Has my conviction been properly classified as a crime involving moral turpitude?

QUESTION:  In 2000 I was convicted by U.S. federal court of 1 count of "false statement" to a U.S. Customs officer and was fined $500 USD.

The false statement was in regard to a car I sold in the U.S.  Upon entering the U.S., I said that my purpose for entering was pleasure and in reality I entered to sell my car in the U.S.

The car was a U.S. made model and no taxes or duty were imposed if I were to declare it.  By not declaring, I saved 30 days needed for the car to clear "Registered Importer."  No money was lost by the U.S government.  All I gained by failing to declare was time. 

From 2000 to 2007 I entered the U.S. frequently after declaring the $500 fine by the U.S federal court.  At one point my file was reviewed by a supervisor that determined that it is not a crime of moral turpitude.

In 2007, I was denied entry for the same offense.  The officers determined that the offense was a crime of moral turpitude.  I was told to get a waiver.  I did apply for a waiver and was granted a 1 year waiver.  Upon my second application for the waiver in December 2009 I came across some information online that suggests my offense does not involve moral turpitude.  The information I found was issued by the U.S. Department of State in its Foreign Affairs Manual, which stated that violations of laws which are regulatory in character and which do not involve the element of fraud, including “false statements”, are not crimes of moral turpitude.

My second waiver application is pending and in my opinion I should not require a waiver since my online research indicates that mine is not a crime involving moral turpitude.  What is your legal opinion?  What should I do if you agree with me?   

REPLY:  You are in an unfortunate situation that involves one of the more complicated areas of the immigration law – the definition of “crime involving moral turpitude” (“CIMT”).  Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (“INA”) provides that anyone who has been convicted of a CIMT, or an attempt or conspiracy to commit such a crime, is inadmissible to the United States.  The term “crime involving moral turpitude” is not defined anywhere in the INA.  Rather, the term has been defined by a series of decisions issued by the Board of Immigration Appeals and the federal courts.  As you noted above, the Department of State has also issued guidance to its employees regarding the definition of a CIMT in the Foreign Affairs Manual.

It is true that violations of regulatory laws generally are not CIMTs, as noted by the Board of Immigration Appeals in the case: Matter of Tobar-Lobo, 24 I. & N. Dec. 143, 147 (BIA 2007).  However, it is also true that a conviction of a crime in which fraud is an element is a CIMT, which was the decision of the U.S. Supreme Court in the case: Jordan v. DeGeorge, 341 U.S. 223, 227 (1951).  There are several other cases that have been decided at various levels on these same issues.  Accordingly, there are various interpretations that serve to confuse those individuals that attempt to apply them, which is most likely what happened in your case.

The courts as well as the Admissibility Review Office (“ARO”), which is the office that adjudicates nonimmigrant waiver applications, follow a legal framework when determining whether a certain conviction amounts to a CIMT.  It is called the “categorical approach” and it is applied by looking only to the statutory language of the crime of conviction rather than the underlying conduct that led to the conviction.  If the statutory language defines a crime in which moral turpitude necessarily inheres, then the conviction is for a CIMT.

In most cases, if the statutory language reads something like, “with intent to defraud”, then the offense will most likely be deemed a CIMT.  If there is no intent to defraud inherent in the statute and the offense is purely regulatory, then the offense will most likely not be deemed a CIMT.  Offenses like the one you mention are tricky, as the title of the offense suggests that fraud is inherent, but review of the statutory language may reveal that it is not.

In order to determine whether your specific conviction is a CIMT, I would need to know more about the specific offense and the specific statute under which you were convicted.  If our research indicates that the offense is not a CIMT, then we would most likely reach out to officials at the ARO and ask that they reconsider your previous waiver issuance before adjudicating your current application.  As we have done in the past, we would present the ARO with our research and ask that instead of issuing you another waiver, they issue you a letter of non-inadmissibility.  You are in a fortunate position right now, as you have a waiver application pending, which is the only time that letters of non-inadmissibility are issued (as opposed to prior to filing the application or after you receive the waiver decision, at which time the ARO will not consider the issuance of these letters). 

If you successfully obtain a letter of non-inadmissibility, then you should be able to travel freely with it, so long as no other grounds of inadmissibility apply.