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Immigration Appellate Court Rules on Whether Criminal Copyright Infringement Is Grounds for Inadmissibility

copyright symbolFederal immigration law identifies multiple criteria for admissibility to the U.S. on an immigrant or nonimmigrant visa, ranging from health issues to criminal history and national security concerns. An allegation of inadmissibility may result in the denial of a visa petition or the initiation of removal proceedings for someone who is already in the country. “Inadmissibility” is different from “deportability,” at least in a legal sense. In either case, the government may try to remove, or “deport,” the individual. A person alleged to be inadmissible may be able to obtain relief through a waiver or certain other procedures, such as cancellation of removal. The first issue to consider, however, is whether the government has alleged valid grounds for inadmissibility. A recent decision by the Board of Immigration Appeals (BIA) considered whether criminal copyright infringement constitutes a “crime of moral turpitude” under the Immigration and Nationality Act (INA). The court ruled in the government’s favor on this question in Matter of Zaragoza-Vaquero, Int. Dec. No. 3873, 26 I&N Dec. 814 (BIA 2016).

The INA defines an “inadmissible” person as someone who is “ineligible to receive visas and…to be admitted to the United States.” 8 U.S.C. § 1182(a). Perhaps one of the most common grounds for inadmissibility is “presen[ce] without admission or parole,” id. at § 1182(a)(6)(A)(i), meaning that the person entered the U.S. without a visa or other official permission from the federal government. A person who has been lawfully admitted to the U.S. as an immigrant or nonimmigrant could be deemed “deportable” under certain circumstances. The key difference is that an inadmissible person, by legal definition, should never have entered the U.S., while a deportable individual has lost the legal right to remain. Inadmissible people are also deportable under the INA, id. at § 1227(a)(1)(A).

The INA identifies several types of criminal convictions that could render someone inadmissible, including any “crime of moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). The statute does not define the term “moral turpitude,” but the BIA states that caselaw has defined it as an offense that is “inherently base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons or to society in general.” Zaragoza-Vaquero, 26 I&N Dec. at 815

The offense at issue in Zaragoza-Vaquero, criminal copyright infringement, may occur when a person “willfully infringes a copyright…for purposes of commercial advantage or private financial gain.” 17 U.S.C. § 506(a)(1)(A). Penalties range from one year to 10 years in prison. 18 U.S.C. § 2319(b). The BIA found that this constitutes a crime of moral turpitude, noting the statutory requirement that a defendant act “willfully.” It likened the offense to “certain theft offenses” and offenses “that require intent to defraud,” which are established as crimes of moral turpitude. Zaragoza-Vaquero at 816.

Immigration attorney Samuel C. Berger represents immigrants in the New York City and Northern New Jersey areas, as well as prospective immigrants who want to come to this region. He also represents family members and employers petitioning for an immigrant visa and employers seeking a nonimmigrant visa for a foreign worker. Contact us today online, at (201) 587-1500, or at (212) 380-8117 to schedule a confidential consultation to see how our experienced and skilled team can help you.

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New Jersey Supreme Court Rules on Role of State Courts in Special Immigrant Juvenile Cases, New Jersey Immigration Lawyer Blog, September 24, 2015

New York City Passes Laws Further Restricting Local Law Enforcement’s Cooperation with Federal Immigration Detainers, New Jersey Immigration Lawyer Blog, October 29, 2014

Photo credit: PeteLinforth [Public domain], via Pixabay.