(B)  Crimes of Moral Turpitude.[75]

 

Fraud against the government involves moral turpitude, as long as intent is an element of the offense.  Where no intent to defraud, or other evil intent, is required to convict, the offense is not a crime of moral turpitude. 

 

Board of Immigration Appeals:

 

Matter of Serna, 20 I. & N. Dec. 579 (BIA 1992) (mere possession of fraudulent immigration documents, in violation of 18 U.S.C. § 1546, is not a crime involving moral turpitude, since the statute does not specifically include fraud as an essential element even though it does require knowledge the document has been altered).

 

Matter of Delagadillo, 15 I. & N. Dec. 395 (BIA 1975) (Mexican conviction under Article 367 of the Code of Social Defense of the State of Chihuahua, fraud in obtaining property, held not to be a crime involving moral turpitude, since it could encompass retrieving your own property by fraud.  The record of conviction showed the defendant fabricated a property transfer in an unsuccessful attempt to reduce his wife’s potential settlement in a divorce action, which the court held would generally have been only civilly actionable in the United States, and therefore did not constitute a crime involving moral turpitude.).

 

Matter of B, 2 I. & N. Dec. 542 (BIA 1946) (conviction of smuggling goods subject to customs duty in violation of Canada Customs Act § 203(3) is deemed comparable to a violation of substantially similar provisions of § 593(b) of the Tariff Act of 1930 (19 U.S.C. § 1593(b)) — which has been held not to involve moral turpitude; since the statute does not denounce the act as a perpetration of fraud upon either the property or revenue of the Crown, nor must the act be accompanied by a corrupt or vicious motive, the offense does not involve moral turpitude).

 

Matter of De S, 1 I. & N. Dec. 553 (BIA 1943) (admission by a noncitizen that she attempted to smuggle merchandise into the United States with intent to defraud the revenue of the United States in violation of 19 U.S.C. § 1593, does not constitute the admission of a crime involving moral turpitude since the statute does not define an attempt as a crime).

 

Matter of G, 1 I. & N. Dec. 73 (BIA, AG 1941) (assuming that applicable Romanian law makes it a criminal offense to obtain a passport by fraud, such offense does not involve moral turpitude when not accompanied by false swearing amounting to perjury).

 

Matter of B, 1 I. & N. Dec. 47 (BIA, AG 1941) (although attempted fraud in violation of § 263 of the Criminal Code of the German Reich, as amended, involves moral turpitude, and although evidence to show the circumstances under which the crime was committed may not be considered when the noncitizen has been convicted, exclusion under § 3 of the Immigration Act of 1917 will not be predicated on such conviction when the record reflects that the noncitizen was convicted primarily because of political considerations, viz, that he was Jewish).

Matter of C, 1 I. & N. Dec. 14 (BIA, AG 1940) (false statements under Alien Registration Act of 1940 held not to involve moral turpitude, since there is no indication that fraud was involved).

 

First Circuit:

 

Montero-Ubri v. INS, 229 F.3d 319 (1st Cir. 2000) (Massachusetts offense of possession of a false driver’s license, in violation of Mass.Gen.Laws, c. 90 § 24B, does not constitute a crime involving moral turpitude).

Ninth Circuit:

 

Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000) (signing false attestation on employment verification form under 18 U.S.C. § 1546(b)(3) by using false social security number held not an offense of moral turpitude, since Congress added a new 42 U.S.C. § 408(d), which provided that noncitizens 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, including this one).

 

Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000) (using false Social Security number under what is now 42 U.S.C. § 408(a)(7)(B) (1988) is not a crime of “moral turpitude,” since Congress added a new 42 U.S.C. § 408(d), which provided that noncitizens 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, including this one).

[75] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 9.37 (2005).

BIA

CRIME OF MORAL TURPITUDE - MISUSE OF SOCIAL SECURITY NUMBER
The offense of misuse of a social security number, in violation of 42 U.S.C. 408(a)(7)(B), may or may not be considered a crime of moral turpitude. For example, use of the card to open a checking account would not appear to be fraudulent, and thus not a CMT. The statute should therefore be considered divisible. Sale of fraudulent immigration documents is clearly CMT. Matter of Flores, 17 I. & N. Dec. 225, 1980 WL 121870 (BIA 1980). Use or possession of a false social security document with specific intent to defraud is a CMT. Matter of Serna, 20 I. & N. Dec. 579, 581 (BIA 1992). Knowing possession of false immigration documents, however, is not a CMT. Matter of Serna, 20 I. & N. Dec. 579, 581 (BIA 1992). See Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992) which is (erroneously) argued by the Service to have ruled that 408(a)(7)(B) is a CIMT, and the Ninth Circuits decision in Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000), that found it is not.

Lower Courts of Second Circuit

SAFE HAVEN - AGGRAVATED FELONY - FRAUD OFFENSES -- INTRODUCING MISBRANDED DRUG INTO INTERSTATE COMMERCE
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840, 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (introducing a drug that had been misbranded with the intent to defraud and mislead, into interstate commerce, in violation of 21 U.S.C. 331(a), did not constitute a fraud offense aggravated felony under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i)).

Sixth Circuit

CRIME OF MORAL TURPITUDE - FRAUD OFFENSES - FALSE STATEMENT TO GOVERNMENT AGENT
Kellerman v. Holder, 592 F.3d 700 (6th Cir. Jan. 25, 2010) (applying divisible statute analysis to 18 U.S.C. 371, 1001 [conspiracy to commit crime or defraud United States; false or fraudulent statement to government agent], presumably accepting argument that a conviction for these offenses might not necessarily involve moral turpitude).

Ninth Circuit

AGGRAVATED FELONY - FRAUD OFFENSE - FALSE STATEMENT TO GOVERNMENT OFFICIAL
Li v. Ashcroft, 389 F.3d 892 (9th Cir. Nov. 19. 2004) (conviction of making a false statement to a United States official, in violation of 18 U.S.C. 1001, is divisible with respect to the fraud offense aggravated felony defined in INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), since it does not require proof of any monetary loss and so does not automatically satisfy the element of this aggravated felony definition requiring a loss to the victim(s) in excess of $10,000, so the record of conviction must be examined to determine whether the conviction falls within the definition).

AGGRAVATED FELONY - FRAUD OFFENSE - FALSE CLAIM AGAINST THE UNITED STATES
Li v. Ashcroft, 389 F.3d 892, 897 (9th Cir. Nov. 19. 2004) (conviction of making a false claim against the United States, in violation of 18 U.S.C. 287, is divisible with respect to the fraud offense aggravated felony defined in INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), since even though it does require some intended loss, "no particular amount of intended loss is required," and so does not automatically satisfy the element of this aggravated felony definition requiring a loss to the victim(s) in excess of $10,000, so the record of conviction must be examined to determine whether the conviction falls within the definition).

AGGRAVATED FELONY - FRAUD OFFENSE - CONSPIRACY TO DEFRAUD THE UNITED STATES
Li v. Ashcroft, 389 F.3d 892 (9th Cir. Nov. 19. 2004) (conviction of conspiracy to defraud the United States, in violation of 18 U.S.C. 371, is divisible with respect to the fraud offense aggravated felony defined in INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), since it does not require proof of any monetary loss and so does not automatically satisfy the element of this aggravated felony definition requiring a loss to the victim(s) in excess of $10,000, so the record of conviction must be examined to determine whether the conviction falls within the definition).

Other

SOCIAL SECURITY FRAUD
Under 408(a)(7) of the Social Security Act, a person is subject to criminal penalties if he or she: (1) willfully, knowingly, and with an intent to deceive uses a social security number on the basis of false information furnished to the SSA (408 (a)(7)(A));  (2) falsely represents, with an intent to deceive, a number to be the social security number assigned to him or her or to another person (408(a)(7)(B )); or  (3) knowingly altered a social security card issued by the SSA, bought or sold a card that was, or was purported to be, a card so issued, counterfeited a social security card, or possessed a social security card or counterfeit social security card with an intent to sell or alter it (408(a)(7)(C)). The Social Security trust fund accumulates billions of dollars in taxes from undocumented workers who wont ever get benefits, and it is the government that it is defrauded. How does having an employer send money in under a fake  SSN harm the government? Thanks to Bruce Nestor

AGGRAVATED FELONY - FRAUD OFFENSE - FOOD STAMP FRAUD
"Food Stamp Fraud," despite what its name sounds like, may be neither an Aggravated Felony nor a Crime of Moral Turpitude.  In some jurisdictions, the elements of the offense do not include any of the key elements that define common law fraud; instead, the offense is basically a strict-liability regulatory offense.