Omagah v. Ashcroft

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 01-60373
Summary Calendar
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FERDINAND OMAGAH,
Petitioner,
VERSUS
JOHN ASHCROFT, ATTORNEY GENERAL,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
_________________________
April 22, 2002
Before JONES, SMITH and EMILIO M.
GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Ferdinand Omagah petitions for review of
an order of the Attorney General refusing to
grant a discretionary suspension of deporta-
tion. The Immigration Judge (“IJ”) and Board
of Immigration Appeals (“BIA”) concluded
that Omagah’s conviction, under 18 U.S.C.
§ 371, of conspiracy to obtain, possess, and
use fraudulent immigration documents barred
suspension. We deny the petition for review.
I.
Omagah, a Nigerian citizen, originally en-
tered the United States on August 12, 1981,
using an F-1 student visa and resided there
from August 12, 1981, to the present, with the

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exception of two thirty-day visits to see his
parents. Omagah applied for permanent resi-
dence through the amnesty program, and his
application was pending on April 11, 1995.
On August 4, 1995, the Attorney General
initiated an order to show cause why Omagah
should not be deported because (1) he had
overstayed his student visa; and (2) he had
been convicted of conspiring to obtain, pos-
sess, and use false immigration documents.
On December 19, 1995, the IJ ordered
Omagah deported to Nigeria, then considered
his request for suspension of deportation and
voluntary departure. At the suspension hear-
ing, the government introduced the plea agree-
ment and accompanying factual resume and
argued that Omagah was per se ineligible for
suspension because the conviction established
that he lacked good moral character.
The IJ found that Omagah lacked good
moral character for two reasons. First, the IJ
agreed that the conspiracy to obtain, possess,
and use illegal immigration documents proved,
as a matter of law, that Omagah lacked good
moral character. Second, the IJ found that
Omagah had testified falsely under oath at the
suspension hearing: His testimony that he
merely was inquiring about his immigration
status during the meeting with the immigration
officer was belied by the plea agreement and
factual resume. The IJ found that Omagah had
perpetrated a fraud on the court by testifying
falsely. The BIA upheld the IJ’s decision on
appeal.
II.
The Attorney General has discretion to sus-
pend an alien’s deportation for criminal con-
victions if the alien
is deportable under paragraph (2), (3),
or (4) of section 1251(a) of this title; has
been physically present in the United
States for a continuous period of not
less than ten years immediately follow-
ing the commission of an act, or the
assumption of a status, constituting a
ground for deportation, and proves that
during all of such period he has been and
is a person of good moral character; and
is a person whose deportation would, in
the opinion of the Attorney General,
result in exceptional and extremely un-
usual hardship to the alien or to his
spouse, parent, or child, who is a citizen
of the United States or an alien lawfully
admitted for permanent residence.
8 U.S.C. § 1254(2) (1994 ed.).1 So, the stat-
ute establishes two prerequisites before the
Attorney General may find “exceptional and
extremely unusual hardship” and suspend
deportation: (1) continuous residence for over
ten years and (2) “good moral character.” If
the alien fails to satisfy one of those prerequi-
sites, the Attorney General lacks the discretion
to suspend deportation under § 1254.2
There is a two-part standard to review the
BIA’s finding that the alien per se lacks “good
moral character.” Hamdan v. INS, 98 F.3d
183, 185 (5th Cir. 1996). First, we consider
1 We apply the waiver provisions of the Immi-
gration and Nationality Act (“INA”) as they ex-
isted at the time the alien pleaded guilty. INS v. St.
Cyr, 533 U.S. 289 (2001). We consider the 1995
version of the § 1254, because Omagah pleaded
guilty on August 3, 1995.
2 Even if the alien satisfies those prerequisites,
the Attorney General may decline to suspend de-
portation. Moosa v. INS, 171 F.3d 994, 1012-13
(5th Cir. 1999).

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3
whether the BIA has applied the correct legal
standard to determine good moral character.
Id. We must accord deference to the BIA’s
legal interpretation of “good moral character”
and “moral turpitude” as used in the INA. Id.
If the phrases are ambiguous, we defer to the
BIA’s reasonable interpretation. Id.3 We will
review de novo, however, the interpretation of
federal and state criminal statutes. Hamdan,
98 F.3d at 185. Determining a particular fed-
eral or state crime’s elements lies beyond the
scope of the BIA’s delegated power or accu-
mulated expertise.
If we determine that the BIA has inter-
preted the INA reasonably and the substantive
criminal law correctly, we proceed to the sec-
ond step, in which we use the “substantial evi-
dence” test to evaluate the BIA’s factual find-
ing that a specific alien lacks “good moral
character.” Id. (quotation omitted) (citation
omitted). The substantial evidence standard
requires only that the BIA’s decision be sup-
ported by record evidence and be substantially
reasonable. Id. (quotation omitted) (citation
omitted); Mikhael v. INS, 115 F.3d 299, 302
(5th Cir. 1997).
We lack jurisdiction to review the BIA’s
discretionary decisions. Omagah challenges a
BIA decision issued after October 31, 1996, in
a deportation case initiated before April 1,
1997, so we have jurisdiction under the transi-
tional rules set forth in the Illegal Immigration
Reform and Immigrant Responsibility Act
(“IIRIRA”).4 IIRIRA’s transitional rules strip
the courts of appeals of jurisdiction over the
Attorney General’s “discretionary decisions”
over whether to suspend deportation.5 For
example, we lack the jurisdiction to review the
BIA’s discretionary judgment concerning
whether the alien’s citizen family members
would suffer “unusual and extremely severe
hardship.” Moosa, 171 F.3d at 1010-11.
The alien, however, must satisfy the resi-
dency requirement and prove statutory eligibil-
ity for “good moral character” before the BIA
exercises its discretion. The question of “good
moral character” is not left entirely to the
executive’s discretion. Convictions of crimes
of “moral turpitude” establish per se an ab-
sence of “good moral character.”6 Where the
3 Because the BIA interpreted the INA through
formal adjudication, we give its interpretation
Chevron deference. United States v. Mead Corp.,
533 U.S. 218, 226-27 (2001) (explaining that
Chevron deference is due when an agency acts
according to legally delegated authority inherent in
formal adjudication); INS v. Aguirre-Aguirre, 526
U.S. 415, 423-25 (1999) (stating that BIA should
receive Chevron deference for interpretations made
during case-by-case adjudication); Faddoul v. INS,
37 F.3d 185, 188 (5th Cir. 1994) (“We accord
deference to the BIA’s interpretation of the immi-
gration statute unless there are compelling indica-
tions that its interpretation is incorrect.”) (citation
omitted).
4 IIRIRA §§ 309(a), 309(c)(4), Pub. L. No.
104-208, 110 Stat. 3009 (Sept. 30, 1996); Rod-
riguez-Silva v. INS, 242 F.3d 243, 246 (5th Cir.
2001); Moosa, 171 F.3d at 1010. The pre-
IIRIRA, INA § 106 jurisdictional provisions es-
tablish a default where there is a gap in the transi-
tional rules. Rodriguez-Silva, 242 F.3d at 246.
5 IIRIRA § 309(c)(4)(E) (stating that “there
shall be no appeal of any discretionary decision
under section 212(c), 212(h), 212(i), 244, or 245
of the Immigration and Nationality Act (as in effect
as the date of the enactment of this Act)”); Moosa,
171 F.3d at 1011-12 (interpreting transitional rules
as eliminating jurisdiction over discretionary
suspension decisions).
6 The INA defines a person convicted of a crime

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BIA bases its decision on a past conviction for
a crime of “moral turpitude,” we should apply
our pre-IIRIRA standard of review.7 In this
case, the BIA based its decision on Omagah’s
conviction, moral turpitude, and per se ineligi-
bility for suspension. We may review that
conclusion, because the statute classifies it as
nondiscretionary.
III.
The BIA found that Omagah lacked good
moral character because he had committed a
crime of moral turpitude. That conclusion is
reasonable: Conspiring to obtain, possess, and
use illegal immigration documents is a crime of
moral turpitude. The crime involves fraud as
a central ingredient and requires proof of mens
rea sufficient to classify it as a crime of moral
turpitude.
A.
We previously have adopted the BIA’s
definition of moral turpitude:
Moral turpitude refers generally to con-
duct that shocks the public conscience
as being inherently base, vile, or de-
praved, and contrary to the accepted
rules of morality and the duties owed
between persons or to society in gen-
eral. Moral turpitude has been defined
as an act which is per se morally repre-
hensible and intrinsically wrong, or mal-
um in se, so it is the nature of the act
itself and not the statutory prohibition of
it which renders a crime one of moral
turpitude. Among the tests to determine
if a crime involves moral turpitude is
whether the act is accompanied by a
vicious motive or a corrupt mind.
Hamdan, 98 F.3d at 186 (quoting BIA’s de-
cision in the same case) (internal citations
omitted).
We concentrate on the “inherent nature of
the crime, as defined in the statute concerned,
rather than the circumstances surrounding the
particular transgression.” Okoro v. INS, 125
F.3d 920, 926 (5th Cir. 1997) (citing Okabe v.
INS, 671 F.2d 863, 865 (5th Cir. 1982)). As
a general rule, if a criminal statute encom-
passes both acts that do and do not involve
moral turpitude, then the BIA cannot sustain a
finding of deportability. Pichardo v. INS, 104
F.3d 756, 760 n.6 (5th Cir. 1997); Hamdan,
98 F.3d at 187. For us to sustain a finding of
deportability under such an overbroad statute,
the law must be divided into discrete subsec-
tions that track the distinction between moral
turpitude and less severe conduct. Hamdan,
98 F.3d at 187.
of moral turpitude as lacking “good moral charac-
ter.” 8 U.S.C. § 1101(f)(3) (defining a person as
lacking good moral character if convicted of an
offense described in 8 U.S.C. § 1182(a)(2)(A)
(1994 ed.)); 8 U.S.C. § 1182(a)(2)(A) (1994 ed.)
(defining aliens convicted of crimes involving
moral turpitude as excludable).
7 Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir.
1997) (“If the BIA finds the alien falls into a per se
category, then the BIA lacks discretion to grant the
suspension of deportation.”); Bernal-Vallejo v.
INS, 195 F.3d 56, 63 (1st Cir. 1999) (dictum)
(explaining that court of appeals retain jurisdiction
over moral character judgments based on per se
categories, even under the transitional rules). See
Moosa, 171 F.3d at 1011-12 (refusing to exercise
jurisdiction because the BIA had explicitly de-
scribed its decision as discretionary and had
assumed arguendo that the alien had proved both
residency and good moral character).

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In practice, the Supreme Court and courts
of appeals have de-emphasized the distinction
between malum in se and mala prohibita
crimes. Crimes including dishonesty or lying
as an essential element involve moral turpi-
tude. In Jordan v. DeGeorge, 341 U.S. 223,
229 (1951), the Court held that the (potentially
regulatory) offense of evading liquor taxes
constituted a crime of moral turpitude. The
Court did not address whether evading liquor
taxes was malum in se or mala prohibita; in-
stead, it explained “that fraud has consistently
been regarded as such a contaminating compo-
nent in any crime that American courts have,
without exception, included such crimes within
the scope of moral turpitude.” Id. In the
wake of Jordan, the courts of appeals have
interpreted “moral turpitude” as including a
wide variety of crimes that involve some fraud
or deceit.8
When assessing substantive criminal laws,
we have focused on the elements of the crime.
If the government must prove that the defen-
dant acted with a guilty mind or intentionally
deceived someone, we have been more likely
to classify it as a crime of moral turpitude.9
With these general principles in mind, we turn
to the specific provisions of 18 U.S.C. §§ 371
and 1546.
B.
Federal law establishes severe penalties for
[w]hoever . . . utters, uses, attempts to
use, possesses, obtains, accepts, or
receives any [ ] visa, permit, border
crossing card, alien registration receipt
card, or other document prescribed by
statute or regulation for entry into or as
evidence of authorized stay or employ-
ment in the United States, knowing it to
be forged, counterfeited, altered or
falsely made, or to have been procured
by means of any false claim or state-
ment, or to have been otherwise pro-
cured by fraud or unlawfully obtained .
. . .
18 U.S.C. § 1546 (emphasis added). Omagah
was convicted, under § 371, of conspiring to
possess and use documents in violation of
§ 1546. The BIA found that although mere
possession may not rise to the level of required
moral turpitude, conspiracy to possess with
intent to use does rise to the level of moral
turpitude. Omagah responds that the BIA’s
distinction is not supported by §§ 371 and
1546 or by the record of the criminal indict-
ment and plea.
8 E.g., United States ex rel. Sollazzo v. Esper-
dy, 285 F.2d 342, 342 (2d Cir. 1961) (classifying
bribery of a person involved in amateur athletics as
a crime involving moral turpitude); United States
ex rel. Popoff v. Reimer, 79 F.2d 513, 515 (2d Cir.
1935) (crime of encouraging alien to lie to obtain
citizenship); United States ex rel. Karpay v. Uhl,
70 F.2d 792, 792-93 (2d Cir. 1934) (perjury);
Calvo-Ahumada v. Rinaldi, 435 F.2d 544, 546 (3d
Cir. 1970) (making false statement under oath in
application for permanent residence); Iredia v. INS,
981 F.2d 847, 849 (5th Cir. 1993) (credit card
fraud); Balogun v. Ashcroft, 270 F.3d 274, 278-79
& n.1 (5th Cir. 2001) (interpreting Alabama law
making illegal the forgery, possession, or use of
fake credit cards); United States ex rel. Flores v.
Savoretti, 205 F.2d 544, 547 (5th Cir. 1953)
(perjury); Kabongo v. INS, 837 F.2d 753, 758 (6th
Cir. 1988) (lying on a student loan application).
9 Pinchardo, 104 F.3d at 760 (focusing on ele-
ments of the crime that might classify it as one of
moral turpitude); Okabe, 671 F.2d at 865 (“Offer-
ing a bribe under this statute is a crime involving
moral turpitude, for a corrupt mind is an essential
element of the offense.”) (citations omitted).

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Omagah’s is the latest in a series of three
decisions of the BIA interpreting convictions
of crimes related to § 1546. The BIA first
held that forging immigration documents is a
crime of moral turpitude. In re Flores, 17 I. &
N. Dec. 225, 226 (BIA 1980). Interpreting
the predecessor to § 1546, the board reasoned
that, although the statute does not require a
showing of intent to defraud, a fraudulent in-
tent inheres in the act of counterfeiting docu-
ments and violating the statute. Id. at 228.
The BIA next interpreted moral turpitude
as requiring more than mere possession of il-
legal immigration documents; for there to be a
crime of moral turpitude, the alien also must
intend to use the documents, In re Serna, 20 I.
& N. Dec. 579, 586 (BIA 1992); “criminal
possession is a crime involving moral turpitude
when acco mpanied by the intent to commit a
crime involving moral turpitude,” id. at 584.
In Omagah’s case, the BIA rounded out its
trilogy by holding that conspiracy to possess
forged immigration documents with intent to
use them involved moral turpitude.
Omagah challenges the reasonableness of
the BIA’s interpretation advanced in these
three decisions. We review de novo the BIA’s
decision to parse §§ 371 and 1546 into sepa-
rate crimes.
The BIA properly focused on § 1546, be-
cause § 371 generically prohibits conspiring to
“defraud” or “commit an offense against” the
United States. The BIA then interpreted
§ 1546 as separately prohibiting (1) simple,
knowing possession of illegal documents,
(2) possession of illegal documents with an in-
tent to use them, and (3) forgery of illegal doc-
uments. Section 1546 prohibits a wide variety
of crimes relating to the forgery of immigra-
tion papers: forging papers, owning blank
papers, lying on applications, and impersonat-
ing another person. 18 U.S.C. § 1546(a)-(b).
As we demonstrate below, the BIA could
have chosen to classify all of this conduct as
involving moral turpitude, given that fraud in-
heres in each. Instead, the BIA has taken a
consistent position that benefits aliens: The
analytically distinct and lesser offenses do not
constitute crimes of moral turpitude. Parsing
the statute along those lines conforms to our
precedent.
We find reasonable the BIA’s decision to
classify, as moral turpitude, conspiracy to pos-
sess illegal immigration documents with the
intent to defraud the government. We owe
Chevron deference to the BIA’s interpretation
of whether conspiring to violate § 1546 in-
volves “moral turpitude” or impugns
Omagah’s “good moral character.” Many
courts have held an intent to defraud the
government proves moral turpitude.10
Omagah points to two Ninth Circuit
decisions to argue that such intent does not
suffice; both cases are inapposite and fail to
prove the BIA’s interpretation unreasonable.
10 Montero-Ubri v. INS, 229 F.3d 319, 321 (1st
Cir. 2000) (finding indictment for use of false
driver’s license sufficient to prove moral turpitude
even though mere possession would not be); Michel
v. INS, 206 F.3d 253, 263 (2d Cir. 2000)
(classifying criminal possession of stolen bus
passes as moral turpitude because statute required
knowledge of stolen status as an element); Zainto-
na v. INS, 9 F.3d 432, 437-38 (6th Cir. 1993)
(opining that making a false statement on a driver’s
license application is moral turpitude); Lozano-
Giron v. INS, 506 F.2d 1073, 1076 (7th Cir. 1974)
(classifying possession of counterfeit money with
intent to distribute as a crime involving moral
turpitude).

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In Beltran-Tirado v. INS, 213 F.3d 1179,
1183-84 (9th Cir. 2000), the court held that
using an unlawful social security number did
not involve moral turpitude. The court relied
heavily, however, on legislative history from
congressional amendments decriminalizing the
otherwise lawful use of a fake social security
number. Id. The panel emphasized that those
amendments proved that the illegal use of a
social security number on an employment veri-
fication form should not count as moral tur-
pitude. Id. In Hirsch v. INS, 308 F.2d 562,
567 (9th Cir. 1962), the court held that making
false statements to a federal agency did not
involve moral turpitude.
Hirsch, however, may best be described as
an outlier, because almost all other courts have
held that intentionally deceiving the gov-
ernment involves moral turpitude.11 Even if,
arguendo, these two decisions demonstrated
that the BIA’s interpretation of “moral
turpitude” is incorrect, neither proves its
unreasonableness.
Finally, the plea of guilty and factual
resume in this case amply support the BIA’s
conclusion that Omagah intended to defraud
the United States. The convicting court ac-
cepted Omagah’s guilty plea of “conspiracy to
obtain, possess, and use forged, counterfeited,
and falsely made immigration documents”
under § 371. In the factual resume, Omagah
admitted that he had attempted to buy a green
card from an INS official and pay the official
to change the INS’s computer records. These
facts, at the very least, support an indictment
for conspiring to possess illegal immigration
documents and defraud the United States, and
the BIA has reasonably classified such a con-
spiracy as a crime involving moral turpitude.
The petition for review is DENIED.
11 Supra notes 7, 9.

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