Cite as 26 I&N Dec. 189 (BIA 2013) Interim Decision #3791
189
Matter of Patricia PINZON, Respondent
Decided August 19, 2013
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An alien who enters the United States by falsely claiming United States citizenship is
not deemed to have been inspected by an immigration officer, so the entry is not an
“admission” under section 101(a)(13)(A) of the Immigration and Nationality Act,
8 U.S.C. § 1101(a)(13)(A) (2012).
(2) The offense of knowingly and willfully making any materially false, fictitious, or
fraudulent statement to obtain a United States passport in violation of 18 U.S.C.
§ 1001(a)(2) (2006) is a crime involving moral turpitude.
FOR RESPONDENT: Linda Osberg-Braun, Esquire, Miami, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Margaret Nocero, Assistant
Chief Counsel
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Member.
GRANT, Board Member:
In a decision dated March 28, 2008, an Immigration Judge found the
respondent removable, pretermitted her application for cancellation of
removal under section 240A(b)(1) of the Immigration and Nationality Act,
8 U.S.C. § 1229b(b)(1) (2006), and granted her request for voluntary
departure. The respondent has appealed from that decision. The
Department of Homeland Security (“DHS”) has filed a cross-appeal from
the Immigration Judge’s grant of voluntary departure. The respondent’s
appeal will be dismissed. The DHS’s appeal will be sustained and the
respondent will be ordered removed from the United States.
I. FACTUAL AND PROCEDURAL HISTORY
It is undisputed that the respondent is a native and citizen of Venezuela
who first entered the United States in 1982 with a student visa. In 1985,
she was issued a United States passport, which she applied for by
presenting a false birth certificate from Florida. In 1997, the respondent
applied for and was issued a renewal of the passport through the mail.Cite as 26 I&N Dec. 189 (BIA 2013) Interim Decision #3791
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According to the Immigration Judge, the respondent also falsely
represented that she was a United States citizen when she registered to vote.
The respondent last entered the United States on August 20, 2001, by
presenting the United States passport that she procured with a false birth
certificate. She was subsequently convicted in November 2002 of
knowingly and willfully making false, fictitious, or fraudulent statements
and representations to the Department of State in violation of 18 U.S.C.
§ 1001(a)(2) (2000). The respondent was placed in removal proceedings
and was charged under sections 212(a)(2)(A)(i)(I), (6)(A)(i), (C)(i), and (ii)
of the Act, 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), (6)(A)(i), (C)(i), and (ii) (2006),
as an alien who was convicted of a crime involving moral turpitude, who
was present in the United States without being admitted or paroled, who
has procured immigration benefits by fraud or willful misrepresentation of
a material fact, and who has made a false claim of United States citizenship,
respectively.
The Immigration Judge sustained all charges of removability against
the respondent. He also pretermitted her application for cancellation of
removal under section 240A(b)(1) of the Act, finding that she could not
establish 10 years of continuous physical presence because of her
commission of a crime involving moral turpitude. He further concluded
that she was barred from showing statutory eligibility based on her
conviction. However, the Immigration Judge granted her request for
voluntary departure.
On appeal, the respondent argues that the Immigration Judge erred in
sustaining the charges of inadmissibility against her under section 212(a) of
the Act, because she should have been charged instead as a deportable alien
under section 237(a) of the Act, 8 U.S.C. § 1227(a) (2006). The respondent
also challenges the Immigration Judge’s decision to pretermit her
application for cancellation of removal under section 240A(b)(1) of the Act,
contesting his determination that she was convicted of a crime involving
moral turpitude. The DHS has appealed from the Immigration Judge’s
decision to grant the respondent voluntary departure.
II. ANALYSIS
A. Admission
There is no meaningful dispute regarding the Immigration Judge’s
finding that the respondent last entered the country on August 20, 2001, by
presenting a United States passport that she procured by submitting a false
birth certificate from Florida. Contrary to the respondent’s assertions, her
initial lawful entry into the United States with a student visa in 1982 did notCite as 26 I&N Dec. 189 (BIA 2013) Interim Decision #3791
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convert her subsequent reentries into the country, which were facilitated by
the presentation of her United States passport, into “admissions.”
See section 101(a)(13)(A) of the Act, 8 U.S.C. § 1101(a)(13)(A) (2012)
(providing that the term “admission” means “the lawful entry of [an] alien
into the United States after inspection and authorization by an immigration
officer”).
Subsequent to the Immigration Judge’s decision, we held in Matter of
Quilantan, 25 I&N Dec. 285, 290 (BIA 2010), that an alien is “admitted”
pursuant to section 101(a)(13)(A) of the Act if his or her entry is shown to
have been procedurally regular, that is, “the alien underwent an inspection
by an immigration officer, who subsequently admitted the alien.”
However, in that decision, we also reaffirmed Matter of Areguillin, 17 I&N
Dec. 308, 309 n.3 (BIA 1980), where we stated that an alien who gains
admission to the United States upon a knowing false claim to citizenship
cannot be deemed to have been “inspected and admitted.”
The Supreme Court has recognized that a United States citizen is not
subject to the same scrutiny and requirements as an alien during the process
of inspection and admission. Reid v. INS, 420 U.S. 619, 624–25 (1975).
Immigration authorities more closely examine the right of aliens to enter
the country and they require and obtain information and records, such as
fingerprints and registration forms, to help keep track of aliens who have
been admitted after they have entered the country. Id. at 625. Aliens who
enter by falsely claiming to be a United States citizen significantly frustrate
the process for inspecting incoming aliens and effectively put themselves in
a position that is “comparable to that of a person who slips over the border
and who has, therefore, clearly not been inspected.” Id. (quoting Goon Mee
Heung v. INS, 380 F.2d 236, 237 (1st Cir. 1967)) (internal quotation marks
omitted).
Moreover, we noted in Quilantan, 25 I&N Dec. at 293, that an
immigration officer is not empowered to inspect a United States citizen in
the same manner as an alien. Acknowledging this difference in treatment
between citizens and aliens, we held there that an alien who entered the
United States under a false claim of United States citizenship cannot be
considered to have been inspected. Id. (citing Reid v. INS, 492 F.2d 251,
255 (2d Cir. 1974); Matter of S-, 9 I&N Dec. 599, 600 (BIA 1962)).
We find no reason to diverge from the long-standing rule that an alien
who enters the United States by falsely claiming United States citizenship
effectively eludes the procedural regularity of inspection by an immigration
officer. See Reid v. INS, 420 U.S. at 624–25; Matter of F-, 9 I&N Dec. 54
(Reg’l Comm’r, Ass’t Comm’r 1960) (“It is well established that aliens
who knowingly made a false claim to United States citizenship for the
purpose of evading inspection under the immigration laws gained entryCite as 26 I&N Dec. 189 (BIA 2013) Interim Decision #3791
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without inspection.” (citations omitted)); Matter of E-, 6 I&N Dec. 275
(BIA 1954). We therefore hold that such an entry does not constitute an
admission as that term is defined in section 101(a)(13)(A) of the Act.
The Immigration Judge properly denied the respondent’s motion to
terminate removal proceedings based on her argument that she should be
subject to the deportability grounds under section 237(a) of the Act rather
than inadmissibility grounds under section 212(a). Moreover, we agree
with the Immigration Judge that the respondent is removable as an alien
who is inadmissible under sections 212(a)(6)(A)(i), (C)(i), and (ii) of the
Act.
B. Crime Involving Moral Turpitude
The respondent argues that the Immigration Judge erred in pretermitting
her application for cancellation of removal based on his finding that her
conviction was for a crime involving moral turpitude under section
212(a)(2)(A)(i)(I) of the Act. The respondent was convicted under
18 U.S.C. § 1001(a)(2), which, at the time of her 2002 conviction, provided
in pertinent part as follows:
(a) Except as otherwise provided in this section, whoever, in any matter within
the jurisdiction of the executive, legislative, or judicial branch of the Government of
the United States, knowingly and willfullyC
. . .
(2) makes any materially false, fictitious, or fraudulent statement or
representation . . .
. . .
shall be fined under this title or imprisoned not more than 5 years, or both.
18 U.S.C. § 1001(a)(2).
The respondent bears the burden of establishing both that she is not
inadmissible to the United States under section 212(a)(2)(A)(i)(I) of the Act
and that she is statutorily eligible for cancellation of removal under section
240A(b)(1). 8 C.F.R. § 1240.8(c)–(d) (2013). She therefore must show
that she has not been convicted of a crime involving moral turpitude. We
have considered the respondent’s arguments and conclude that she has not
satisfied her burden of proof.
The respondent argues that the minimum conduct required for a
conviction under 18 U.S.C. § 1001(a)(2) is making a false statement to a
Government official, which she contends does not involve moral turpitude.
According to the respondent, unlike the act of providing a “fraudulent”
statement, making a “false” statement does not involve moral turpitudeCite as 26 I&N Dec. 189 (BIA 2013) Interim Decision #3791
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because it requires no evil intent. We are unpersuaded by her attempt to
make this distinction.
The United States Court of Appeals for the Eleventh Circuit, in whose
jurisdiction this case arises, has held that for purposes of 18 U.S.C.
§ 1001(a)(2), “the word ‘false’ requires an intent to deceive or mislead.”
United States v. Boffil-Rivera, 607 F.3d 736, 741 (11th Cir. 2010). The
Eleventh Circuit has also recently reaffirmed that proof of a specific intent
to deceive by making a false or fraudulent statement is a prerequisite for a
conviction under § 1001. United States v. House, 684 F.3d 1173, 1203
(11th Cir. 2012) (citing United States v. Dothard, 666 F.2d 498, 503 (11th
Cir. 1982)).
The respondent also suggests that a conviction can be obtained under
§ 1001(a)(2) even if the misrepresentation was not material. However, this
is contrary to the plain language of the statute, which includes as an
element of the offense the requirement that the offender made a “materially
false, fictitious, or fraudulent statement or representation.” 18 U.S.C.
§ 1001(a)(2) (emphasis added); see also United States v. Boffil-Rivera, 607
F.3d at 740; United States v. Calhoon, 97 F.3d 518, 523 (11th Cir. 1996).
The Eleventh Circuit has held that a statement is “material” under
§ 1001(a)(2) if it has a “natural tendency to influence, or [be] capable of
influencing, the decision of the decisionmaking body to which it was
addressed.” United States v. Boffil-Rivera, 607 F.3d at 741 (quoting
United States v. Gaudin, 515 U.S. 506, 509 (1995)) (internal quotation
marks omitted). The court found that the Government need not prove that
the statement had actual influence, only that “[t]he false statement must
simply have the capacity to impair or pervert the functioning of a
government agency.” Id. (quoting United States v. Lichenstein, 610 F.2d
1272, 1278 (5th Cir. 1980)) (internal quotation marks omitted); see also
Matter of D-R-, 25 I&N Dec. 445, 450 (BIA 2011).
We find no merit to the respondent’s assertions, even if we accept her
proposition that she was only convicted of making a materially false
statement or representation, which she claims is the least culpable conduct
required for a conviction under § 1001(a)(2). To obtain a conviction, the
Government was required to show that she made a false statement that had
the capacity to impair or pervert the functioning of a Government agency
and that the statement was made with the intent to deceive or mislead. We
have long held that crimes involving fraud or making false statements
involve moral turpitude. See Matter of Correa-Garces, 20 I&N Dec. 451,
454 (1992) (“Convictions for making false statements have been found to
involve moral turpitude.”); see also Itani v. Ashcroft, 298 F.3d 1213, 1215
(11th Cir. 2002) (“Generally, a crime involving dishonesty or false
statement is considered to be one involving moral turpitude.”).Cite as 26 I&N Dec. 189 (BIA 2013) Interim Decision #3791
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Moreover, an offense that involves impairing or obstructing a function
of the Government by deceit, graft, trickery, or dishonest means is a crime
involving moral turpitude. See Omagah v. Ashcroft, 288 F.3d 254, 262 (5th
Cir. 2002) (stating that “intentionally deceiving the government involves
moral turpitude”); Matter of Jurado 24 I&N Dec. 29, 35 (BIA 2006)
(holding that making unsworn falsifications to authorities is a crime
involving moral turpitude); Matter of Flores, 17 I&N Dec. 225, 230 (BIA
1980) (holding that the “crime of uttering or selling false or counterfeit
paper relating to registry of aliens with knowledge of their counterfeit
nature” involves moral turpitude, because it “inherently involves a
deliberate deception of the government and an impairment of its lawful
functions”). We therefore conclude that the minimum conduct criminalized
by 18 U.S.C. § 1001(a)(2) involves moral turpitude.
The respondent has cited cases from the Ninth Circuit in support of her
argument that making a false statement does not involve moral turpitude.
However, as previously discussed, her case arises in the Eleventh Circuit,
which has determined that an intent to deceive or mislead is a required
element for a conviction under § 1001(a)(2).
Moreover, the decisions the respondent relies on addressed an earlier
version of 18 U.S.C. § 1001 and are therefore distinguishable. Hirsch
v. INS, 308 F.2d 562 (9th Cir. 1962); Matter of Marchena, 12 I&N Dec.
355 (Reg’l Comm’r 1967); Matter of Espinosa, 10 I&N Dec. 98 (BIA
1962); Matter of G-, 8 I&N Dec. 315 (BIA 1959). In 1996, § 1001 was
amended to explicitly add the element of materiality to each clause of the
statute, including the one under which the respondent was convicted. False
Statements Accountability Act of 1996, Pub. L. No. 104-292, § 2, 110 Stat.
3459, 3459 (effective Oct. 11, 1996).1
Thus, § 1001(a)(2) now criminalizes
the making of any materially false, fictitious, or fraudulent statement or
representation. Consequently, an important issue that was raised in the
earlier rulings as to whether materiality necessarily inheres in all parts of
§ 1001 is no longer in question.
1
Prior to October 11, 1996, 18 U.S.C. § 1001 (1994) provided as follows:
Whoever, in any matter within the jurisdiction of any department or
agency of the United States knowingly and willfully falsifies, conceals or
covers up by any trick, scheme, or device a material fact, or makes any
false, fictitious or fraudulent statements or representations, or makes or
uses any false writing or document knowing the same to contain any
false, fictitious or fraudulent statement or entry, shall be fined under this
title or imprisoned not more than five years, or both.Cite as 26 I&N Dec. 189 (BIA 2013) Interim Decision #3791
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The Seventh Circuit, which specifically addressed whether the amended
version of § 1001 proscribes a crime involving moral turpitude, has
unequivocally stated, “There can be no question that a violation of section
1001 is a crime involving moral turpitude.” Ghani v. Holder, 557 F.3d 836,
840 (7th Cir. 2009). Moreover, the Seventh Circuit noted that almost every
court that has considered the issue has concluded that crimes involving
willful false statements are turpitudinous. Id. at 840–41.
In sum, we conclude that the respondent’s 2002 conviction for violating
18 U.S.C. § 1001(a)(2) is for a crime involving moral turpitude. The
Immigration Judge properly found that the respondent is inadmissible under
section 212(a)(2)(A)(i)(I) of the Act and that she is therefore also precluded
from establishing statutory eligibility for cancellation of removal under
section 240A(b)(1). See section 240A(b)(1)(C) of the Act. Accordingly,
the respondent’s appeal will be dismissed.
C. Voluntary Departure
The DHS first argues that the respondent is ineligible for voluntary
departure under section 240B(a)(1) of the Act, 8 U.S.C. § 1229c(a)(1)
(2012), which is the type that may only be granted prior to the completion
of removal proceedings, because she did not concede removability, did not
withdraw her application for cancellation of removal, and did not waive her
right to appeal. See Matter of C-B-, 25 I&N Dec. 888, 891–92 (BIA 2012);
Matter of Arguelles, 22 I&N Dec. 811, 815–17 (BIA 1999); 8 C.F.R.
§ 1240.26(b)(1)(i)(B)–(D) (2013). It is not clear whether the Immigration
Judge intended to grant the respondent voluntary departure under section
240B(a)(1), but any such grant would be improper for the reasons advanced
by the DHS.2
However, an alien may be eligible for voluntary departure under section
240B(b)(1) of the Act at the conclusion of removal proceedings if certain
statutory requirements for eligibility are met and the alien is deserving of
relief as a matter of discretion. See Matter of Arguelles, 22 I&N Dec. at
816–17. The Immigration Judge found no statutory bars to voluntary
departure in this case and concluded that the respondent merited a grant of
relief in the exercise of discretion. The DHS argues that this favorable
exercise of discretion was unwarranted.
The Immigration Judge’s factual findings regarding the positive and
negative factors in the respondent’s case are not clearly erroneous.
2 Despite the Immigration Judge’s error, given our determination that the respondent
does not merit a grant of voluntary departure in the exercise of discretion, we find no
reason to remand the record.Cite as 26 I&N Dec. 189 (BIA 2013) Interim Decision #3791
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See 8 C.F.R. § 1003.1(d)(3)(i) (2013). However, upon our de novo review
of these facts, we conclude that the adverse factors in this case outweigh the
respondent’s equities and that she therefore does not merit a favorable
exercise of discretion. See 8 C.F.R. § 1003.1(d)(3)(ii).
In exercising discretion on a voluntary departure application, we
weigh the applicant’s equities against such factors as his or her immigration
history, the nature of all entries, any violations of the immigration and other
laws, and evidence of unfavorable conduct, including criminal conduct that
has not culminated in a final conviction for purposes of the Act. Matter of
Thomas, 21 I&N Dec. 20, 22–23 (BIA 1995). The respondent’s equities
include her family ties in the United States, her positive contribution to the
community, and her payment of taxes. However, as the Immigration Judge
found, the respondent procured a United States passport by fraud and she
used the fraudulent passport to gain multiple entries into the United States
and to register to vote. See generally Matter of Barcenas-Barrera, 25 I&N
Dec. 40, 44 (BIA 2009) (discussing benefits afforded by a United States
passport). These are very significant adverse factors, which weigh heavily
against a discretionary grant of the privilege of voluntary departure.
We are not persuaded that the respondent’s equities outweigh the very
serious adverse factors of her protracted and repeated fraudulent conduct
arising from her false claim of United States citizenship. This conduct
reflects a clear willingness to violate the immigration laws and circumvent
lawful authority. See Matter of Rojas, 15 I&N Dec. 492, 493 (BIA 1975)
(finding that the manner in which an alien gains entry is relevant to
the exercise of discretion in adjudicating an application for voluntary
departure). Accordingly, we will sustain the DHS’s appeal, vacate the
Immigration Judge’s grant of voluntary departure, and order the respondent
removed from the United States.
ORDER: The respondent’s appeal is dismissed.
FURTHER ORDER: The appeal of the Department of Homeland
Security is sustained, and the Immigration Judge’s grant of voluntary
departure is vacated.
FURTHER ORDER: The respondent is ordered removed from the
United States to Venezuela.