Passing bad checks.  A conviction of passing checks with insufficient funds is NOT considered a crime involving moral turpitude unless intent to defraud is an essential element of the offense. 

 

Matter of Balao, 20 I. & N. Dec. 440 (BIA 1992) (intent to defraud is not an essential element of the crime of passing bad checks under 18 Pennsylvania Consolidated Statutes § 4105(a)(1), which is therefore not a CMT);

Matter of Zangwill, 18 I. & N. Dec. 22 (BIA 1981) (Florida law requires knowledge of insufficiency of funds, but intent to defraud is not an essential element of the crime);

Matter of Colbourne, 13 I. & N. Dec. 319 (BIA 1969) (conviction for drawing and delivering a worthless check in violation of § 835(a)(1) of Title 14, Virgin Islands Code, is not a conviction of a crime involving moral turpitude), overruling Matter of M, 9 I. & N. Dec. 743 (BIA  1962);

Matter of Stasinski, 11 I. & N. Dec. 202 (BIA 1965) (conviction for issuing or passing a worthless check in violation of paragraph 943.24 of the Wisconsin Statutes is not a conviction of a crime involving moral turpitude, since intent to defraud is not required as an essential element of the crime);

Matter of Bailie, 10 I. & N. Dec. 679 (BIA 1964) (conviction for drawing a check with insufficient funds in violation of § 21-554, Kansas General Statutes (1949), is not a conviction of a crime involving moral turpitude, since an intent to defraud, that is, an intent to cheat or deprive a person of his or her property, is not an element of the crime);

Matter of B, 3 I. & N. Dec. 278 (BIA 1948) (French conviction of issuing check with knowledge that there were insufficient funds to cover it was not an offense involving moral turpitude, where such check was given for past-due obligations, which debts would not be extinguished nor in any way affected by the worthless check, and where the record of conviction did not indicate that there was present an intent to defraud).

 

Where intent to defraud is an element, the offense of passing bad checks is a CMT. 

 

Squires v INS, 689 F.2d 1276 (6th Cir. 1982) (Canadian conviction of “false pretences” for passing bad check with knowledge of insufficient funds held CMT, since offense is analogous to District of Columbia offense of passing bad check);

Burr v. INS, 350 F.2d 87 (9th Cir. 1965), cert. den., 383 U.S. 915, 86 S.Ct. 905, 15 L.Ed.2d 669 (1966) (writing insufficient funds check, in violation of California Penal Code § 476a, was crime involving moral turpitude, since fraud was an essential element of the offense);

United States ex rel. Portada v. Day, 16 F.2d 328 (S.D.N.Y. 1926) (passing bad check is crime of moral turpitude if statute requires guilty knowledge);

Ijoma v. INS, 875 F.Supp. 625 (D.Neb. 1995), aff’d, 76 F.3d 382 (8th Cir. 1996) (Nebraska insufficient fund convictions, under Nebraska Rev. Stat. § 28-611(3), were crimes involving moral turpitude, since intent to defraud was required as an essential element) (alternative holding);

Matter of Khalik, 17 I. & N. Dec. 518 (BIA 1980);

Matter of Logan, 17 I. & N. Dec. 367 (BIA 1980) (passing a worthless check in violation of Arkansas Statute § 67-720 is a crime involving moral turpitude because intent to defraud is clearly an ingredient of the crime);

Matter of Westman, 17 I. & N. Dec. 50 (BIA 1979);

Matter of Katsanis, 14 I. & N. Dec. 266 (BIA 1973) (Greek conviction of attempted fraud for trying to pay for goods with check known to be forged held CMT);

Matter of McLean, 12 I. & N. Dec. 551 (BIA 1967) (conviction of issuing a short check (insufficient funds) in violation of § 40-14-20 of the Colorado Revised Statutes (1963), is conviction of a crime involving moral turpitude);

Matter of Haller, 12 I. & N. Dec. 319 (BIA 1967);

Matter of Ohnhauser, 10 I. & N. Dec. 501 (BIA 1964) (conviction of “issuing check without sufficient funds,” in violation of California Penal Code § 476a, held a crime of moral turpitude, since the statute requires intent to defraud as an essential element);

Matter of M, 9 I. & N. Dec. 743 (BIA 1962) (conviction for drawing and delivering worthless checks in violation of § 835(a), Title 14, Virgin Islands Code, with knowledge the check is worthless, is a conviction of a crime involving moral turpitude, since the illicit knowledge is equivalent to intent to defraud);

Matter of F, 6 I. & N. Dec. 783 (BIA 1955) (Massachusetts conviction of accessory before the fact to uttering bad checks held CMT);

Matter of B, 4 I. & N. Dec. 297 (BIA 1951) (conviction of an offense under § 710-176 of the Ohio General Code (entitled, “Drawing a Check Without Credit”) involves moral turpitude, since intent to defraud is an essential element).

 

            Cf. Matter of Bart, 20 I. & N. Dec. 436 (BIA 1992) (issuance of a bad check in violation of Georgia Code § 16-9-20(a) is a crime involving moral turpitude, even though the statute does not require intent to defraud, since Georgia case law requires an intent to defraud as an essential element of the offense).

Ninth Circuit

CRIMES OF MORAL TURPITUDE " BANK FRAUD " PASSING BAD CHECK
Planes v. Holder, ___ F.3d ___, ___, 2011 WL 2619105 (9th Cir. Jul. 5, 2011) (California conviction of delivering or making a check with insufficient funds with intent to defraud, in violation of Penal Code 476a(a), was a fraud offense and thus categorically a crime involving moral turpitude).

CRIMES OF MORAL TURPITUDE " BANK FRAUD " POSSESSION OF ACCESS DEVICES
Planes v. Holder, ___ F.3d ___, ___, 2011 WL 2619105 (9th Cir. Jul. 5, 2011) (federal conviction of possessing 15 or more access devices, in violation of 18 U.S.C. 1029(a)(3), was a fraud offense and thus categorically a crime involving moral turpitude). Note. This decision seems very poorly reasoned. It ignores pertinent authority. E.g., Paredes v. Attorney General, 528 F.3d 196 (3d Cir. 2008); Matter of Cardenas-Abreu, 24 I&N Dec. 795 (BIA 2009). It ignores the argument that since the sentence was appealed, there was no sentence at all in effect in the case, and thus there was no complete judgment (which includes sentence), and no restraint portion of the conviction under INA 101(a)(48)(A) in effect. See Griffiths v. INS, 243 F.3d 45, 50"51 (1st Cir.2001), which the Planes court described as observing that finality is not required under the deferred-adjudication portion of 1101(a)(48)(A), but which actually held there to be no conviction in that case, since no sentence at all had been imposed " a circumstance far closer to the situation in Planes. Finally, the general rule is that Congress is deemed to approve judicial decisions that are in effect concerning a point when it legislates. The universal rule, at the time the new statutory definition of conviction came into effect, was that a conviction must be final before it can be the basis of immigration consequences. Congress did not disturb this rule. Therefore, it must be deemed to have approved of it. This argument was apparently not made in Planes, which therefore did not reject it. The question before us is whether a conviction is final for purposes of deportation proceedings once any appeal as a matter of right has been exhausted. Morales-Alvarado v. Immigration and Naturalization Service 655 F.2d 172, 175 (9th Cir.1981) By any appeal, the court must have meant any appeal of the judgment of guilt, as in any level of an appeal of right, not an appeal of the sentence only. There is also a great deal of authority in support of the view that without a sentence, there is no conviction. This point, as well, was not addressed in Planes. There may also be an argument under Chenery v. SEC that the Ninth Circuit can only affirm the case under the grounds set forth in the opinion, and the BIA never affirmed on the basis that the Ninth affirmed. Thanks to Katherine Brady, Michael Mehr, and Jonathan Moore.