Crimmigration Realothetical

Today in Crimmigration, I covered Zarate v. U.S. Attorney General, 26 F.4th 1196 (11th Cir. 2022), a CIMT case that could easily be turned into a realothetical for covering CIMT & the Strict Categorical Approach.

The basic issue is whether violating 42 U.S.C. 408(a)(7)(B) amounts to a CIMT. The statute reads:

Whoever.. for … the purpose of obtaining anything of value from any  person, or for any other purpose... with intent to deceive, falsely represents a number to be the social security account number assigned by the Commissioner of Social Security to him or to another person, 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… "

The 11th Circuit defines a CIMT as requiring: (1) Reprehensible conduct and (2) Culpable mental state. After setting out this definition, the court takes the BIA to task for not even bothering to examine the first issue and for screwing up the latter. The case focuses on the "for any other purpose" language highlighted above to indicate that one could violate the statute without fraudulent intent and therefore not commit a CIMT.

Here's another interesting nugget about Zarate. When looking into this case, I stumbled across Emma Blue, An Ouroboros of Sorts: Eleventh Circuit Remands to BIA as “Moral Turpitude” Continues Creating Division," 74 Mercer Law Review 1549 (2023). The article contains the following facts not found in the 11th Circuit opinion:

Ruperto Hernandez Zarate needed a job to support his child’s surgeries and cleft pallet complications. As a citizen and national of Mexico, he did not have a Social Security number to apply for a U.S. job. In his effort to overcome this obstacle and help his child, he used a Social Security number that was not his own.

I think these facts are particularly interesting given the categorical approach's total disassociation from facts. "Elements, not conduct," as they say. These facts challenge students to think about the categorical approach in a different way from how they might consider, say, Equivel-Quintana.

-KitJ