(B)  Crimes of Moral Turpitude.

 

False statement offenses generally involve making a false statement to a government official or on a form required to receive a government benefit.  These offenses have frequently been held to involve moral turpitude where the elements of fraud and materiality are present.[176]  Where fraud is not an essential element, a conviction for making false or fraudulent statements should be held not to be a CMT.

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).[177]

 

Hirsch v. INS, 308 F.2d 562 (9th Cir. 1962) (knowingly and willfully making false statements in a matter before a federal agency under the predecessor statute to 18 U.S.C. § 1001 (former 18 U.S.C. § 80) not a crime of moral turpitude because the statute did not require that the Government prove that the defendant in fact had an evil intent).

 

Board of Immigration Appeals:

 

Matter of Marchena, 12 I. & N. Dec. 355 (Reg. Comm’r 1967) (conviction of violating 18 U.S.C. § 1001 by making a false statement of income in applying for Cuban refugee relief, held not CMT since under the statute, the conviction could have been for making either a “false” or “fraudulent” statement, and it could not be assumed that her plea of guilty concerned a “fraudulent” statement, so the crime of which she had been convicted could not be held to involve moral turpitude).

Matter of Espinosa, 10 I. & N. Dec. 98 (BIA 1962) (abetting non-immigrant visitor in executing false application for extension of stay, resulting in the noncitizen’s conviction under 18 U.S.C. § 1001, was not a crime that involved moral turpitude, since conviction would be possible without the element of fraudulent intent; the case must be viewed in the light most favorable to the noncitizen, which would be to assume that his plea of guilty was to the making of a false rather than a fraudulent statement).

 

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, 8 I. & N. Dec. 315 (BIA 1959) (moral turpitude will not be found in the offense defined by the second part of 18 U.S.C. § 1001 (making false writings in a matter involving the United States) while the conflict among Circuits remains unresolved as to whether materiality is essential to support a conviction, even though the conviction here occurred in the Fifth Circuit which does require materiality as an essential element, since there is a doubt as to whether the statute requires materiality and involves moral turpitude, and the doubt must be resolved in favor of the noncitizen).

 

Matter of IL, 7 I. & N. Dec. 233, 234 (BIA 1956) (not every violation of 18 U.S.C. § 1001 involves moral turpitude).

 

Matter of BM, 6 I. & N. Dec. 806 (BIA 1955) (although admission that noncitizen had made a false statement to an immigration inspector, namely, that she was not employed in the United States when in fact she was so employed, constituted an admission of the essential elements of the offense of making a “false, fictitious, or fraudulent statement” described in 18 U.S.C. § 1001, the crime which she had admitted committing was not a crime involving moral turpitude since she had admitted no fraudulent intent), modifying Matter of P, 6 I. & N. Dec. 193 (BIA 1954).

 

Matter of I, 4 I. & N. Dec. 159 (BIA 1950) (violation of 18 U.S.C. § 911 not a CMT; noncitizen’s admission before board of inquiry that he had committed perjury did not result in inadmissibility where plea was entered to lesser offense of making an oral false claim to United States citizenship), citing Matter of T, 56156/584 (January 4, 1944).

Matter of K, 3 I. & N. Dec. 69 (BIA 1947) (four convictions of violating 18 U.S.C. § 911, false claims to U.S. citizenship, did not preclude showing of good moral character, because they “were all part and parcel of his attempt to hide his illegal entry,” and “were not motivated by any venal purpose.”).

 

Matter of N & B, 2 I. & N. Dec. 206 (BIA 1944) (admission of making false statement before Board of Special Inquiry concerning matter which, if admitted, would not have triggered inadmissibility was not material, and therefore could not have constituted perjury in violation of 18 U.S.C. § 231, and was therefore not an admission of a crime involving moral turpitude).

 

Matter of L, 1 I. & N. Dec. 324 (BIA 1942) (Canadian conviction for perjury not crime of moral turpitude where statute departed from common law by eliminating requirement of materiality).

 

Matter of B, 1 I. & N. Dec. 121 (BIA, AG 1941) (false statements of a noncitizen before a board of special inquiry that she has not seen her husband for some time and did not know his whereabouts are not material to the right of the noncitizen to enter the United States, so admission of making them did not constitute an admission of perjury as a crime involving moral turpitude).

 

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).

[176] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § § 9.65-9.68 (2005).

[177] 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.

Ninth Circuit

AGGRAVATED FELONY - FRAUD OFFENSES - FALSE STATEMENT
Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. Jul. 1, 2008) (per curiam) (federal conviction for subscribing to a false statement on a tax return, in violation of 26 U.S.C. 7206(1), with plea agreement stipulating that the "total actual tax loss" for the purpose of determining his offense level under the Sentencing Guidelines was $245,126, did not categorically constitute a fraud aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), since the statute of conviction is entirely missing an element requiring proof of a monetary loss in excess of $10,000; the court may not consult the record of conviction because the statute is not divisible), following Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc) (when the crime of conviction is missing an element of the generic crime altogether, we can never find that "a jury was actually required to find all the elements of" the generic crime.").

AGGRAVATED FELONY - FRAUD OFFENSES - FALSE STATEMENT
Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. Jul. 1, 2008) (per curiam) (federal conviction for aiding and assisting in the preparation of a false tax return qualify as "aggravated felonies" return, in violation of 26 U.S.C. 7206(2), did not categorically constitute a fraud aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), since the statute of conviction is entirely missing an element requiring proof of a monetary loss in excess of $10,000; the court may not consult the record of conviction because the statute is not divisible), following Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc) (when the crime of conviction is missing an element of the generic crime altogether, we can never find that "a jury was actually required to find all the elements of" the generic crime.").

CRIME OF MORAL TURPITUDE - ATTEMPTED ENTRY OF GOODS BY MEANS OF FALSE STATEMENT NOT CMT
Notash v. Gonzales, 427 F.3d 693 (9th Cir. Nov. 2, 2005) (attempted entry of goods by means of a false statement, in violation of 18 U.S.C. 542 is not necessarily a crime of moral turpitude, since the second paragraph of that statute, criminalizing "any willful act or omission" that may deprive the United States of revenue, whether or not those acts are false or fraudulent, does not require a false or fraudulent statement, which could indicate an intent to defraud).