Smalley v. Ashcroft ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JANUARY 13, 2004 December 15, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-60231
IAN SMALLEY
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit
Judges.
KING, Chief Judge:
Ian Smalley petitions this court to review a March 8, 2002,
decision of the Board of Immigration Appeals ordering him
deported for overstaying his visa and denying his application for
an adjustment of status because he had committed a crime
involving moral turpitude. For the following reasons, the
petition is DISMISSED.
I. BACKGROUND
Smalley, a citizen of the United Kingdom, legally entered
the United States in 1982 with permission to remain for one year.
1
Without authorization, Smalley overstayed his visa. Before his
arrival, Smalley had been convicted of “Fraudulent Trading,” in
violation of Section 332(3) of the Companies Act of 1948, in
London, England. In January 1993, while Smalley remained in the
United States without permission, he pleaded guilty to
“Interstate Travel in Aid of Racketeering Enterprise,” in
violation of 18 U.S.C. § 1952.
On October 26, 1994, the Immigration and Naturalization
Service (“INS”) served Smalley with an Order to Show Cause,
charging him with being a deportable alien for two reasons:
first, because he had remained in the United States for a time
longer than permitted, see Immigration and Nationality Act
(“INA”) § 241(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B) (1994);1 and
second, because he had committed a crime of moral turpitude and
was, therefore, an alien excludable at the time of entry, see INA
§ 241(a)(1)(A), 8 U.S.C. § 1251(a)(1)(A) (1994). The INS argued
that Smalley’s 1981 London conviction and his 1993 U.S.
conviction qualified as crimes of moral turpitude and that each
was sufficient to sustain the second ground of deportability.
Smalley’s immigration case was administratively closed in
December 1995, while his wife, a U.S. citizen, submitted a
1
Section 241 of the INA, 8 U.S.C. 1251 (1994), was
renumbered by the Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”) of 1996, Pub. L. No. 104-208,
§ 305(a)(2), 110 Stat. 3009-546, -598, and now appears in § 237
of the INA, 8 U.S.C. § 1227 (2000).
2
petition for Smalley to receive a visa as her immediate relative.
In June 1998, after the petition was granted, Smalley asked the
Immigration Judge (“IJ”) to consider adjusting his status (to
that of a lawful permanent resident) under INA § 245, 8 U.S.C.
§ 1255 (2000). But on October 24, 1998, the INS lodged an
additional ground of deportability against Smalley, arguing that
his 1993 conviction constituted an aggravated felony as that term
is defined in INA § 101(a)(43)(B), (D), and (U), 8 U.S.C.
§ 1101(a)(43)(B), (D), and (U) (2000).
In August 2000, after holding a hearing on all of the
outstanding issues, the IJ concluded that Smalley was not
deportable as an alien excludable at the time of entry because
his foreign fraudulent trading conviction was not for a crime
involving moral turpitude (“CIMT”). In addition, the IJ
concluded that Smalley’s conviction under 18 U.S.C. § 1952, after
he entered the United States, did not constitute an aggravated
felony. Nevertheless, the IJ held that Smalley was deportable
under INA § 241(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B) (1994),
because he had illegally overstayed his visa. The IJ next
addressed whether Smalley qualified for an adjustment of status.
After reviewing the 1993 conviction, the IJ found that Smalley
had “effectively admitted to acts which constitute” money
laundering under 18 U.S.C. § 1956(a)(3)(B) (2000): Smalley had
pleaded guilty to agreeing to conduct a financial transaction to
disguise money that he believed was the proceeds of illegal drug
3
activity. Because he found that Smalley’s conviction for
laundering drug money constituted a CIMT, he held that Smalley
was not an “admissible” alien eligible for a status adjustment
under INA § 245(a), 8 U.S.C. § 1255(a). Instead, to obtain a
waiver of his inadmissibility under INA § 212(h), 8 U.S.C.
§ 1182(h) (2000), Smalley had to demonstrate that his deportation
would cause extreme hardship to his wife. Ultimately, the IJ
denied Smalley’s request for a discretionary waiver but did grant
him permission to voluntarily depart the United States instead of
being forcibly deported.
Both parties appealed the IJ’s decision to the Board of
Immigration Appeals (“BIA”), which confirmed Smalley’s
deportability for overstaying his visa. The BIA also affirmed
the IJ’s denial of Smalley’s application for an adjustment of
status on the basis that Smalley’s 1993 conviction for violating
18 U.S.C. § 1952 qualified as a CIMT. As an alien convicted of
such a crime, the BIA agreed with the IJ that Smalley was
ineligible for a discretionary adjustment of status unless he
first received a waiver of his criminal inadmissibility under INA
§ 212(h), 8 U.S.C. § 1182(h). Nevertheless, the BIA held that
the IJ had not given Smalley adequate notice to present his
position regarding the waiver issue, and it remanded the case to
the IJ.
On remand, the IJ heard additional testimony concerning the
hardship Smalley’s wife would face if he were deported. The IJ
4
recommended that Smalley’s inadmissibility for committing a CIMT
be waived and that he then be granted an adjustment of status.
The BIA declined to follow these recommendations, however, and on
March 8, 2002, the BIA denied the discretionary waiver and
ordered that Smalley be “deported from the United States to
Portugal”2 without addressing the IJ’s August 2000 decision to
grant Smalley a voluntary departure. Smalley filed a petition
for review of the BIA’s deportation decision in this court. On
July 15, 2002, the government filed a motion to dismiss, claiming
that federal appellate courts lack jurisdiction to review a BIA
decision to deport an alien who has committed a CIMT. This
motion was carried with the case.
II. DISCUSSION
A. Jurisdiction
Before addressing the merits of the petition, we must first
determine whether we have appellate jurisdiction over the BIA’s
deportation order. Nehme v. INS, 252 F.3d 415, 420 (5th Cir.
2001). In 1996, Congress sought to curb appellate review of BIA
deportation decisions through the IIRIRA. As we explained in
Nguyen v. INS, 208 F.3d 528 (5th Cir. 2000), a set of
transitional rules applies to cases in which an alien’s criminal
deportation proceedings “commence before IIRIRA’s general
2
Admitting that a bench warrant for his arrest is extant
in his native country, Smalley requested that he be deported to
Portugal instead of the United Kingdom.
5
effective date of April 1, 1997, and conclude more than thirty
days after its passage on September 30, 1996.” Id. at 531.
Specifically, the transitional rules state that “there shall be
no appeal permitted in the case of an alien who is inadmissible
or deportable by reason of having committed a criminal offense
covered in section 212(a)(2) . . . of the [INA] (as in effect as
of the date of the enactment of this Act).” IIRIRA of 1996, Pub.
L. No. 104-208, § 309(c)(4)(G), 110 Stat. 3009-546, -626 to -627.
Section § 309(c)(4)(G) thus appears to deprive this court of
jurisdiction over Smalley’s petition for review because (1) the
INS initiated deportation proceedings against Smalley in October
1994; (2) these proceedings concluded on March 8, 2002; and (3)
the BIA found that Smalley’s money laundering conviction
qualified as a CIMT, making him inadmissible under § 212(a)(2) of
the INA–-as it existed when the IIRIRA was enacted. See 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) (1994) (stating that “any alien convicted
of . . . acts which constitute the essential elements of–-a crime
involving moral turpitude” “shall be excluded from admission into
the United States”).
Nevertheless, before we may conclude that the IIRIRA
completely forecloses our jurisdiction to review Smalley’s
deportation order, we must first determine whether the
jurisdictional facts required for § 309(c)(4)(G)’s bar to operate
are present in this case. Nguyen, 208 F.3d at 531. As we
clarified in Nehme, “we always have jurisdiction to consider
6
whether the specific conditions exist that bar our jurisdiction
over the merits, namely, whether the petitioner is (1) an alien,
(2) who is deportable, (3) for committing the type of crime that
bars our review.” 252 F.3d at 420 (discussing the IIRIRA’s
nearly identical “final” rules of judicial review, codified at 8
U.S.C. § 1252 (2000)); accord Okoro v. INS, 125 F.3d 920, 925
n.10 (5th Cir. 1997).
In his petition for review, Smalley concedes both that he
is an alien and that he is deportable for overstaying his visa.
He disagrees with the BIA, however, that his 1993 conviction for
agreeing to launder drug money constitutes a CIMT; therefore, he
argues that § 309(c)(4)(G) does not bar us from reviewing the
BIA’s deportation order. Whether Smalley’s crime involved moral
turpitude is a question of law that must be answered in the
affirmative in order for the IIRIRA’s jurisdictional bar to
operate; therefore, we hold (as our precedent requires) that we
have the authority to review this “jurisdictional fact.” See
Balogun v. Ashcroft, 270 F.3d 274, 278 (5th Cir. 2001)
(explaining that “we retain jurisdiction to review jurisdictional
facts” in immigration cases).
B. Crime Involving Moral Turpitude
The INA “does not define the term ‘moral turpitude’ and
legislative history does not reveal congressional intent”
regarding which crimes are turpitudinous. Pichardo v. INS, 104
7
F.3d 756, 759 (5th Cir. 1997). Instead, Congress left the
interpretation of this phrase to both the BIA and the federal
courts. Okoro, 125 F.3d at 926. In light of these observations,
our precedents apply a two-part standard of review to the BIA’s
conclusion that an alien has committed a CIMT. First, we accord
“substantial deference to the BIA’s interpretation of the INA”
and its definition of the phrase “moral turpitude.” Id. at 926.
Second, we review de novo whether the elements of a state or
federal crime fit the BIA’s definition of a CIMT. See Omagah v.
Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002); Okoro, 125 F.3d at
926. Importantly, this two-step approach provides both
consistency––concerning the meaning of moral turpitude––and a
proper regard for the BIA’s administrative role––interpretation
of federal immigration laws, not state and federal criminal
statutes. Id. (“Determining a particular federal or state
crime’s elements lies beyond the scope of the BIA’s delegated
power or accumulated expertise.”); see also Michel v. INS, 206
F.3d 253, 262 (2d Cir. 2000).
Through its administrative decisions, the BIA has crafted
the following definition of moral turpitude:
Moral turpitude refers generally to conduct that shocks
the public conscience as being inherently base, vile, or
depraved, and contrary to the accepted rules of morality
and the duties owed between persons or to society in
general. Moral turpitude has been defined as an act
which is per se morally reprehensible and intrinsically
wrong, or malum in se, so it is the nature of the act
itself and not the statutory prohibition of it which
renders a crime one of moral turpitude. Among the tests
8
to determine if a crime involves moral turpitude is
whether the act is accompanied by a vicious motive or a
corrupt mind.
Hamdan v. INS, 98 F.3d 183, 186 (5th Cir. 1996) (quoting the
BIA’s decision in that case) (internal citations omitted). In
the past, we have adopted the BIA’s definition as a reasonable
interpretation of the INA. Id.; see also Omagah, 288 F.3d at
259-60. We categorically apply this definition of moral
turpitude to an alien’s crime: “[w]hether a crime involves moral
turpitude depends on the inherent nature of the crime, as defined
in the statute concerned, rather than the circumstances
surrounding the particular transgression.” Okoro, 125 F.3d at
926. A crime involves moral turpitude only if all of the conduct
it prohibits is turpitudinous. Hamdan, 98 F.3d at 187. “An
exception to this general rule is made if the statute is
divisible into discrete subsections of acts that are and those
that are not CIMTs.” Id. In this situation, we look at the
alien’s record of conviction to determine whether he “has been
convicted of a subsection” that qualifies as a CIMT. Id.; see
also Omagah, 288 F.3d at 260.
In 1993, Smalley pleaded guilty to “Interstate Travel in
Aid of Racketeering Enterprise” under 18 U.S.C. § 1952. Section
1952 penalizes a defendant who “travels in interstate or foreign
commerce or uses the mail or any facility in interstate or
foreign commerce, with intent to . . . facilitate the promotion,
management, establishment, or carrying on, of any unlawful
9
activity.” 18 U.S.C. 1952(a)(3) (2000).3 Because § 1952 covers
defendants who intend to facilitate a broad range of “unlawful
activity,” the BIA correctly noted in its April 11, 2001, order
that this statute “encompasses” both “conduct that is
turpitudinous and conduct that is not.” Thus, we must determine
whether Smalley’s crime, as charged, falls within a narrow
subsection of the statute that only covers turpitudinous acts.
See Hamdan, 98 F.3d at 187.
According to the criminal information, Smalley pleaded
guilty to “travel[ing] in interstate commerce with intent to
facilitate the carrying on of an unlawful activity; namely, money
laundering in violation of Title 18 . . . § 1956(a)(3)(B).” See
18 U.S.C. § 1952(b)(3) (defining “unlawful activity” to include
offenses committed under 18 U.S.C. § 1956). This subsection of
§ 1956 prohibits “money laundering” of certain illegal funds:
(3) Whoever, with the intent––
. . .
(B) to conceal or disguise the nature, location,
source, ownership, or control of property believed to be
the proceeds of specified unlawful activity
. . .
conducts or attempts to conduct a financial transaction
involving property represented to be the proceeds of
specified unlawful activity, or property used to conduct
or facilitate specified unlawful activity, shall be
[found guilty of this offense].
3
The relevant language of § 1952(a) and (b)(3) has not
been amended since Smalley’s 1993 conviction.
10
18 U.S.C. § 1956(a)(3)(B) (2000).4 Viewed narrowly, Smalley
pleaded guilty to traveling in interstate commerce with the
intent to facilitate the crime defined in this statutory
subsection: conducting a financial transaction to conceal the
proceeds of a specified unlawful activity. According to the
criminal information, Smalley believed that the money he agreed
to conceal was the proceeds of illegal drug transactions, one of
the specified unlawful activities in § 1956.5
In his petition for review, Smalley asks this court to
ignore the fact that he believed the money he agreed to conceal
was the proceeds of illegal drug sales and focus instead on the
question whether money laundering, as a whole, is turpitudinous.
But, at oral argument, Smalley conceded that the government would
have had to prove this fact in order to convict him of intending
to facilitate an offense prohibited by § 1956(a)(3)(B). This
concession demonstrates the flaw in Smalley’s argument; we have
emphasized that, in our categorical analysis of whether a crime
involves moral turpitude, the answer depends upon our analysis of
the elements of the crime that the government must prove before
4
The relevant language of § 1956(a)(3)(B) has not been
amended since Smalley’s 1993 conviction.
5
Section 1956(c)(7) includes, in its definition of
“specified unlawful activity,” “any act or activity constituting
an offense listed under section 1961(1) of this title.” 18
U.S.C. § 1956(c)(7)(A). Further, “buying, selling, or otherwise
dealing in narcotic or other dangerous drugs” was one of the
offenses enumerated by § 1961(1) when Smalley was convicted. See
18 U.S.C. § 1961(1)(D) (1988).
11
obtaining a conviction. Omagah, 288 F.3d at 260; see also id. at
261 (concluding that parsing a crime’s statutory language to
determine which of its elements were met in a particular case,
before deciding whether the crime was a CIMT, is appropriate
under our precedent); cf. Johnson v. INS, 971 F.2d 340, 342-43
(9th Cir. 1992) (rejecting a similar challenge to including the
type of “unlawful activity” prohibited by § 1952 in the court’s
categorical analysis of whether an alien’s crime was an
“aggravated felony” under the INA).
In sum, this court must decide whether Smalley’s 1993
crime––traveling in interstate commerce with the intent “to
conceal or disguise the nature, location, source, ownership, or
control of property believed to the proceeds” of unlawful drug
activity––qualifies as a CIMT. 18 U.S.C. § 1956(a)(3)(B).
The government argues that moral turpitude inheres in this crime
because Smalley had the intent “to conceal or disguise” the
source of illegal drug money when he committed the offense. This
argument draws support from our recent observation that “[c]rimes
including dishonesty or lying as an essential element involve
moral turpitude.” Omagah, 288 F.3d at 260. Moreover, the
government contends that Smalley’s offense was inherently
fraudulent under our precedent, which explains that fraud may be
inferred from “‘conduct, the likely effect of which would be to
mislead or conceal.’” Payne v. Comm’r, 224 F.3d 415, 420 (5th
Cir. 2000) (quoting Spies v. United States, 317 U.S. 492, 499
12
(1943)). If we agree, then we must conclude that Smalley
committed a CIMT because, as the government points out, “fraud
has consistently been regarded as such a contaminating component
in any crime that American courts have, without exception,
included such crimes within the scope of moral turpitude.”
Jordan v. De George, 341 U.S. 223, 229 (1951); accord Balogun v.
Ashcroft, 270 F.3d 274, 278-79 (5th Cir. 2001).
Smalley attempts to rebut the government’s assertion that
his crime was inherently fraudulent by noting that fraud is not
part of the language of either § 1952(a) or § 1956(a)(3)(B). The
Ninth Circuit has aptly noted, however, that “[e]ven if intent to
defraud is not explicit in the statutory definition, a crime
nevertheless may involve moral turpitude if such intent is
‘implicit in the nature of the crime.’” Goldeshtein v. INS, 8
F.3d 645, 648 (9th Cir. 1993) (quoting Winestock v. INS, 576 F.2d
234, 235 (9th Cir. 1978)); accord In re Flores, 17 I. & N. Dec.
225, 228 (BIA 1980). Smalley stridently disagrees that his
offense is implicitly fraudulent and therefore turpitudinous,
however, because he analogizes money laundering to the regulatory
crime of structuring financial transactions to evade reporting
requirements under 31 U.S.C. § 5324, which both the BIA and the
Ninth Circuit have held is neither fraudulent nor a CIMT. See
Goldeshtein, 8 F.3d at 648; In re L-V-C-, 22 I. & N. Dec. 594,
602 (BIA 1999) (following Goldeshtein).
We disagree that Smalley’s offense, as we have defined it
13
above, has the same moral import as a financial structuring
crime. Section 5324 makes it unlawful for a person to
“structure . . . any transaction with one or more domestic
financial institutions” “for the purpose of evading . . .
reporting requirements.” 31 U.S.C. § 5324(a)(3) (2000). The
Ninth Circuit has held that violations of this statute, even when
they are willful, do not constitute CIMTs because “section 5324
requires no intent to defraud the government.” Goldeshtein, 8
F.3d at 648. Smalley’s attempt to apply this conclusion to his
benefit is, however, unconvincing. First, unlike the crime to
which Smalley pleaded guilty, a § 5324 conviction “requires only
structuring to avoid a reporting requirement,” which is not an
activity that in and of itself appears criminal, see id. at 647-
48, or “inherently fraudulent.” Id. at 648 (citing United States
v. Varbel, 780 F.2d 758, 762 (9th Cir. 1986)). This lack of an
“evil intent” has led the Ninth Circuit to conclude that the
structuring crime does not involve “deceit, graft, trickery, or
dishonest means” and is not, therefore, turpitudinous. Id. at
648-49.
We believe that Smalley’s offense, however, is both “per se
morally reprehensible” and “contrary to the accepted rules of
morality” in our society: qualities which meet the definition of
moral turpitude crafted by the BIA and which set his actions
apart from defendants who have engaged in regulatory offenses.
See Hamdan, 98 F.3d at 186 (quoting BIA decision). As the Ninth
14
Circuit noted, when a defendant commits a structuring crime, he
merely chooses to “conduct cash transactions in amounts of less
than $10,000 with the intent to prevent reporting.” Goldeshtein,
8 F.3d at 649. His goal, for example, might be simply to avoid
the hassle of filling out the paperwork required for reporting
purposes. Smalley provides no similarly innocent explanation
that might accompany the act of intentionally concealing the
proceeds of illegal drug sales. Money laundering provides drug
dealers with the means to carry on their unlawful drug trade;
intentionally facilitating this enterprise is certainly morally
reprehensible. In addition, because of the great toll that drugs
have exacted from our society, Smalley’s agreement to conceal
drug money was clearly “contrary to the accepted rules of
morality.” The Supreme Court has described, by contrast, the
“minimal” harm caused by a defendant who has violated a mere
reporting requirement:
Failure to report his currency affected only one party,
the Government, and in a relatively minor way. There was
no fraud on the United States, and respondent caused no
loss to the public fisc. Had his crime gone undetected,
the Government would have been deprived only of the
information [about the transaction].
United States v. Bajakajian, 524 U.S. 321, 339 (1998). For both
of these reasons, we do not agree with Smalley’s assertion that
his facilitation of the drug trade is analogous to the non-CIMT
crime of evading financial reporting requirements.
Smalley also attempts to draw an analogy between his
15
agreement to “conceal or disguise” the proceeds of unlawful drug
transactions and the crime of “misprision of a felony” found in
18 U.S.C. § 4. The misprision statute, he notes, makes it a
crime for someone who has “knowledge of the actual commission of
a felony” to “conceal[]” this knowledge from the authorities. 18
U.S.C. § 4 (2000). While we agree that § 4 and § 1956(a)(3)(B)
may, in fact, involve a similar degree of moral turpitude, we
fail to see how this analogy counsels against our conclusion in
this case. The Eleventh Circuit has held that a misprision
offense “is a crime of moral turpitude because it necessarily
involves an affirmative act of concealment or participation in a
felony, behavior that runs contrary to accepted societal duties
and involves dishonest or fraudulent activity.” Itani v.
Ashcroft, 298 F.3d 1213, 1216 (11th Cir. 2002).6 In our opinion,
this decision provides strong support for concluding that crimes
involving the intentional concealment of illegal drug activity
are intrinsically wrong and, therefore, turpitudinous. Because
we find that Smalley has been convicted of a CIMT, we hold that
IIRIRA § 309(c)(4)(G) precludes our jurisdiction over his final
order of deportation.
Having concluded that we lack jurisdiction over Smalley’s
6
We note that while the BIA has held otherwise, this
decision lacks any precedential value because it was overruled in
1968 by the United States Attorney General. In re Sloan, 12 I. &
N. Dec. 840, 853, 854 (Op. Att’y Gen. 1968) (reversing a 1966 BIA
decision, which had held that misprision of a felony is not a
CIMT).
16
Petition for Review, we may not address the issue of whether the
BIA improperly ordered Smalley deported without affirming the
IJ’s August 2000 decision to grant a voluntary departure. See
IIRIRA § 309(c)(4)(G) (stating that “there shall be no appeal
permitted in the case of an alien who is inadmissible” for having
committed a CIMT); cf. Okoro, 125 F.3d at 927 (concluding, after
finding that jurisdiction over an alien’s appeal was precluded by
the IIRIRA, that “[w]e therefore do not reach [the alien’s] other
claims”).7
III. CONCLUSION
Accordingly, because we lack jurisdiction to review the
BIA’s deportation order, we DISMISS the petition for review.
7
IIRIRA § 309(c)(4)(E) also prevents us from reaching
this issue because it removes our “jurisdiction to review claims
for discretionary relief, including claims regarding voluntary
departure.” Eyoum v. INS, 125 F.3d 889, 891 (5th Cir. 1997).
17