Matter of ZARAGOZA-VAQUERO, 26 I&N Dec. 814 (BIA 2016) criminal copyright infringement is a crime involving moral turpitude.


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Matter of Raul ZARAGOZA-VAQUERO, Respondent

Decided September 23, 2016

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

The offense of criminal copyright infringement in violation of 17 U.S.C. § 506(a)(1)(A)
(2012) and 18 U.S.C. § 2319(b)(1) (2012) is a crime involving moral turpitude.

FOR RESPONDENT: Pablo Rocha, Esquire, Harlingen, Texas

FOR THE DEPARTMENT OF HOMELAND SECURITY: Jose R. Solis, Assistant
Chief Counsel

BEFORE: Board Panel: PAULEY, MALPHRUS, and MULLANE, Board Members.

MULLANE, Board Member:

In a decision dated March 18, 2015, an Immigration Judge found the
respondent removable under section 212(a)(6)(A)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(A)(6)(A)(i) (2012), pretermitted his
application for cancellation of removal under section 240A(b)(1) of the Act,
8 U.S.C. § 1229b(b)(1) (2012), and ordered him removed from the United
States. The respondent has appealed from the Immigration Judge’s
decision. The panel heard oral argument in this matter on November 19,
2015. The appeal will be dismissed.
It is undisputed that the respondent was convicted on October 31, 2012,
of one count of criminal infringement of a copyright, a felony offense, in
violation of 17 U.S.C. § 506(a)(1)(A) (2012) and 18 U.S.C. § 2319(b)(1)
(2012), for which he was sentenced to 33 months in prison and ordered to
pay $36,000 in restitution.1 According to 17 U.S.C. § 506(a)(1),

Any person who willfully infringes a copyright shall be punished as provided
under section 2319 of title 18, if the infringement was committed—
(A) for purposes of commercial advantage or private financial gain . . . .
1 Because it is undisputed that the respondent was convicted under 17 U.S.C.
§ 506(a)(1)(A) and 18 U.S.C. § 2319(b)(1), we need not decide whether a violation of
17 U.S.C. § 506(a)(1)(B) or (C) is a crime involving moral turpitude.
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In turn, 18 U.S.C. § 2319(b) provides as follows:

Any person who commits an offense under section 506(a)(1)(A) of title 17—
(1) shall be imprisoned not more than 5 years, or fined in the amount set forth in
this title, or both, if the offense consists of the reproduction or distribution,
including by electronic means, during any 180-day period, of at least 10 copies or
phonorecords, of 1 or more copyrighted works, which have a total retail value of
more than $2,500 . . . .

The Immigration Judge concluded that the respondent was convicted of a
crime involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act,
which rendered him statutorily ineligible for cancellation of removal
pursuant to section 240A(b)(1)(C).
It is the respondent’s burden of proof to establish that he satisfies the
applicable eligibility requirements for cancellation of removal. See section
240(c)(4)(A)(i) of the Act, 8 U.S.C. § 1229a(c)(4)(A)(i) (2012). Therefore,
to be statutorily eligible for cancellation of removal, the respondent must
demonstrate that his conviction for criminal copyright infringement was not
a crime involving moral turpitude under section 212(a)(2)(A)(i)(I) of the
Act. Moral 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 to
society in general. See Cisneros-Guerrerro v. Holder, 774 F.3d 1056, 1058
(5th Cir. 2014); Nino v. Holder, 690 F.3d 691, 694 (5th Cir. 2012). To
determine whether a criminal offense involves moral turpitude, we
ordinarily look to the nature of the crime, rather than the specific conduct
that resulted in the conviction. See Okabe v. INS, 671 F.2d 863, 865
(5th Cir. 1982); Matter of Torres-Varela, 23 I&N Dec. 78, 84 (BIA 2001).
Furthermore, “the nature of a crime is measured against contemporary
moral standards and may be susceptible to change based on the prevailing
views in society.” Matter of Lopez-Meza, 22 I&N Dec. 1188, 1192 (BIA
1999).
The respondent conceded that he has been convicted of reproducing and
distributing infringing copies for commercial advantage or private financial
gain in violation of 17 U.S.C. § 506(a)(1)(A). Criminal copyright law is
distinct from civil copyright law, and not every infringement is a criminal
offense. Criminal copyright infringement under that statute requires the
Government to prove that the defendant willfully infringed the copyright.
See United States v. Goss, 803 F.2d 638, 642 (11th Cir. 1986). The term
“willfully,” as it is used in 17 U.S.C. § 506(a), means that the defendant
committed a “voluntary, intentional violation of a known legal duty.”
United States v. Liu, 731 F.3d 982, 990 (9th Cir. 2013) (quoting Cheek
v. United States, 498 U.S. 192, 201 (1991)). According to 17 U.S.C.
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§ 506(a)(2), “[E]vidence of reproduction or distribution of a copyrighted
work, by itself, shall not be sufficient to establish willful infringement of a
copyright.”
The willfulness standard is significant because a criminal copyright
infringement prosecution cannot be sustained based on negligence,
recklessness, or even general intent. One reason given for the creation of
this heightened standard was that it would ensure that “an educator who in
good faith believes that he or she is engaging in a fair use of copyrighted
material could not be prosecuted.” 143 Cong. Rec. 26,420–21 (1997).
Certain uses of copyrighted materials are not violations of 17 U.S.C.
§ 506(a)(1)(A) where they involve the “fair use” or “first sale” of a
copyrighted work.2
We have long held that certain theft offenses are crimes involving moral
turpitude. See, e.g., Matter of Jurado, 24 I&N Dec. 29, 33 (BIA 2006).
Crimes that require intent to defraud are also crimes involving moral
turpitude. Jordan v. De George, 341 U.S. 223, 229 (1951) (observing “that
fraud has consistently been regarded as such a contaminating component in
any crime that American courts have, without exception, included such
crimes within the scope of moral turpitude”). Other crimes that are
inherently fraudulent involve moral turpitude even if the crime does not
require specific intent to defraud. See, e.g., Matter of Tejwani, 24 I&N
Dec. 97, 98 (BIA 2007). In Matter of Flores, 17 I&N Dec. 225, 228–30
(BIA 1980), we held that the offense of uttering or selling false or
counterfeit paper relating to the registry of aliens in violation of 18 U.S.C.
§ 1426(b) (1976) was a crime involving moral turpitude, even though the
Government was not required to prove that the offender had the specific
intent to defraud.3

2 Both the “fair use” and “first sale” doctrines are statutory limitations on the exclusive
rights of the copyright holder. See generally Dowling v. United States, 473 U.S. 207, 217
(1985); Goss, 803 F.2d at 643–44. The “fair use doctrine” provides that the unauthorized
use of copyrighted works “for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship, or research, is not an
infringement of copyright.” 17 U.S.C. § 107 (2012). Thus, it permits the unauthorized
use of copyrighted material under certain circumstances, such as where there is a useful
or beneficial purpose and the impact on the market for the work is minimal. Additionally,
the “first sale” doctrine entitles “the owner of a particular copy or phonorecord lawfully
made under [title 17 of the United States Code], or any person authorized by that
owner . . . , without the authority of the copyright owner, to sell or otherwise dispose of
the possession of that copy or phonorecord.” 17 U.S.C. § 109(a) (2012).
3 The respondent contends that his conviction for criminal copyright infringement is not
for a crime involving moral turpitude because fraud is not an element of 17 U.S.C.
§ 506(a)(1)(A). However, we have never held that intent to defraud is a required element
for an offense to be a crime involving moral turpitude.
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We relied on Matter of Flores in Matter of Kochlani, 24 I&N Dec. 128,
131 (BIA 2007), where we held that the offense of trafficking in counterfeit
goods or services under 18 U.S.C. § 2320 (2000), which includes the use of
a “spurious” or “counterfeit mark,” is a crime involving moral turpitude
because it “involves the theft of someone else’s property in the form of a
trademark.” Based on our prior theft and fraud cases, we concluded there
that trafficking in counterfeit goods “is in many ways analogous to the
offense of uttering or selling false or counterfeit papers relating to the
registry of aliens under 18 U.S.C. § 1426(b).” Id. This was so because
both crimes involve traffic in false or counterfeit items; require proof of
intent to traffic, coupled with knowledge that the items are counterfeit; and
result in significant societal harm. Id. We also noted that “trafficking in
counterfeit goods is inherently immoral because it entails dishonest dealing
and deliberate exploitation of the public and the mark owner.” Id.
Under this reasoning, 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. Like 18 U.S.C. § 2320, the provision at
issue in Matter of Kochlani, the respondent’s statutes of conviction were
enacted to protect a form of intellectual property. Also, like an offense
under 18 U.S.C. § 2320, a violation of 17 U.S.C. § 506(a) must be
committed willfully, meaning that a defendant must voluntarily and
intentionally violate a known legal duty not to infringe a copyright. We
therefore conclude that criminal copyright infringement is closely
analogous to the theft and fraud crimes that we have consistently held are
crimes involving moral turpitude. See U.S. Sentencing Guidelines Manual
§ 2B5.3 cmt. background (U.S. Sentencing Comm’n 2015) (treating
criminal copyright infringement “much like theft or fraud”).
Moreover, like the use of a spurious trademark in Matter of Kochlani,
the respondent’s copyright infringement also involves significant societal
harm. Congress has made clear that copyright infringement enforcement is
an important priority and that the risks and costs associated with intellectual
property crime are significant. It therefore expanded the criminal copyright
infringement provisions of 18 U.S.C. § 2319 to include felony provisions in
the Piracy and Counterfeiting Amendments Act of 1982, Pub. L. No.
97-180, § 3, 96 Stat. 91, 92.
As the legislative history to those amendments indicates, Congress
noted that piracy and counterfeiting activities had developed “into a highly
sophisticated, billion-dollar-a-year business” that harmed the film and
recording industries, including actors, artists, and musicians, as well as
consumers who were tricked into purchasing inferior counterfeit products at
full prices. S. Rep. No. 97-274, at 3 (1981). The “theft of intellectual
property” was therefore characterized as “a major white collar crime.”
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Id. at 4 (quoting a statement from the Department of Justice). Congress
also stated that “substantial penalties [were] necessary to deter the criminal
and to encourage prosecutors and judges to view these activities as serious
crimes.” Id. at 7. More recently, in the Prioritizing Resources and
Organization for Intellectual Property Act of 2008, Pub. L. No. 110-403,
§ 501, 122 Stat. 4256, 4277–78, Congress ordered a report from the
Government Accountability Office, which determined that intellectual
property crimes cause negative effects on health, safety, and lost
revenue and increase the cost of protecting and enforcing intellectual
property rights. See U.S. Government Accountability Office/GAO-10-423,
Intellectual Property: Observations on Efforts to Quantify the Economic
Effects of Counterfeit and Pirated Goods 9–14 (Apr. 2010).
Finally, the respondent raised concerns at oral argument about the
potential scope of criminal copyright infringement enforcement, arguing
that the statute could extend to a student tutoring other students. The
respondent’s concerns about the breadth of 17 U.S.C. § 506(a)(1)(A) are
misplaced. As previously discussed, criminal copyright law is distinct from
civil copyright law and not every infringement will qualify as a criminal
offense. For example, the “fair use” doctrine would protect a student
tutor’s educational use of copyrighted material. Moreover, as noted above,
§ 506(a)(1)(A) requires the Government to prove beyond a reasonable
doubt that the defendant willfully infringed on the copyright and did so for
commercial advantage or personal financial gain. We are therefore not
persuaded by the respondent’s arguments regarding the scope of 17 U.S.C.
§ 506(a)(1)(A).
For these reasons, we conclude 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. Therefore, the
respondent has not established that he is eligible for cancellation of removal
under section 240A(b)(1)(C) of the Act. Accordingly, the respondent’s
appeal will be dismissed.
ORDER: The appeal is dismissed.

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