ARTICLES

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OCTAVIA BELTRAN-TIRADO,

Petitioner, No. 98-70783

v. I&NS No.

A71-630-729

IMMIGRATION AND NATURALIZATION SERVICE, OPINION

Respondent.

Petition to Review a Decision of the

Board of Immigration Appeals

Argued and Submitted

April 5, 2000--Pasadena, California

Filed May 31, 2000

Before: William C. Canby, Jr., John T. Noonan, and

William A. Fletcher, Circuit Judges.

Opinion by Judge Canby;

Dissent by Judge Noonan

____________________________________



COUNSEL

Jonathan D. Montag, Jan Joseph Bejar, San Diego, California,

for the petitioner.

Nelda C. Reyna, Office of Immigration Litigation, United

States Department of Justice, Washington, D.C., for the

respondent.

___________________________________

OPINION

CANBY, Circuit Judge:

Octavia Beltran-Tirado, a Mexican national and citizen,

lived in the United States for nineteen years using the name

and Social Security number of a woman whose Social Secur-

ity card Beltran apparently found on a bus. In 1991, Beltran

was arrested and convicted of two crimes because she wrote

her false Social Security number on an employment verifica-

tion form in order to obtain employment. After she served her

sentence, the U.S. Immigration and Naturalization Service

("INS") sought to deport her. Beltran then attempted to

acquire lawful permanent residence in this country by apply-

ing for "registry" under 8 U.S.C. S 1259.1 The Board of Immi-

gration Appeals denied her request on the ground that her use

of a false Social Security number constituted crimes of "moral

turpitude," and that Beltran was therefore statutorily ineligible

____________________________

1 Beltran also sought other relief that we lack jurisdiction to address for

reasons to be explained.

5652


for registry. The Board also denied registry as a matter of dis-

cretion. We reverse. Beltran's crimes did not establish "moral

turpitude" within the meaning of the Immigration and Nation-

ality Act. Moreover, the Board's legal error in applying the

statute infected its exercise of discretion; we therefore reverse

and remand to the Board for a new exercise of discretion.

FACTUAL BACKGROUND

Beltran-Tirado is fifty years old and has lived in the United

States since arriving here at age eighteen in 1968. 2 For nine-

teen of her thirty-two years here, 1972-1991, Beltran lived

under the assumed identity of Mary Lou Slavit. The real Mary

Lou Slavit, who testified in this proceeding under her married

name of Wingbermuehle, lives in Missouri. Beltran testified

that she found Wingbermuehle's Social Security card on a

bus. Beginning in 1972, Beltran used Wingbermuehle's

Social Security card to obtain employment, get married twice,

and obtain a driver's license, credit cards, and a HUD loan.

She did not attempt to create any liability for Wingbermuehle

in any of these transactions; Beltran used the card to establish

her own credit.

Beltran's earnings, however, caused the Internal Revenue

Service to question Wingbermuehle about unreported income.

In 1988, Wingbermuehle called Beltran at Beltran's place of

work and asked her to stop identifying herself as Wingber-

muehle. Beltran persisted. In April 1991, Beltran was arrested

and subsequently convicted of using a false attestation on an

employment verification form in violation of 18 U.S.C.

S 1546(b)(3) and of falsely representing a Social Security

number in violation of 42 U.S.C. S 408(g)(2) (1988) (recodi-

fied at 42 U.S.C. S 408(a)(7)(B)). These two convictions were

predicated on a single set of facts -- Beltran's false attestation

____________________________

2 There is conflicting evidence in the record concerning whether Bel-

tran's presence in the United States has been continuous since 1968 or

1970.

5653


on an employment verification form for the purpose of obtain-

ing employment at a restaurant in California. Beltran was sen-

tenced to ninety days imprisonment, ninety days in a halfway

house, and five years probation.

After the INS moved to deport her in 1993, Beltran sought

relief by applying for registry, suspension of deportation, and

voluntary departure. See Immigration and Nationality Act

("INA"), SS 249, 244(a), 244(e), 8 U.S.C. SS 1259, 1254(a),

1254(e) (1994). The immigration judge denied all three

requests. The Board conducted a de novo review of Beltran's

case and similarly denied Beltran relief with respect to all

three applications. For each application, the Board not only

found that Beltran did not meet the statutory requirements for

relief, but it also denied relief as a matter of discretion. Bel-

tran now seeks review of all three denials of relief.

JURISDICTION

Beltran's petition is subject to the transitional rules of the

Illegal Immigration Reform and Immigrant Responsibility Act

of 1996 ("IIRIRA").3 For that reason, we are precluded

entirely from granting relief on two of Beltran's three claims.

Section 309(c)(4)(E) of the transitional rules deprives us of

jurisdiction to review the Board's discretionary denial of Bel-

tran's applications for suspension of deportation and volun-

tary departure. See Kalaw v. INS, 133 F.3d 1147, 1152 (9th

Cir. 1997). Beltran contends that this provision violates her

due process rights, but we have previously rejected this argu-

ment, and do so here. See Antonio-Cruz v. INS , 147 F.3d

1129, 1131 (9th Cir. 1998). Because the Board's denial of

suspension of deportation and its denial of voluntary depar-

ture are supported by the Board's exercise of discretion, we

lack jurisdiction to review those rulings. See Kalaw, 133 F.3d

at 1152; Antonio-Cruz, 147 F.3d at 1130.

______________________________

3 Pub. L. No. 104-208, SS 309(a), 309(c)(1) & (4), 110 Stat. 3009-546,

3009-625 to -627 (1996), amended by Pub. L. No. 104-302, 110 Stat. 3656

(Oct. 11, 1996).

5654


IIRIRA does not, however, deprive us of jurisdiction to

review the denial, discretionary or otherwise, of Beltran's

application for registry.4 We have jurisdiction for that purpose

under 8 U.S.C. S 1105a (1994) and S 309(c) of the transitional

rules. We proceed, therefore, to address Beltran's registry

claim.

APPLICATION FOR REGISTRY

1. Statutory eligibility

[1] The registry statute, 8 U.S.C.S 1259, is a "remedial

provision designed to regularize the status of long-resident

aliens illegally in the country." Mrvica v. Esperdy, 376 U.S.

560, 569 (1964) (Goldberg, J., dissenting); see also

Rodriguez-Barajas v. INS, 992 F.2d 94, 97 (7th Cir. 1993).

Congress originally enacted the registry statute in 1929 and

has updated it periodically since. It now applies to an alien

who (1) "entered the United States prior to January 1, 1972,"

(2) has resided in the United States continuously since that

time, (3) is a person of "good moral character, " and (4) is not

ineligible for citizenship. 8 U.S.C. S 1259. 5 The Board con-

cluded that Beltran foundered on the third element: because

her two convictions represented crimes of "moral turpitude"

under 8 U.S.C. S 1182(a)(2)(A), she could not demonstrate

"good moral character" as that term is defined in 8 U.S.C.

S 1101(f)(3).

[2] The central question before us is whether Beltran's con-

victions under 18 U.S.C. S 1546(b)(3) (making false attesta-

______________________________

4 Section 309(c)(4)(E) of the transitional rules denies us jurisdiction over

the Board's exercise of discretion pursuant to specifically listed statutes.

The registry statute, 8 U.S.C. S 1259, is not among them.

5 Section 1259 also renders ineligible for registry aliens who are "inad-

missible under section 1182(a)(3)(E) of this title or under section 1182(a)

of this title insofar as it relates to criminals, procurers and other immoral

persons, subversives, violators of the narcotic laws or smugglers of

aliens."

5655


tion on an employment verification form) and what is now 42

U.S.C. S 408(a)(7)(B) (1988) (using false Social Security

number) constitute crimes of "moral turpitude " within the

meaning of 8 U.S.C. S 1182(a)(2)(A). The text of the statute

and federal decisional law provide no clear answer to this

question. Congress spoke to this issue, however, in 1990

when it amended 42 U.S.C. S 408, one of the two sections

under which Beltran was convicted. The amendment added a

new subsection 408(d), which provided that aliens who had

been granted permanent resident status under the amnesty or

registry statutes were exempted from prosecution for certain

past use of false Social Security numbers.6 The amendment

does not apply in terms to Beltran, but its rationale illuminates

the view of Congress concerning the lack of moral turpitude

involved in Beltran's actions. In explaining the purpose of the

exemption from prosecution, Congress's conference commit-

tee report states:

The Conferees intend that this exemption apply

only to those individuals who use a false social

security number to engage in otherwise lawful con-

duct. For example, an alien who used a false social

security number in order to obtain employment

which results in eligibility for social security benefits

or the receipt of wage credits would be considered

exempt from prosecution . . . .

. . . The Conferees believe that individuals who

are provided exemption from prosecution under this

proposal should not be considered to have exhibited

moral turpitude with respect to the exempted acts for

_________________________________

6 Section 408(d)(1) grants immunity from certain prosecutions to aliens

who achieve permanent resident status under: 8 U.S.C. SS 1160 or 1255a;

S 902 of the Foreign Relations Authorization Act, Fiscal Years 1988 and

1989; S 202 of the Immigration Reform and Control Act of 1986; or 8

U.S.C. S 1259 (the registry statute). It also confers immunity on aliens

who are granted special immigrant status under 8 U.S.C. S 1101(a)(27)(I).

See 42 U.S.C. S 408(d)(1).

5656


purposes of determinations made by the Immigration

and Naturalization Service.

H.R. Conf. Rep. No. 101-964, at 948 (1990), reprinted in

1990 U.S.C.C.A.N. 2374, 2653 ("Conference Report"). These

principles are relevant to Beltran's case. The crime of use of

a false social security number, of which Beltran was con-

victed, is one of the crimes described in 42 U.S.C.

S 408(a)(7), for which immunity is granted byS 408(d) to

aliens who have been granted amnesty or registry. 7 Specifi-

cally, she "used a false social security number in order to

obtain employment which results in eligibility for social

security benefits or the receipt of wage credits . .. ." Confer-

ence Report at 948, 1990 U.S.C.C.A.N. at 2653.

Beltran's crime of false attestation was also addressed by

the 1990 amendment to S 408. The exemption from prosecu-

tion in S 408(d)(1) applies, with exceptions not relevant here,

to "any alleged conduct described in paragraph (6) or (7) of

subsection (a)." That conduct includes false use of a Social

Security number, which encompasses its use in such a docu-

ment as an employment verification form. Thus the Confer-

ence Committee's comments apply both to the crime of use

of a false Social Security number in violation of 42 U.S.C.

S 408(a)(7)(B) and to the crime of false attestation with such

a number in violation of 18 U.S.C. S 1546(b)(3).8

______________________________

7 Subsection (d) exempts qualified aliens from prosecution for conduct

described in 42 U.S.C. SS 408(a)(6), 408(a)(7)(A), and 408(a)(7)(B). Bel-

tran was convicted under former 42 U.S.C. S 408(g)(2), now

S 408(a)(7)(B).

8 Congress was careful to exclude from the exemption those "who used

a false social security number for otherwise illegal activity such as bank

fraud or drug trafficking . . . ." Conference Report at 948, 1990

U.S.C.C.A.N. at 2653. Also excluded were aliens "who sold social secur-

ity cards, possessed social security cards with intent to sell, possessed

counterfeit social security cards with intent to sell or counterfeited social

security cards with intent to sell." Id.; see 42 U.S.C. S 408(d)(2). Beltran

has done none of these things.

5657


[3] Of course, Beltran was not exempted from prosecution

under S 408(d). The exemption grants immunity from future

prosecution for past acts to persons who are granted perma-

nent resident status under specified statutes, including the reg-

istry statute, 8 U.S.C. S 1259. Beltran was convicted before

she sought registry.9 But the question before us is not whether

Beltran should have been exempt from prosecution, but

whether the crimes of which she was convicted involved

moral turpitude. Section 408(d), in the light of its legislative

history, establishes that use of a false Social Security number

to further otherwise legal behavior is not a crime of "moral

turpitude" when the user is granted amnesty or registry with-

out first having been convicted for the behavior. The only rea-

sons Beltran would not be immunized by S 408(d) upon being

granted registry relief is that her crimes were committed a few

weeks too late and she had already been convicted of them.

Those deficiencies have nothing to do with the morality of her

conduct. Exempt from prosecution or not, the underlying

behavior is the same. We conclude that S 408(d) and the

accompanying legislative history express Congress's intent

that the crimes of which Beltran was convicted do not estab-

lish "moral turpitude" with respect to determinations made by

the Immigration and Naturalization Service.

We find further support for this conclusion in the distinc-

tion between malum prohibitum, an act only statutorily pro-

hibited, and malum in se, an act inherently wrong. As the

exemption from prosecution indicates, Beltran's acts are mala

prohibita, not mala in se. As such, they are not generally con-

sidered to involve "moral turpitude." See New Jersey v.

T.L.O., 469 U.S. 325, 379 n.21 (1985) (Stevens, J., concurring

and dissenting) (citing W. LaFave, Handbook on Criminal

________________________________

9 Section 408(d) also limited the exemption from prosecution to conduct

"alleged to have occurred prior to 60 days after November 5, 1990." Bel-

tran was arrested in April 1991, shortly after the period provided in the

statute expired. Thus she would not meet the time requirements for

exemption.

5658


Law S 6 (1972)). The Board recognizes this same distinction.

See In re Flores, 17 I. & N. Dec. 225, 227 (BIA 1980)

("[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 prohibi-

tion of it which renders a crime one of moral turpitude.").

Although we would normally defer to the Board's interpre-

tation of the Immigration and Nationality Act, we need not do

so here because we conclude that the intent of Congress is

clear. See Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 842 (1984); see also Japan Whal-

ing Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 233

(1986).10 We therefore conclude that the Board erred in deter-

mining that Beltran's convictions establish "moral turpitude"

within the meaning of 8 U.S.C. S 1182(a)(2)(A), and in ruling

that Beltran was statutorily ineligible for registry on that

ground.

The Board's alternative exercise of discretion in denying

Beltran registry does not insulate its decision from reversal.

When a decision of the Board is subject to our review and no

statute limits our jurisdiction to review discretionary determi-

nations, we review the Board's exercise of discretion to deter-

mine whether that discretion has been abused. See, e.g.,

Watkins v. INS, 63 F.3d 844, 850 (9th Cir. 1995). A discre-

tionary decision by the Board is subject to remand if it was

reached by including an improper factor, see Ng v. INS, 804

F.2d 534, 539 (9th Cir. 1986), or if it rests upon a legally erro-

_________________________________

10 Thus the Supreme Court has stated:

[I]f a statute is silent or ambiguous with respect to the question

at issue, our longstanding practice is to defer to the "executive

department's construction of a statutory scheme it is entrusted to

administer," unless the legislative history of the enactment shows

with sufficient clarity that the agency construction is contrary to

the will of Congress.

Japan Whaling, 478 U.S. at 233 (citations omitted).

5659


neous conclusion, see Ananeh-Firempong v. INS , 766 F.2d

621, 629 (1st Cir. 1985). In weighing the factors leading to its

discretionary denial of Beltran's application, the Board cited

"respondent's convictions; her unlawful employment; her

repeated use of Ms. Wingbermuehle's personal information

and identity over a period of almost 20 years for her own use

and benefit; . . . the time, effort and expense incurred by the

IRS and the Social Security Administration to discover, inves-

tigate and cure the problems caused by the respondent . . . ."

Although the Board did not expressly mention "moral turpi-

tude" in its exercise of discretion, its reference to Beltran's

"convictions" and conduct underlying those convictions leads

us to conclude that the Board did rely in some measure on its

erroneous conclusion that Beltran's convictions were for

crimes of "moral turpitude."

[4] We reach no conclusion as to whether Beltran meets all

the statutory requirements for registry, or, if she does, whether

she merits a favorable exercise of discretion by the Board. But

because we conclude the Board erred in its interpretation of

the term "moral turpitude" as it applied to Beltran, and that

this error impermissibly infected the Board's discretionary

denial of relief, we reverse and remand to the Board for fur-

ther proceedings.

DUE PROCESS CLAIM

[5] We reject Beltran's claim that she was denied due pro-

cess when the immigration judge permitted witness Wingber-

muehle to testify telephonically at Beltran's deportation

hearing. Wingbermuehle was a sworn, out-of-state witness,

and her testimony was subject to cross-examination. We have

previously upheld the admission of this form of testimony

under Federal Rule of Civil Procedure 43(a). See Alderman v.

SEC, 104 F.3d 285, 288 n.4 (9th Cir. 1997); see also Official

Airline Guides, Inc. v. Churchfield Publications, Inc., 756 F.

Supp. 1393, 1398-99 n.2 (D. Or. 1990), aff'd, 6 F.3d 1385

(9th Cir. 1993). We conclude that Wingbermuehle's testi-

5660


mony, therefore, could not have violated INA S 242(b)(3), 8

U.S.C. S 1252(b)(3) (1988) (recodified with amendments at

INA S 240(b)(4), 8 U.S.C. S 1229a(b)(4)), which guarantees

Beltran a "reasonable opportunity to examine the evidence

against [her] . . . and to cross-examine witnesses presented by

the Government." Beltran relies on Saidane v. INS, 129 F.3d

1063, 1065 (9th Cir. 1997), but this case is inapposite because

Wingbermuehle's testimony was not hearsay. See Official

Airline Guides, 756 F. Supp. at 1398-99 n.2 (telephone testi-

mony is taken in "open court").

[6] The question then becomes whether admission of Wing-

bermuehle's testimony was "fair." Baliza v. INS, 709 F.2d

1231, 1233 (9th Cir. 1983). Beltran had an adequate opportu-

nity to cross-examine Wingbermuehle. The government had

reason to arrange for telephonic testimony because Wingber-

muehle lived in Missouri and the hearing was in San Diego.

Although the telephone presentation cost Beltran the opportu-

nity to have the witness's demeanor more fully observed by

the finder of fact, the testimony would have been admissible

in a civil court proceeding under Federal Rule of Civil Proce-

dure 43(a). We conclude that admission of the testimony was

"fair," and we accordingly reject Beltran's due process claim.

CONCLUSION

We have no jurisdiction to review the Board's discretionary

denial of Beltran's applications for suspension of deportation

and for voluntary departure. We dismiss the petition for

review with regard to those claims. We have jurisdiction to

review the denial of Beltran's application for registry and we

grant the petition for review with regard to that claim. We

reject Beltran's due process claim based on the telephonic tes-

timony of Wingbermuehle and affirm the Board's ruling per-

mitting that testimony. We conclude that the Board erred,

however, in determining that Beltran's convictions under 42

U.S.C. S 408(g)(2) (1988) and 18 U.S.C. S 1546(b)(3) estab-

lished "moral turpitude" and rendered her statutorily ineligi-

5661


ble for registry; we therefore reverse that ruling. The Board

abused its discretion by relying in part on this error of law

when it exercised its discretion to deny Beltran's application

for registry under 8 U.S.C. S 1259. We therefore reverse that

denial and remand for a new exercise of discretion.

PETITION FOR REVIEW DISMISSED IN PART

AND GRANTED IN PART; DECISION OF BOARD

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

_________________________________________________________________

NOONAN, Circuit Judge, dissenting:

The court reaches very far to perform a kindly deed. It

reads a meaning into two statutes that Congress has not

inscribed there, and it goes on to attribute to the Board a

motive that the Board does not articulate. Beltran needed a

social security number to live in the United States. But when

she caused tax trouble for the number's owner and was asked

to stop, she did not. Not to mention that the Board's interpre-

tation of a statutory term should control, it was not an unrea-

sonable exercise of discretion for the Board to deny her relief.

5662



All contents copyright © 2005 by Law Offices of Montag & Nadalin LLP, All Legal Rights Reserved.
Webmaster and Network Services by: Kazimer Corp.