Safe Havens

There are a number of state and federal laws and regulations that prohibit various minor acts that do not involve theft, or fraud, or otherwise trigger a ground of deportability, such as New York Banking Laws § § 340 (prohibiting the conduct of a small loan business without a license) and 357 (prohibiting a nonlicensee from charging more than 6 percent interest), since those sections are only licensing and regulatory enactments, and do not require any criminal intent.  See § 7.108, supra.[195]

            For example, 18 U.S.C. § 1005, paragraph 2, which penalizes a bank employee who without authority of the bank, “makes, draws, issues, puts forth, or assigns any certificate of deposit, draft, order, bill of exchange, acceptance, note, debenture, bond, or other obligation, or mortgage, judgment or decree . . . .”  A conviction under this statute should not be considered an aggravated felony or crime of moral turpitude.  This offense does not have fraud or deceit as an element, and thus cannot constitute an aggravated felony under the fraud category.[196]  See § § 7.80-7.81, supra.  It should not be an aggravated felony theft offense, since there is no intent permanently or even temporarily to deprive the owner of property.[197]  See § 7.103, supra.

This conviction does not appear to constitute a CMT, because no evil intent is required.  It appears that a bank employee assigning funds to a wrong account would violate this statute so long as the transaction was unauthorized, even though the perpetrator replaced the funds in advance or later and thus intended no theft or fraud whatsoever.  In fact, the essential elements of this statutory offense do not appear to require — as an essential element — any culpable mental element at all, however slight.  This appears to be a strict liability offense, which cannot be considered a crime involving moral turpitude.  See § 7.109-7.112, supra.

[195] Matter of B, 6 I. & N. Dec. 98 (BIA 1954).

[196] INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).

[197] INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).