On September 23, 2016, the Board of Immigration Appeals (BIA or Board), after oral argument , dismissed an appeal of an Immigration Judge’s (IJ’s) ruling pretermitting respondent’s cancellation of removal application under INA§240A(b)(1) and ordering removal. Appellant had been convicted of one count of criminal copyright infringement of per 17 U.S.C. §506 (a)(1)(A) and 18 U.S.C. §2319(b)(1); the IJ concluded respondent was statutorily eligible for cancellation because he had been convicted of a crime involving moral turpitude (CIMT).
In its decision, the BIA initially noted that respondent has the burden of demonstrating that his conviction was not a CIMT under INA§212 (a)(2)(A)(i)(I) and that this determination mandates looking to the nature of the crime as opposed to the specific conduct that led to the conviction. The Board also found that respondent had admitted his conviction and that criminal copyright infringement requires the prosecution to prove a defendant infringed the copyright willfully, e.g., voluntarily. Additionally the BIA stated that this standard is important because such a conviction cannot be based on negligence, recklessness, or even general intent.
Noting further that certain theft offenses have long been held to be CIMT’s, the Board cited numerous BIA precedents holding that crimes requiring intent to defraud are generally CIMT’s. Under this reasoning, held the Board, “it follows that criminal copyright infringement under 17 U.S.C. §506(a)(1)(A) and 18 U.S.C. §2319(b)(1) must also be a crime involving moral turpitude” because both offenses must be committed willfully, in that the defendant voluntarily and intentionally violated a known legal duty not to infringe. The BIA further held the crime to be closely analogous to the theft and fraud crimes that have historically been found to be CIMT’s and therefore dismissed the appeal. Matter of Zaragoza-Vaquero, 26 I&N Dec. 814 (BIA 2016).
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