BIA: Entry based on lying about USC status isn’t “admission”; conviction for making materially false statement to government official is CIMT

By University of Denver Sturm College of Law

Oct 17, 2013

The BIA held that a person who enters the United States using a passport obtained after lying about being a United States citizen has not been “admitted” for immigration law purposes, and a conviction for lying to the State Department to receive a passport is a crime involving moral turpitude. Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013) (Grant, Malphrus, and Mullane, Board members). Board member Grant wrote the panel’s decision.

This case involved a non-citizen who entered the USA on a student visa, then obtained a U.S. birth certificate that she used to apply for and receive a U.S. passport. Using this passport, Pinzón left and returned to the United States several times, most recently in 2001. A year later she was convicted of “knowingly and willfully making false, fictitious, or fraudulent statements and representations to the Department of State in violation of 18 U.S.C. § 1001(a)(2).” Matter of Pinzon, 26 I&N Dec. at 190. In the removal proceedings that followed, the IJ concluded this conviction constituted a CIMT thus making her inadmissible and denying her application for cancellation of removal. Matter of Pinzon, 26 I&N Dec. at 190. On appeal to the BIA, Pinzón claimed she should’ve been charged as deportable under INA § 237 rather than inadmissible under INA § 212. She also claimed that her conviction was not a CIMT.

The BIA disagreed on both issues.

First, the Board explained that this case differs from Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), where it held that an “admission” occurs under INA § 101(a)(13)(A) so long as the noncitizen presents herself for inspection and the immigration officer lets her through. In contrast, “an alien who entered the United States under a false claim of United States citizenship cannot be considered to have been inspected” because such a person “effectively eludes the procedural regularity of inspection by an immigration officer.” Matter of Pinzon, 26 I&N Dec. at 191. Consequently, the BIA held that “such an entry does not constitute an admission as that term is defined in section 101(a)(13)(A) of the Act.” Matter of Pinzon, 26 I&N Dec. at 191. Pinzón, therefore, was properly charged as inadmissible, a procedural posture that places the burden of proof on her to show she was entitled to admission.

The Board then addressed whether Pinzón’s conviction is a CIMT. At the time of her conviction, 8 USC § 1001(a)(2) provided that “whoever…makes any materially false, fictitious, or fraudulent statement or representation…shall be fined…or imprisoned not more than 5 years, or both.” Pinzón claimed that “the minimum conduct required for a conviction…is making a false statement to a Government official, which she contends does not involve moral turpitude…because it requires no evil intent.” Matter of Pinzon, 26 I&N Dec. at 192-193. Relying on the Eleventh Circuit’s interpretation of § 1001(a)(2) (the circuit in which this case arose), the Board disagreed. Instead, it concluded that “the specific intent to deceive by making a false or fraudulent statement is a prerequisite for a conviction under § 1001.” Matter of Pinzon, 26 I&N Dec. at 193.

Furthermore, the Board explained that, under Eleventh Circuit precedent, the word “material” in § 1001(a)(2) refers to a statement that “has a natural tendency to influence or [be] capable of influencing, the decisionmaking body to which it was addressed.” Matter of Pinzon, 26 I&N Dec. at 193 (internal quotations and citations omitted). This is obviously a broad interpretation of “material.”

Combining these two components of the statute, the Board concluded that “[t]o obtain a conviction, the Government was required to show that she made a false statement that had the capacity to impair or pervert the functioning of a Government agency and that the statement was made with the intent to deceive or mislead.” Matter of Pinzon, 26 I&N Dec. at 193. Crimes involving fraud or making false statements, the BIA added, involve moral turpitude. Matter of Pinzon, 26 I&N Dec. at 193. Thus, Pinzón was inadmissible.

Importantly, § 1001(a)(2) was amended in 1996 to include the element of materiality. As such, this analysis might not apply to convictions entered prior to October 11, 1996. Matter of Pinzon, 26 I&N Dec. at 194.