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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-60373
Summary Calendar
_______________
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.
that Omagah's conviction, under 18 U.S.C.
GARZA, Circuit Judges.
§ 371, of conspiracy to obtain, possess, and
use fraudulent immigration documents barred
JERRY E. SMITH, Circuit Judge:
suspension. We deny the petition for review.
Ferdinand Omagah petitions for review of
I.
an order of the Attorney General refusing to
Omagah, a Nigerian citizen, originally en-
grant a discretionary suspension of deporta-
tered the United States on August 12, 1981,
tion. The Immigration Judge ("IJ") and Board
using an F-1 student visa and resided there
of Immigration Appeals ("BIA") concluded
from August 12, 1981, to the present, with the

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

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

BIA bases its decision on a past conviction for
A.
a crime of "moral turpitude," we should apply
We previously have adopted the BIA's
our pre-IIRIRA standard of review.7 In this
definition of moral turpitude:
case, the BIA based its decision on Omagah's
conviction, moral turpitude, and per se ineligi-
Moral turpitude refers generally to con-
bility for suspension. We may review that
duct that shocks the public conscience
conclusion, because the statute classifies it as
as being inherently base, vile, or de-
nondiscretionary.
praved, and contrary to the accepted
rules of morality and the duties owed
III.
between persons or to society in gen-
The BIA found that Omagah lacked good
eral. Moral turpitude has been defined
moral character because he had committed a
as an act which is per se morally repre-
crime of moral turpitude. That conclusion is
hensible and intrinsically wrong, or mal-
reasonable: Conspiring to obtain, possess, and
um in se, so it is the nature of the act
use illegal immigration documents is a crime of
itself and not the statutory prohibition of
moral turpitude. The crime involves fraud as
it which renders a crime one of moral
a central ingredient and requires proof of mens
turpitude. Among the tests to determine
rea sufficient to classify it as a crime of moral
if a crime involves moral turpitude is
turpitude.
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).
of moral turpitude as lacking "good moral charac-
We concentrate on the "inherent nature of
ter." 8 U.S.C. § 1101(f)(3) (defining a person as
the crime, as defined in the statute concerned,
lacking good moral character if convicted of an
rather than the circumstances surrounding the
offense described in 8 U.S.C. § 1182(a)(2)(A)
(1994 ed.)); 8 U.S.C. § 1182(a)(2)(A) (1994 ed.)
particular transgression." Okoro v. INS, 125
(defining aliens convicted of crimes involving
F.3d 920, 926 (5th Cir. 1997) (citing Okabe v.
moral turpitude as excludable).
INS, 671 F.2d 863, 865 (5th Cir. 1982)). As
a general rule, if a criminal statute encom-
7 Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir.
passes both acts that do and do not involve
1997) ("If the BIA finds the alien falls into a per se
moral turpitude, then the BIA cannot sustain a
category, then the BIA lacks discretion to grant the
finding of deportability. Pichardo v. INS, 104
suspension of deportation."); Bernal-Vallejo v.
F.3d 756, 760 n.6 (5th Cir. 1997); Hamdan,
INS, 195 F.3d 56, 63 (1st Cir. 1999) (dictum)
98 F.3d at 187. For us to sustain a finding of
(explaining that court of appeals retain jurisdiction
deportability under such an overbroad statute,
over moral character judgments based on per se
the law must be divided into discrete subsec-
categories, even under the transitional rules). See
tions that track the distinction between moral
Moosa, 171 F.3d at 1011-12 (refusing to exercise
turpitude and less severe conduct. Hamdan,
jurisdiction because the BIA had explicitly de-
scribed its decision as discretionary and had
98 F.3d at 187.
assumed arguendo that the alien had proved both
residency and good moral character).
4

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

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

In Beltran-Tirado v. INS, 213 F.3d 1179,
The petition for review is DENIED.
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.
11 Supra notes 7, 9.
7