SERNA

                                                             Interim Decision #3188




                            MATTER OF SERNA
                          In Deportation Proceedings

                                      A-26757902
                     Decided by Board October 14, 1992

(I) Neither the seriousness of a criminal offense nor the severity of the sentence imposed
   therefor is determinative of whether a crime involves moral turpitude.
(2) A conviction under 

 (1982) for possession of an altered
   immigration document with knowledge that it was altered, but without its use or proof
   of any intent to use it unlawfully, is not a conviction for a crime involving moral
   turpitude.
CHARGE:
Order. Act of 1952—Sec. 241(a)(1) [

(aX1))—Excludable at entry under
                      section 212(a)(20) [

(a)(20))—No valid immi-
                     grant visa
ON BEHALF OF RESPONDENT:                              ON BEHALF OF StKVICE:
  Peter it Giordano, Esquire                             Joseph M. Ragusa
  2441 "E" Street                                        General Attorney
 San Diego, California 92102

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members


   In a decision dated February 21, 1986, the immigration judge found
the respondent deportable under section 241(a)(1) of the Immigration
and Nationality Act, 

(a)(1) (1982),' as an alien
    This section of the Act has been revised and redesignated as section 241(a)(1)(A) of
the Act, 

(a)(1)(A) (Supp. 11 1990), by section 602(a) of the Immigration
Act of 1990, Pub. L. No. 101 649, 

, 5078 ("1990 Act"), but that
                                  -


amendment does not apply to deportation proceedings for which notice has been
provided to the alien before March 1, 1991. See section 602(d) of the Immigration Act of
1990, 104 Stat. at 5082. We note that the respondent could also have properly been
charged and found deportable under section 241(a)(5) of the Act on the basis of his
conviction under 

 (1982), in which case he would have been within the
enumerated statutory grounds of deportability which would render him ineligible for
voluntary departure unless additional requirements could be met. See section 244(e)( I)
of the Act, 

(e)(1) (1982); Matter of T-, 

 (BIA 1953)
(holding that alien is not statutorily barred from voluntary departure unless ordered
deported on that ground); see also Matter of Lozada, 

 (BIA 1988).

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Interim Decision #3188

excludable at entry under section 212(a)(20) of the Act, 

(a)(20) (1982), 2 as an immigrant without a valid visa. He
further denied the respondent's request for voluntary departure and
ordered him deported from -the United States to Mexico. The
respondent has appealed from that decision. The appeal will be
dismissed.
   The respondent is a native and citizen of Mexico who entered the
United States on January 7, 1985, without a valid immigrant visa. The
record reflects that he was convicted on August 19, 1985, in the United
States District Court for the Southern District of California, of
possession of an altered immigration document in violation of 

 (1982). He received a 3-year prison sentence, the
execution of which was suspended, and he was placed on probation for
3 years.
   At his deportation hearing, the respondent conceded deportability
and applied for voluntary departure in lieu of deportation. The
immigration judge denied his request, finding that he was statutorily
ineligible for relief because his conviction was for a crime involving
moral turpitude, which placed him within the class of persons
described in section 212(a)(9) of the Act 3 and therefore precluded him
from establishing good moral character under section 101(0(3), 8
U _S.C. § 1101(0(3) (1982). In thus concluding, the immigration judge
relied on our decision in Matter of Flores, 

 (BIA
1980). The immigration judge also determined that the respondent's
request for voluntary departure should be denied in the exercise of
discretion.
   On appeal the respondent argues that the immigration judge abused
his discretion in finding that the offense of which he was convicted was
a crime involving moral turpitude. The respondent has presented
several bases for this claim. First, he contends that the gravity of his
crime is reflected by the light sentence which may be imposed for a
violation of 

 and by the sentence which he in fact
received. He reasons that his offense was "slight" in comparison to the
others included in 

 and therefore should not be
considered to involve moral turpitude. The respondent further regards

But cf. Matter of Correa-Garces, 

 (BIA 1992) (holding that conviction
precluding establishment of good moral character for purposes of voluntary departure
need not be the basis of deportability).
  2 Revised and redesignated as section 212(a)(7)(A)(i)(I) of the Act, 

 182(a)(7)(A)(i)(I) (Supp. II 1990), by section 601(a) of the Immigration Act of 1990,
104 Stat. at 5074.
  3 Revised and redesignated as section 212(a)(2)(A)(i)(I) of the Act, 

 182(a)(2)(A)(i)(I) (Supp. II 1990), by section 601(a) of the Immigration Act of 1990,

 Stat. at 5067.

                                          580
                                                                   Interim Decision #3188

as "ill-founded" the immigration judge's analogy of his conviction to
that in Matter of Flores, supra, for uttering and selling false and
counterfeit paper relating to the registry of aliens. He attempts to
distinguish Matter of Flores, again claiming that his crime was not as
serious because he received no financial gain other than his ability to
remain in this country to support his fiancee and his child. Finally, the
respondent notes the immigration judge's statement that 

 contains broad language, encompassing both crimes which
involve moral turpitude and those which do not, and he proposes that
any doubts in this regard should be resolved in his favor.
   In order to be eligible for voluntary departure, the respondent was
required to establish, inter alia, that he was a person of good moral
character for at least 5 years immediately preceding his application for
such relief. Section 244(e)(1) of the Act, 

(e)(1) (1982). 4
                                                                     Section10(3)fhA,parteclud sonfm
establishing good moral character if he was a member of a class of
persons, whether excludable or not, described in section 212(a)(9) of
the Act, i.e., those convicted of a crime involving moral turpitude, if
the offense was committed during the requisite 5-year periods We
must therefore determine whether the crime of which the respondent
was convicted involves moral turpitude. 6
   At the outset, we note that neither the seriousness of the offense nor
the severity of the sentence imposed is determinative of whether a
crime involves moral turpitude. It is rather a question of the offender's
evil intent or corruption of the mind. See Matter of Flores, supra;

  4 Section 244(e)(1) of the Act, which bars aliens within the provisions of certain
specified grounds of deportation from establishing eligibility for voluntary departure
unless additional requirements are met, was amended by section 603(b)(4)(A) of the
Immigration Act of 1990, 104 Stat. at 5085, to change the paragraph numbers of section
241(a) enumerated therein to conform to the revisions made to the deportation grounds
in the 1990 Act. However, inasmuch as there were no relevant substantive changes made
to the voluntary departure provisions of the statute, we shall make reference in our
decision to the Act as it was constituted at the time the case was before the immigration
judge.
  SSection 101(0(3) of the Act was also amended in a manner similar to section
244(e)(1) by sections 603(a)(1)(A) and (B) of the Immigration Act of 1990, 104 Stet. at
5082, to conform to the amendments to the exclusion grounds.
  6 We note that a similar question arose in Matter of Wadud, 

 (BIA
1984), which involved the issue of eligibility for relief under section 212(c) of the Act.
We declined to address it there, finding it unnecessary in light of our refusal to expand
the scope of section 212(c) in cases where the ground of deportability charged is not also
a ground of inadmissibility. However, in that case the alien, found deportable under
section 241(a)(5) of the Act, argued that his conviction under 

, for
aiding and abetting another alien to obtain a visa by means of a false or fraudulent
claim, was for a crime involving moral turpitude, which would render him excludable
under section 212(a)(9) of the Act and therefore eligible for a waiver of inadmissibility.

                                               581
Interim Decision #3188

Matter ofAbreu-Semino, 12 MEN Dec. 775 (BIA 1968). We have stated
that a crime involving moral turpitude is an act which is per se morally
reprehensible and intrinsically wrong or malum in se. Matter of Flores,
supra, at 227. The term "moral turpitude" has also been defined by the
Attorney General as
  anything done contrary to justice, honesty, principle, or good morals; an act of
  baseness, vileness or depravity in the private and social duties which a man owes to
   his fellow man, or to society in general contrary to the accepted and customary rule of
   right and duty between man and man.
37 Op- Att'y Gen. 293, 294 (1933), quoted in Matter of Sloan, 12 I&N
Dec. Et 40, 849 (BIA 1966; A.G. 1968) (dissenting opinion); see also
Matter of McNaughton, 

 (BIA 1978), affd, 

 (9th Cir. 1980); Matter of Awaijane, 

 (BIA 1972).
   Thus, the fact that a crime may be considered only a minor offense
does not preclude a finding that it involves moral turpitude. For
example, we have held that the crimes of petty larceny and issuance of
worthless checks involve moral turpitude. See, e.g., Matter of Bart, 

 (BIA 1992); Matter of De La Nues, 

(BIA 1 981); Matter of Khalik, 

 (BIA 1980); Matter of
Logan, 

 (BIA 1980); Matter of Esfandiary, 

 (BIA 1979). On the other hand, such crimes as importation,
sale, or possession of drugs, which are deemed to be quite serious and
have harmful consequences, do not involve moral turpitude, because
evil intent is not an element of the offense. See Matter of Abreu-
Semine, supra; Matter of R-, 

 (C.O., BIA 1952); Matter
of V-, 

 (BIA 1942). But see Matter of Y-, 

 (BIA 1946).
   Furthermore, the severity of the sentence imposed on a convicted
criminal does not necessarily reflect whether his offense involves
moral turpitude. Gonzales v. Barber, 

 (9th Cir.
1953), affd, 

 (1954); United States ex rel. Zaffarano v.
Corsi, 

 (2d Cir. 1933). A crime may be a fraudulent or
inherently evil act, and therefore one involving moral turpitude, but
the sentencing judge may nevertheless decide it does not warrant a
severe punishment due to its petty nature or some mitigating
circumstances surrounding the criminal act' See Matter of McNaugh-

  / We note, however, that under the law existing at the time of the immigration judge's
decision, an alien convicted of a crime considered to be one involving moral turpitude
might nonetheless not fall within the provisions of section 212(a)(9) of the Act, because
the statute included an exception for "the conviction of a misdemeanor classifiable as a
potty offense ... by reason of the punishment actually imposed." Section 212(a)(4) of
the Act. Since the respondent's offense was a felony, this exception was not applicable to
his case_ See Matter of Salvail, 

 (BIA 1979). We note that this "petty
offense's exception was subsequently amended by the Comprehensive Crime Control

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                                                           Interim Decision #3188

; see also, e.g., Matter of Sanchez, 

(BIA 1980) (mail fraud conviction with 1-year suspended sentence).
We therefore find no merit to the respondent's contentions that his
crime is not one involving moral turpitude because of the insignifi-
cance of his offense or the light sentence he received.
   We turn now to the statute under which the respondent was
convicted to examine the nature of his crime. The statute provides as
follows:
  Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or
  nonimmigrant visa, permit, or other document required for entry into the United
  States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any
  such visa, permit, or document, knowing it to be forged, counterfeited, altered, or
  falsely made, or to have been procured by means of any false claim or statement, or
  to have been otherwise procured by fraud or unlawfully obtained ... [s]hall be fined
  not more than $2,000 or imprisoned not more than five years, or both.

 (1982).
   In his decision, the immigration judge determined from the
information issued against the respondent that he was convicted of the
use and possession of an altered immigrant visa with the knowledge
that it had been altered, and he concluded that this offense was one
involving moral turpitude. Were it the case that the conviction
included the use of an altered visa, we would agree that it was for a
crime involving moral turpitude because of the strong similarity of
that offense to the crime discussed in Matter of Flores, supra.
However, the judgment of conviction in this case states unambiguous-
ly that the respondent was convicted of possession of an altered
immigration document, so we must consider only whether that offense
involves moral turpitude. See generally Matter of B-, 

,
106 (BIA 1954); Matter of S , 

, 357 (BIA, A.G. 1945).
                                   -


Our review of the myriad cases dealing with the issue of moral
turpitude convinces us that it does not.
   It has been stated that "it is in the intent that moral turpitude
inheres." United States ex reL Meyer v. Day, 

 (2d Cir.
1931); see also United States ex reL Shladzien v. Warden of Eastern
State Penitentiary, 45 F_2d 204 (RD. Pa. 1930); Matter of Abreu-
Semino, supra; Matter of R-, supra. Thus, we have acknowledged that
the "violation of statutes which merely license or regulate and impose
criminal liability without regard to evil intent do not involve moral
turpitude." Matter of G-, 

, 118 (BIA 1956); see also
Act of 1984, 

(a), 

, 2027-28. See Matter of Castro,

 (BIA 1988). It was also further amended by the 1990 Act and now
depends on the maximum penalty possible for the crime and the length of the prison
sentence imposed. See section 212(a)(2)(A)(ii)(II) of the Act, 

(a)(2)(A)(ii)(II) (Supp_ III 1991).

                                          583
Interim Decision #3188

Matter of H-, 

 (BIA 1943). 8 We must therefore look to
the nature of the respondent's crime in order to determine if it
involves evil intent.
   Our review of crimes relating to possession reveals that some are
considered to involve moral turpitude while others are not. We have
stated that criminal possession is a crime involving moral turpitude
when accompanied by the intent to commit a crime involving moral
turpitude. Matter of Jimenez, 

 (BIA 1973) (holding
that possession of forgery devices with the intent to use them for
forgery involves moral turpitude). Thus, carrying or possessing a
concealed weapon has been held to involve moral turpitude only when
the intent to use it against another person has been established. United
States ex rel. Andreacchi v. Curran, 

 (S.D.N.Y. 1926); Ex
parse Saraceno, 

 (S.D.N.Y. 1910); Matter of Granados, 

 (BIA 1979); Matter of 5-, 

 (BIA 1959).
Similarly, possession of burglary tools is not a crime involving moral
turpitude unless accompanied by an intent to commit a turpitudinous
offense such as larceny. United States ex rel. Guarino v. Uhl, 

 (2d Cir. 1939); Matter of S-, 

 (BIA. 1955).
   The offense of possession of counterfeit obligations of the United
States has also been held to involve moral turpitude since the statute
includes the intent to defraud, which has been deemed by the Supreme
Court in Jordon v. DeGeorge, 

 (1951), to be the
"touchstone" for judging whether a crime involves moral turpitude.
Lozano-Giron v. INS, 

 (7th Cir. 1974); see also
Winestock v. INS, 

 (9th Cir. 1978). Similarly, possession
of counterfeit coins and the dies for making such coins was found to
involve moral turpitude where Congress included the requirement of
intent to defraud in the statutes prohibiting such acts. Matter of K-,
I&N Dec. 178 (BIA 1956), rev'd on other grounds, Matter of lores, 

 (BIA 1980).9 However, where intent to defraud was

  8 It has also been noted that the
"moral turpitude" that may be involved in a crime does not exist merely because there
has been a crime, a violation of law.. .. The "moral turpitude" must exist entirely apart
from the fact that some statute has been violated. If a crime is one involving moral
turpitude it is because the act denounced by the statute grievously offends the moral
code of mankind and would do so even in the absence of a prohibitive statute.
United States v. Carroll°, 30 F. Stipp. 3, 6 (W.D. Mo. 1939).
  9 Matter of 

 was overruled in part by Matter of Flores, supra, to the extent
               -


that it held that the offense of making counterfeit coins was not a crime involving moral
turpitude simply because the statute did not include the element of intent to defraud,
which we found in Flores to be inherent in the crime. Cf. United States ex r el. Giglio v.
Melly, 

 (7th Cir. 1953) (holding that making counterfeit coins is not a
crime involving moral turpitude because intent to defraud was absent from the statute).
In Matter of K., the Board reached its conclusion from the discussion in Kaye v. United

                                           584
                                                              Interim Decision #3188

absent from statutes prohibiting the possession of distilled spirits
without a required revenue stamp and the possession of such
counterfeit stamps, we held that the acts outlawed thereby did not
involve moral turpitude. Matter of 6-, supra; see also Matter of
Lethbridge, 

 (BLA. 1965) (holding that possession of
securities made after the similitude of United States securities is not a
crime involving moral turpitude).
   The statute under which the respondent was convicted does not
specifically include the element of fraud. Although it requires knowl-
edge that the immigration document was altered, such knowledge is
not necessarily equated with the intention to use the document to
defraud the United States Government.")
   It is well established that an offense must necessarily involve moral
turpitude in order for a conviction for that crime to support an order
of deportation. See United States ex rel. Zaffarano v. Corsi, 

 (2d Cir. 1933); United States ex rel. Robinson v. Day, 

(2d Cir. 1931); United States ex rel. Mylius v. Uhl, 

 (2d Cir.

States, 

 (7th Cir. 1910), in which the court contrasted the offenses of making
counterfeit coins and molds, which it found to be inherently wrong, with the crimes of
possession of such coins and molds, which were deemed "inherently colorless" and
therefore required the statutory inclusion by Congress of the element of intent to
defraud. 

. In its opinion, the court noted that "Where are many
circumstances under which persons might come in possession of counterfeiting molds,
either without knowledge of their character, or with such knowledge but without intent
to use them fraudulently or unlawfully " 

. But see Baender v. United
States, 

 (9th Cir. 1919) (stating that criminal intent is to be inferred from the
unlawful possession of counterfeit dies because it implies both will and action on the
part of the possessor).
   to We note that possession of stolen goods or mail, with the knowledge that they are
stolen, has been held to be a crime involving moral turpitude. See Okoroha v. INS, 

 (8th Cir. 1983); Matter of Salvail, supra; see also Winestock v. INS, supra
(holding that intent to defraud is implicit in the nature of the crime of passing
counterfeit obligations as genuine because intent to pass worthless obligations with
knowledge of their counterfeit nature is indistinguishable from general intent to deceive
the Government and any recipients of the obligations). Furthermore, guilty knowledge
sufficient to support a finding of moral turpitude has been inferred simply from the
possession of stolen goods where the statute permits such an inference from certain
circumstances. See Wadman v. INS, 

 (9th Cir. 1964); Matter of R-, 6 l&N
Dec. 772 (BIA 1955); see also Baender v. United States, supra (stating that a criminal
intent is to be inferred from the unlawful possession of counterfeit dies). However, we
find these cases to be distinguishable from possession of an altered immigration
document. It is inherently wrong to deprive another person of his property by theft. See,
e.g., Matter of Grazley, 

 (BIA 1973); Matter of Neely and Whylie, 

 (BIA 1966). Therefore, it is also wrong to perpetuate the harm already
inflicted by continuing to possess goods which are known or should be known to be
stolen. However, in the case of an altered document, the Government has not been
harmed until a person actually uses it or intends to use it for fraudulent or deceitful
purposes.

                                           585
Interim Decision #3188

1914); United States ex rel. Valenti v. Karnuth, 

(N.D.N.Y. 1932). It is equally clear that any doubts in deciding such
questions must be resolved in the alien's favor. Fong Haw Tan v.
Phelan, 

 (1948); United States ex rel. Giglio v. Neelly, 

 (7th Cir. 1953); Matter of Hou, 

 (BIA 1992).
   Circumstances may exist under which the respondent might not
have had the intent to use the altered immigration document in his
possession unlawfully. Therefore, we do not consider it appropriate to
hold that the offense of which he was convicted is one involving moral
turpitude. See United States ex rd. Guarino v. Uhl, supra (holding that
possession of burglary tool with intent to use it to commit some crime
which might not involve moral turpitude is not a crime involving
moral turpitude); Kaye v. United States, 

 (7th Cir. 1910)
(stating that there are many circumstances under which a person might
possess counterfeit molds without intent to use them fraudulently or
unlawfully); Matter of K, 

 (BIA 1944) (finding that
receipt of stolen goods without knowledge they are stolen or without
intent to deprive owner of his possession is not a crime involving
moral turpitude). Accordingly, we find that the crime of possession of
an altered immigration document with the knowledge that it was
altered, but without its use or proof of any intent to use it unlawfully,
is not a crime involving moral turpitude. Consequently, the respon-
dent is not barred from establishing eligibility for voluntary departure
under section 101(f)(3) of the Act as an alien convicted of a crime
involving moral turpitude.
   However, voluntary departure is a form of discretionary relief, and
the immigration judge determined that the respondent did not merit a
favorable exercise of discretion. While he noted that the respondent
had been residing in the United States for 7 years and intended to
marry a United States citizen with whom he had a child, the
immigration judge concluded that the respondent's conviction present-
ed a serious adverse factor which, on balance, warranted denial of the
privilege of voluntary departure as a matter of discretion. As we agree
with the immigration judge, and the respondent has offered no
argument to the contrary on the issue of discretion, we will not disturb
his finding in this regard. Accordingly, the appeal will be dismissed.
   ORDER:         The appeal is dismissed.




                                  586