Matter of Goldeshtein
| Decision Date | 26 August 1991 |
| Docket Number | A-26719010,Interim Decision Number 3158 |
| Citation | 20 I&N Dec. 382 |
| Parties | MATTER OF GOLDESHTEIN In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
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 to that of a lawful permanent resident. An Order to Show Cause and Notice of Hearing (Form I-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.1 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.2
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 U.S.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 twelve-month 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 transactions exceeding $100,000 in a 12-month period. Count 1 alleges conspiracy under 18 U.S.C. § 371 (1988) based on violations of 31 U.S.C. §§ 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, been 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 government, 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 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 5313(a) that contains a material omission or misstatement of fact; or
(3) structure or assist in structuring, or attempt to structure or assist in structuring, any transaction with one or more domestic financial institutions.
31 U.S.C. § 5324 (Supp. V 1987) (emphasis added); see 31 C.F.R. § 103.11(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 currency 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.
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." Matter of Short, 20 I&N Dec. 136, at 137 (BIA...
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