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Tejwani (not precedential): NY Money Laundering That Includes Concealing Source of Funds Not A Crime Involving Moral Turpitude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Not Precedential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


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