In a new decision the BIA has clarified that convictions under 18 U.S.C. § 1001(a)(2), for making “any materially false, fictitious, or fraudulent statement or representation” is a Crime Involving Moral Turpitude (CIMT). Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013).
This may sound like a no-brainer, but it wasn’t always this simple, and the history of this statute should lead one to question any state convictions for making false statements.
History of the Treatment of Convictions for False Statements
Back in 1959, the Board held that a conviction under Section 1001 did not involve “moral turpitude” because the statute didn’t require the false statement to be “material.” Matter of G-, 8 I&N Dec. 315, 316 (BIA 1959).
False statements are “material” if they would have made a difference. For example, lying about whether you have a criminal history is “material” if the criminal history might make you ineligible for a visa.
But lying about something unrelated isn’t “material” if the misrepresentation wouldn’t have made a difference. The Board reasoned in Matter of G– that if materiality was not required, such a misrepresentation might not be a CIMT.
In 1962, the Board again addressed convictions under this section in Matter of Espinosa, 10 I&N Dec. 98, 99 (BIA 1962). Again, the Board said the issue of materiality still existed and noted, in dicta, that statute listed a number of acts in the conjunctive, leading to the possibility that a defendant can be found guilty upon proof of the commission of any one of the acts charged. Id. p. 100 (citing United States v. Wells, 180 F. Supp. 707 (Del. 1959)). The Board reasoned that under this statutory scheme, it could not be assumed that the respondent pleaded guilty to fraudulent conduct, rather than false conduct. Id.
The False Statements Accountability Act of 1996, Pub. L. No. 104-292, 110 Stat. 3459, amended 18 U.S.C. § 1001, effective October 11, 1996, added the element of materiality to both the second and third clauses of the statute. In essence, this eliminated the reasons the Board had previously given for finding these convictions to not necessarily involve “moral turpitude.”
Matter of Pinzon Clarifies the Issue
Under the Board’s decision in Pinzon (which presumably reverses Matter of Espinoza and Matter of G-) convictions under this amended statute always involve moral turpitude because, according to the Board, materiality is an essential element.
We have to wonder if this is true, given that “materially” in the statute only modifies the word “false” and not “fictitious” or “fraudulent.” If the materiality element only applies to “false” statements and not “fictitious” or “fraudulent” statements, then perhaps there is still an argument to be made.
But aren’t “false,” fictitious,” and “fraudulent” basically synonyms? If so, why is the statute worded that way?
A final word of warning: Pinzon only applies to federal convictions. If an immigrant is convicted under a state statute for making a false statement does not require the statement to be “material,” then Matter of Espinoza and Matter of G- would still apply, and the conviction would not involve moral turpitude.