Santino Fabian Alarcon-Gomez, A201 227 554 (BIA Apr. 2, 2014)

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5 I 07 Leesburg Pike, SuUe 2000 Falls Chllrch, Virginia 20530

OHS/ICE Office of Chief Counsel - SNA 8940 Fourwinds Drive, 5th Floor San Antonio, TX 78239

Name: ALARCON-GOMEZ, SANTINO F ... A 201-227-554

Date of this notice: 4/2/2014

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Enclosure

Panel Members: Creppy, Michael J. Mullane, Hugh G. Mann, Ana

Sincerely,

DonrtL ca.AA)

Donna Carr Chief Clerk

Lulseges Userteam: Docket

Cite as: Santino Fabian Alarcon-Gomez, A201 227 554 (BIA Apr. 2, 2014)

For more unpublished BIA decisions, visit www.irac.net/unpublished/index/

Imm

igrant & Refugee A

ppellate Center, LLC

| ww

w.irac.net

U.S. Department of Justice Exck:utive �ffice for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A201 227 554 - San Antonio, TX Date: APR - 2 2014

In re: SANTINO FABIAN ALARCON-GOMEZ

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Pro se

ON BEHALF OF DHS:

CHARGE:

Patrick Callahan Assistant Chief Counsel

Notice: Sec. 237(a)(2)(A)(i), l&N Act [8 U.S.C. § 1227(a)(2)(A)(i)] -Convicted of crime involving moral turpitude

APPLICATION: Termination

The Department of Homeland Security ("DHS") appeals from an Immigration Judge's decision, dated March 15, 2012, which terminated proceedings against the respondent. The appeal will be dismissed.

The respondent is a native and citizen of Mexico. It is undisputed that in 2011, he was convicted of bulk cash smuggling into or out of the United .States, in violation of 31 U.S.C. § 5332(a) (I.J. at I; Exh. 2, Tab A). The statute under which he was convicted provides, in pertinent part:

(a) Criminal Offense. - (1) In general. - Whoever, with the intent to evade a currency reporting requirement under section 5316, knowingly conceals more than $10,000 in currency or other monetary instruments on the person of such individual or in any conveyance, article of luggage, merchandise, or other container, and transports or transfers or attempts to transport or transfer such currency or monetary instruments from a place within the United States to a place outside the United States, or from a place outside the United States to a place within the United States, shall be guilty of a currency smuggling offense.

31 U.S.C.A. §5332 (2011). Based on the foregoing, the DHS initiated removal proceedings charging the respondent with deportability as an alien convicted of a cijme involving moral turpitude ("CIMT"), committed within 5 years after the date of admission, for which a sentence of at least I year may be imposed. Section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i).

#.u.&.4 2i&&44 ...... ¥?.£.ill_ 4 WU& i.%


Imm

igrant & Refugee A


| ww

w.irac.net

A2p l 227 554

The Immigration Judge dismissed the charge and terminated the proceedings, concluding that the respondent's offense was not a CIMT. On appeal, the DHS maintains that the offense is a CIMT. We disagree.

To qualify as a CIMT, a crime must involve both "reprehensible conduct" and "some degree of scienter." Matter of Silva-Trevino, 24 I&N Dec. 687, 689 n.l (A.G. 2008). Generally, moral turpitude encompasses conduct that is "inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general." Hamdan v. INS, 98 F.3d 183, 186 (5th Cir. 1996) (citations omitted); see also Smalley v. Ashcroft, 354 F.3d 332, 336 (5th Cir. 2003). To determine whether the respondent's conviction is for a CIMT, we first conduct a "categorical" inquiry whereby we examine the statute of conviction to ascertain whether moral turpitude inheres in all offenses that have a "realistic probability" of being prosecuted thereunder. Matter of Silva-Trevino, supra, at 689-90, 696-98.

Upon our de novo review, we conclude that moral turpitude does not inhere in offenses that have a realistic probability of being prosecuted under 31 U.S.C. § 5332. The language of the statute makes clear that one who violates it must intend to evade a currency reporting requirement. See Regalado Cuellar v. United States, 553 U.S. 550, 560 (2008). However,' such a violation does not require that the off ender defraud the government or otherwise engage in "reprehensible conduct."

A violation of 31 U .S.C. § 5332 is not inherently reprehensible because it is essentially a "reporting offense" and does not require proof that the concealed currency or monetary instruments were the proceeds of criminal activity. See Smalley v. Ashcroft, supra, at 339 (contrasting money laundering offenses, which involve concealment of the proceeds of unlawful activity, with mere reporting violations). Compare Matter of L-V-C-, 22 l&N Dec. 594 (BIA 1999) (holding that the offense of structuring currency transactions to evade reporting is not a CIMT), with Matter of Tejwani, 24 I&N Dec. 97 (BIA 2007) (holding that a money laundering conviction is for a CIMT where it requires proof that criminal proceeds were deliberately concealed). We recognize that when 31 U.S.C. § 5332 was enacted, Congress indicated that the provision was targeted at "drug dealers and other criminals engaged in cashbased businesses who avoid using traditional financial institutions." USA PA TRI OT Act of 2001, Pub. L. No. 107-56, § 37l(a), 115 Stat. 272, 337. Its relationship with other offenses that may be CIMTs, however, is not a sufficient basis to conclude that the offense defined by § 5332, as written, is "inevitably nefarious." Matter of L-V-C-, supra, at 599 (quoting Ratzlalf v. United States, 510 U.S. 135, 144-45 (1994)). Because the offense does not in and of itself involve reprehensible conduct, we hold that convictions under 31 U.S.C. § 5332 do not involve moral turpitude. See Matter of Silva-Trevino, supra, at 689 n. l .

The DHS argues that, pursuant to "step three" of our analysis in Matter of Si/a-Trevino, 24 l&N Dec. 687 (A.G. 2008), we may consider documents outside the record of conviction (in particular, the Record of Deportable/Inadmissible Alien) to determine whether the respondent's offense is a CIMT (DHS Br. at 19-21). We do not rule, however, that the state statute is divisible; i.e., that it . lists potential offense elements in the alternative, some of which are morally turpitudinous. Rather, it does not include the required element of moral turpitude. Therefore, we do not reach the second and third steps in Matter of Silva-Trevino, supra. See Descamps v. United States,_ U.S. __ , 133 S.Ct. 2276, 2283 (2013).

2 Cite as: Santino Fabian Alarcon-Gomez, A201 227 554 (BIA Apr. 2, 2014)

Imm

igrant & Refugee A


| ww

w.irac.net

· A20 I 227 554 '

Inasmuch as the offense defined by 31 U.S.C. § 5332 is not a CIMT, we will dismiss the DHS's appeal. Accordingly, the following order shall be entered.

ORDER: The Department of Homeland Security's appeal is dismissed.

3


Imm

igrant & Refugee A


| ww

w.irac.net

� \1L

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT 800 DOLOROSA, SUITE 300

SAN ANTONIO, TX 78207

IN THE MATTER OF )

) ALARCON-GOMEZ, SANTINO FABIAN ) RESPONDENT )

) IN REMOVAL PROCEEDINGS )

Case No. A201-227-554

CHARGE: Section 237(a)(2)(A)(i) of the Immigration and Nationality Act, as amended: Alien who, within five years of admission, has been convicted of a crime involving moral turpitude for which a sentence of one year of longer may be imposed.

APPLICATION: Termination of Proceedings.

ON BEHALF OF THE RESPONDENT Pro Se

ON BEHALF OF THE GOVERNMENT Elliot R. Selle, Esq. Justin Nielsen, Esq. U.S. Immigration & Customs Enforcement Office of the Chief Counsel 8940 Fourwinds Drive, 5th Floor San Antonio, TX 78239

WRITTEN DECISION OF THE IMMIGRATION JUDGE

I. Procedural History

The respondent is a thirty-four-year-old male, a native of and citizen of Mexico, who was admitted to the United States at Laredo, Texas, on or about April 12, 2011, as a non-immigrant visitor. Exhibit I; Exhibit 2, Tab B at 7. On September 30, 2011, a federal court convicted the respondent of bulk cash smuggling into or out of the United States in violation of 31 U.S.C. § 5332(a). Exhibit 2, Tab A at 1. The Department of Homeland Security (DHS) filed the respondent's NTA with the Court on February 29, 2012, commencing removal proceedings and charging the respondent as removable pursuant to section 237(a)(2)(A)(i) of the Immigration and Nationality Act (the Act), as amended, for conviction of a crime involving moral turpitude (CIMT) for which a sentence of one year of longer may be imposed within five years of admission to the United States. Exhibit 1.

On March 7, 2012, the respondent admitted the factual allegations and conceded the charge of removal contained in the NTA. DHS submitted the respondent's conviction records, which the Court admitted without objection as Group Exhibit 2. Based on the evidence presented, the Court issues the following written decision terminating the respondent's removal proceedings because DHS has not established that the respondent is removable as charged.

Imm

igrant & Refugee A


| ww

w.irac.net

• I

A. Section 237(a)(2)(A)(i) of the Act

II. Removal

�. �

OHS must prove by clear and convincing evidence that an alien admitted to the United States is removable as charged. Section 240(c)(3)(A) of the Act.

An alien is removable if, within five years of admission to the United States, he is convicted of a CIMT for which a sentence of one year of longer may be imposed. Section 237(a)(2)(A)(i) of the Act. A CIMT is an offense that involves reprehensible conduct and some degree of scienter, i.e. specific intent, willfulness, or reckless conduct. Matter of Silva-Trevino, 24 l&N Dec. 687, n.1 (A.G. 2008). Moral turpitude refers generally to conduct that is "inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or society in general." Matter of Franklin, 20 I&N Dec. 867, 868 (BIA 1994 ) .

The Attorney General outlined a three-step test to determine whether a conviction constitutes a CIMT: (1) Look to the statute of conviction under the categorical approach and determine whether there is a "realistic probability" that the statute would be applied to reach conduct that does not involve moral turpitude; (2) If the categorical approach is inconclusive, apply a modified categorical approach and examine the record of conviction; and (3) If the record of conviction is inconclusive, consider any additional evidence deemed necessary or appropriate. Matter of Silva-Trevino, 24 I&N Dec. 687, 704 (A.G. 2008).

B. 31 U.S.C. § 5332(a)(l)

A person is guilty of bulk cash smuggling into or out of the United States if, with intent to evade a currency reporting requirement under 31 U. S.C. § 5316, he knowingly conceals more than $10,000 in currency and transports or attempts to transport the currency into or out of the United States. 31 U.S.C. § 5332(a)(l). Bulk cash smuggling is punishable by imprisonment of no more than five years. 31 U.S.C. § 5332(b)(l).

When enacting 31 U.S.C. § 5332(b)(l), congress indicated that "transportation and smuggling of cash in bulk form may now be the most common form of money laundering, and . . . one of the most reliable warning signs of . . . "crime. USA Patriot Act of 2001, Pub. L. No. 107-56, § 371, 115 Stat. 336, 337 (2001).

The Fifth Circuit Court of Appeals noted in a footnote that 31 U.S.C. § 5332 "outlaws the unreported transportation of large sums of money outside the country whether they are legitimate funds or illicit funds." United States v. Cuellar, 478 F.3d 282, 288 n.4 (2007), overruled on other grounds by Regalado v. Cuellar, 553 U.S. 550 (2008). The Eleventh Circuit Court of Appeals held that a lower court did not err when it prohibited defendants charged with bulk cash smuggling from presenting evidence that they transported money for innocent reasons because bulk cash smuggling requires proof that the defendants "knew they were required to file a report and that, for whatever reason, they deliberately evaded this requirement." United States v. Tatoyan, 474 F. 3d 1174, 1179 (11th Cir. 2006).

2

Imm

igrant & Refugee A


| ww

w.irac.net

C. Case Law

Offenses that involve intent to defraud involve moral turpitude. Jordan v. De George, 341 U.S. 223, 227-28 (1951); Matter of Flores, 17 l&N Dec. 225, 228-30 (BIA 1980). According to the Board, it is not necessary that the government be defrauded of money or property; rather, "[i]t is enough to impair or obstruct an important function . . . by defeating its efficiency or destroying the value of its lawful operations by deceit, graft, trickery, or dishonest means." Matter of Flores, 17 l&N Dec. at 229.

The Board subsequently held that structuring currency transactions for the purpose of evading reporting requirements in violation of 21 U.S.C. § 5324 is not categorically a CIMT. Matter of L-VC-, 22 I&N Dec. 594, 604 (BIA 1999). Structuring transactions to evade reporting requirement encompasses benign non-reporting that does not impair government function and the deliberate coverup of illegal activity. Id. at 603. Also, failure to report currency involves minimal harm, does not involve fraud on the United States, and only deprives the United States of information that money left the country. Id. at 601 (citing United States v. Bajakajian, 524 U.S. 321, 339 (1998)).

According to the Supreme Court, a defendant who attempted to leave the United States with more than $10,000 in currency without reporting it as required by 31 U.S.C. § 5316 caused minimal harm to the government and no loss to the public. United States v. Bajakajian, 524 U.S. at 339. The offense, which was unrelated to other illegal activities, did not involve fraud on the government and only deprived the government of information that money left the country. Id. at 338, 339.

D. Analysis of Law and Facts

Although the pro se respondent conceded the charge of removal, the Court is required to determine if the allegations establish the charge of deportability. See 8 C.F.R. § 1240. lO(c).

The Court finds that bulk cash smuggling in violation of 31 U.S.C. § 5332(a) is comparable the statute at issue in Matter of L-V-C-, 22 l&N Dec. 594. Bulk cash smuggling requires proof that a person knowingly concealed and attempted to transport $I 0,000 in currency with intent to evade reporting requirements. 31 U.S.C. § 5332(a). The structuring statute at issue in Matter of L-V-Crequired proof that the defendant structured a transaction with intent to evade reporting requirements. 22 I&N Dec. at 597. Thus, both 31 U.S.C. § 5332(a) and 21 U.S.C. § 5324 require proof of an action, structuring a transaction or concealing money, with intent to evade a reporting requirement.

The Board held that structuring a transaction to avoid a reporting requirement was not a CIMT because the statute did not require proof that the funds were the proceeds of criminal activity or that the defendant had intent to defraud. Matter of L-V-C-, 22 I&N Dec. at 604. Similarly, 31 U.S.C. § 5332(a) does require proof that the concealed funds were involved in criminal activity. Instead, both the Fifth and Eleventh Circuit Courts of Appeal have indicated that a bulk cash smuggling conviction may be based on concealment of legitimate funds unrelated to criminal activity. United States v.

Cuellar, 478 F.3d at 288 n.4; United States v. Tatoyan, 474 F.3d at 1179. Although congress found that bulk cash smuggling is often connected with other criminal activity, this does not establish that the offense is always connected to other criminal activity as the government alleges. USA Patriot Act of 2001, Pub. L. No. 107-56, § 371.

3

Imm

igrant & Refugee A


| ww

w.irac.net

..

....

Additionally, as was the case in United States v. Bajakajian, knowing concealment of legitimate funds with intent to evade a reporting requirement is not fraudulent, causes no loss the public, causes minimal loss to the government, and only denies the government of information about money entering or leaving the country. 524 U.S. at 339.

Because bulk cash smuggling in violation of 31 U.S.C. § 5332(a) does not require proof that the concealed funds were the proceeds of criminal activity or that the defendant had an intent to defraud, there is a "realistic probability" that the offense covers conduct that does not involve moral turpitude. Matter of Silva-Trevino, 24 I&N Dec. at 704. Accordingly, the offense is not categorically aCIMT.

Under the modified categorical approach, the Court may consider the record of conviction to determine whether the respondent's bulk cash smuggling conviction is a CIMT. Id. Here, the government only provided the respondent's judgment of conviction, which does not reveal any additional information about the respondent's conviction. Exhibit 2, Tab A.

Turning to any additional evidence deemed necessary or appropriate, the government provided the respondent's form I-213. Exhibit 2, Tab B. The I-213 indicates that the respondent hid $150,000 in U.S. currency in his car door as he attempted to leave the United States from Laredo, Texas. Id. at 8-9. The 1-213, however, does not reveal whether the funds were involved in criminal activity, aside from the respondent's concealment with intent to evade reporting requirements. Id. The government offered no additional evidence regarding the respondent's conviction. Therefore, the government has not established that the respondent's bulk cash smuggling conviction is a CIMT.

DHS bears the burden of proving by clear and convincing evidence that the respondent is removable as charged. Section 240(c)(3)(A) of the Act. Because the government failed to establish that the respondent's bulk case smuggling offense is a CIMT, the government failed to establish that the he is removable for conviction of a CIMT for which a sentence of one year of longer may be imposed within five years of admission to the United States. Section 237(a)(2)(A)(i) of the Act. The government declined to lodge any additional charges of deportability although given the opportunity to do so.

Accordingly, the following order shall be entered:

ORDER

IT IS HEREBY ORDERED that removal proceedings against the respondent be TERMINATED with prejudice.

Date: fr.. 1111. c If If"', 2012

4

Glenn P. McPhaul United States Immigration Judge

Imm

igrant & Refugee A


| ww

w.irac.net

Documents

Santino Fabian Alarcon-Gomez, A201 227 554 (BIA Apr. 2, 2014)