26 I. & N. Dec. 814
BIA2016Background
- Respondent Raul Zaragoza‑Vaquero was convicted of one count of criminal copyright infringement under 17 U.S.C. § 506(a)(1)(A) and 18 U.S.C. § 2319(b)(1) (felony), sentenced to 33 months imprisonment and $36,000 restitution.
- Immigration Judge found him removable and pretermitted his application for cancellation of removal under INA § 240A(b)(1) because the conviction was a crime involving moral turpitude (CIMT).
- Respondent appealed the IJ’s conclusion that the conviction was a CIMT, arguing the statute’s scope and that fraud is not an element of § 506(a)(1)(A).
- The Board considered statutory elements: criminal copyright requires willful infringement for commercial advantage or private financial gain, and willfulness requires voluntary, intentional violation of a known legal duty.
- The Board compared criminal copyright infringement to theft, fraud, and trafficking in counterfeit goods, finding parallels in intent, dishonesty, and societal harm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conviction under 17 U.S.C. § 506(a)(1)(A) & 18 U.S.C. § 2319(b)(1) is a CIMT | DHS: conviction involves willful, commercially motivated infringement analogous to theft/fraud and therefore is a CIMT | Zaragoza‑Vaquero: statute lacks fraud element; scope could criminalize benign conduct (e.g., student tutor); conviction not a CIMT | The Board held the offense is a CIMT because it requires willfulness, involves dishonest dealing and societal harm, and is analogous to theft/fraud crimes |
| Whether fair‑use/first‑sale concerns render statute overbroad for CIMT purposes | DHS: statutory willfulness and commercial‑gain elements limit scope; fair use/first‑sale escape criminal liability | Zaragoza‑Vaquero: risk statute sweeps in lawful educational or nonfraudulent conduct | Board: willfulness plus commercial/personal gain and statutory defenses (fair use/first sale) limit reach; overbreadth concerns unfounded |
| Whether intent to defraud is required for CIMT classification | DHS: intent to defraud not required; crimes lacking fraud element can still be CIMTs if inherently dishonest | Zaragoza‑Vaquero: absence of explicit fraud element undermines CIMT classification | Board: intent to defraud not necessary; willfulness and dishonest conduct suffice to make offense a CIMT |
| Whether respondent is eligible for cancellation of removal given CIMT finding | DHS: CIMT conviction bars statutory eligibility for cancellation | Zaragoza‑Vaquero: challenges CIMT finding to preserve eligibility | Board: respondent failed to prove ineligibility requirement; appeal dismissed |
Key Cases Cited
- Cisneros‑Guerrero v. Holder, 774 F.3d 1056 (5th Cir. 2014) (definition and contours of moral turpitude)
- Nino v. Holder, 690 F.3d 691 (5th Cir. 2012) (moral turpitude analysis)
- Okabe v. INS, 671 F.2d 863 (5th Cir. 1982) (focus on nature of offense for CIMT determination)
- United States v. Goss, 803 F.2d 638 (11th Cir. 1986) (criminal copyright requires willfulness)
- United States v. Liu, 731 F.3d 982 (9th Cir. 2013) (willfulness as voluntary, intentional violation of known legal duty)
- Cheek v. United States, 498 U.S. 192 (1991) (definition of willfulness)
- Jordan v. De George, 341 U.S. 223 (1951) (fraud as a component of CIMT)
- Dowling v. United States, 473 U.S. 207 (1985) (distinction between civil and criminal copyright enforcement)