Safe Havens

Crimes involving fraud or deceit are generally held to involve moral turpitude.[149]  However, a fraud offense must necessarily have as an element an “evil intent” in order for the offense to involve moral turpitude.[150]  Various statutes punish “falsely or fraudulently” submitting a statement or claim for some sort of benefit.  While convictions under some of these statutes will necessarily involve fraud, and thus trigger deportability on the basis of a crime of moral turpitude, or aggravated felony fraud offense with a qualifying loss, other statutes may be violated without any such intent, and may therefore count as safe havens, as long as the false statements are not made for the purpose of obtaining an immigration benefit.  See § § 7.183-7.187, supra.

California Penal Code § 550(b)(1), for example, makes it unlawful to:

Prepare or make any written or oral statement that is intended to be presented to any insurer or any insurance claimant in connection with, or in support of or opposition to, any claim or payment or other benefit pursuant to an insurance policy, knowing that the statement contains false or misleading information as to any material fact.

This statute punishes those who present any statement, in connection with or in opposition to, a claim (whether or not the claim itself is fraudulent), knowing that the statement contains any false or misleading information.  There is no statutory requirement under California Penal Code § 550(b)(1) that the statement be made with any fraudulent intent, or intent to obtain any benefit.[151]  Even if this offense is subject to divisible statute analysis, the minimum conduct required to sustain a conviction does not involve moral turpitude.  See § 6.20, supra.

Additionally, there need not be any loss to any victim in order to sustain a conviction under California Penal Code § 550(b)(1).[152]  Therefore, a conviction of violating this statute may be sustained without any intent to defraud, to obtain any benefit, or any intended loss, and should not trigger any aggravated felony or crime of moral turpitude ground of deportability.[153]  For example, a conviction under this statute could be sustained upon a knowing under-representation of loss in making an insurance claim (through a lack of willingness to take the time to document all portions of the loss), or where a wife makes a false statement of her age in order to conceal her true age from her husband.

[149] Jordan v. De George, 341 U.S. 223 (1951).

[150] Hirsch v. INS, 308 F.2d 562, 567 (9th Cir. 1962).

[151] Compare Bisaillon v. Hogan, 257 F.2d 435, 437 (9th Cir.) (fraud inherent where statute requires proof of false statement, knowingly and willfully made, with intent to obtain a benefit), cert. denied, 358 U.S. 872 (1958); People v. Diequez, 107 Cal.Rptr.2d 160, 89 Ca.App.4th 266 (App. 1 Dist. 2001) (willfully submitting false insurance claim, under Penal Code § 550(a), knowing it to be false, necessarily involves an intent to defraud).

[152] California Penal Code § 550(c)(3).

[153] See 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).