Crimes of Moral Turpitude

 

Perjury.  The common-law definition of perjury required a material misrepresentation as an essential element of the crime. The BIA has held that a perjury conviction involves moral turpitude only if the offense of conviction includes all of the elements required to constitute common law perjury.[152]  The BIA therefore held that a conviction for perjury under a Canadian statute that eliminated the common-law requirement of materiality did not involve moral turpitude.[153]

 

Perjury has generally been considered a crime involving moral turpitude. 

           

United States ex rel. Alvarez y Flores v. Savoretti, 205 F.2d 544 (5th Cir. 1953) (offense of making material false statement constituted perjury, and was therefore a crime of moral turpitude for inadmissibility purposes);

Baroca v. Schlotfeldt, 109 F.2d 106 (7th Cir. 1940);

Karpay v. Uhl, 70 F.2d 792 (2d Cir. 1934), cert. den., 293 U.S. 573, 79 L.Ed. 671, 55 S.Ct. 85 (1934) (perjury conviction held CMT);

United States ex rel. Majka v. Palmer, 67 F.2d 146 (7th Cir. 1933);

United States ex rel. Cumberbatch v. Shaughnessy, 117 F.Supp. 152 (D.N.Y. 1953) (admittedly perjurious statement made and sworn to in a foreign country before the Vice Consul of the United States by a naturalized citizen who had lost his citizenship by expatriation, was a crime involving moral turpitude, regardless of whether the perjurious statement was an offense involving moral turpitude in the country in which it was committed, the court stating that admitted perjury before a consular officer was the same as though committed within the United States);

United States v. Carrollo, 30 F.Supp. 3 (D.Mo. 1939) (conviction of violating former 18 U.S.C. § 231, now codified as 18 U.S.C. § 1621, the general perjury statute, held CMT);

United States ex rel. Carella v. Karnuth, 2 F.Supp. 998 (D.N.Y. 1933);

Matter of R, 2 I. & N. Dec. 819 (BIA 1947) (conviction of the offense described by Canada Criminal Code § 170 does not involve moral turpitude, for this Canadian statute has departed from the common law definition of perjury by eliminating the requirement of “materiality,” and without this element this Canadian offense is not considered base, vile, and depraved);

Matter of H, 1 I. & N. Dec. 669 (BIA 1943) (conviction of perjury in violation of § § 422 and 423, Michigan Penal Code, is a crime involving moral turpitude although the statute does not specifically require that the false swearing be material, since the statute has been judicially interpreted to include the common-law requirement of materiality);

Matter of L, 1 I. & N. Dec. 324 (BIA 1942) (perjury as defined by Canada Criminal Code § 170 does not involve moral turpitude, since materiality is not an element of the offense);

Matter of G, 1 I. & N. Dec. 217 (BIA 1942) (when a noncitizen in deportation proceedings admits that in applying for admission to the United States he had falsely testified before a board of special inquiry as to his marital status, he is not deportable as a person who has admitted the commission of perjury, a crime involving moral turpitude, since his false testimony before the board of special inquiry was not material to his right to enter the United States);

Matter of G, 1 I. & N. Dec. 101 (BIA 1941) (in connection with an admission of perjury, it must be clearly and independently established that the alleged false statements were under oath for the admission to be of every element of the crime of moral turpitude);

Matter of G, 1 I. & N. Dec. 73 (BIA, AG 1941) (entry into Canada in violation of the Canadian Immigration Act making such action a criminal offense does not involve moral turpitude when not accompanied by false swearing amounting to perjury);

Matter of C, 1 I. & N. Dec. 14 (BIA, AG 1940) (when a noncitizen in registering as such falsely swore that he was not employed, he is not excludable on the ground that he has admitted the commission of perjury, since the record discloses merely that he had lied as to his employment but had not admitted the essential elements of the crime of perjury).

 

            Materiality Required

 

In some jurisdictions, the crime of perjury does not include as an essential element the requirement that the false statement must relate to a material matter.  A conviction for violation of such a statute will not be held to involve moral turpitude.

 

Matter of R, 2 I. & N. Dec. 819 (BIA 1947) (Canada);

Matter of L, 1 I. & N. Dec. 324 (BIA 1942) (Canada). 

 

Even if the statute does not require that the misstatement be material, a conviction will be found to be a crime of moral turpitude if the local judicial interpretation of the statute declares that materiality of the false statement is a necessary element of the crime. 

 

Zaitona v. INS, 9 F.3d 432 (6th Cir. 1993) (crime of making false statements in drivers’ license application, under Mich.Comp.Laws Ann. § 257.324(1)(e), was crime of moral turpitude, since materiality and knowledge were elements of the crime);

Matter of H, 1 I. & N. Dec. 669 (BIA 1943) (Michigan conviction of perjury involved moral turpitude, even though the statute in question did not include materiality as an essential element, since the case law did include it).

 

False statements not amounting to perjury are NOT considered CMT. 

 

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 nonimmigrant 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 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 BM, 6 I. & N. Dec. 806 (BIA 1955);

Matter of R, 2 I. & N. Dec. 819 (BIA 1947);

Matter of S, 2 I. & N. Dec. 353 (BIA 1945) (admission of knowingly making false statements in an application for registration as a noncitizen, in violation of § 36(c) of the Alien Registration Act of 1940, 8 U.S.C. § 457 (c), is not a crime which involves moral turpitude and is distinguishable from the offense of perjury since it lacks the essential elements of guilty intent and materiality). 

 

            Perjury in Immigration Proceedings.

 

Perjury resulting from false statements in immigration proceedings is frequently considered a CMT, especially if the offense requires materiality and intent to defraud as essential elements. 

 

Calvo-Ahumada v. Rinaldi, 435 F.2d 544 (3d Cir. 1970) (making false statements under oath in an application for permanent residence in violation of 18 U.S.C. § 1546 was held to be a crime involving moral turpitude);

Bisaillon v. Hogan, 257 F.2d 435 (9th Cir.), cert. den., 358 U.S. 872, 3 L.Ed.2d 104, 79 S.Ct. 112 (1958) (willfully and knowingly making a false statement with intent to obtain a passport in violation of 18 U.S.C. § 1542 was held to be a crime involving moral turpitude);

Ablett v. Brownell, 240 F.2d 625 (D.C. Cir. 1957);

Alvarez y Flores v. Savoretti, 205 F.2d 544 (5th Cir. 1953) (false swearing, in order to obtain a visa extension, that noncitizen had not been employed during his stay, when in fact he had worked for several weeks because his wife was ill and he had no money, constituted perjury which involved moral turpitude);

United States ex rel. Boraca v. Schlotfeldt, 109 F.2d 106 (7th Cir. 1940) (false statement under oath made by a noncitizen prior to his entry into the United States for the purpose of gaining admission was held to be a crime involving moral turpitude);

United States ex rel. Popoff v. Reimer, 79 F.2d 513 (2d Cir. 1935) (knowingly aiding a noncitizen not entitled to naturalization to apply for citizenship held CMT as an effort to defraud the United States);

United States ex rel. Karpay v. Uhl, 70 F.2d 792 (2d Cir. 1934), cert. den., 293 U.S. 573, 79 L.Ed. 671, 55 S.Ct. 85 (1934) (perjury committed by making false statements in a verified petition for naturalization was held to constitute a crime involving moral turpitude);

United States ex rel. Majka v. Palmer, 67 F.2d 146 (7th Cir. 1933);

Masaichi Ono v. Carr, 56 F.2d 772 (9th Cir. 1932);

United States ex rel. Linklater v. Commissioner of Immigration, 36 F.2d 239

(D.N.Y. 1929);

Kaneda v United States, 278 F. 694 (9th Cir. 1922), cert. den., 259 U.S. 583, 66 L.Ed. 1075, 42 S.Ct. 586 (1922);

Petition of Moy Wing Yin. 167 F.Supp. 828 (D.N.Y. 1958) (giving false testimony to gain an immigration benefit constitutes a crime of moral turpitude);

United States ex rel. Cumberbatch v. Shaughnessy, 117 F.Supp. 152 (D.N.Y. 1953) (false statement before United States consular officer in Trinidad);

United States ex rel. Carella v. Karnuth, 2 F.Supp. 998 (D.N.Y. 1933);

Matter of Chin Chan On, 32 F.2d 828 (D.Wash. 1929); 

Matter of B, 7 I. & N. Dec 342  (BIA 1956) (visa fraud constituted a CMT, since fraud and materiality were essential elements of a violation of 18 U.S.C. § 1542);

Matter of P, 4 I. & N. Dec. 373 (BIA 1951) (conviction of willful false swearing to a material matter in a naturalization proceeding in violation of 8 U.S.C. § 414 is an offense involving moral turpitude);

Matter of H & Y, 3 I. & N. Dec. 236 (BIA 1948) (attempt to defraud the United States by the improper use of a United States passport falsely showing the noncitizen to be a citizen of the United States for purposes of effecting entry was an offense involving moral turpitude).

 

False Claim to U.S. Citizenship. 

 

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).

[152] Matter of H, 1 I. & N. Dec. 669 (BIA 1943).

[153] Matter of L, 1 I. & N. Dec. 324 (BIA 1942).