Introduction: Matter of Zaragoza-Vaquero

On September 23, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Zaragoza-Vaquero, 26 I&N Dec. 814 (BIA 2016) [PDF version]. In the decision, the Board held that a federal conviction for copyright infringement under 17 U.S.C. 506(a)(1)(A) (2012) and 18 U.S.C. 2319(b)(1) (2012) is a crime of moral turpitude (CIMT). In this article, we will examine the facts and procedural history of the case, the Board’s analysis and decision, and what the new Board precedent may mean going forward for similar cases.

Facts, Procedural History, and Relevant Criminal Statutes: 26 I&N Dec. at 814-15

In 2012, the respondent, a nonimmigrant, was convicted of one count of criminal infringement of a copyright (a felony offense) in violation of 17 U.S.C. 506(a)(1)(A) (2012) and 18 U.S.C. 2319(b)(1) (2012). He was sentenced to 33 months in prison and ordered to pay $36,000 in restitution. Subsequent to his conviction, the respondent was placed in removal proceedings. In 2015, the Immigration Judge found the respondent removable under section 212(a)(2)(A)(i) as an alien convicted of a CIMT. Accordingly, the Immigration Judge pretermitted (left unadjudicated) the respondent’s application for cancellation of removal for non-lawful permanent residents (LPRs) under section 240A(b)(1) of the INA and ordered the respondent removed from the United States. The respondent appealed the decision to the BIA, arguing that his conviction was not for a CIMT.

Relevant Statutes: 26 I&N Dec. at 814-15

The Board’s decision quoted the two federal statutes that the respondent was convicted of violating.

First, 17 U.S.C. 506(a)(1)(A) states that “[a]ny person who willfully infringes a copyright shall be punished as provided under [18 U.S.C. 2319] if the infringement was committed-(A) for the purposes of commercial advantage or private financial gain…”

In the next section, we will explain that the requirement that the infringement must have been done “willfully” is a key point to the ultimate resolution of the case.

The punishment for this conviction is found in 18 U.S.C. 2319(b), which states that “[a]ny person who commits an offense under [17 U.S.C. 506(a)(1)(A)]-(1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phone records of 1 or more copyrighted works, which have a total retail value of more than $2,500.”

The Immigration Judge found that the respondent’s conviction was a CIMT as defined in the immigration laws in section 212(a)(2)(A)(i)(I) of the INA. This provision renders a person inadmissible who is “convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of” a CIMT. The Immigration Judge pretermitted the respondent’s application for non-LPR cancellation of removal because section 240A(b)(1)(C) renders an alien who is convicted of a CIMT, as defined in section 212(a)(2), ineligible for non-LPR cancellation of removal.

Analysis and Decision: 26 I&N Dec. at 815-18

On appeal to the BIA, the respondent sought to establish that his criminal conviction was not for a CIMT. If the respondent had succeeded, he would have been eligible to have his application for cancellation of removal considered by the Immigration Judge. However, as we will explain, the Board ultimately agreed with the Immigration Judge and found that the respondent’s conviction was, in fact, for a CIMT.

Citing to the Fifth Circuit decision in Cisneros-Guerrerro v. Holder, 774 F.3d 1056, 1058 (5th Cir. 2014) [PDF version], the Board explained that “moral turpitude refers generally to conduct that shocks the public conscience as being inherently base, vile, depraved, or contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Citing to Okabe v. INS, 671 F.2d 863, 865 (5th Cir. 1982) [PDF version], the Board stated that it usually assesses the nature of the crime rather than the specific conduct that resulted in the conviction to determine whether a conviction is for a CIMT. Citing to its own precedent from the Matter of Lopez-Meza, 22 I&N Dec. 1188, 1192 (BIA 1999) [PDF version], the Board explained that moral turpitude is a concept is “measured against contemporary moral standards;” therefor, whether specific conduct is for a CIMT is “susceptible to change based on the prevailing views in society.”

The respondent conceded that he had been convicted of “reproducing and distributing [copyright] infringing copies for commercial advantage or for private financial gain in violation of 17 U.S.C. 506(a)(1)(A).” The Board explained that this is significant because 17 U.S.C. 506(a)(1)(A), a criminal offense, is distinct from a civil copyright violation. The language of 17 U.S.C. 506(a)(1)(A) requires that the infringing conduct have been done “willfully.” In United States v. Liu, 731 F.3d 982, 990 (9th Cir. 2013) [PDF version], the Ninth Circuit quoted from the Supreme Court decision in Cheek v. United States, 498 U.S. 192, 201 (1991) [PDF version], in stating that “willfully” in the context of 17 U.S.C. 506(a)(1)(A) means that a person committed a “voluntary, intentional violation of a known legal duty.” Accordingly, the Board noted that “negligent” infringement could not result in a criminal conviction in violation of 17 U.S.C. 506(a)(1)(A), which requires that the infringement had to be “willful,” such that it was a voluntary and intentional violation of a known legal duty and not merely negligent.

The Board noted that it has “long held” that certain theft offenses are CIMTs. For example, the Board cited to its decision in the Matter of Jurado, 24 I&N Dec. 29, 33 (BIA 2006) [PDF version], wherein it held that a Pennsylvania state conviction for retail theft was a CIMT. The Board also cited to the Supreme Court decision in Jordan v. De George, 341 U.S. 223, 229 (1951) [PDF version], where the Supreme Court held that fraud is included within the “scope of moral turpitude.”

The respondent in the instant case argued, however, that his conviction was not for a CIMT because 17 U.S.C. 506(a)(1) does not include fraud as an element. However, the Board noted that it has held in various precedent decisions that crimes that are inherently fraudulent involve moral turpitude even if the crime itself does not require a “specific intent to defraud.” See e.g. the Matter of Tejwani, 24 I&N Dec. 97, 98 (BIA 2007) [PDF version]. Most specifically, in the Matter of Flores, 17 I&N Dec. 225, 228-30 (BIA 1980) [PDF version], the Board held that “uttering or selling false or counterfeit paper relating to the registry of aliens” in violation of federal law was a CIMT even though the Government was under no requirement to prove that the “offender had the specific intent to defraud.” The Board followed Flores in the Matter of Kochlani, 24 I&N Dec. 128, 131 (BIA 2007) [PDF version], wherein it held that a conviction for trafficking in counterfeit goods or services under 18 U.S.C. 2320 (2000), which “includes the use of a ‘spurious’ or ‘counterfeit mark,’ was for a CIMT. This is because, as the Board explained then, the offense “involves the theft of someone else’s property in the form of a trademark.” The Board also held in Kochlani that “trafficking in counterfeit goods is inherently immoral because it entails dishonest dealing and deliberate exploitation of the public and the mark owner.”

Following its precedent, the Board held that criminal copyright infringement under 17 U.S.C. 506(a)(1)(A) and 18 U.S.C. 2319(b)(1) is also a CIMT. The Board found that the these statutes are similar to the statute at issue in the Matter of Kochlani. The relevant statutes were “enacted to protect a form of intellectual property,” and the infringement under the statutes must have been done “willfully, meaning that a defendant must voluntarily and intentionally violate a known legal duty not to infringe a copyright.” Accordingly, the Board found that criminal copyright violations are closely analogous to the fraud and theft crimes that are CIMTs under longstanding Board precedent.

The Board rejected the respondent’s argument that 17 U.S.C. 506(a)(1)(A) sweeps too broadly to be considered a CIMT. The Board explained that criminal copyright law is distinct, and narrower, than civil copyright law in that not every copyright infringement will qualify as a criminal offense. To advance his argument, the respondent argued that a student tutoring other students knowingly using copyrighted materials could fall under the scope of 17 U.S.C. 506(a)(1)(A). However, the Board explained that such conduct would likely fall under the “fair use” of copyrighted material doctrine and would not be considered copyright infringement. Furthermore, the Board explained that even when conduct does not fall under fair use, the Government must establish that the infringement was not only willful, but that it was also for “commercial advantage or personal financial gain” in order for a person to be convicted in violation of 17 U.S.C. 506(a)(1)(A).

Because the Board found that the offense of copyright infringement in violation of 17 U.S.C. 506(a)(1)(A) and 18 U.S.C. 2319(b)(1) is a CIMT, the Board held that the respondent failed to sustain his burden for establishing eligibility for non-LPR cancellation of removal under 240A(b)(1)(C). The Board dismissed the respondent’s appeal from the decision of the Immigration Judge.

Conclusion

The Matter of Zaragoza-Vaquero, 26 I&N Dec. 814 (BIA 2016) is an important decision in that it establishes a new precedent that certain criminal copyright offenses are CIMTs. The decision establishes clearly that if a person is convicted under a statute that requires the Government to establish that the copyright violation was committed “willfully,” the offense will likely be considered a CIMT. This precedent means that immigration adjudicators will generally treat criminal copyright convictions similarly to fraud and theft offenses that have long been treated as CIMTs.

It is important to note that this decision does not mean that every person who commits a copyright violation will be considered to have committed a CIMT. The Board carefully makes the distinction between “criminal” and “civil” copyright violations, noting that criminal copyright violations are narrower in scope, requiring that the offending conduct have been willful (meaning that the person knowingly infringed on a copyright in violation of the law). The Board also did not reach whether 17 U.S.C. 506(a)(1)(B) and (C), copyright violations related to 17 U.S.C. 506(a)(1)(A), are CIMTs, although it would seem to follow from this decision that they would be treated as such.

If an alien is charged with having committed a CIMT, he or she should consult with an experienced immigration attorney immediately. An experienced immigration attorney will be able to assess the case and determine whether, based on relevant precedent, there is a credible case to be made that the offending conduct was not a CIMT.