Cite as 24 I&N Dec. 128 (BIA 2007) Interim Decision #3559 

In re Avihail KOCHLANI, Respondent 

File A24 911 110 - Los Angeles 

Decided as amended April 2, 20071 

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals 

The offense of trafficking in counterfeit goods or services in violation of 18 U.S.C. 

§ 2320 (2000) is a crime involving moral turpitude. 

FOR RESPONDENT: Robert G. Berke, Esquire, Los Angeles, California 

FOR THE DEPARTMENT OF HOMELAND SECURITY: JoAnn M. Platel, Assistant 

Chief Counsel 

BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members. 

COLE, Board Member: 

In a decision dated April 7, 2004, an Immigration Judge terminated removal 

proceedings against the respondent. The Department of Homeland Security 

(“DHS”) has appealed from that decision. The appeal will be sustained, and 

the record will be remanded to the Immigration Judge for further proceedings. 

I. FACTUAL AND PROCEDURAL HISTORY 

The respondent, a native and citizen of Israel and a lawful permanent 

resident of the United States, has two criminal convictions that are of 

relevance to the present proceedings: (1) an October 1987 conviction in 

California Superior Court for the offense of grand theft in violation of 

section 487.1 of the California Penal Code; and (2) a December 2001 

conviction in a United States District Court in California for the offense of 

trafficking in counterfeit goods in violation of 18 U.S.C. § 2320 (2000).2 On 

the basis of these convictions, the DHS charged the respondent with 

1 On our own motion, we amend the November 23, 2005, order in this case. The amended 

order makes editorial changes consistent with our designation of the case as a precedent. 

2 With respect to the Federal conviction, the respondent was prosecuted as a principal based 

on the fact that he aided and abetted trafficking in counterfeit goods and caused acts 

constituting the offense of trafficking in counterfeit goods to be done. See 18 U.S.C. 

§ 2 (2000). 

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removability from the United States as, inter alia, an alien convicted of two 

crimes involving moral turpitude not arising out of a single scheme of 

criminal misconduct. See section 237(a)(2)(A)(ii) of the Immigration and 

Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(ii) (2000). The Immigration Judge 

terminated the removal proceedings, however, based on her conclusion that 

the offense of trafficking in counterfeit goods in violation of 18 U.S.C. § 2320 

was not a crime involving moral turpitude that could support a charge under 

section 237(a)(2)(A)(ii) of the Act.3 

II. ANALYSIS 

As a threshold matter, there is no dispute that the California offense of 

grand theft is a crime involving moral turpitude. Crimes involving theft or 

larceny have always been held to involve moral turpitude. United States v. 

Esparza-Ponce, 193 F.3d 1133, 1136-37 (9th Cir. 1999); Matter of De La 

Nues, 18 I&N Dec. 140, 145 (BIA 1981). Thus, the sole question to be 

resolved on appeal is whether the Federal offense of trafficking in counterfeit 

goods is a crime involving moral turpitude. 

We have held that a criminal offense involves “moral turpitude” if the 

relevant statute defines the offense in such a manner that it necessarily entails 

conduct on the part of the offender 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. Matter of Torres-Varela, 23 I&N Dec. 78, 

83 (BIA 2001). Neither the seriousness of a criminal offense nor the severity 

of the sentence imposed is determinative of whether a crime involves moral 

turpitude. Id. at 84. 

As previously noted, the respondent was convicted of trafficking in 

counterfeit goods in violation of 18 U.S.C. § 2320, which provides in 

pertinent part as follows: 

Whoever intentionally traffics or attempts to traffic in goods or services and 

knowingly uses a counterfeit mark on or in connection with such goods or services 

shall . . . be fined not more than $2,000,000 or imprisoned not more than 10 years, or 

both . . . .

18 U.S.C. § 2320(a). The phrase “counterfeit mark” is defined as 

a spurious mark— 

(i) that is used in connection with trafficking in goods or services; 

In terminating the removal proceedings, the Immigration Judge also concluded that the 

respondent was not convicted of an aggravated felony as charged by the DHS. The present 

appeal does not challenge the Immigration Judge’s decision with respect to the validity of 

the aggravated felony charge, so that issue is not before us. 

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(ii) that is identical with, or substantially indistinguishable from, a mark registered 

for those goods or services on the principal register in the United States Patent and 

Trademark Office and in use, whether or not the defendant knew such mark was so 

registered; and 

(iii) the use of which is likely to cause confusion, to cause mistake, or to deceive. 

4 18 U.S.C. § 2320(e)(1)(A). Thus, to have convicted the respondent under 

18 U.S.C. § 2320, the Federal prosecutor necessarily proved beyond a 

reasonable doubt that he intentionally trafficked or attempted to traffic in 

goods or services and that in the course of doing so, he knowingly used a 

spurious trademark that was likely to confuse or deceive others. 

In concluding that trafficking in counterfeit goods does not necessarily 

involve moral turpitude, the Immigration Judge observed that an individual 

may be convicted under 18 U.S.C. § 2320(a) even if the direct purchaser of 

the merchandise was not, in fact, confused or deceived as to the authenticity 

of the goods at the time of purchase. Indeed, to obtain a conviction under 

18 U.S.C. § 2320(a), the prosecutor need not prove either that the individual 

knew that trafficking in counterfeit goods was criminal or that the trafficker 

specifically intended to defraud the direct purchaser or potential purchaser of 

the goods being trafficked. United States v. Gantos, 817 F.2d 41 (8th Cir. 

1987); United States v. Baker, 807 F.2d 427 (5th Cir. 1986). Yet, in our view, 

this fact does not support the Immigration Judge’s apparent conclusion that 

trafficking in counterfeit goods may be committed by morally neutral means. 

On the contrary, courts espousing the notion that 18 U.S.C. § 2320(a) may be 

violated without proof of a specific intent to deceive the direct purchaser have 

taken pains to emphasize that the offender’s knowing expropriation and use 

of the owner’s trademark must nonetheless be likely to confuse or deceive the 

public at large, with significant adverse consequences, both for those potential 

consumers who are deceived and for the owner of the mark, who must bear 

the costs associated with the dilution of the mark’s value in the public’s 

estimation. See, e.g., United States v. Foote, 413 F.3d 1240, 1245-46 

(l0th Cir. 2005); United States v. Hon, 904 F.2d 803, 806-07 (2d Cir. 1990); 

United States v. Yamin, 868 F.2d 130, 132-33 (5th Cir. 1989); United States 

v. Gantos, supra, at 43; United States v. Torkington, 812 F.2d 1347, 1352 

(11th Cir. 1987). 

It is true that crimes that have a specific intent to defraud as an element 

have always been found to involve moral turpitude, but we have also found 

4 The phrase “counterfeit mark” is defined in the alternative as “a spurious designation that 

is identical with, or substantially indistinguishable from, a designation as to which the 

remedies of the Lanham Act are made available by reason of section 220506 of title 36.” 

18 U.S.C.A. § 2320(e)(1)(B) (West Supp. 2006). This portion of the “counterfeit mark” 

definition pertains solely to the exclusive rights of the United States Olympic Committee 

to use certain names and emblems associated with the Olympic Games, the Paralympic 

Games, and the Pan-American Games and is of no relevance to these proceedings. 

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that certain crimes are inherently fraudulent and involve moral turpitude even 

though they can be committed without a specific intent to defraud. Matter of 

Tejwani, 24 I&N Dec. 97, 98 (BIA 2007) (citing Carty v. Ashcroft, 395 F.3d 

1081 (9th Cir. 2005); Matter of Flores, 17 I&N Dec. 225 (BIA 1980)). For 

instance, in Matter of Flores, supra, we concluded that moral turpitude 

inhered in the crime of uttering or selling false or counterfeit paper relating to 

the registry of aliens in violation of 18 U.S.C. § 1426(b), even though the 

statute did not require proof of a specific intent to defraud. In reaching this 

conclusion, we noted that 18 U.S.C. § 1426(b) requires knowledge on the part 

of the offender that the documents being sold were counterfeit, and we found 

that the act of selling counterfeit documents, like the act of counterfeiting 

currency, involved deliberate deception and interfered with the Government’s 

ability to function. Id. at 228-30. 

The offense of trafficking in counterfeit goods or services, as defined in 

18 U.S.C. § 2320, 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). First, both crimes involve traffic in counterfeit or 

fraudulent items or objects. Second, both crimes require proof of an intent to 

traffic and knowledge that the items or objects are counterfeit. And third, 

both crimes result in significant societal harm. As Congress made clear when 

enacting 18 U.S.C. § 2320, “Trademark counterfeiting . . . defrauds 

purchasers, who pay for brand-name quality and take home only a fake,” but 

it also exploits mark holders, since “counterfeiters [can earn] enormous 

profits . . . by capitalizing on the reputations, development costs, and 

advertising efforts of honest manufacturers at little expense to themselves.” 

S. Rep. No. 98-526, at 4-5 (1984), as reprinted in 1984 U.S.C.C.A.N. 3627, 

3630-31; see also United States v. Hon, supra, at 806. 

Trafficking in counterfeit goods is “tantamount to commercial forgery” and 

involves the theft of someone else’s property in the form of a trademark, even 

if it does not involve deceiving the purchasers of the counterfeit goods and 

services. David J. Goldstone & Peter J. Toren, The Criminalization of 

Trademark Counterfeiting, 31 Conn. L. Rev. 1, 4 (Fall 1998). Indeed, 

trafficking in counterfeit goods is inherently immoral because it entails 

dishonest dealing and deliberate exploitation of the public and the mark 

owner. Id. at 22 (noting that “[u]sing the good name of another without 

authorization to bolster the value of one’s own work is a moral wrong that 

violates social norms”). Moreover, we deem it significant that for purposes 

of Federal criminal sentencing, trafficking in counterfeit goods is classified 

as a crime involving theft or fraud. See U.S. Sentencing Guidelines Manual 

§ 2B5.3 & cmt. background (2006) (“This guideline treats copyright and 

trademark violations much like theft and fraud.”). 

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III. CONCLUSION

In conclusion, we agree with the DHS that the Immigration Judge erred 

when she concluded that the offense of trafficking in counterfeit goods or 

services under 18 U.S.C. § 2320 does not qualify as a crime involving moral 

turpitude under the immigration laws. Because we find that the respondent’s 

removability under section 237(a)(2)(A)(ii) of the Act has been established, 

we will sustain the DHS’s appeal and remand the record to the Immigration 

Judge for further proceedings to consider whether the respondent is eligible 

for any relief from removal. 

ORDER: The appeal of the Department of Homeland Security is 

sustained. 

FURTHER ORDER: The decision of the Immigration Judge is vacated 

in part, and the record is remanded for further proceedings consistent with the 

foregoing opinion. 

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