Interim Decision #3166 

MATTER OF BART 

In Deportation Proceedings 

A-20603230 

Decided by Board February 3, 1992 

Issuance of a bad check in violation of section 16-9-20(a) of the Georgia Code is a 

crime involving moral turpitude because Georgia case law clearly establishes that guilty 

knowledge, as evidenced by an intent to defraud, is an essential element of the offense. 

CHARGE: 

Order:Act of 1952—Sec. 241(a)(2)(A)(ii) [8 U.S.C. § 1251 (a)(2)(A)(ii)]—Crimes involving moral turpitude 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

William I. Crosby, Esquire J. Dan Pelletier 

Suite 5-South General Attorney 

5180 Roswell Road, N.W. 

Atlanta, Georgia 30342-2277 

BY: Milhollan, Chairman; Heilman, Board Member, Josephson, Temporary Board 

Member 

The Immigration and Naturalization Service has appealed from the 

November 15, 1991, decision of an immigration judge finding that the 

respondent is not deportable as an alien who has been convicted of two 

crimes involving moral turpitude after the time of entry, pursuant to 

section 241(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 

U.S.C. § 1251(a)(2)(A)(ii) (Supp. II 1990), and terminating the 

proceedings.' The appeal will be sustained. 2The request for oral 

argument before the Board is denied. 

The respondent is a native and citizen of Ghana who last entered 

the United States as a nonimmigrant student on September 4,1979. On 

1 The immigration judge adjourned the deportation hearing on October 29,1991, and 

granted both parties until November 12, 1991, to submit additional briefs. Although the 

transcript is incomplete regarding another hearing, we note that neither party has 

objected and the outcome of the proceedings has not been affected. 

2This decision of the Board, which was previously issued, has been revised for 

publication. 

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August 18, 1986, he adjusted his status to that of a lawful permanent 

resident. The Order to Show Cause, Notice of Hearing, and Warrant 

for Arrest of Alien (Form I-221S) charges that the respondent was 

deportable on the basis of two convictions for crimes involving moral 

turpitude_ On November 21, 1989, he was convicted on a plea of nolo 

contendere, in the Magistrate Court of Dekalb County, Georgia, of the 

offense of issuance of a bad check in violation of section 16-9-20(a) of 

the Georgia Code. On September 13,1991, he was convicted on a plea 

of guilty, in the United States District Court for the Northern District 

of Georgia, of the offense of mail fraud in violation of 18 U.S.C. 

§ 1341 (Supp. I 1989). The respondent admitted to the convictions 

but denied deportability on the ground that his 1989 bad check 

conviction did not constitute a crime involving moral turpitude. 

The immigration judge examined the Georgia statute which the 

respondent was found to have violated and concluded that the crime 

in question did not involve moral turpitude. The immigration judge 

relied on Matter of Zangwill, 18 I&N Dec. 22 (BIA 1981), overruled in 

part on other grounds, Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988), 

and stated that only when the statute by its express terms involves an 

intent to defraud is there a crime involving moral turpitude. 

On appeal, the Service contends that the bad check conviction is for 

a crime involving moral turpitude_ Citing precedent decisions, the 

Service states that convictions for passing bad checks involve moral 

turpitude if either guilty knowledge or intent to defraud is a necessary 

element of the crime. The Service argues that since courts in Georgia 

have interpreted the statute as requiring a showing of intent to 

defraud, the conviction is one that involves moral turpitude. 

In his opposition brief, the respondent concurs with the immigration judge, stating that since the Georgia statute does not by its express 

terms require an intent to defraud, the conviction does not involve 

moral turpitude. We disagree. 

In determining whether a crime involves moral turpitude, we first 

examine the nature of the offense itself. Matter of Esfandiary, 16 I&N 

Dec. 659 (BIA 1979). It is the inherent nature of the crime as defined 

by statute and interpreted by the courts, and as limited and described 

by the record of conviction, which determines whether the offense is 

one involving moral turpitude. Okabe v. INS, 671 F.2d 863 (5th Cir. 

1982); United States v. Neelly, 208 F.2d 337 (7th Cir. 1953); Matter of 

Baker, 15 I&N Dec. 50 (BIA 1974); Matter of H-, 7 I&N Dec. 616 (BIA 

1957). 

We have held that where a statute expressly includes guilty 

knowledge, as evidenced by the requirement of an intent to defraud, as 

an essential element of a bad check offense, the crime is one involving 

moral turpitude for immigration purposes. Matter of Khalik, 17 I&N 

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Dec. 518 (BIA 1980); Matter of Logan, 17 I&N Dec. 367 (BIA 1980); 

Matter of Westman, 17 I&N Dec. 50 (BIA 1979); Matter of McLean, 

12 I&N Dec. 551 (BIA 1967); Matter of Stasinski, 11 I&N Dec. 202 

(BIA. 1965); Matter of Bailie, 10 I&N Dec. 679 (BIA 1964). When the 

statute in question does not specifically reference an "intent to 

defraud," we have looked to the case law of a particular state in order 

to determine whether that element is required for conviction. See, e.g., 

Matter of Zangwill, supra (Florida); Matter of Bailie, supra (Kansas). 

The immigration judge erroneously relied on Matter of Zangwill, 

supra, for the proposition that only when the statute by its express 

terms involves an intent to defraud is there a crime involving moral 

turpitude. The Florida statute in question in Zangwill did not 

expressly require intent to defraud as an element of the crime and 

spoke only of the "knowing" issuance of worthless checks. Id at 28. 

We therefore looked to the state court's interpretation of the statute. 

Since the court did not require intent to defraud as an essential 

element, we held that the crime did not involve moral turpitude. Id. 

The Georgia statute under which the respondent was convicted 

states as follows: 

A person commits the offense of criminal issuance of a bad check when he makes, 

draws, utters, or delivers a check, draft, or order for the payment of money on any 

bank or other depository in exchange for a present consideration or wages, knowing 

that it will not be honored by the drawee. 

Ga. Code Ann. § 16-9-20(a) (1989) (emphasis added). 

The Georgia statute does not expressly require intent to defraud as 

an element of the crime. The statute requires only that the offender 

"[know] that [the check] will not be honored." We therefore must look 

to Georgia case law to determine whether conviction under the statute 

requires an intent to defraud. 

The Georgia courts, in construing section 16-9-20(a) of the Georgia 

Code, have unequivocally answered the question of whether intent to 

defraud is necessary to a conviction under the statute, holding that 

intent to defraud is an essential element of the crime. In Galbreath v. 

State, 387 S.E.2d 915, 919 (Ga. Ct. App. 1989), the court held that 

"the State must prove a present fraudulent intent ... in order to 

sustain a conviction for a bad check offense under Georgia law." See 

also Brooks v. State, 247 S.E.2d 209 (Ga. Ct. App. 1978) (knowledge 

that, because of insufficient funds, the check will not be honored is 

prima facie proof of intent to defraud); Crain v. State, 52 S.E.2d 577 

(Ga. Ct. App. 1949) (gravamen of a bad check offense is the intent to 

defraud). On this basis we find that the respondent's conviction for 

issuing worthless checks was for a crime involving moral turpitude. 

Therefore, we conclude that his deportability has been established by 

clear, unequivocal, and convincing evidence as required by Woodby v. 

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INS, 385 U.S. 276 (1966), and 8 C.F.R. § 242.14(a) (1991). Accordingly, the appeal will be sustained and the decision of the immigration 

judge will be reversed. 

ORDER: The appeal of the Immigration and Naturalization 

Service is sustained and the decision of the immigration judge is 

reversed. 

FURTHER ORDER: The respondent is ordered deported to 

Ghana pursuant to the charge contained in his Order to Show Cause. 

439