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Lateef v. Dep't of Homeland Security

January 29, 2010

SOHAIB BIN LATEEF, PETITIONER,
v.
DEPARTMENT OF HOMELAND SECURITY; MICHAEL AYTES, ACTING DEPUTY DIRECTOR OF THE UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, RESPONDENTS.



On Petition for Review of an Order from the Board of Immigration Appeals.

The opinion of the court was delivered by: Murphy, Circuit Judge

Submitted: January 14, 2010

Before MURPHY and BYE, Circuit Judges, and GOLDBERG,*fn1 Judge.

Sohaib Bin Lateef petitions for review of the decision of the Board of Immigration Appeals (BIA) affirming the immigration judge's (IJ's) decision finding him removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of two or more crimes involving moral turpitude. Lateef argues that his conviction under 42 U.S.C. § 408(a)(7)(A) for using an unlawfully obtained social security number did not involve moral turpitude and that he is therefore not removable under § 1227(a)(2)(A)(ii). We deny the petition.

I.

Sohaib Bin Lateef is a native and citizen of Pakistan who entered the United States in 1980 on a student visa and obtained a social security number. Removal proceedings were initiated against him in 1987 because he had remained in the country after his visa had expired. After he failed to appear, those proceedings were administratively closed. In 1988 Lateef obtained lawful permanent resident status under the Special Agricultural Workers legalization program by using the name Syed Lateef Sohaib, a name he claims was given him by his grandfather at birth. In 1989 he used that name to obtain a social security number although he already held one under the name Sohaib Bin Lateef.

On February 26, 2003, Lateef used the second social security number to obtain a Missouri state identification card under the name Syed Lateef Sohaib. He then sought naturalization under that name. During a November naturalization interview he testified untruthfully under oath that he had been married only once. In December 2003, Lateef was arrested by federal agents on suspicion of charges unrelated to his immigration status. Although those charges do not appear to have been pursued, Lateef pled guilty on May 21, 2004 to using an unlawfully obtained social security number, in violation of § 408(a)(7)(A), and to knowingly and intentionally making false statements under oath relating to naturalization and citizenship, in violation of 18 U.S.C. § 1015(a).

In 2004 the Department of Homeland Security (DHS) again initiated removal proceedings against Lateef. While those proceedings were pending, Lateef filed a petition for an immigrant visa and for adjustment of status under the name Syed Lateef Sohaib. Although that petition was initially granted, the DHS revoked its approval when it discovered the removal proceedings against Lateef which had been administratively closed in 1987. The DHS then terminated the 2004 removal proceedings and recalendared those from 1987. It charged Lateef under 8 U.S.C. § 1227(a)(1), as an alien who had overstayed his authorization, and under 8 U.S.C. § 1227(a)(2)(A)(ii), as an alien convicted of "two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct."

Lateef conceded that he had overstayed his authorization, in violation of § 1227(a)(1), but contested removability under § 1227(a)(2)(A)(ii), arguing that his conviction under § 408(a)(7)(A) for using an unlawfully obtained social security number did not involve moral turpitude. He also sought adjustment of status under 8 U.S.C. § 1255 and cancellation of removal under 8 U.S.C. § 1182(h). The IJ concluded that a conviction under § 408(a)(7)(A) involves moral turpitude because an essential element of that crime is proof of the defendant's intent to deceive. The IJ then found Lateef deportable under § 1227(a)(2)(A)(ii), denied him adjustment of status and cancellation of removal, and ordered him removed.

Lateef appealed to the BIA, arguing that his conviction under § 408(a)(7)(A) did not involve moral turpitude. The BIA rejected his argument because it found that fraud was a necessary element of § 408(a)(7)(A). It also was not persuaded by his argument that the IJ had erred in denying him cancellation of removal and affirmed the IJ's decision. Lateef petitioned for review of the BIA's final order of removal solely on the basis that his conviction under § 408(a)(7)(A) did not involve moral turpitude.

II.

Although we lack jurisdiction to review the final order of removal against Lateef because the offenses which served as the basis for the order are encompassed by § 1227(a)(2)(A)(i), see 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to review "constitutional claims or questions of law raised upon a petition for review," § 1252(a)(2)(D). We review the BIA's decision as the final decision of the agency, Salkeld v. Gonzales, 420 F.3d 804, 808 (8th Cir. 2005), examining its conclusions of law de novo but according substantial deference to its interpretation of immigration statutes and regulation, Kim v. Holder, 560 F.3d 833, 836 (8th Cir. 2009). Thus, the BIA's construction of an ambiguous statutory phrase will be upheld if reasonable. Hernandez-Perez v. Holder, 569 F.3d 345, 347 (8th Cir. 2009).

Congress did not define the phrase "crime involving moral turpitude" in either the Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended in scattered sections of 8 U.S.C.) or its legislative history, but instead "left [its definition] to future administrative and judicial interpretation." Franklin v. INS, 72 F.3d 571, 572 (8th Cir. 1995) (quoting Cabral v. INS, 15 F.3d 193, 195 (1st Cir. 1994)). As a result, the BIA's construction of the phrase "crime involving moral turpitude" is due deference and will be upheld if reasonable. See Hernandez-Perez, 569 F.3d at 347.

The BIA considers a crime to involve moral turpitude if under the relevant statute "it necessarily entails conduct . . . that is inherently base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons or to society in general." In re Kochlani, 24 I. & N. Dec. 128, 129 (BIA 2007); see also Hernandez-Perez, 569 F.3d at 347. Crimes involving the intent to deceive or defraud are generally considered to involve moral turpitude. Jordan v. De George, 341 U.S. 223, 232 (1951); see ...


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