booked him at Oklahoma County Jail. 329 F.3d at 1215. In that case, the

defendant was probably misusing someone else’s social security card “for any

other purpose” under § 408(a)(7)(B), and, regardless of which purpose he used

the false number to accomplish under the statute, giving a false social security

number to a jail clerk who asks for a social security number is certainly not

traditional fraud.

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 38 of 40

12 TJOFLAT, J., Concurring 20-11654

violation of 42 U.S.C. § 408(a)(7)(B) will never be a crime involving

moral turpitude on fraud grounds.7

The parties and the Court’s opinion have assumed that the

categorical approach applies. I think they are right based on our

precedent, but I want to explain why. If we were trying to deter-

mine whether the statutory alternatives were elements or means

on our own in this case, I think it would be a head scratcher. At

least to me, it seems like each of the statutory alternatives in sub-

section (7), some of which may be fraudulent and some of which

may not be, could be a separate crime that the prosecution would

have to prove, thereby making the modified categorical approach

the appropriate method. But we do not have to reinvent the wheel

here because we can look to the rules of thumb Justice Kagan gave

us in Mathis. As I explained above, to determine whether statutory

alternatives are elements or means, our first mode of attack is to

look at how either the state supreme court (for state statutes) or

the Supreme Court and our Circuit (for federal statutes) have in-

terpreted the statute at hand. And here that is pretty simple. In

United States v. Harris, we explained that the elements of a viola-

tion of § 408(a)(7)(B) are “(1) false representation of a Social Secu-

rity number, (2) with intent to deceive, (3) for any purpose.” 376

F.3d 1282, 1291 (11th Cir. 2004). Because we treat purpose as one

overarching element and the enumerated list in subsection (7) as

7 I discuss the “inherently base, vile, or depraved” ground for crimes involving

moral turpitude below.

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 39 of 40

20-11654 TJOFLAT, J., Concurring 13

different ways of meeting the purpose requirement, the statutory

alternatives are means and not elements. So, we apply the categor-

ical approach.

Under the categorical approach, we look at the least culpa-

ble conduct under the statute to determine whether the conduct

meets the standard for a crime involving moral turpitude. For the

reasons explained above, using a false social security number “for

any other purpose” does not meet the standard for fraud. So, we

know that conviction under the statute is not for a crime involving

moral turpitude on fraud grounds. Remand to the BIA is appropri-

ate so that the BIA can determine whether, in the first instance,

§ 408(a)(7)(B) describes conduct that is inherently base, vile, or de-

praved and is thus morally turpitudinous on that ground. Alt-

hough we have jurisdiction to review the legal question of whether

a crime involves moral turpitude de novo, I think remand is appro-

priate in this case to promote the development of BIA case law in

this area. See Matter of Juan Pablo Aguilar-Mendez, 28 I. & N. Dec.

262, 266 (BIA 2021) (quoting the Immigration Reform and Control

Act of 1986 and explaining that the BIA’s “case-by-case determina-

tions [of morally turpitudinous conduct] promote the consistent

application of the immigration laws nationwide”); see also Immi-

gration Reform and Control Act of 1986, Pub. L. No. 99-603,

§ 115(1), 100 Stat. 3359, 3384 (explaining that “the immigration

laws of the United States should be enforced . . . uniformly”).

USCA11 Case: 20-11654 Date Filed: 02/18/2022 Page: 40 of 40

14 TJOFLAT, J., Concurring 20-11654

Because the contours of moral turpitude are hazy at best, remand

is appropriate for the BIA to map § 408(a)(7)(B) onto the “inher-

ently base, vile, or depraved” framework.