Matter of Serna
| Decision Date | 14 October 1992 |
| Docket Number | Interim Decision Number 3188,A-26757902. |
| Citation | 20 I&N Dec. 579 |
| Parties | MATTER OF SERNA In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated February 21, 1986, the immigration judge found the respondent deportable under section 241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1) (1982),1 as an alien excludable at entry under section 212(a)(20) of the Act, 8 U.S.C. § 1182(a)(20) (1982),2 as an immigrant without a valid visa. He further denied the respondent's request for voluntary departure and ordered him deported from the United States to Mexico. The respondent has appealed from that decision. The appeal will be dismissed.
The respondent is a native and citizen of Mexico who entered the United States on January 7, 1985, without a valid immigrant visa. The record reflects that he was convicted on August 19, 1985, in the United States District Court for the Southern District of California, of possession of an altered immigration document in violation of 18 U.S.C. § 1546 (1982). He received a 3-year prison sentence, the execution of which was suspended, and he was placed on probation for 3 years.
At his deportation hearing, the respondent conceded deportability and applied for voluntary departure in lieu of deportation. The immigration judge denied his request, finding that he was statutorily ineligible for relief because his conviction was for a crime involving moral turpitude, which placed him within the class of persons described in section 212(a)(9) of the Act3 and therefore precluded him from establishing good moral character under section 101(f)(3), 8 U.S.C. § 1101(f)(3) (1982). In thus concluding, the immigration judge relied on our decision in Matter of Flores, 17 I&N Dec. 225 (BIA 1980). The immigration judge also determined that the respondent's request for voluntary departure should be denied in the exercise of discretion.
On appeal the respondent argues that the immigration judge abused his discretion in finding that the offense of which he was convicted was a crime involving moral turpitude. The respondent has presented several bases for this claim. First, he contends that the gravity of his crime is reflected by the light sentence which may be imposed for a violation of 18 U.S.C. § 1546 and by the sentence which he in fact received. He reasons that his offense was "slight" in comparison to the others included in 18 U.S.C. § 1546 and therefore should not be considered to involve moral turpitude. The respondent further regards as "ill-founded" the immigration judge's analogy of his conviction to that in Matter of Flores, supra, for uttering and selling false and counterfeit paper relating to the registry of aliens. He attempts to distinguish Matter of Flores, again claiming that his crime was not as serious because he received no financial gain other than his ability to remain in this country to support his fiancee and his child. Finally, the respondent notes the immigration judge's statement that 18 U.S.C. § 1546 contains broad language, encompassing both crimes which involve moral turpitude and those which do not, and he proposes that any doubts in this regard should be resolved in his favor.
In order to be eligible for voluntary departure, the respondent was required to establish, inter alia, that he was a person of good moral character for at least 5 years immediately preceding his application for such relief. Section 244(e)(1) of the Act, 8 U.S.C. § 1254(e)(1) (1982).4 Section 101(f)(3) of the Act, in part, precluded a person from establishing good moral character if he was a member of a class of persons, whether excludable or not, described in section 212(a)(9) of the Act, i.e., those convicted of a crime involving moral turpitude, if the offense was committed during the requisite 5-year period.5 We must therefore determine whether the crime of which the respondent was convicted involves moral turpitude.6
At the outset, we note that neither the seriousness of the offense nor the severity of the sentence imposed is determinative of whether a crime involves moral turpitude. It is rather a question of the offender's evil intent or corruption of the mind. See Matter of Flores, supra; Matter of Abreu-Semino, 12 I&N Dec. 775 (BIA 1968). We have stated that a crime involving moral turpitude is an act which is per se morally reprehensible and intrinsically wrong or malum in se. Matter of Flores, supra, at 227. The term "moral turpitude" has also been defined by the Attorney General as
anything done contrary to justice, honesty, principle, or good morals; an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow man, or to society in general contrary to the accepted and customary rule of right and duty between man and man.
37 Op. Att'y Gen. 293, 294 (1933), quoted in Matter of Sloan, 12 I&N Dec. 840, 849 (BIA 1966; A.G. 1968) (dissenting opinion); see also Matter of McNaughton, 16 I&N Dec. 569 (BIA 1978), aff'd, 612 F.2d 457 (9th Cir. 1980); Matter of Awaijane, 14 I&N Dec. 117 (BIA 1972).
Thus, the fact that a crime may be considered only a minor offense does not preclude a finding that it involves moral turpitude. For example, we have held that the crimes of petty larceny and issuance of worthless checks involve moral turpitude. See, e.g., Matter of Bart, 20 I&N Dec. 436 (BIA 1992); Matter of De La Nues, 18 I&N Dec. 140 (BIA 1981); Matter of Khalik, 17 I&N Dec. 518 (BIA 1980); Matter of Logan, 17 I&N Dec. 367 (BIA 1980); Matter of Esfandiary, 16 I&N Dec. 659 (BIA 1979). On the other hand, such crimes as importation, sale, or possession of drugs, which are deemed to be quite serious and have harmful consequences, do not involve moral turpitude, because evil intent is not an element of the offense. See Matter of Abreu-Semino, supra; Matter of R----, 4 I&N Dec. 644 (C.O., BIA 1952); Matter of V----, 1 I&N Dec. 293 (BIA 1942). But see Matter of Y----, 2 I&N Dec. 600 (BIA 1946).
Furthermore, the severity of the sentence imposed on a convicted criminal does not necessarily reflect whether his offense involves moral turpitude. Gonzales v. Barber, 207 F.2d 398, 400 (9th Cir. 1953), aff'd, 374 U.S. 637 (1954); United States ex rel. Zaffarano v. Corsi, 63 F.2d 757 (2d Cir. 1933). A crime may be a fraudulent or inherently evil act, and therefore one involving moral turpitude, but the sentencing judge may nevertheless decide it does not warrant a severe punishment due to its petty nature or some mitigating circumstances surrounding the criminal act.7 See Matter of McNaughton supra, at 575; see also, e.g., Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980) (). We therefore find no merit to the respondent's contentions that his crime is not one involving moral turpitude because of the insignificance of his offense or the light sentence he received.
We turn now to the statute under which the respondent was convicted to examine the nature of his crime. The statute provides as follows:
Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, or document, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained ... [s]hall be fined not more than $2,000 or imprisoned not more than five years, or both.
In his decision, the immigration judge determined from the information issued against the respondent that he was convicted of the use and possession of an altered immigrant visa with the knowledge that it had been altered, and he concluded that this offense was one involving moral turpitude. Were it the case that the conviction included the use of an altered visa, we would agree that it was for a crime involving moral turpitude because of the strong similarity of that offense to the crime discussed in Matter of Flores, supra. However, the judgment of conviction in this case states unambiguously that the respondent was convicted of possession of an altered immigration document, so we must consider only whether that offense involves moral turpitude. See generally Matter of B----, 6 I&N Dec. 98, 106 (BIA 1954); Matter of S----, 2 I&N Dec. 353, 357 (BIA, A.G. 1945). Our review of the myriad cases dealing with the issue of moral turpitude convinces us that it does not.
It has been stated that "it is in the intent that moral turpitude inheres." United States ex rel. Meyer v. Day, 54 F.2d 336, 337 (2d Cir. 1931); see also United States ex rel. Shladzien v. Warden of Eastern State Penitentiary, 45 F.2d 204 (E.D. Pa. 1930); Matter of Abreu-Semino, supra; Matter of R----, supra. Thus, we have acknowledged that the "violation of statutes which merely license or regulate and impose criminal liability without regard to evil intent do not involve moral turpitude." Matter of G----, 7...
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