Safe Havens

While commercial bribery, and bribery of a witness, are aggravated felonies[198] if a sentence of one year or more is imposed, and are crimes of moral turpitude,[199] paying or accepting a gratuity should not be considered an aggravated felony or a CMT, because a violation of the federal anti-gratuity provisions is not “related to” bribery, and does not require the “corrupt intent” inherent in bribery.

Although the prohibitions against bribery and against giving a gratuity are housed in different subdivisions of the same section of the United States Code,[200] there is an enormous difference between them, both in terms of their elements and in how severely they are punished.  The Supreme Court outlined that difference as follows:

Subsections (b) and (c) [of 18 U.S.C. § 201] set forth, respectively, two separate crimes – or two pairs of crimes, if one counts the giving and receiving of unlawful gifts as separate crimes – with two different sets of elements and authorized punishments.  The first crime, described in § 201(b)(1) as to the giver, and § 201(b)(2) as to the recipient, is bribery, which requires a showing that something of value was corruptly given, offered, or promised to a public official (as to the giver) or corruptly demanded, sought, received, accepted, or agreed to be received or accepted by a public official (as to the recipient) with intent, inter alia, ‘to influence any official act’ (giver) or in return for ‘being influenced in the performance of any official act’ (recipient). The second crime, defined in § § 201(c)(1)(A) as to the giver, and § § 201(c)(1)(B) as to the recipient, is illegal gratuity, which requires a showing that something of value was given, offered, or promised to a public official (as to the giver), or demanded, sought, received, accepted, or agreed to be received or accepted by a public official (as to the recipient), ‘for or because of any official act performed or to be performed by such public official.’

            The distinguishing feature of each crime is its intent element.  Bribery requires intent ‘to influence’ an official act or ‘to be influenced’ in an official act, while illegal gratuity requires only that the gratuity be given or accepted ‘for or because of’ an official act. In other words, for bribery there must be a quid pro quo – a specific intent to give or receive something of value in exchange for an official act.  An illegal gratuity, on the other hand, may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken.  The punishments prescribed for the two offenses reflect their relative seriousness: Bribery may be punished by up to 15 years’ imprisonment, a fine of $ 250,000 ($ 500,000 for organizations) or triple the value of the bribe, whichever is greater, and disqualification from holding government office.  See 18 U.S.C. § § 201(b) and 3571. Violation of the illegal gratuity statute, on the other hand, may be punished by up to two years’ imprisonment and a fine of $ 250,000 ($ 500,000 for organizations).  See § § 201(c) and 3571.[201] 

As the United States Supreme Court has drawn a material distinction between “bribery” and “gratuity,” the offense of acceptance or payment of a gratuity should not be considered an offense “related to” bribery for aggravated felony purposes.  See § § 7.35-7.36, supra.

            The D.C. Circuit has likewise stated that, unlike bribery, acceptance of an illegal gratuity does not require a corrupt intent.[202]  “The requisite intent to constitute accepting a bribe is to accept a thing of value ‘corruptly’ under section (c)(1); the comparable intent under the gratuity section (g) is to accept a thing of value ‘otherwise than as provided by law for the proper discharge of official duty.’ . . . [T]he two comparative clauses are not equivalents. . . . ‘Corruptly’ bespeaks a higher degree of criminal knowledge and purpose . . . .”[203] 

Although other courts have found that acceptance of a gratuity did involve moral turpitude in the context of disbarment proceedings, the courts in those decisions were able to examine the underlying conduct to determine whether the specific acts themselves involved moral turpitude.[204]  In the immigration context, on the other hand, it is the minimum elements sufficient to violate the statute that determine whether the offense involves moral turpitude, not the underlying facts of the offense.  See § 5.56, supra.  Offering a gratuity may involve no more evil intent than to give thanks for services offered, with no intent or expectation ever to receive such services from the person again.  In the case of paying a requested gratuity, although the officer requesting the gratuity may have some corrupt intent, the person paying the gratuity is simply fulfilling a request.  A noncitizen who has not lived in the United States for a long time may honestly believe that paying the gratuity is normal practice, just like tipping in a restaurant.

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

[199] See, e.g., Matter of H, 6 I. & N. Dec. 358 (BIA 1954) (conviction under 18 U.S.C. § 202 for acceptance or solicitation of bribe by U.S. officer or employee to influence official action constitutes CMT).

[200] 18 U.S.C. § 201.

[201] United States v. Sun-Diamond Growers, 526 U.S. 398, 404-405 (1999); see also United States v. Strand, 574 F.2d 993, 995-96 (9th Cir. 1978).

[202] United States v. Brewster, 506 F.2d 62 (D.C. Cir. 1974), see also Attorney Grievance Commission v. Brewster, 374 A.2d 602 (Md. 1977).

[203] Id. at 71.

[204] See, e.g., In re Campbell, 522 A.2d 892 (D.C. 1987).