The aggravated felony definition includes “an offense relating to . . . perjury. . . for which the term of imprisonment is at least one year . . . .” [508]

 

            This aggravated felony is not defined by reference to a federal statute, but the BIA has adopted a “generic” definition of the offense.[509]  In Matter of Martinez-Recinos,[510] the BIA adopted the federal definition of perjury at 18 U.S.C. § 1621 for purposes of the perjury aggravated felony category.  That section punishes whoever:

 

(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or

 

(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true . . .

 

The court held that a violation of California Penal Code § 118(a) was included within the federal offense.

 

            A plea to a violation of 18 U.S.C. § 1001(a), clause 2 (false statement to government official) might be a safe alternative plea.  It is difficult to consider § 1001 to be “perjury,” since it does not require that the statement be sworn, or even be a statement at all, and does not apply to unsworn oral or written statements made by the defendant, any other party, or counsel to the court.[511]  Moreover, it is a divisible statute, one subsection (Clause (a)(2)) of which does not necessarily involve moral turpitude.[512]

 

            A plea to a violation of 18 U.S.C. § 1001(a) might also be preferable to pleading to tax evasion or fraud against a government agency, since fraud is a moral turpitude offense.  It might possibly be a safe plea to a charge of deceit, fraud or tax evasion against the government where the loss to the victims(s) or government is $10,000 or more, a separate aggravated felony.[513]  Counsel still should be alert to the possibility that the immigration authorities will call this “deceit” or fraud and charge the person under the “fraud or deceit” aggravated felony ground.  In defense, counsel can assert the fact that one does not need an intent to defraud or even “deceive” to be convicted under 18 U.S.C. § 1001(a)(2), and therefore the person has not been convicted of an offense involving deceit or fraud.  It is also possible to argue that if a conviction falls within two different grounds, it must meet the requirements of both before it can trigger deportation as an aggravated felony.  See § 5.55(B)(2), supra.

 

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

[509] See § § 4.34-4.36, supra.

[510] Matter of Martinez-Recinos, 23 I. & N. Dec. 175 (BIA Oct. 15, 2001).

[511] 18 U.S.C. § 1001(b).

[512] In Hirsch v. INS, 308 F.2d 562 (9th Cir. 1962), the Ninth Circuit granted a petition for review setting aside an order of deportation on the ground that proof of conviction on an indictment charging that defendant had made false statements to a federal agency “unlawfully, willfully and knowingly” under statute couched in the disjunctive did not establish moral turpitude justifying deportation.  This is very analogous to the language used in 18 U.S.C. § 1001.

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

Third Circuit

AGGRAVATED FELONY " FRAUD OR DECEIT " PERJURY
Singh v. Att'y General, 677 F.3d 503, 513 (3d Cir. Apr. 16, 2012) (federal conviction of knowingly making a false statement under penalty of perjury in a bankruptcy proceeding, in violation of 18 U.S.C. 152(3), is a deceit offense, for aggravated felony purposes, where the loss attributable to the conviction is in excess of $10,000).