False Statement to United States Government Official.  In Hirsch v. INS,[124] the Ninth Circuit held that a conviction for knowingly and willfully making false statements in a matter before a federal agency under the predecessor statute to 18 U.S.C. § 1001 [18 U.S.C. § 80] was 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.  The Sixth Circuit, however, reached the opposite result in Kabongo v. INS,[125] which is discussed below.

 

Prior to congressional amendment, circuit courts had split on the issue of whether making false statements under 18 U.S.C. § 1001 required an element of materiality.  During this period, the BIA held that to constitute a crime of moral turpitude, § 1001 must contain an element of materiality, and that due to the circuit conflict, it would not consider a § 1001 conviction to be a crime of moral turpitude.[126]  Now that materiality is an element of § 1001, this decision is obviously no longer good law.

 

That is not to say, however, that the addition of materiality as an element will transform a § 1001 conviction into one of moral turpitude.  Hirsch remains good law because the court did not rely on a lack of materiality to hold that a § 1001 conviction is not a crime of moral turpitude; it found no fraudulent intent was required.  Furthermore, at that time, the Ninth Circuit had already found materiality to be an element.[127]  Thus, adding materiality as an element does not undercut or diminish the precedential value of Hirsch.

 

            Fraudulent Intent Required.  Even though the materiality element is now satisfied, to constitute a crime of moral turpitude, a conviction under § 1001 must still contain an element of fraudulent intent.  As noted above, the Hirsch Court found no such required mens rea.[128]  Even though the statute required that the false statement must be made willfully, it found that the word willful “means no more than that the forbidden act is done deliberately and with knowledge.”[129]  As a result, no evil intent, such as an intent to defraud, is inherent in the statute.[130]  Moreover, the court noted that because the statute was written in the disjunctive, the accused could be convicted based on making a false, but not fraudulent statement.  As such, the statute did not require fraud to convict.[131]

 

Matter of BM[132] is very similar to the Hirsch decision.  The case involved a noncitizen who admittedly 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.  The BIA reversed a prior decision, Matter of P,[133] which held that § 1001 was a crime of moral turpitude because it contained an inherent element of fraud.  It found that § 1001 did not necessarily involve fraud because the statute only required a willful and knowingly false statement, not one done with evil intent.  Additionally, the BIA found even though the making of a fraudulent statement was criminalized by § 1001, not all § 1001 convictions required fraud because the statute is written in the disjunctive, allowing conviction upon making any false, fictitious or fraudulent statement.  Matter of Espinosa[134] reached the same conclusion, albeit in dictum, that because the statute is set forth in the disjunctive, it does not automatically involve fraud.[135]

 

The Sixth Circuit has apparently held, however, and more recently, the BIA has apparently agreed, that a conviction for giving false statement constitutes a crime of moral turpitude because the statute requires knowledge and materiality as essential elements of the offense.

 

In Kabongo, 837 F.2d at 758, the noncitizen was ordered deported based on his convictions for two counts of making false statements to obtain student financial aid in violation of 18 U.S.C. § 1001 and one count of receiving funds by false statements in violation of 20 U.S.C. § 1097(a).  The petitioner cited Hirsch to support his argument that his conviction under § 1001 was wrongly considered a crime of moral turpitude.  The court rejected this argument, noting that petitioner’s other conviction was indisputably one of moral turpitude.[136]  (Thus, it could be argued that the rest of the case was dictum.)  Rather than analyzing the elements of the statute, however, the Court found that the offense involved moral turpitude based on the facts of the case, where Petitioner had acknowledged that his false statement in his application for student loans was made to defraud the United States.  This was arguably improper, as the facts are irrelevant to the categorical analysis of CMT.  See § 6.2, supra.

 

In Zaitona v. INS,[137] the Sixth Circuit found that a state law conviction for false statements of name and date of birth on driver’s license was a crime of moral turpitude.  Citing the Kabongo decision, the court held that a conviction for giving false statement is a crime of moral turpitude when the elements of materiality and knowledge are shown.   The court did not analyze whether the mens rea requirement of knowledge has an inherent element of intent to defraud and did not cite Hirsch.

 

Matter of Correa-Garces[138] is another false statement case in which the offense was found to be a crime of moral turpitude.  There, the petitioner was convicted of making a false statement in an application for a passport and the BIA found that it was done in order to obtain the passport fraudulently.  The BIA cited the Kabongo decision for the proposition that convictions for making false statements have been found to involve moral turpitude.  It did not cite Hirsch.

 

In Goldeshtein v. INS,[139] however, the Ninth Circuit noted a distinction with regards to false statement cases, when it held that structuring financial deposits to avoid a currency report does not constitute a crime of moral turpitude.

 

The government argued that intent to defraud was inherent in the offense of structuring because its effect was to deprive the government of information regarding currency transactions.  The court rejected that argument, distinguishing cases in which the noncitizen obtained something from the government by false statements, which have been found to constitute crimes of moral turpitude.[140]

 

This reasoning would preclude finding a conviction under § 1001 was a crime of moral turpitude because the statute does not require the false statement be made to obtain something from the government.  Moreover, each of cases discussed above finding that a conviction for giving a false statement constitutes a crime of moral turpitude can be distinguished on the basis articulated in Goldeshtein – that false statement convictions only have an element of intent to defraud when the false statement is made in order to obtain something of value from the government fraudulently.  In Kabongo, the petitioner made a false statement to obtain student loans.[141]  The petitioner in Zaitona obtained a driver’s license.  Matter of Correa-Garces likewise involved obtaining a passport with false statements, which the Ninth Circuit recognized constitutes a crime of moral turpitude.[142]

 

The potential problem, however, is that the BIA has said that it will not follow the Goldeshtein holding in cases outside the Ninth Circuit’s jurisdiction.[143]  Thus, it is entirely possible that a conviction for giving false statements under § 1001 could be found to be a crime of moral turpitude in all jurisdictions other than the Ninth Circuit.

 

Exculpatory “No” Defense Rejected.  An argument that the rejection of the exculpatory “no” defense broadened the scope of convictions under § 1001 to such a degree that it should not constitute a crime of moral turpitude.

 

The only relevant case found, however, was Rodriguez-Herrera v. INS,[144] which held that second degree malicious mischief is not a crime of moral turpitude because it is a relatively minor offense.  The court explained the two bases upon which to judge whether an offense is a crime of moral turpitude: whether it contains an element of fraud, and if not, whether it involves “an act of baseness or depravity contrary to accepted moral standards.”  It stated that for crimes not of the gravest character, a requirement of fraud has ordinarily been required.  Other crimes not involving fraud, such as spousal and child abuse, have been found to constitute crimes of moral turpitude.  Concluding that criminal mischief did not rise to the level of depravity sufficient to qualify it as a crime of moral turpitude because it was a relatively minor offense, the court rejected the INS’s argument that any crime with an element of malice must involve moral turpitude.  The court reserved any opinion as to whether evil intent would be sufficient for a crime to involve moral turpitude in the fraud context.

 

False statement to federal officer.

 

Rodriguez v. Gonzales, 451 F.3d 60 (2d Cir. Jun. 7, 2006) (per curiam) (federal conviction under 18 U.S.C. § 1542 for submitting false information in a passport application categorically qualifies as a crime involving moral turpitude), following Matter of B, 7 I. & N. Dec. 342 (BIA 1956);

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, and so does not require an intent to defraud);

Kabongo v. INS, 837 F.2d 753, 758 (6th Cir. 1988), cert. den., 488 U.S. 982, 109 S.Ct. 533, 102 L.Ed.2d 564 (1988)  (conviction for making false statements under 18 U.S.C. § 1001 involved moral turpitude).

Matter of Marchena, 12 I. & N. Dec. 355 (BIA 1967) (where a conviction under the second clause of 18 U.S.C. § 1001 may have been for making a false statement, it cannot be assumed that the plea of guilty concerned a fraudulent statement; therefore, the crime cannot be held to involve moral turpitude).

Matter of Espinosa, 10 I. & N. Dec. 98 (BIA 1962) (conviction of an offense defined by the third part of 18 U.S.C. § 1001, which relates to the making or use of a false writing knowing it to contain any false, fictitious or fraudulent statement, is not a crime that involves moral turpitude);

Matter of G, 8 I. & N. Dec. 315 (BIA 1959) (a conviction under the third part of 18 U.S.C. § 1001 does not involve moral turpitude because of the conflict in the various circuits as to whether materiality is required as an essential element);

Matter of BM, 6 I. & N. Dec. 806 (BIA 1955) (admission of making a false but not fraudulent statement to an immigration official, was a violation of that portion of 18 U.S.C. § 1001 which relates to the making of any false, fictitious, or fraudulent statements or representations, but the offense did not constitute a crime involving moral turpitude, since only violations of 18 U.S.C. § 1001 which contain an inherent fraud element are crimes involving moral turpitude), modifying Matter of P, 6 I. & N. Dec. 193 (BIA 1954)

Matter of P, 6 I. & N. Dec. 193 (BIA 1954) (admission of knowingly and willfully, falsely alleging in applications for extensions of temporary stay that noncitizen was not employed, lest he be forced to leave the United States upon disclosure of his employment, admits the essential elements of the crime defined in 18 U.S.C. § 1001 which is a crime involving moral turpitude).

 

Conspiracy to defraud the United States under 18 U.S.C. § 371 by filing a materially false and misleading report to the S.E.C., in violation of 18 U.S.C. § 1001, has been found to be a crime of moral turpitude.[145]

 

            Firearms Licensing Fraud.

 

Ali v. Mukasey, 521 F.3d 737 (7th Cir. Apr. 4, 2008) (conviction for violation of 18 U.S.C. § 924(a)(1)(A), giving false statement regarding information required for firearms license, is a CMT where the pre-sentence report indicated an intent to defraud).  This is a poorly reasoned decision, which looked beyond the elements and the record of conviction to find the offense was a CMT.  See § 6.2(B), supra.

 

False statement to officer of the state

 

Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (BIA Sept. 28, 2006) (Pennsylvania conviction of unsworn falsification to authorities in violation of title 18, section 4904(a) of the Pennsylvania Consolidated Statutes [with intent to mislead a public servant in performing his official function, either (a) makes any written false statement he does not believe true, or submits any writing he knows to be forged, altered, or inauthentic] is a crime involving moral turpitude, even through materiality is not an element of the offense, because the statute requires as an element the intent to disrupt the performance of a public servant's official duties and this impairs and obstructs governmental functions by impairing efficiency, which involves moral turpitude);

Padilla v. Gonzalez, 397 F.3d 1016 (7th Cir. Feb. 22, 2005) (knowingly furnishing false information to a police officer with intent to avoid apprehension or obstruct the prosecution or defense of any person, in violation of 720 Ill. Comp. Stat. 5/31-4(a), is a crime of moral turpitude for immigration purposes)  

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

[125] Kabongo v. INS, 837 F.2d 753, 758 (6th Cir. 1988).

[126] See Matter of G, 8 I. & N. Dec. 315 (BIA 1959).

[127] See Poonian v. United States, 294 F.2d 74, 75 (9th Cir. 1961).

[128] Hirsch, 303 F.3d at 567.

[129] Ibid.

[130] Ibid.

[131] Ibid.

[132] Matter of BM, 6 I. & N. Dec. 806 (BIA 1955).

[133] Matter of P, Int. Dec. 628 (BIA 1954).

[134] Matter of Espinosa, 10 I. & N. Dec. 98 (BIA 1962).

[135] See also Matter of Marchena, 12 I. & N. Dec. 355 (BIA 1967).

[136] Id. at 758 n.9.

[137] Zaitona v. INS, 9 F.3d 432 (6th Cir. 1993).

[138] Matter of Correa-Garces, 20 I. & N. Dec. 451 (BIA 1992).

[139] Goldeshtein v. INS, 8 F.3d 645 (9th Cir. 1993).

[140] The court cited Matter of Flores, 17 I. & N. Dec. at 229 (ruling that Flores’s crime involved moral turpitude because he knowingly presented false or counterfeit documents to the INS to obtain naturalization papers); Bisaillon v. Hogan, 257 F.2d 435, 437 (9th Cir.), cert. den., 358 U.S. 872 (1958) (fraud was inherent where the statute “requires for conviction proof of a false statement, knowingly and willfully made, with intent to obtain the issuance of a passport contrary to law”); United States ex rel. Popoff v. Reimer, 79 F.2d 513, 515 (2d Cir. 1935) (fraud is inherent in the offense of making false statements on behalf of a noncitizen in order to allow the noncitizen to obtain naturalization); Matter of R, I. & N. Dec. 29, 38 (BIA 1952) (fraud is inherent in a conviction for knowingly making a false statement for the purpose of evading military service because the defendant “attempted to deceive the Government through false representations for the purpose of obtaining an occupational deferment to which he was not entitled”).

[141] See also Izedonmwen v. INS, 37 F.3d 416 (8th Cir. 1994) (obtaining student loans by fraud constitutes a crime of moral turpitude).

[142] See Bisaillon v. Hogan, 257 F.2d 435, 437 (9th Cir.), cert. den., 358 U.S. 872 (1958).

[143] See Matter of Chaqui-Olavaris, 12 Immig. Rptr. B1-121 (1993).

[144] Rodriguez-Herrera v. INS, 52 F.3d 238 (9th Cir. 1995).

[145] See Matter of E, 9 I. & N. Dec. 421 (BIA 1961).

Eighth Circuit

CRIME OF MORAL TUPRITUDE " FALSE STATEMENTS " FALSE ID TO POLICE OFFICER
Bobadilla v. Holder, 679 F.3d 1052 (8th Cir. May 29, 2012) (BIA failed to apply "reasonable probability" test under Matter of Silva-Trevino to determine whether Minnesota conviction of giving a false name to a peace officer in violation of Minn. Stat. 609.506, Subd. 1, is a crime involving moral turpitude).