Aggravated Felonies

The aggravated felony definition includes “an offense described in section 1956 of title 18, United States Code (relating to laundering of monetary instruments) or § 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000 . . . .”[490]  The elements of this category are:

            (1)  a conviction of an offense;

(2)  described in 18 U.S.C. § 1956 (relating to laundering of monetary instruments) or § 1957 (relating to engaging in monetary transactions in property derived from specific unlawful activity);

            (3)  if the amount of the funds [laundered] exceeded $10,000.

A conviction of an unlisted federal statute should not constitute an aggravated felony under this category, and conviction of a violation of state law should not constitute an aggravated felony under this category, unless the state conviction as assessed by the record of conviction must fall within the essential substantive elements of one of the two listed federal offenses.  However, it is possible that a court could read the “related to” language broadly to include offenses outside the scope of the listed federal statutes,[491] even though this language is included within a parenthetical similar to those other courts have described as descriptive, not limiting.  See § 4.38, supra.

The Ninth Circuit has held that the plain language of the money laundering aggravated felony definition requires that the amount of funds laundered must be $10,000 or more, rejecting the government’s argument that the loss the victim suffered should be examined for the qualifying amount.[492]  For further discussion of the proof necessary to establish the $10,000 amount required to qualify an offense as an aggravated felony, see § 5.56, supra.

            A RICO offense carrying a potential sentence of one year also is an aggravated felony, under a separate section.[493]  Counsel should make sure that a money laundering or financial transaction offense is not a RICO offense, or avoiding the $10,000 limit will not prevent the conviction from being an aggravated felony.  Note that money laundering also constitutes a conduct-based ground of inadmissibility, where the government has reason to believe the noncitizen has engaged, or will engage in an offense described in 18 U.S.C. § § 1956 or 1957.[494]

            A money laundering conviction might also be considered a drug trafficking crime under some circumstances.[495]

[490] INA § 101(a)(43)(D), 8 U.S.C. § 1101(a)(43)(D).

[491] See § 4.37, supra.

[492] Chowdhury v. INS, 249 F.3d 970 (9th Cir. 2001).

[493] See INA § 101(a)(43)(J), 8 U.S.C. § 1101(a)(43)(J), and discussion infra.

[494] INA § 212(a)(2)(i), 8 U.S.C. § 1182(a)(2)(i).

[495] Lara-Chacon v. Ashcroft, 345 F.3d 1148 (9th Cir. Oct. 10, 2003) (BIA improperly relied upon presentence report in finding conviction for conspiracy to commit money laundering in violation of Ariz. Rev. Stat. § § 13-1003, 12-2317(A)(1), (C) was a drug trafficking crime where presentence report indicated respondent was a drug dealer and the offense involved 15 pounds of marijuana).