(B)  Crimes of Moral Turpitude.[142]

 

Convictions of offenses requiring intent to defraud as an essential element have consistently been held to involve moral turpitude.  However, absent intent to defraud, an offense generally will not be considered a crime of moral turpitude.[143]  For cases involving consular processing, the State Department has given a definition of fraud for purposes of determining the admissibility of one applying for a visa.[144]

 

Board of Immigration Appeals:

 

Matter of Serna, 20 I. & N. Dec. 579 (BIA 1992) (stating that 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; 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 Colbourne, 13 I. & N. Dec. 319 (BIA 1969) (bad check convictions not involving fraudulent intent are not CMT), overruling Matter of M, 9 I. & N. Dec. 743 (BIA 1962).

Matter of Lethbridge, 11 I. & N. Dec. 444 (BIA 1965) (conviction under that portion of 18 U.S.C. § 474 which makes it a crime to possess securities made to look like United States securities intending to sell and use them, is not a conviction of a crime involving moral turpitude: “Language in the indictment charging knowledge of the counterfeit nature of the securities is not found in 18 U.S.C. § 474 and would therefore appear to be surplusage”).

 

Matter of Di Filippo, 10 I. & N. Dec. 76 (BIA 1962) (conviction for making false statements in violation of Canada Unemployment Insurance Act § 106A(a), as amended, is not a conviction of a crime involving moral turpitude, because the section does not require a false statement to be made for the purposes of obtaining benefits, or to be material).

 

Matter of G, 7 I. & N. Dec. 114 (BIA 1956) (conviction for violation of 26 U.S.C. § 2803(g), liquor stamp fraud or possession of stamps, is not conviction for crime involving moral turpitude where indictment does not charge intent to defraud).

 

Matter of A, 4 I. & N. Dec. 378 (BIA 1951) (conviction in the Philippine Islands in 1915 for falsification of a commercial document, in violation of Articles 301 and 300 of the Penal Code of the Philippine Islands of 1911, does not require a criminal intent of such nature as to warrant a finding that a conviction thereunder is for a crime involving moral turpitude, since a false entry is all that is necessary to constitute the offense).

 

Matter of G, 2 I. & N. Dec. 235 (BIA 1945) (conviction of depositing a metal disc in a coin box, in violation of New York Penal Law § 1293(c) (1935), is not one which involves moral turpitude, since criminal intent is not an element of the crime), overruling Matter of B, 56019/839 (Mar. 26, 1941).

 

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) not 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).[145]

 

District Courts:

 

United States ex rel. Fontan v. Uhl, 16 F.Supp. 428 (S.D.N.Y. 1936) (holding that the offense, under French law, of not having paid one’s ship passage does not constitute a crime involving moral turpitude, even though designated as a “robbery”).

[142] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 9.55 (2005).

[143] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-1(b)(6) (false pretenses, without intent to defraud, not a crime of moral turpitude).

[144] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-1 states: “Most crimes committed against property which involve moral turpitude include the necessary element of fraud.  The act of fraud involves moral turpitude whether it is aimed against individuals or government.  Fraud generally involves: (1) Making false representation; (2) Knowledge of such false representation by the perpetrator; (3) Reliance on the false representation by the person defrauded; (4) An intent to defraud; and (5) the actual act of committing fraud.”

[145] A possible weakness to making use of Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000), is that the BIA held in Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992), that a violation of 42 U.S.C. § 408 (false use of social security card) was a crime involving moral turpitude.  Beltran-Tirado could be found to be applicable only within the Ninth Circuit.

AGGRAVATED FELONY - FRAUD
Dulal-Whiteway v. US Dep't of Homeland Sec., 501 F.3d 116 (2d Cir. Sept. 19, 2007) (federal conviction of using unauthorized access devices to obtain things of value aggregating $1000 or more, in violation of 18 U.S.C. 1029(a)(2), may be an aggravated felony under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i)).

Second Circuit

AGGRAVATED FELONY " FRAUD OFFENSE " PLEA DID NOT ESTABLISH OFFENSE WAS COMMITTED WITH SPECIFIC INTENT TO DEFRAUD
Akinsade v. Holder, 678 F.3d 138 (2d Cir. May 1, 2012) (federal conviction for embezzlement by a bank employee under 18 U.S.C. 656, did not categorically constitute a fraud aggravated felony, for purposes of deportation, where none of the facts to which the petitioner actually and necessarily pleaded to establish whether that offense was committed with a specific intent to defraud).

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)).

Fifth Circuit

AGGRAVATED FELONY - FRAUD & DECEIT DEFINED
Omari v. Gonzales, __ F.3d __, 2005 WL 1714364 (5th Cir. July 25, 2005) (defining "fraud" as a "knowing misrepresentation of truth or concealment of a material fact to induce another to act to his or her detriment" and "deceit" as "the act of intentionally giving a false impression" as defined in Blacks Law Dictionary).
http://caselaw.lp.findlaw.com/data2/circs/5th/0361014p.pdf

Eleventh Circuit

AGGRAVATED FELONY - FRAUD OFFENSE - LOSS TO THE VICTIM - RESTITUTION ORDER BASED ON CONDUCT NOT CHARGED, PROVEN, OR ADMITTED, AND WHICH WAS ISSUED BY THE CRIMINAL COURT UNDER A LOWER PREPONDERANCE STANDARD OF PROOF, WAS STANDING ALONE AN INSUFFICIENT BASIS TO SUPPORT AN IMMIGRATION JUDGE'S FINDING OF LOSS TO THE VICTIM IN EXCESS OF $10,000
Obasohan v. U.S. Attorney General, ___ F.3d ___, 2007 WL 548359 (11th Cir. Feb. 23, 2007) (federal conviction of conspiracy to produce, use and traffic in counterfeit access devices, in violation of 18 U.S.C. 1029(b)(2), with a restitution order for fraudulent use of other credit cards during the course of the conspiracy which had caused losses in excess of $37,000 to three financial institutions, issued pursuant to 18 U.S.C. 3663, did not constitute an aggravated felony fraud offense, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), for purposes of removal, because the restitution order, standing alone, had been issued by the sentencing judge under a preponderance standard, and the immigration court was required to make a loss to the victim finding by clear, unequivocal, and convincing evidence, and the restitution order, which in this case was the only document that made reference to any loss, was based on factual findings regarding conduct and loss amounts that were not charged, proven or admitted).

Other

AGGRAVATED FELONY - CRIME OF VIOLENCE - RECKLESS INTENT INSUFFICIENT
See § 7.49