Interim Decision #2825

Interim Decision #2825

MATTER OF BADER

In Deportation Proceedings

A-20871E32

Decided by Board September 24, 1980

(1) Denial of a request for change of venue to permit presentation of expert witness

testimony not error where there has been no showing of prejudice by affidavit or offer

of proof to establish the witness' identity, qualifications, and proposed testimony.

(2) A foreign document to be admissible requires both a certification by a foreign official

having legal custody of the document, as to its accuracy, and a certification by a United

States Foreign Service officer stationed in the foreign country, as to the genuineness of

the signature and official position of the certifying foreign official. See 8 C.F.R. 287.6.

(3) Failure to certify a foreign record of conviction under 8 C.F.R. 287.6 will not require

setting aside the immigration judge's finding that alien was convicted where the alien

has not repudiated his sworn admissions that he was so convicted nor challenged the

accuracy of the facts contained in the foreign record of conviction.

(4) Prejudgment by the immigration judge is not established absent a showing that the

alien was refused the opportunity to present evidence or that the immigration judge

declined to consider the evidence presented.

(5) A conviction to defraud the public of money or valuable security under section 338(1)

of the Canadian Criminal Code, which requires proof of intent to defraud as a

necessary element of the offense, is a crime involving moral turpitude.

(6) A conspiracy to commit an offense involves moral turpitude when the underlying

substantive offense is a crime involving moral turpitude.

(7) Alien's conviction of conspiracy to commit a crime involving moral turpitude established deportability under section 241(a)(1) of the Immigration and Nationality Act, 8

U.S.C. 1251(a)(1), as alien excludable at time of entry under section 212(a)(9) of the

Immigration and Nationality Act, 8 U.S.C. 1182(a)(9).

CHARGE:

Order Act of 1952—Sec. 241(a)(1) [8 U.S.C.. 1251(a)(1)j—Excludable at entry under

sec. 212(a)(9)—Corwicted of a crime involving moral

turpitude

(IN BEHALF OF RESPONDENT:

Ira J. Kursban.. Esquire

444 Brickell Avenue, Suite 1011

Miami, Florida 33131

Br Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members

Egg

Interim Decision #2825

dred dollars; or (b) is guilty

(i) of an indictable offence and is liable to imprisonment for two

years, or

(ii) of an offence punishable on summary conviction, where the

value of the property, of which the public or any person is

defrauded does not exceed two hundred dollars. 1974 75-76, c. 93,

s. 32.

(2) Every one who, by deceit, falsehood or other fraudulent

means, whether or not it is a false pretence within the meaning of

this Act, with intent to defraud, affects the public market price of

stocks, shares, merchandise or anything that is offered for sale to

the public, is guilty of an indictable offence and is liable to imprisonment for ten years- 1953-54, c. 51, s. 323.

The immigration judge found the respondent's conviction was for a

crime involving moral turpitude. Respondent argues that a conviction

under section 338(1) does not necessarily require proof of criminal

intent or intent to defraud and is therefore not a crime involving moral

turpitude. He points to the language of section 338(1), not requiring

"false pretence" as a necessary element of the offence, and the inclusion of "intent to defraud" as a necessary element in sections 338(2)

and 319(1) (the crime of false pretence)* to support his position. He also

cites several Canadian judicial decisions, suggesting that they demonstrate criminal intent or intent to defraud is not required for a conviction under section 338(1).

Fraud has, as a general rule, been held to involve moral turpitude,

Jordan v. DeGeorge, 341 U.S. 223 (1951)(defrauding the United States

of taxes on distilled spirits); Mercer v.. Lence, 96 F.2d 122 (10 Cir.

1938)(defrauding a person of a large sum of money); US. ex rel.

Berkandi v. Reimer, 30 F.Supp. 767 (S.D.N.Y. 1939), ard, 113 F.2d 429

(2 Cir. 1940) (defrauding the United States of taxes on distilled spirits);

U.S. ex rel. Amato v. Commissioner of Immigration, Ellis Island, New

York Harbor,18 F.Supp. 480 (S.D.N.Y. 1937) (petty larceny); U.S. ex rel.

Portada v. Day, 16 F.2d 328 (S.D.N.Y. 1926) (issuing of checks without

sufficient funds, with intent to defraud); Ponzi v. Ward, 7 F_Supp 736

(D. Mass. 1934) (use of the mails to defraud); Matter ofFlores, Interim

Decision 2752 (BIA 1980) (uttering and selling false or counterfeit

paper relating to registry of aliens); Matter of McNaughton, 16 I&N

Dec. 569 (BIA 1978) (fraudulently affecting public market price of

Section 319(1) provides in relevant part

819. (1) A false pretence is a representation of a matter of fact either present or past,

made by words or otherwise, that is known by the person who makes it to be false and

that is made with a fraudulent intent to induce the person to whom it is made to act

upon it. 1953-54, c. 51, s. 303.

528

Interim Decision #2825

stocks); Matter of Martinez, I&N Dec. 336 (BIA 1977) (passing

counterfeit money); Matter of P—, 3 I&N Dec. 56 (CO 1947; BIA 1948)

(obtaining money by false pretenses); Matter of F—, 2 I&N Dec. 754

(CO 1946; BIA 1947) (defrauding the government of customs duties).

From these cases it can be seen that whenever a crime has involved

intent to defraud, it has been found to involve moral turpitude. The

Court in DeGeorge, supra, stated:

In view of these decisions, it can be concluded that fraud has consistently been

regarded as such a contaminating component in any crime that American courts have,

without exception, included such crimes within the scope of moral turpitude.

841 U.S. at 229.

Whatever else the phrase "crime involving moral turpitude" may mean in peripheral

cases, the decided cases make it plain that crimes in which fraud was an ingredient

have always been regarded as involving moral turpitude.... Fraud is the touchstone

by which this case should be judged. The phrase "crime involving moral turpitude"

has without exception been construed to embrance fraudulent conduct

341 U.S. at 232.

Intent to defraud is a required element to obtain a conviction under

section 338(1). Regina v. Zaritec Industries Ltd. And 3 Others, 24

C.C.C.(2d) 180 (Alberta Supreme Court 1975). The term "defraud"

means deliberate dishonest acts resulting in the deprivation or loss of

another's proprietary right. Regina v. Olan, Hudson and Hartnett, 41

C.C.C.(2d) 145 (Supreme Court of Canada 1978).

The respondent was convicted of a conspiracy (section 423(1)(d)) to

defraud the public (section 338(1)). A conspiracy to commit an offense

involves moral turpitude when the underlying substantive offense is a

crime involving moral turpitude. See Jordan v. DeGeorge, supra; Matter of Flores, supra; Matter of McNaughtcra, supra; Matter of M , 8

I&N Dec. 535 (BIA 1960); Matter of C—, 7 I&N Dec. 114 (BIA 1956);

Matter of S , 2 I&N Dec. 225 (BIA 1944).

We conclude that a conviction under section 338(1) is for a crime

involving moral turpitude and that respondent's conviction for conspiracy to violate section 338(1) involves a crime of moral turpitude

under the above authority. We further conclude that respondent's

deportability under section 241(a)(1) of the Act has been established

by clear, convincing, and unequivocal evidence.

The decision of the immigration judge was correct. Accordingly, the

appeal will be dismissed.

ORDER: The appeal is dismissed.

—

—

Roo

Interim Decision #2826

MATTER OF APHRODITE INVESTMENTS LIMITED

In Visa Petition Proceedings

PHO-N-2277

Decided by Commissioner August 22, 1980

A corporation is a separate entity from its stockholders for the purposes of qualifying an

alien beneficiary as an intra-company transferee under section 101(a)(15)(L) of the

Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L). Cf. Matter of M—, 8 I&N

Dec. 24 (BIA 1958; A.G. 1958).

ON BEHALF or PkTITIONER: Michael Margrave, Esquire

Nancy-Ju Merrill, Euquire

Pearlatein & Margrave

2100 Valley Bank Center

Phoenix, Arizona 85075

This case is before the Commissioner on certification as directed.

The petitidhet is seeking to classify the beneficiary as an intra-compally transferee (L-1) as defined in section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L), as amended.

The petition was denied by the District Director of this Service in

Phoenix. Appeal was taken to the Regional Commissioner, Western

Region. The Regional Commissioner upheld the decision of the District

Director and dismissed the appeal.

Aphrodite Investments is an investment holding company head

quartered in London, England. The company is owned by three

brothers, each of whom possesses approximately a one-third share of

the company. Aphrodite Investments has created two subsidiary companies located in Arizona. The purpose of these companies is to

purchase and develop real estate within Arizona for resale.

The District Director and Regional Commissioner hold that the

beneficiary cannot be classified as an intra-company transferee because he is "an entrepreneur, a speculative investor, and not an employee of an international company." Section 101(a)(15)(L) defines an

intro company transferee as:

An alien who immediately preceding the time of his application for admission into the

United States, has been employed continuously for one year by a firm or corporation or

530

Interim Decision #2826

other legal entity or an affiliate or subsidiary thereof and who seeks to enter the

United States temporarily in order to continue to render his services to the.same

employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge ...

In the amicus brief submitted by the Association of Immigration

and Nationality Lawyers the principle of clear language enforcement

of a statute is properly mentioned. When the meaning of the language

of a statute is plain, -there is no room for a constructed interpretation.

Caminetti v. United States, 242 U.S. 470 (1917). When relying upon the

plain language we look first to relevant definitions within the same

title that are also used in the same or similar context. In the absence of

such definition the every day usage of the terms becomes important.

The Regional Commissioner attempted to establish the everyday

usage of a term he thought was relevant to the L-1 statute. How ever

"employee" is not used in section 101(a)(15)(L). The term used is

"employed." The present tense "employ" is defined in Webster's New

Collegiate Dictionary, in part, as "to provide with a job that pays

wages or a salary." If we were to adopt the definition of "employee" we

would exclude some of the very people that the statute intends to

benefit: executives. Webster's defines "employee" to be "one employed

by another usually for wages or salary and in a position below the

executive level."

In Matter of M—, 8 I&N Dec. 24 (BIA 1958; A.G. 1958), precedent was

established which held that the sole stockholder of a corporation was

able to be employed by that corporation as the corporation has a

separate legal entity from its owners or even its sole owner. While that

case concerned a visa petition for preference classification, I find its

conclusions are equally valid in other areas of concern where an

employer/employee relationship needs to be examined by the Service.

The Regional Commissioner found that the requisite relationship

exists between Aphrodite Investments and MN &S Corporation. The

petitioner's statements established that the beneficiary was employed

for the statutory period by Aphrodite Investments in a managerial

position for their subsidiary in the United States.

Therefore, the following order will be entered.

ORDER, The nonimmigrant visa petition be approved to accord

the beneficiary classification as an intra-company transferee.

531