Matter of Bader (Board decision, September 24, 1980)

Plain-English summary

The Board reviewed a deportability finding based on a Canadian conviction for conspiracy to defraud the public. It held that the offense involved moral turpitude because intent to defraud was a required element and that a conspiracy to commit a morally turpitudinous offense also involved moral turpitude. The Board rejected challenges to the certification of the foreign conviction and to the immigration judge's alleged prejudgment because the respondent had not disputed his sworn admissions or shown that he was denied a fair opportunity to present evidence. The appeal was dismissed and the deportability finding was upheld.

Decision snapshot

• Cited authorities: 8 C.F.R. § 287.6; 8 U.S.C. § 1182(a)(9); 8 U.S.C. § 1251(a)(1)
• Outcome: The appeal was dismissed and the respondent's deportability was upheld.
• Key point: A conspiracy to defraud the public is a crime involving moral turpitude when the underlying offense requires intent to defraud.

Full text (BIA official public release)

Interim Decision #2825

MATTER OF BADER

In Deportation Proceedings
A-20871632
Decided by Board September 24, 1980

(1) Denial of a request for change of venue to permit presentation of expert witness testimony not error where there has been no showing of prejudice by affidavit or offer of proof to establish the witness' identity, qualifications, and proposed testimony. (2) A foreign document to be admissible requires both a certification by a foreign official having legal custody of the document, as to its accuracy, and a certification by a United States Foreign Service officer stationed in the foreign country, as to the genuineness of the signature and official position of the certifying foreign official. See 8 C.F.R. 287.6. (3) Failure to certify a foreign record of conviction under 8 C.F.R. 287.6 will not require setting aside the immigration judge's finding that alien was convicted where the alien has not repudiated his sworn admissions that he was so convicted nor challenged the accuracy of the facts contained in the foreign record of conviction. (4) Prejudgment by the immigration judge is not established absent a showing that the alien was refused the opportunity to present evidence or that the immigration judge declined to consider the evidence presented. (5) A conviction to defraud the public of money or valuable security under section 338(1) of the Canadian Criminal Code, which requires proof of intent to defraud as a necessary element of the offense, is a crime involving moral turpitude. (6) A conspiracy to commit an offense involves moral turpitude when the underlying substantive offense is a crime involving moral turpitude. (7) Alien's conviction of conspiracy to commit a crime involving moral turpitude estab- lished deportability under section 241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(1), as alien excludable at time of entry under section 212(a)(9) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(9). CHARGE: Order Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry under sec. 212(a)(9)—Convicted of a crime involving moral turpitude
(ON BEHALF OF RESPONDENT: Ira J. Kursban, Esquire 444 Brickell Avenue, Suite 1011
Miami, Florida 33131
By: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members

dred dollars; or (b) is guilty
(i) of an indictable offence and is liable to imprisonment for two years, or
(ii) of an offence punishable on summary conviction, where the value of the property, of which the public or any person is defrauded does not exceed two hundred dollars. 1974 75-76, c. 93, s. 32.
(2) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, with intent to defraud, affects the public market price of stocks, shares, merchandise or anything that is offered for sale to the public, is guilty of an indictable offence and is liable to im- prisonment for ten years. 1953-54, c. 51, s. 323.
The immigration judge found the respondent's conviction was for a crime involving moral turpitude. Respondent argues that a conviction under section 338(1) does not necessarily require proof of criminal intent or intent to defraud and is therefore not a crime involving moral turpitude. He points to the language of section 338(1), not requiring "false pretence" as a necessary element of the offence, and the inclu- sion of "intent to defraud" as a necessary element in sections 338(2) and 319(1) (the crime of false pretence)* to support his position. He also cites several Canadian judicial decisions, suggesting that they demon- strate criminal intent or intent to defraud is not required for a convic- tion under section 338(1). Fraud has, as a general rule, been held to involve moral turpitude, Jordan v. DeGeorge, 341 U.S. 223 (1951)(defrauding the United States of taxes on distilled spirits); Mercer v. Lence, 96 F.2d 122 (10 Cir. 1938)(defrauding a person of a large sum of money); U.S. ex rel. Berkandi v. Reimer, 30 F. Supp. 767 (S.D.N.Y. 1939), aff'd, 113 F.2d 429 (2 Cir. 1940) (defrauding the United States of taxes on distilled spirits); U.S. ex rel. Amato v. Commissioner of Immigration, Ellis Island, New York Harbor, 18 F. Supp. 480 (S.D.N.Y. 1937) (petty larceny); U.S. ex rel. Portada v. Day, 16 F.2d 328 (S.D.N.Y. 1926) (issuing of checks without sufficient funds, with intent to defraud); Ponzi v. Ward, 7 F. Supp 736 (D. Mass. 1934) (use of the mails to defraud); Matter of Flores, Interim Decision 2752 (BIA 1980) (uttering and selling false or counterfeit paper relating to registry of aliens); Matter of McNaughton, 16 I&N Dec. 569 (BIA 1978) (fraudulently affecting public market price of Section 319(1) provides in relevant part

319. (1) A false pretence is a representation of a matter of fact either present or past,
     made by words or otherwise, that is known by the person who makes it to be false and that is made with a fraudulent intent to induce the person to whom it is made to act upon it. 1953-54, c. 51, s. 303.

stocks); Matter of Martinez, 16 I&N Dec. 336 (BIA 1977) (passing counterfeit money); Matter of P—, 3 I&N Dec. 56 (C.O. 1947; BIA 1948) (obtaining money by false pretenses); Matter of F—, 2 I&N Dec. 754 (CO 1946; BIA 1947) (defrauding the government of customs duties). From these cases it can be seen that whenever a crime has involved intent to defraud, it has been found to involve moral turpitude. The Court in DeGeorge, supra, stated: In view of these decisions, it can be concluded that fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude. 341 U.S. at 229. Whatever else the phrase "crime involving moral turpitude" may mean in peripheral cases, the decided cases make it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude.... Fraud is the touchstone by which this case should be judged. The phrase "crime involving moral turpitude" has without exception been construed to embrace fraudulent conduct 341 U.S. at 232. Intent to defraud is a required element to obtain a conviction under section 338(1). Regina v. Zaritec Industries Ltd. And 3 Others, 24 C.C.C.(2d) 180 (Alberta Supreme Court 1975). The term "defraud" means deliberate dishonest acts resulting in the deprivation or loss of another's proprietary right. Regina v. Olan, Hudson and Hartnett, 41 C.C.C.(2d) 145 (Supreme Court of Canada 1978). The respondent was convicted of a conspiracy (section 423(1)(d)) to defraud the public (section 338(1)). A conspiracy to commit an offense involves moral turpitude when the underlying substantive offense is a crime involving moral turpitude. See Jordan v. DeGeorge, supra; Mat- ter of Flores, supra; Matter of McNaughton, supra; Matter of M—, 8

I&N Dec. 535 (BIA 1960); Matter of C—, 7 I&N Dec. 114 (BIA 1956); Matter of S—, 2 I&N Dec. 225 (BIA 1944). We conclude that a conviction under section 338(1) is for a crime involving moral turpitude and that respondent's conviction for con- spiracy to violate section 338(1) involves a crime of moral turpitude under the above authority. We further conclude that respondent's deportability under section 241(a)(1) of the Act has been established by clear, convincing, and unequivocal evidence. The decision of the immigration judge was correct. Accordingly, the appeal will be dismissed. ORDER: The appeal is dismissed.