Aggravated Felonies

Beyond examining the language of the statute itself, case law must also be examined to determine whether the courts have grafted additional elements onto the crime, or have interpreted the statutory criteria in a meaningful way.[46]  There may be cases arising in the convicting jurisdiction that interpret a criminal statute in a way that requires finding an additional element, that may not be apparent in the language of the statute itself, in order to sustain a conviction.

            For example, even if the statute does not require that the misstatement be material, a perjury conviction will be found to be a crime of moral turpitude if the local judicial interpretation of the statute declares that materiality of the false statement is a necessary element of the crime.[47]  As another example, the Georgia bad check statute prohibits the issuance of a bad check “knowing that it will not be honored.”  The BIA found that Georgia case law, however, unequivocally holds that an intent to defraud is an essential element of the crime.  Therefore, a conviction under that statute has been held to be a CMT.[48]  The Ninth Circuit found a conviction of welfare fraud[49] to be a fraud offense,[50] since California case law had interpreted that statute as invariably requiring an element of fraud, even though the statute itself states that a conviction could be based upon a “false statement or representation or by impersonation or other fraudulent device.”[51]

For other ways in which State law affects the aggravated felony analysis, see § 4.39, infra.

[46] Burr v. INS, 350 F.2d 87 (9th Cir. 1965), cert. denied, 383 U.S. 915, 86 S.Ct. 905 (1966) (court considered both the specific language of the California Penal Code section under which the noncitizen had been convicted, and the cases interpreting the statute, and determined that since an intent to defraud was an essential element of the crime of issuing an insufficient funds check, the conviction was a CMT); Matter of H, 7 I. & N. Dec. 359 (BIA 1956).

[47] Zaitona v. INS, 9 F.3d 432 (6th Cir. 1993); Matter of Bart, 20 I. & N. Dec. 436 (BIA 1992); Matter of H, 1 I. & N. Dec. 669 (BIA 1943) (Michigan).

[48] Matter of Bart, 20 I. & N. Dec. 436 (BIA 1992) (Georgia conviction of writing bad checks).

[49] California Welf. & Inst. Code § 10980(c)(2).

[50] INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).

[51] Ferreira v. Ashcroft, 390 F.3d 1091 (9th Cir. Dec. 1, 2004).