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The BIA finds yet another copyright/trademark infringement is a CIMT

In Matter of Raul Zaragoza-Vaquero, 26 I&N Dec. 814 (BIA 2016), the Board of Immigration Appeals held that the offense of criminal copyright infringement in violation of 17 U.S.C. 506(a)(1)(A) and 18 U.S.C. 2319(b)(1) is a crime involving moral turpitude. The immigration judge had found the alien removable under INA 212(a)(6)(i) and then pretermitted his application for cancellation of removal for certain nonpermanent residents under INA 240A(b)(1) because, the IJ alleged, his conviction for “reproducing and distributing infringing copes for commercial advantage or private financial gain” was a CIMT. The case does not explain the facts underlying the conviction.

In examining whether the conviction was a CIMT, the Board noted that “[m]oral turpitude refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons or society in general.” The Board took pains to note that criminal copyright infringement is distinct from civil copyright infringement because it involves willful conduct, and mere evidence of reproduction or distribution of copyrighted work, by itself, is not sufficient to establish criminally willful infringement.

The Board cited to its previous decisions in Matter of Flores, 17 I&N Dec. 225 (BIA 1980) (uttering or selling false or counterfeit paper relating to the registry of aliens was a crime involving moral turpitude, even without any element of intent to defraud), and Matter of Kochlani, 24 I&N Dec. 128 (BIA 2007) (trafficking in counterfeit goods is a CIMT because it involves theft of a trademark) to support its decision that criminal copyright infringement is a CIMT. The Board, as it did in Kochlani, also cited to external evidence, including legislative history, to emphasize that Congress considers theft of intellectual property to be a serious crime. Responding to the alien’s argument that its holding could encompass fair use, the Board noted, quite logically, that the criminal statutes at issue made an exception of the fair use of copyrighted materials.

Commentary: The problem with the Board’s decisions on copyright/trademark infringement is not that they necessarily represent bad policy, or even that they don’t follow from the decisions the Board cites, but that they have wandered significantly from the benchmark of morally turpitudinous conduct which is that it “shocks the public conscience.” The traditional categories of morally turpitudinous crime, i.e., violent crimes, theft, and fraud, meet this standard. Although we may agree that copyright and trademark law benefit society economically, the public psychological shock of learning that an individual sold a bootleg CD in no way compares to that of an individual being assaulted or having his house burgled or learning that a trusted accountant has robbed him of his life savings and fled the country. Viewed in the light of the Board’s CIMT jurisprudence over the last 15 years, Zaragoza seems to represent another step in the Board’s piecemeal strategy to expand the definition of CIMT until it encompasses almost all crimes, whether or not they are “inherently base, vile or depraved.” Matter of Kochlani, the Board’s trademark infringement case which it uses to support its opinion here, is a particularly reaching decision. There, the Board reasoned disingenuously that selling knock-off goods “deceive[s] the public at large,” despite the fact that there is no fraud implicit in a transaction between a knowing seller and a knowing buyer of a knock-off $50,000 purse for $20.

Omari v. Gonzales, 419 F. 3d 303 (5th Cir. 2005), provides a good counter. There, the Fifth Circuit was asked to determine whether the selling of forged airline tickets to knowing individuals was an aggravated felony crime “involving fraud or deceit.” The Court determined that it was not because the parties to the transactions were not deceiving each other; only the airlines were being fooled. Although the Fifth Circuit was not determining whether the crime was turpitudinous, its reasoning may be sufficient to find that the Board erred in determining that copyright infringement is a CIMT based on its analogy to a crime of fraud.

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