26 I. & N. Dec. 189
BIA2013Background
- Respondent (Venezuelan national) obtained a U.S. passport in 1985 by submitting a false Florida birth certificate, renewed it in 1997, and used it to reenter the U.S. on August 20, 2001.
- In November 2002 she was convicted under 18 U.S.C. § 1001(a)(2) for knowingly and willfully making materially false statements to the Department of State.
- DHS placed her in removal proceedings, charging inadmissibility under INA § 212(a) for: crime involving moral turpitude, presence without admission/parole, procuring immigration benefits by fraud, and false claim to U.S. citizenship.
- The Immigration Judge sustained removability, pretermitted her cancellation-of-removal application under INA § 240A(b)(1) based on the moral-turpitude conviction, and granted voluntary departure.
- Respondent appealed the inadmissibility and moral-turpitude findings; DHS cross-appealed the grant of voluntary departure.
- BIA affirmed inadmissibility and the moral-turpitude determination, dismissed respondent’s appeal, vacated voluntary departure, and ordered removal to Venezuela.
Issues
| Issue | Respondent's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether respondent’s 2001 entry on a passport procured by false claim of U.S. citizenship constitutes an "admission" under INA § 101(a)(13)(A) | Entry should be treated as an admission (respondent relied on earlier lawful 1982 student-entry) | Entry was procured by false claim of citizenship and thus not an inspection/admission | Entry is not an "admission"; false claim to citizenship circumvents inspection so INA admission definition is not met |
| Whether conviction under 18 U.S.C. § 1001(a)(2) is a crime involving moral turpitude (CIMT) | § 1001(a)(2) can punish mere false statements lacking evil intent; respondent argued no CIMT | § 1001(a)(2) requires intent to deceive and materiality; willful false statements that impair government function are turpitudinous | Conviction under § 1001(a)(2) involves intent and materiality and therefore is a CIMT; respondent barred from cancellation eligibility |
| Whether respondent should be charged as deportable under INA § 237(a) rather than inadmissible under INA § 212(a) | Respondent urged charges under deportability (237) because of prior lawful entry in 1982 | DHS maintained inadmissibility charges based on non-admission entry | BIA rejected respondent’s argument; proper classification is inadmissibility under INA § 212(a) |
| Whether voluntary departure was properly granted | Respondent sought voluntary departure; IJ granted it | DHS appealed that grant as improper/excessively favorable given fraud history | BIA found adverse equities (passport fraud, multiple fraudulent entries, voting) outweigh positives, vacated voluntary departure |
Key Cases Cited
- Reid v. INS, 420 U.S. 619 (Sup. Ct.) (citizens are not inspected/subject to alien admission procedures; false claim evades inspection)
- United States v. Boffil-Rivera, 607 F.3d 736 (11th Cir.) (§ 1001 requires intent to deceive; materiality standard explained)
- United States v. House, 684 F.3d 1173 (11th Cir.) (reaffirming specific intent requirement for § 1001 convictions)
- Ghani v. Holder, 557 F.3d 836 (7th Cir.) (violation of § 1001 is a crime involving moral turpitude)
- Omagah v. Ashcroft, 288 F.3d 254 (5th Cir.) (intentionally deceiving government involves moral turpitude)