SERNA
20 I. & N. Dec. 579 (1992)
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Rule of Law:
A conviction under 18 U.S.C. § 1546 for possession of an altered immigration document with knowledge of the alteration is not a crime involving moral turpitude if there is no proof of use or intent to use the document unlawfully. The determination of moral turpitude hinges on evil intent, not the seriousness of the offense or the severity of the sentence.
Facts:
- Serna is a native and citizen of Mexico.
- On January 7, 1985, Serna entered the United States without a valid immigrant visa.
- Serna came into possession of an altered immigration document.
- He had knowledge that the document he possessed was altered.
- There was no evidence that Serna used, or intended to use, the altered document for any fraudulent or unlawful purpose.
- Serna has a child and a fiancée who are United States citizens residing in the United States.
Procedural Posture:
- On August 19, 1985, Serna was convicted in the United States District Court for the Southern District of California for possession of an altered immigration document in violation of 18 U.S.C. § 1546.
- He received a suspended 3-year prison sentence and 3 years of probation.
- The Immigration and Naturalization Service (INS) initiated deportation proceedings against Serna.
- At a hearing before an Immigration Judge, Serna conceded deportability but applied for the relief of voluntary departure.
- In a decision dated February 21, 1986, the Immigration Judge found Serna statutorily ineligible for voluntary departure, ruling that his conviction was for a crime involving moral turpitude, and also denied the request as a matter of discretion.
- Serna (appellant) appealed the Immigration Judge's decision to the Board of Immigration Appeals (BIA).
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Issue:
Does a conviction for possession of an altered immigration document under 18 U.S.C. § 1546, without proof of its use or an intent to use it unlawfully, constitute a crime involving moral turpitude for immigration purposes?
Opinions:
Majority - Milhollan, Chairman
No, a conviction for mere knowing possession of an altered immigration document, without more, is not a crime involving moral turpitude. Moral turpitude inheres in the intent of the offender, not in the severity of the crime or its punishment. Crimes involve moral turpitude when they are intrinsically wrong (malum in se) or contain an element of evil intent, such as fraud. The statute Serna was convicted under, 18 U.S.C. § 1546, requires knowledge that the document was altered, but it does not require an intent to defraud or use it unlawfully. Unlike crimes such as possession of counterfeit currency with intent to defraud, the simple act of possessing an altered document is not inherently evil, as the government is not harmed until the document is actually used or intended to be used for a deceitful purpose. Since it is possible to commit this crime without an evil intent, and any doubts regarding moral turpitude must be resolved in the alien's favor, the conviction does not categorically qualify as a crime involving moral turpitude.
Analysis:
This decision significantly clarifies the definition of a crime involving moral turpitude (CIMT) in the context of possession-based offenses. It establishes that for a possession crime to be a CIMT, the statute must require an element of evil intent (like intent to defraud), or such intent must be inherent in the nature of the crime itself. This ruling prevents the government from classifying mere knowing possession of a fraudulent document as a CIMT without additional proof of intent to use it unlawfully, thus raising the evidentiary bar. The case solidifies the principle that ambiguities in the CIMT analysis must be resolved in favor of the noncitizen, impacting how numerous possession statutes are interpreted in immigration proceedings.
