Safe Havens

The BIA previously 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[211] had been convicted of a crime involving moral turpitude.[212]  The Ninth Circuit then reversed the BIA decision, finding that because the statute did not make intent to defraud the government an essential element of the offense, a person could be convicted under those statutes even if s/he were not aware that the 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.[213]  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.[214]

            The same offenses should also not constitute aggravated felonies, as fraud, deceit,[215] or theft,[216] for the same reasons.  See § § 7.80-7.82, 7.103, supra.

[211] 31 U.S.C. § § 5324(a)(1) and (3).

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

[213] 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”).  See also Smalley v. Ashcroft, 354 F.3d 332 (5th Cir. Dec. 15, 2003)  (agreeing with Ninth Circuit in dictum that conviction of violating 31 U.S.C. § 5324(a)(3), Financial Structuring, is not a crime involving moral turpitude).

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

[215] INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).

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