Introduction: Matter of Gaglioti, 10 I&N Dec. 719 (BIA 1964)

On September 11, 1964, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Gaglioti, 10 I&N Dec. 719 (BIA 1964) [PDF version]. In Matter of Gaglioti, the Board held that a conviction for conspiracy to commit an unlawful act (establish gambling games) in violation of Pennsylvania law (at the time) not a crime involving moral turpitude. More broadly, the Board held that “[v]iolations of gaming laws do not ordinarily involve moral turpitude.” Although Matter of Gaglioti has not been often cited since its issuance, the Board noted the precedent in a footnote to is recent decision in Matter of Vella, 27 I&N Dec. 138, 139 & n.2 (BIA 2017) [PDF version] [see article], making it a good time to revisit the decision. We will also discuss the related Board decision in Matter of G-, 1 I&N Dec. 59 (BIA 1941), upon which the Board relied in Matter of Gaglioti.

In this article, we will provide an overview of Matter of Gaglioti and what longstanding Board precedent still means today.

Factual and Procedural History: 10 I&N Dec. at 719-20

The respondent in Matter of Gaglioti was a native and citizen of Italy who had last entered the United States in 1921.

On January 16, 1941, the respondent was convicted under Pennsylvania state law for “unlawfully, falsely, fraudulently, willfully and maliciously” conspiring to “commit an unlawful act.” The Board explained that the Pennsylvania statutes specified that an “unlawful act” in this context meant “to establish gambling games, to permit people to collect for the purpose of gambling, to solicit people to visit the gambling room, and to exhibit gaming devices.” The Board explained that these specifications were all included within Pennsylvania’s statute on the crime of establishing a gambling place.

The special inquiry officer handling the respondent’s case noted that Pennsylvania had a specific law relating to the enticement of individuals to gamble. Furthermore, he found that the specifications of the respondent’s statute of conviction may also “describe in part the crime of pool-setting and bookmaking” found in another Pennsylvania statute. After examining the case, the special inquiry officer determined that none of the substantive crimes described in the specifications involved moral turpitude. He reasoned that “no proof of an evil intent or malice [was] required for conviction.” Accordingly, determining that a conviction for conspiracy is only a crime involving moral turpitude if the substantive crime(s) are, the special inquiry officer terminated immigration proceedings against the respondent. The Government appealed from that termination to the BIA.

Board’s Analysis, Rule, and Conclusion: 10 I&N Dec. at 720-21

Citing to its prior precedent decision in Matter of B—, 6 I&N Dec. 98, 105-107 (BIA 1954), the Board explained that “the moral turpitude of a conviction for conspiracy depends on whether the substantive crime involves moral turpitude.” This means that in order for a conviction to be considered a crime involving moral turpitude, the “substantive crime” (that which the individual conspired to commit) must involve moral turpitude.

The Board stated that “[v]iolations of gaming laws do not ordinarily involve moral turpitude.” The Board cited to its March 21, 1941 decision in Matter of Garcia, 56040/601 (same as Matter of G-, 1 I&N Dec. 59 (BIA 1941)), where it held regarding a New York misdemeanor conviction for a gambling offense that “[t]he standard by which a misdemeanor, such as gambling, is to be judged … is that prevailing in the United States as a whole, regarding the common view of our people concerning its moral character” (after noting that there were no judicial determinations as to whether gambling offenses typically involved moral turpitude). We have reproduced the Board’s full excerpt from Matter of G- below:

The Board explained that “moral turpitude” refers to conduct that “is inherently base, vile[,] depraved[, or] contrary to accepted rules of morality” [see article on the more recent Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016) to learn more]. Conversely, the Board made clear that conduct that was not generally regarded as morally wrong or corrupt before it was made punishable as a crime is not considered to involve moral turpitude.

In the instant case, the Board found that licensed gambling on horse racing was permitted in several states when its deliberations occurred. Furthermore, a New York State court decision in People v. Revolta (137) 295 N.Y.S. 102 held that people have a legal right to gamble until the legislature decrees otherwise, and that the right to gamble cannot otherwise be restricted to certain classes of people.

Accordingly, the Board followed its decision from Matter of Garcia and held that the substantive crimes in the respondent’s gambling conspiracy charges did not involve moral turpitude. For this reason, it determined that the respondent’s conspiracy charge did not involve moral turpitude.

The Board added that even if the rule for conspiracy convictions was not that the substantive crimes must involve moral turpitude for the conspiracy conviction to involve moral turpitude, it would have still dismissed the appeal. The Board explained that this is due to the fact that the gambling conspiracy statute at issue in the case did not “require an evil intent.” To this effect, the Board noted that the respondent was convicted under a portion of the conspiracy statute that prohibited a conspiracy to do an unlawful act. The statute of conviction only required that the conspirator(s) “knowingly agree to commit the unlawful act,” but had no requirement of fraudulent intent.

Subsequent Citations

Although Matter of Gaglioti remains good law,in that it has never been overruled or distinguished, it has not often been cited to since its issuance. In the introduction, we noted one such instance in the Board’s recent citation to Matter of Gaglioti in its Matter of Vella decision.

The United States Court of Appeals for the Ninth Circuit cited favorably to Matter of Gaglioti in its own published decision in U.S. v. Chu Kong Yin, 935 F.2d 990, 1004 (9th Cir. 1991) [PDF version]. In that case, the government argued that an alien’s hiding under a table during a gambling raid showed “conscious knowledge of guilt of a morally undesirable crime” (note that this was to support the argument that his gambling conviction involved moral turpitude). However, the Ninth Circuit cited to the Board’s conclusion in Matter of Gaglioti that “[t]he substantive crime or crimes involved in the gambling conspiracy charge do not involve moral turpitude.” It also cited to Matter of G, 1 I&N Dec. 59, 61-62 (BIA, AG 1941), where the Board had explained that, because gambling is “not generally regarded as morally wrong or corrupt, as offensive to the moral sense as ordinarily developed,” it is not typically a crime involving moral turpitude. The Ninth Circuit found both Board decisions on the subject persuasive in finding that the alien’s conviction in Chu Yong Yin did not involve moral turpitude.

Matter of G- also received a favorable citation from the United States Court of Appeals of the Second Circuit in Blake v. Carbone, 489 F.3d 88, 103 (2d Cir. 2007) [PDF version]. The Second Circuit used its holding as an example to illustrate that a conviction or convictions may constitute an immigration aggravated felony but not a crime of moral turpitude (“While a number of aggravated felonies require intentional conduct, not all are inherently base and vile”). It explained that a permanent resident could be found to be deportable for having committed two or more gambling offenses, triggering the aggravated felony provision in section 101(a)(43)(J) of the Immigration and Nationality Act (INA). However, citing to Matter of G-, the Second Circuit explained that longstanding Board precedent holds that gambling is not a crime involving moral turpitude. From this, it concluded that “[c]rimes involving moral turpitude and aggravated felonies are two broad classes of criminal conduct” that are not always “congruent.”

Conclusion

Matter of Gaglioti is the Board’s primary precedent on gambling and gaming crimes in the moral turpitude context. Here, applying the definition of “moral turpitude,” it determined that gambling offenses generally do not involve moral turpitude. It stood to reason, accordingly, that the crime of conspiracy to commit gambling offenses also does not involve moral turpitude. The Board’s citation to Matter of Gaglioti in Matter of Vella shows that the decision remains good law. The decision follows Matter of G, which reached generally the same conclusions for the same reasons regarding gambling convictions.

However, an alien facing criminal charges should always consult with an experienced immigration attorney for case-specific guidance. In many cases, whether a conviction will be found to be a crime involving moral turpitude will depend on the specific phrasing of the statute. Furthermore, as the Second Circuit noted in Blake v. Carbone, just because a conviction does not involve moral turpitude does not mean that it does not fall under any provision of the INA. In that case, the Second Circuit made clear that an individual with gambling convictions may be, depending on the facts, subject to the section 101(a)(43)(J) aggravated felony provision. Matter of Vella in fact concerned a respondent who was once subject to removal under section 101(a)(43)(J), but was permitted to adjust status because his aggravated felony was not a crime involving moral turpitude.