Hakim v. Holder

• Decision Date: 13 December 2010
• Docket Number: No. 09-60549,09-60549
• Citation: 628 F.3d 151
• Parties: Azmi HAKIM, also known as Azzi Hakim, also known as Azmi R. Hakim, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

628 F.3d 151

Azmi HAKIM, also known as Azzi Hakim, also known as Azmi R. Hakim, Petitioner,

v.Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 09-60549.

United States Court of Appeals, Fifth Circuit.

Dec. 13, 2010.

Scott Eric Bratton, Margaret Wong & Associates Co., L.P.A., Cleveland, OH, for Petitioner.

Ann M. Welhaf, Tangerlia Cox, U.S Dept. of Justice, OIL, Washington, DC, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before JOLLY, HIGGINBOTHAM and SMITH, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Azmi Hakim seeks review of a Board of Immigration Appeals ("BIA") order finding that his money laundering conviction was for more than $10,000, and constituted a particularly serious crime under 8 U.S.C. § 1231(b)(3)(B)(ii). He further contends that the BIA applied an incorrect legal standard to find that he was not eligible for relief under the Convention Against Torture ("CAT"). We affirm the BIA holding that Hakim laundered more than $10,000, and that this constituted a particularly serious crime. We find, however, that the BIA applied an incorrect legal standard in its CAT consideration, and therefore remand this case to be decided under an "actual knowledge" or "willful blindness" standard.

I.

Azmi Hakim is a native and citizen of Israel who entered the United States as an immigrant in 1988. In 2000, Hakim and several other men were indicted for drug trafficking, tax fraud, and money laundering. In 2003, Hakim was convicted of tax fraud and money laundering and sentenced to 37 months of imprisonment. Only the money laundering is relevant to the instant petition for review.

In July 2006, the Department of Homeland Security ("DHS") issued a Notice to Appear charging that Hakim was removable for being convicted of the aggravated felony of money laundering involving more than $10,000. Hakim admitted the fact of conviction but contested whether the amount of actually-laundered money exceeded $10,000, as was required to meet the definition of aggravated felony found at 8 U.S.C. § 1101(a)(43)(D). At a hearing in May 2007, the immigration judge ("IJ") found clear and convincing evidence that Hakim laundered more than $10,000, and that he was therefore removable for having committed an aggravated felony. Hakim then sought withholding of removal and protection under the CAT.

At a hearing in October 2007, Hakim, a Greek Orthodox Christian, alleged that Muslims persecuted him and members of his family in Israel. The IJ concluded that withholding was not available to Hakim under § 1231(b)(3)(B)(ii) because his money laundering offense was a "particularly serious crime." The IJ rejected the CAT claim on grounds that Hakim did not show that the government of Israel had acquiesced to any torture of Hakim by Muslims in Israel. It ordered that Hakim be removed to Israel.

Hakim appealed to the BIA. The BIA affirmed the IJ's removal decision, holding that Hakim was removable for having committed an aggravated felony because his money-laundering crime involved more than $10,000. The BIA also determined that the money laundering was a particularly serious crime that presented a danger to the community because it was related to drug trafficking. The BIA affirmed the denial of CAT relief, finding no showing of either the likelihood of torture by Muslims or acquiescence in such torture by the government of Israel.

Hakim timely appealed the BIA decision. DHS filed an unopposed motion for remand so that it could further consider the amount of money laundered by Hakim, which this court granted. The BIA in turn remanded the case to the IJ. On remand to the IJ, the DHS submitted evidence to show that Hakim's money-laundering crime involved more than $10,000. The evidence presented included Hakim's plea agreement, Hakim's presentence report addendum, and a letter from the U.S. Probation Office stating that the "case involves approximately $113,000." Hakim argued that only the amount of illegally-obtained money that was actually laundered, exclusive of any lawfully gained and commingled funds, could be counted toward the $10,000. He also argued that only funds relevant to the charged count, and not from any additional uncharged or relevant conduct under the Sentencing Guidelines, could be included in the calculation.

The IJ concluded that the DHS's additional evidence confirmed that Hakim laundered more than $10,000. Hakim appealed to the BIA, which affirmed the IJ decision. Hakim filed a timely petition for review by this court.

II.

This court reviews the BIA's order but also considers the IJ's reasoning to the extent it has an impact on the BIA's determination. See Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.1997). Generally, this court reviews rulings of law de novo and findings of fact for substantial evidence. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir.2007). However, this court accords deference to the BIA's interpretation of immigration statutes and will affirm the BIA's interpretation unless there is a "dispositive error of law." Faddoul v. INS, 37 F.3d 185, 188 (5th Cir.1994).

III.

In support of his petition for review, Hakim raises three issues: (1) he renews his challenge to the finding that he committed an aggravated felony by laundering more than $10,000, (2) he contends that the BIA failed to use the correct legal standard in deciding that he had committed a particularly serious crime; and (3) he contends that the denial of CAT relief was based on an incorrect legal standard and unsupported by substantial evidence. We consider each of these issues in turn.

A.

"Any alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). "Aggravated felony" is defined to include a money-laundering crime under 18 U.S.C. § 1956 "if the amount of the funds exceeded $10,000." 8 U.S.C. § 1101(a)(43)(D). Where an alien is charged with being removable for committing an aggravated felony, the Government has the burden of establishing removability by clear and convincing evidence. Arguelles-Olivares v. Mukasey, 526 F.3d 171, 178 (5th Cir.2008). A determination of removability is valid only if "it is based upon reasonable, substantial, and probative evidence." Id. (internal quotation marks and citation omitted). These standards apply on appellate review of whether the BIA erred in determining the amount of loss needed to establish an aggravated felony. Id.

Hakim does not dispute that he laundered money, but he does argue that the DHS was required to prove specifically that at least $10,000 of the money involved in his money-laundering crime was derived from unlawful activity. This circuit has previously held that money involved in a money laundering crime can and does include commingled, legitimate funds because they facilitate and advance the money laundering. See United States v. Tencer, 107 F.3d 1120, 1134-35 & n. 6 (5th Cir.1997); see also United States v. Davis, 226 F.3d 346, 356 (5th Cir.2000) (citing Tencer as holding that "section 1956 requires only that any part of transaction involved tainted funds"). Accordingly, the $10,000 requirement of § 1101(a)(43)(D) is satisfied where the money laundering "involved" more than $10,000, even absent proof that all of the money was gained through unlawful activity.See Tencer, 107 F.3d at 1135-36 & n. 6.

Hakim suggests that in Chowdhury v. INS, the Ninth Circuit reached the opposite result. 249 F.3d 970, 973 (9th Cir.2001). In Chowdhury, the defendant was convicted of multiple fraud crimes as well as a money-laundering transaction that "involved one check issued in the amount of $1,310." Id. at 971. The court explained that the amount of laundered money was limited to the $1,310 and did not include larger sums lost by the victims. Id. at 973. When the court referred "to the amount of money that was laundered" it was merely distinguishing the money involved in the money laundering crime from "the loss to the victim or the total proceeds of the criminal activity." See id. The court did not examine or discuss whether all or part of the $1,310 was tainted, and it did not require proof that all or part of it was tainted. See id.

Hakim's reliance on United States v. Allen is similarly misplaced. 76 F.3d 1348 (5th Cir.1996). In Allen, this court rejected the defendant's request to exclude from the laundered amount certain fees that had not caused an actual loss to the victims. Id. at 1369. This court noted that the sentence for money laundering was based on "the value of the funds that the defendant laundered" rather than the amount of loss. Id. Like the Ninth Circuit in Chowdhury, the Allen court was simply distinguishing the money involved in the laundering crime from the loss suffered by the victims. See id. The Allen court concluded that all funds diverted to the defendant were countable as laundered money. Id.

Thus, neither Chowdhury nor Allen nor the relevant aggravated-felony and money-laundering statutes require an exact accounting of the source of each dollar charged in connection with a money-laundering crime. There is, therefore, no authority to support Hakim's narrow construction of § 1101(a)(43)(D) as requiring proof that all of the $10,000 be tainted funds. Accordingly, we hold the DHS was required to show only that Hakim's crime involved more than $10,000. The record contains clear, convincing, and properly admitted evidence to establish that Hakim's crime involved at least $50,000 of illegal drug money. We therefore find that Hakim committed an aggravated felony and is therefore deportable.

B.

Hakim contends that the BIA failed to use the correct legal standard to decide that he had committed a particularly serious crime under § 1231(b)(3)(B)(ii). Hakim's aggravated-felony sentence was less than five years, so it was not automatically deemed to be particularly serious. But, the Attorney General retains discretion to determine whether an aggravated felony resulting in a lesser sentence...