Interim Decision #3158 .

Interim Decision #3158 .

MATTER OF GOLDESHTEIN

In Deportation Proceedings

A-26719010

Decided by Board August 26, 1991

(1) Structuring any transaction with one or more domestic financial institutions for the

purpose of evading the reporting requirements of the financial institution(s) in

violation of 31 U.S.C. § 5324(3) (1988) entails a deliberate deception and impairment

of governmental functions; thus, it is inherently fraudulent and is a crime involving

moral turpitude.

(2) A conspiracy to commit an offense involves moral turpitude when the underlying

substantive offense is a crime involving moral turpitude.

(3) An application for discretionary relicf, including a waiver of inadmissibility under

section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (1988),

may be denied in the exercise of discretion without express rulings on the question of

statutory eligibility.

CHARGE:

Order: Act of 1952—Sec. 241(a)(4)[(A)] [8 U.S.C. § 1251(a)(4){(A)]]—Crime involving

moral turpitude

Sec. 241(a)(4)(B) [8 U.S.C. § 1251(a)(4)(B)]—Convicted of aggra-

‘vated felony

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:

Brian Drew Perry, Sr., Esquire Joyce L. Richard

P.O. Box 740622 General Attomey

New Orleans, Louisiana 70174

BY: Mithollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

In a decision dated January 28, 1991, the immigration judge found

the respondent deportable under section 241(a)(4)[(A)] of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4)[(A)] (1988), for

conviction of a crime involving moral turpitude, denied his request for

a waiver under section 212(h) of the Act, 8 U.S.C. § 1182(h) (1988),

and ordered him deported to Israel. The respondent has appealed from

that decision. The appeal will be dismissed.

The respondent is a male native and citizen of Israel who entered

the United States at Newark, New Jersey, on June 12, 1984, as a

nonimmigrant. On May 30, 1985, the respondent’s status was adjusted

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to that of a lawful permanent resident. An Order to Show Cause and

Notice of Hearing (Form J-221) dated August 20, 1990, alleges that on

March 31, 1989, the respondent was convicted of conspiracy to violate

the United States currency laws in violation of 18 U.S.C. § 371 (1988),

for structuring financial transactions with domestic financial institutions to avoid currency reports in violation of 31 U.S.C. §§ 5324(3)

and 5322(b) (1988), and of aiding and abetting in violation of 18

U.S.C. § 2 (1988). The respondent was charged with deportability

under section 241(a)(4)[(A)] of the Act as an alien convicted of a crime

involving moral turpitude, and under section 241(a)(4)(B) of the Act as

an alien convicted of an aggravated felony. The immigration judge

found deportability based only on conviction of a crime involving

moral turpitude, and the Immigration and Naturalization Service has

not pursued a finding of deportability based on section 241(a)(4)(B) on

appeal. The immigration judge denied the respondent’s request for a

waiver under section 212(h) of the Act and ordered the respondent

deported.

On appeal the respondent, through counsel, contends that he has

not been convicted of a crime involving moral turpitude. He further

asserts that the immigration judge abused his discretion in denying the

respondent’s request for a waiver under section 212(h) of the Act.

The respondent initially conceded deportability under section

241(a)(4)[(A)] of the Act for conviction of a crime involving moral

turpitude, but he later challenged that charge of deportability.' The

immigration judge considered the respondent’s challenge to deportability on the merits and rejected it. We have reviewed the record de

novo and conclude that the respondent is deportable under section

241(a)(4)[(A)] for conviction of a crime involving moral turpitude.”

1Section 241(a)(4)[(A)] provides as follows:

Any alien in the United States (including an alien crewman) shall, upon the order of

the Attorney General, be deported who—

is convicted of a crime involving moral turpitude committed within five years after

entry and either sentenced to confinement or confined therefor in a prison or

corrective institution, for a year or more, or who at any time after entry is convicted of

two crimes involving moral turpitude, not arising out of a single scheme of criminal

misconduct, regardless of whether confined therefor and regardless of whether the

convictions were in a single trial.

This section has been revised and redesignated as sections 241(a)(2)(A)(i) and Gi) of the

Act by section 602(2) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat.

4978, 5079-80.

2The statutory requirement of a 1-year prison sentence has been met in this case. The

respondent was scutcneed to 40 months in prison on three separate counts to he served

concurrently. The 5-year requirement has also been met. The respondent entered the

United States on June 12, 1984. The conspiracy and underlying substantive acts to

which he pleaded guilty on March 23, 1989, occurred from October 1986 until March

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The conviction records contained in the record of proceedings

indicate that the respondent pleaded guilty to counts 1, 7, and 9 of the

second superseding indictment against him. Count 7 alleges that the

respondent violated 31 U.S.C. §§ 5324(3) and 5322(b) (1988) and 18

US.C. § 2 (1988) in that he “knowingly, willfully, and for the purpose

of evading the reporting requirements of 31 U.S.C. § 5313(a),

structured, assisted in the structuring of, and attempted to structure

and assist in the structuring of financial transactions with domestic

financial institutions by purchasing or causing to be purchased 44

money orders, totalling approximately $46,748.00, each of which was

in an amount of less than $10,000” all “as part of a pattern of illegal

activity involving transactions exceeding $100,000.00 in a twelvemonth period.” Count 9 alleges violation of the same sections as count

7 based on six deposits totalling $32,675 in cash deposited in amounts

of less than $10,000, which were also part of the pattern of illegal

activity involving transactioms exceeding $100,000 in a 12-month

period. Count | alleges conspiracy under 18 U.S.C. § 371 (1988) based

on violations of 31 U.S.C. 8§ 5316(a)(1)(A), 5324(3), and 5322(b)

(1988) and 31 C.F.R. §§ 103.22 and 103.23 (1989).

A useful description of the type of criminal “money laundering”

scheme at issue in this case is set forth in United States v. Scanio, 900

F.2d 485 (2d Cir. 1990), and is repeated here for background purposes:

Under the Bank Secrecy Act of 1970 ... and the regulations promulgated

thereunder, financial institutions, including banks, are obligated to report currency

transactions in excess of $10,000 to the government. See 31 U.S.C. § 5313(a)....

Since individuals engaging in sizeable cash transactions often are involved in

criminal activity, reports filed pursuant to this requirement assist the government in

its efforts to investigate and combat a wide range of criminal conduct. The

government’s attempts to collect this information have, however, heen frustrated by

persons who “structure” their currency transactions—i.e., engage in multiple

transactions each involving slightly under $10,000 as to avoid triggering the financial

institutions’ filing obligations.

++ [P]rior to legislation specifically relating to structured transactions, enacted

in 1986 and effective in January 1987, persons engaging in such transactions were

prosecuted either for willfully causing a financial institution to fail to file a [Currency

Transaction Report], see 18 U.S.C. § 2(b), for knowingly and willfully concealing a

material fact from the governmerst, 18 U.S.C..§ 1001, or for conspiracy, 18 U.S.C.

§ 371...

In 1986, confronted with conflicting case law regarding prosecutions for

structuring transactions, Congress unequivocally sought to enhance the arsenal of

prosecutors in their battle against drug traffickers and money launderers .... Thus,

18, 1988. See Okabe v. INS, 671 F.2d 863, 864 n.2 (Sth Cir. 1982). The issue on appeal

with respect to deportability is whether the respondent’s conviction was for a “crime

involving moral turpitude.”

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as part of the Anti-Drug Abuse Act of 1986, Congress enacted 31 U.S.C. § 5324

which provides that:

No person shall for the purpose of evading the reporting requirements of

section 5313(a) with respect to such transaction—

(1) cause or attempt to cause a domestic financial institution to fail to file a

report required under section 5313(a);

(2) cause or attempt to cause a domestic financial institution to file a report

required under section 531 3(a) that contains a material omission or misstatement

of fact; or

(3) structure or assist in structuring, or attempt lo structure or assist in

structuring, any transaction with one or more domestic Sinancial institutions.

31 U.S.C. § 5324 (Supp. V 1987) (emphasis added); see 31 C.F.R. § 103.1 1(n)

(1989) (defining “structuring”). Criminal penalties for “willful{]’ violations. of

§ 5324 are set out in 31 U.S.C. § 5322(a) (Supp. V 1987).

United States v. Scanio, supra, at 487-89 (citations omitted).

The court in Scanio found that neither section 5324(3) nor its

penalty provision at section 5322(a) requires proof that the defendant

know that structuring is unlawful. United States v. Scanio, supra, at

489, 490. The court stated that

Scanio was not prosecuted for having failed to comply with an obscure reporting

requirement; he was charged with having intentionally structured a currency

transaction with the explicit purpose of evading what he knew to be the bank’s legal

duty to file [Currency Transaction Reports] for all transactions exceeding $10,000.

Scanio engaged in affirmative conduct and demonstrated an awareness of the legal

framework relative to currerscy transactions which, it is reasonable to conclude,

should have alerted him to the consequences of his conduct.

Id. at 490. The court further reasoned that

§ 5324(3) prohibits purposeful conduct aimed at defeating the government’s right to

information. Where a defendant is charged with violating an obscure reporting

provision, proof that (s)he was specifically aware of the reporting provision is

necessary to establish criminal intent. With respect to a prosecution for structuring,

however, the requirement that a defendant be shown to have acted with a “bad

purpose” is satisfied by proof that (s)he (1) knew that the bank was legally obligated

to report currency transactions exceeding $10,000 and (2) intended to deprive the

government of information to which it is entitled.

Id, at 491.

The two circuit courts which have addressed in published decisions

since Scanio the question whether section 5324(3) requires proof that

the defendant knew structuring is unlawful have followed the reasoning and result of Scanio. United States v. Dashney, 937 F.2d 532 (10th

Cir, 1991); United States v. Hoyland, 914 F.2d 1125 (9th Cir. 1990).

We find that violation of 31 U.S.C. § 5324(3) (1988) is properly

characterized as a crime involving moral turpitude. “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.”

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Matter of Short, 20 1&N Dec. 136, at 137 (BIA 1989); see also Okabe v.

INS, supra. The most frequently cited definition of moral turpitude

was given by the Supreme Court in Jordan v. De George, 341 U.S. 223

(1951), where it was stated:

Whatever else the phrase “crime involving moral turpitude” may mean in peripheral

cases, the decided cases make it plain that crimes im which fraud was an ingredient

have always been regarded as. involving moral turpitude, ... Fraud is the touchstone

by which this case should be judged. The phrase “crime involving moral turpitude”

has without exception been construed to embrace fraudulent conduct.

Id. at 232. “[W]here fraud is inherent in an offense, it is not necessary

that the statute prohibiting it include the usual phraseology concerning

fraud in order for it to involve moral turpitude.” Matter of Flores, 17

I&N Dec. 225, 228 (BIA 1980). Consistent with the reasoning in

Scanio, we find that although violation of section 5324(3) does not

require knowledge that structuring is unlawful, it nonetheless requires

that the structuring be “for the purpose of evading the reporting

requirements,” 31 U.S.C. § 5324(3) (1988), which is “an affirmative

act calculated to deceive the government and, therefore, [is] inherently

fraudulent,” Matter of Flores, supra, at 229. Et involves conduct which

“impair[s] or obstruct[s] an important function of a department of the

government by defeating its efficiency or destroying the value of its

lawful operations by deceit, graft, trickery, or dishonest means.” Id.;

accord Matter of D-, 9 I&N Dec. 605 (BIA 1962); Matter of E-, 9 I&N

Dec. 421 (BIA 1961); Afatter of S-, 2 I&N Dec. 225 (BIA 1944); see

also United States v. Scanio, supra, at 491 (section “5324(3) prohibits

purposeful conduct aimed at defeating the government’s right to

information”); United States v. Hoyland, stepra, at 1129 (“Only the

person who has a deliberate intention to frustrate the reporting by the

banks is guilty of the offense.”). Accordingly, we conclude that the

respondent’s conviction for the substantive offense of 31 U.S.C.

§ 5324(3) and its penalty under section 5322(b) is a crime involving

moral turpitude. Moreover, as the respondent’s conspiracy conviction

under 18 U.S.C. § 371 is based in part on 31 U.S.C. §§ 5324(3) and

5322(b), we find that it also is a crime involving moral turpitude. A

conspiracy to commit an offense involves moral turpitude when the

underlying substantive offense is a crime involving moral turpitude.

See Matter of Bader, 17 I&N Dec. 525 (BIA 1980); Matter of

McNaughton, 16 I&N Dec. 569 (BIA 1978), affd, 612 F.2d 457 (9th

Cir. 1980). We find it unnecessary to discuss whether the additional

counts constitute crimes involving moral turpitude. Accordingly, we

find that deportability under section 241(a)(4)[(A)] has been established by clear, unequivocal, and convincing evidence. Woodby v. INS,

385 U.S. 276 (1966); 8 CLE.R. § 242.14(a} (1991).

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The respondent applied for a waiver under section 212(h) of the Act

which provides that

[alny alien, who is excludable from the United States under paragraph (9), (10), or

(12) of [section 212(a) of the Act] or paragraph (23) of such subsection as such

paragraph relates to a single offense of simple possession of 30 grams or less of

marihuana, who (A) is the spouse or child, including a minor unmarried adopted

child, of a United states citizen, or of an alien lawfully admitted for permanent

residence, or (B) has a son or daughter who is a United States citizen or an alien

lawfully admitted for permanent residence, shall, if otherwise admissible, be issued a

visa and admitted to the United States for permanent residence (1) if it shall be

established to the satisfaction of the Attorney General that (A) the alien’s exclusion

would result in extreme hardship to the United States citizen or lawfully resident

spouse, parent, or son or daughter of such alien, and (B) the admission to the United

States of such alien would not be contrary to the national welfare, safety, or security

of the United States; and (2) if the Attorney General, in his discretion, and pursuant

to such terms, conditions, and procedures as he may by regulations prescribe, has

consented to the alien’s applying or reapplying for a visa and for admission to the

United States.3

Although section 212(h) addresses the eligibility of an alien for

admission into the United States, it is also available to an alien present

in the United States who applies for adjustment of status under section

245 of the Act, 8 U.S.C. § 1255 (1988). See Osuchukwu v. INS, 744

F.2d 1136, 1139 (Sth Cir. 1984); Matter of Sanchez, 17 I&N Dec. 218

(BIA 1980); Matter of Shaughnessy, 12 18N Dec. 810 (BIA 1968).

In the present case the immigration judge found that “there may be

extreme hardship in this particular case” but denied the waiver request

as a matter of discretion. The immigration judge did not address

whether the admission of the respondent to the United States would

not be contrary to the national welfare, safety, or security of the

United States. An application for discretionary relief, including a

waiver under section 212(h), may be denied in the exercise of

discretion without express rulings om the question of statutory

eligibility. See Silva v. Carter, 326 F.2d 315, 320 (9th Cir. 1963), cert.

denied, 377 U.S. 917 (1 964); of INS v. Rios-Pineda, 471 U.S. 444, 449

(1985); INS v. Bagamasbad, 429 U.S. 24, 25 (1976).

The respondent contends in his Notice of Appeal (Form EOIR-26)

that the immigration judge’s discretionary denial of section 212(h)

relief based on “the longevity of the crime” was an “abuse of

discretion.” In his brief on appeal the respondent discusses the

standards for “extreme hardship,” but, as to the discretionary denial

notwithstanding statutory eligibility, the respondent states only that

3Section 212(h) was revised by section 601(a) of the Immigration Act of 1990, 104

Stat, at 5076-77. However, the revised provision applies to “individuals entering the

United States on or after June 1, 1991.” Section 601(e) of the Immigration Act of 1990,

104 Stat. at 5077.

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the immigration judge’s ruling was “arbitrary and capricious and is an

abuse of discretion.”

The respondent’s nonspecific assertions are without merit. In

exercising discretion the immigration judge carefully considered the

respondent’s claim that he did not know his actions were against the

law. Based on the large amounts of money involved, the number of

transactions completed by the respondent, the extended period of time

over which the transactions occurred, and the fact that large amounts

of cash were coming from Colombia, the immigration judge found that

the respondent was without justification for failing to question the

lawfulness of his conduct. The immigration judge’s finding is reasonable and supported by the record. The respondent pleaded guilty under

31 U.S.C. § 5324(3) (1988) to knowingly and intentionally structuring

humerous currency transactions for the explicit purpose of evading

what he knew to be the financial institutions’ legal duty to file

Currency Transaction Reports for all transactions exceeding $10,000.

As noted in United States v. Scanio, supra, the unwary bank customer

is protected from conviction under 31 U.S.C. § 5324(3) by the

requirement of proof that the defendant knew of, and intended to

evade, the reporting provisions of the Bank Secrecy Act. United States

v. Scanio, supra, at 491. The respondent here pleaded guilty to charges

that reflect that he “engaged in affirmative conduct and demonstrated

an awareness of the legal framework relative to currency transactions

which, it is reasonable to conclude, should have alerted him to the

consequences of his conduct.” Jd. at 490. It is well settled that the

immigration judge and this Board cannot entertain a collateral attack

on a judgment of conviction unless that judgment is void on its face

and cannot go behind the judicial record to determine the guilt or

innocence of the alien. Matter of Fortis, 14 1&N Dec. 576, 577 (BIA

1974); see also Trench v. INS, 783 F.2d 181 (10th Cir.), cert. denied,.

479 US. 961 (1986); Avila-Murrieta v. INS, 762 F.2d 733 (9th Cir.

1985); Zinnanti v. INS, 651 F.2d 420 (5th Cir. 1981) (per curiam);

Chiaramonte v. INS, 626 F.2d 1093 (2d Cir. 1980) (foreign conviction); Longoria-Castenada v. INS, 548 F.2d 233 (8th Cir.), cert. denied,

434 U.S. 853 (1977); Aguilera-Enriquez y. INS, 516 F.2d 565 (6th Cir.

1975), cert. denied, 423 U.S 1050 (1976); Matter of Danesh, 19 1&N

Dec. 669 (BIA 1988); Matter of Khalik, 17 1&N Dec. 518 (BIA 1980).

The immigration judge concluded that the respondent’s offense was

“very serious” and that the respondent failed to establish that he

warranted a favorable exercise of discretion. We find that the

immigration judge’s decision was within his discretion and it will not

be disturbed.

Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.

388