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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: Meggan G. Johnson, 

Associate Legal Advisor; 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.