BART

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) [

 (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, 

(a)(2)(A)(ii) (Supp. II 1990), and terminating the
proceedings.' The appeal will be sustained. 2 The 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.
  2 This 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 

 (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, 

 (BIA 1981), overruled in
part on other grounds, Matter of Ozkok, 

 (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, 

 (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, 

 (5th Cir.
1982); United States v. Neelly, 

 (7th Cir. 1953); Matter of
Baker, 

 (BIA 1974); Matter of H-, 

 (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, 

Interim Decision #3166

Dec. 518 (BIA 1980); Matter of Logan, 

 (BIA 1980);
Matter of Westman, 

 (BIA 1979); Matter of McLean,

 (BIA 1967); Matter of Stasinski, 

(BIA. 1965); Matter of Bailie, 

 (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.

(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, 

 (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, 

 (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, 

(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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                                               Interim Decision #3166

INS, 

 (1966), and 

(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.




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