Crimes of Moral Turpitude

 

Structuring Financial Transactions.

 

The BIA initially held that a noncitizen convicted of causing a financial institution to fail to file currency transaction reports and of structuring currency transactions to evade reporting requirements, in violation of 31 U.S.C. § § 5324(1) and (3), had been convicted of a crime involving moral turpitude.[77]

 

Thereafter, the Ninth Circuit reversed the Board’s interpretation and found that moral turpitude was not involved in the offenses of structuring financial transactions to avoid currency reports, under 31 U.S.C. § § 5322(b), 5324(a)(3) since the statute did not make intent to defraud the government an essential element of the offense, the defendant could have been convicted even if he were not aware his conduct was illegal, and, even if the Supreme Court were to add the element of scienter to the offense, that construction would not of itself convert the crime into one of moral turpitude.[78]

 

The Board then reconsidered its Goldeshtein holding and found that, in the absence of any morally reprehensible conduct, convictions under 31 U.S.C. § § 5324(1) and (3) would not be considered CMTs.[79]

 

Smalley v. Ashcroft, 354 F.3d 332 (5th Cir. Dec. 15, 2003)  (Fifth Circuit agrees with Ninth Circuit in dictum that 31 U.S.C. § 5324(a)(3), Financial Structuring, is not a CMT).

 

But see Matter of Chaqui-Olavaria, File No. A28-590-409, 12 Immigr. Rep. B1-121 (1993) (BIA declined to follow the Ninth Circuit in cases outside that court’s jurisdiction and held that failure to file currency transaction report with intent to avoid reporting under 31 U.S.C. § 5313 was a crime involving moral turpitude);

Matter of D, 9 I. & N. Dec. 605 (BIA 1962) (smuggling with intent to defraud the United States in violation of 18 U.S.C. § 545 was a crime involving moral turpitude, although a conviction under that statute no longer requires proof that the accused had intended financial loss to the government to result from the illegal activity; intent to defraud the government was present if an act was done which was calculated to obstruct or impair its efficiency and destroy the value of its operations; where, as here, the record of conviction under a divisible statute showed intent to defraud, the crime was CMT).

 

Failure to file currency transaction reports.

 

Matter of LVC, 22 I. & N. Dec. 594 (BIA 1999) (conviction of causing a financial institution to fail to file currency transaction reports and of structuring currency transactions to evade reporting requirements, in violation of 31 U.S.C. § § 5324(1) and (3) (1998), where offense did not include morally reprehensible conduct, did not constitute crime involving moral turpitude), overruling Matter of Goldeshtein, 20 I. & N. Dec. 382 (BIA 1991), rev’d, Goldeshtein v. INS, 8 F.3d 645 (9th Cir. 1993).

 

Currency violations.

 

Petition of Yee Wing Toon, 148 F.Supp. 657 (D.N.Y. 1957) (act of Chinese laundryman in sending money to China to aid his starving mother, though a violation of United States currency regulations, was not crime involving moral turpitude).

 

Conversion of United States funds.

 

United States v. K, 160 F.Supp.2d 421 (E.D.N.Y. 2001);

United States v. Malpeso, 943 F.Supp. 254 (E.D.N.Y. 1996);

United States v. Ferranti, 928 F.Supp. 206 (E.D.N.Y. 1996);

United States v. Tropiano, 898 F.Supp. 90 (E.D.N.Y. 1995);

United States v. Guiro, 887 F.Supp. 66 (E.D.N.Y. 1995);

United States v. Concepcion, 795 F.Supp. 1262 (E.D.N.Y. 1992) (conversion of

United States government funds held a crime of “moral turpitude”).

 

Concealing assets in bankruptcy.

 

Medich v. Burmaster, 24 F.2d 57 (8th Cir. 1928) (concealment of assets in bankruptcy held CMT).

 

Encumbering mortgaged property. 

 

United States ex rel. Millard v. Tuttle, 46 F.2d 342 (D.La. 1930) (encumbering mortgaged property with intent to defraud held CMT).

 

Loan sharking.

 

Matter of B, 6 I. & N. Dec. 98 (BIA 1954) (where indictment described obtaining pecuniary profits through usury, in violation of law, by means of intimidation, threats of bodily harm, and extortion, BIA held that the sections of the Banking Law of New York under which the defendant had been convicted contained no requirement that criminal intent be established and was therefore not a CMT, but only a licensing and regulatory enactment with a complete absence of any element which could be considered to denote baseness, vileness, or depravity, and that conviction was possible under such sections because of mere negligence in failing to secure a license to carry on a small business, or “inadvertently receiving” more than the permitted interest on a loan).

 

Securities fraud.

 

Matter of McNaughton, 16 I. & N. Dec. 569 (BIA 1978) (conviction for conspiring to affect the public market in securities with intent to defraud in violation of Canada Criminal Code § 338(2), covering substantially similar conduct to that made criminal in the United States by the Securities Act of 1933, 15 U.S.C. § 77q(a), and the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), is a conviction for a crime involving moral turpitude);

Matter of Acosta, 14 I. & N. Dec. 338 (BIA 1973) (conviction of transportation of a forged and altered security in foreign commerce in violation of the third paragraph of 18 U.S.C. § 2314 involved moral turpitude);

Matter of Fernandez, 14 I. & N. Dec. 24 (BIA 1972) (transportation in interstate commerce of forged securities in violation of 18 U.S.C. § 2314 is a CMT);

Matter of Lethbridge, 11 I. & N. Dec. 444, 445 (BIA 1965) (conviction under that portion of 18 U.S.C. § 474 which makes it a crime to possess securities made after the similitude of United States securities intending to sell and use them, is NOT a conviction of a crime involving moral turpitude: “Language in the indictment charging knowledge of the counterfeit nature of the securities is not found in 18 U.S.C. § 474 and would therefore appear to be surplusage”).

[77] Matter of Goldeshtein, 20 I. & N. Dec. 382 (BIA 1991).

[78] Goldeshtein v. INS, 8 F.3d 645 (9th Cir. 1993); see also Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 661 (1994) (structuring transactions to avoid reporting requirements “is not inevitably nefarious”).

[79] Matter of LVC, 22 I. & N. Dec. 594 (BIA 1999), overruling Matter of Goldeshtein, 20 I. & N. Dec. 382 (BIA 1991).