How have U.S. federal appellate courts differed on whether SSN misuse constitutes a crime involving moral turpitude?
Executive summary
Federal appellate courts are split in how they treat Social Security number (SSN) misuse and related identity crimes when deciding whether an offense is a "crime involving moral turpitude" (CIMT): some circuits treat SSN forgery/possession and identity-theft statutes as categorically fraudulent and therefore CIMTs, while others apply a stricter categorical analysis that can exclude some convictions depending on statutory elements and plea records [1] [2] [3]. The fracture traces to enduring ambiguity about the definition of moral turpitude, the Board of Immigration Appeals' expansive precedents, and divergent applications of the categorical and modified-categorical approaches by the courts [4] [5] [3].
1. The doctrinal baseline: De George, fraud presumption, and the categorical approach
The Supreme Court in Jordan v. De George endorsed the idea that "fraudulent conduct" has historically been treated as moral turpitude, a pronouncement lower courts still rely on even though the Court declined to give a precise working definition of moral turpitude [4] [5]. Against that backdrop, federal courts employ the categorical approach (and sometimes the modified categorical approach) — asking whether the statutory elements of the offense necessarily involve moral turpitude rather than looking at the defendant's individual conduct — a methodological constraint that complicates straightforward application of "fraud equals turpitude" [4] [3].
2. Circuits that have treated SSN/identity offenses as CIMTs
Some appellate decisions have endorsed the Board of Immigration Appeals' view that identity and SSN-related offenses are rooted in fraud and thus qualify as CIMTs: the Third Circuit affirmed that an aggravated identity-theft conviction under 18 U.S.C. §1028A — when tied to a predicate fraud like bank fraud — is a CIMT because it requires fraudulent intent [2]. The Ninth Circuit has likewise upheld removability based on possession of a forged Social Security card with a counterfeit government seal, treating that conviction as grounds for deportation as a CIMT [1]. These holdings show a line of authority that treats SSN forgery and aggravated identity theft as within the fraud-based conception of moral turpitude [2] [1].
3. Circuits that resist categorical labeling or narrow the reach
Other appellate panels have pushed back, emphasizing the categorical approach's limits and warning that not every statutory violation involving misrepresentation or identity necessarily constitutes moral turpitude. The Eleventh Circuit has stressed that although fraud is commonly treated as turpitude, courts must apply the categorical analysis and cannot assume all false-statement or conspiracy statutes are per se CIMTs; in some contexts it reversed lower findings that overbroadly labeled offenses as CIMTs [3] [6]. That caution creates room for non-CIMT outcomes where a statute reaches innocent or non-fraudulent conduct, or where the statute’s elements do not require the specific fraudulent intent the courts associate with moral turpitude [3].
4. How pleading and the modified categorical approach matter
Where statutes are divisible or convictions rest on multiple means, courts frequently turn to the modified categorical approach to inspect plea documents or charging papers to identify the actual offense of conviction — a decisive step in several SSN/identity cases [2] [3]. The Third Circuit’s decision in Sasay illustrates this dynamic: an aggravated identity-theft conviction became a CIMT because the record showed a predicate bank fraud, but absent that predicate or a record of fraudulent mens rea, a similar conviction could escape CIMT labeling [2].
5. Institutional tensions: BIA deference and inconsistent outcomes
Behind the split lies institutional tension: the Board of Immigration Appeals has traditionally classified many misrepresentation and identity offenses as CIMTs, but circuits differ on how much deference to afford the BIA and on the mechanics of the categorical inquiry, producing inconsistent results from one circuit to another [4] [3]. That fragmentation matters in practice because removal consequences flow from a CIMT determination, yet the underlying legal standards remain nebulous and unevenly applied across jurisdictions [4] [7].
6. Bottom line — a patchwork, not a rule
The law is now a jurisdictional patchwork: identity- and SSN-related offenses will be treated as CIMTs in courts that read fraud broadly or find dispositive record evidence of fraudulent predicates, while courts that insist on a strict categorical reading and closer scrutiny of plea records may conclude otherwise — meaning outcomes hinge on the exact statute, the conviction record, and the circuit in which the case is heard [1] [2] [3]. Absent Supreme Court clarification or a governing statutory definition, divergent appellate treatments of SSN misuse as moral turpitude are likely to persist [5].