Friday, October 23, 2009

Tejwani (not precedential): NY Money Laundering That Includes Concealing Source of Funds Not A Crime Involving Moral Turpitude

Tejwani v. Holder
Not Precedential
October 22, 2009

Judges Fuentes and Fisher with District Judge Padova. Opinion by Judge Fuentes.

For Mr. Tejwani, Thomas E. Moseley (argued) of Newark, NJ. For the government, Timothy B. Stanton (argued), Leah V. Durant, Susan K. Houser, and Jeffrey L. Menkin of OIL of the Justice Department.

Overturning the BIA's precedential decision.

The Third Circuit overturned the BIA's precedential decision about crimes involving moral turpitude (CIMT or CMT). The case was In re Tejwani or Matter of Tejwani, 24 I&N Dec. 97 (BIA 2007).

A conviction is not a CIMT where the minimum conduct required to be convicted under the criminal statute would not involve intentional or reckless conduct to impede a governmental investigation because there is inadequate intent to find a CIMT (no evil intent and not a combination of depraved negligent conduct that causes bodily injury). The Third Circuit ruled that the BIA made a mistake in its analysis by believing that the minimum conduct would always involve intentionally impeding an investigation.

A conviction is not a CIMT just because the minimum conduct involves knowingly depositing the proceeds of a non-CIMT crime in a way that would disguise the source of the funds. Disguising the source of funds does not necessarily mean you are creating the appearance of legitimate wealth. The Supreme Court pointed this out in 2008 in Regalado Cuellar v. US, 128 S. Ct. 1994 (2008) (upholding a conviction because revealing the source of funds does not always reveal that the funds were obtained illegally). For example, the Third Circuit explained that someone would knowingly deposit the proceeds of non-CIMT actions into a bank account in exchange for a cashier's check to avoid being mugged -- which would not have any intention or effect of hindering a governmental investigation.

The NY statute covered conduct such as exchanging over $10,000 worth of what the person knows is the proceeds of non-CIMT conduct (such as criminal mischief or contempt) and intentionally conceals either the location, source, ownership, or control of the proceeds.

The Third Circuit simply adhered to its approach to analyzing whether a conviction is a CIMT, by focusing on minimal conduct under the statute in question. It followed its recent decision of Jean-Louis v. Holder, 2009 WL 3172753 (3d Cir. Oct. 6, 2009) (rejecting Matter of Silva-Trevino).

This case suggests that the BIA might not be analyzing CIMT issues in a manner the Third Circuit approves of. Perhaps there is a large group of BIA decisions where an appeal to the Third Circuit would succeed, if only the immigrants were given the resources to challenge the BIA's analysis.

Great work by Tom Moseley!

Tuesday, October 06, 2009

Jean-Louis: Crimes Involving Moral Turpitude Require Categorical Approach, Not The Novel Structure In Matter of Silva-Trevino

Jean-Louis v. Holder
2009 WL 3172753
October 6, 2009

Judges Rendell and Roth with Judge Hayden sitting by designation. Opinion by Judge Rendell.

Craig R. Shagin of The Shagin Law Group of Harrisburg, PA for Mr. Jean-Louis. Kevin J. Conway (argued), Richard M. Evans, and Brooke M. Maurer of OIL for the government.

The Third Circuit severely criticized the decision in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), in which then-Attorney General Mukasey made a controversial decision that proposed changing the system that existed for decades about how to analyze whether a crime is classified as a crime involving moral turpitude (often abbreviated as CIMT or CMT).

The Third Circuit insisted on sticking to the well-established approach of its modified categorical approach. Start with the least culpable conduct under the statute and see whether that conduct would qualify as a CIMT. The focus is on the least culpable conduct, not conduct that has what the AG would consider a realistic probability of being prosecuted. Courts can look beyond the least culpable conduct only if the statute has disjunctive variations that will look only to the record of conviction to determine which variation was involved. The Third Circuit rejected the AG's novel approach to go well beyond the record of conviction to an individualized inquiry into the facts of the conviction.

The Third Circuit criticized many parts of the AG's decision. The AG's view is based on an impermissible reading of the statute that Congress passed. The AG tried to argue that there is some vagueness between the words "convicted" and "committed." It would be an understatement to say that the AG's view has been rejected. It has been repeatedly rejected by the BIA, prior attorneys general, and numerous courts of appeals. This is buttressed by recent decisions in Gersenshteyn v. DOJ, 544 F.3d 137 (2d Cir. 2008) and Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004).

The AG was also wrong for believing CIMTs invite inquiry into the specific behavior that led to the conviction. CIMT is a well-defined term of art, not a vague description to narrow the entire universe of convictions. The Third Circuit rejected the Seventh Circuit's rationale in Ali v. Mukasey, 521 F.3d 737 (7th Cir. 2008).

Regardless of whatever deference might be appropriate under Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005) or Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), the AG's rationale is so flawed that the Third Circuit refuses to adopt it no matter what deference is appropriate. Under any level of deference, the Third Circuit is never allowed to accept a decision that violates what Congress has clearly said or that reflects an impermissible construction of a statute.

The Third Circuit also took time in footnote 11 to criticize AG Mukasey severely for the extremely secretive and unfair manner in which he issued his decision in Matter of Silva-Trevino -- he certified the case to himself, he refused to let the parties know what issue he was considering, he refused to define the scope of his review, and he refused to provide an opportunity for the parties to submit written arguments. He also refused to make the IJ's decision or his certification order publicly available, denying stakeholders the change to share their views. This is described in an brief by amici curiae filed after Matter of Silva-Trevino, available at

Congratulations to Craig Shagin!