Petition to Review a Decision of the Immigration and Naturalization Service. I&NS No. A26-719-010.
Before: William C. Canby, Jr., Charles Wiggins and Thomas G. Nelson, Circuit Judges. Opinion by Judge Canby.
These consolidated cases present the question whether structuring financial transactions with domestic financial institutions to avoid currency reports, in violation of 31 U.S.C. §§ 5324(3) and 5322(b), is a crime involving moral turpitude within the meaning of the Immigration and Nationality Act ("INA"). We hold that it is not. Accordingly, we grant the petition for review in No. 91-70573, reverse the decision of the Board of Immigration Appeals ("BIA"), and remand with instructions to terminate the deportation proceedings.*fn1
I. FACTUAL & PROCEDURAL BACKGROUND
Nir Goldeshtein is a native and citizen of Israel; he last entered the United States in June 1984. In December 1984, he married Zoe Lawton; she is a United States citizen. On May 30, 1985, on the basis of his marriage, Goldeshtein became a lawful permanent resident of the United States. In March 1989, Goldeshtein pleaded guilty to one count of conspiracy to violate federal currency laws, in violation of 18 U.S.C. § 371, and two counts of structuring financial transactions with domestic financial institutions to avoid currency reports, in violation of 31 U.S.C. §§ 5324(3) and 5322(b) and 18 U.S.C. § 2. Goldeshtein was sentenced to concurrent forty-month prison terms on each count. He served his sentence and was released in February 1991.
Meanwhile, on August 20, 1990, the Immigration and Naturalization Service ("INS") instituted deportation proceedings against Goldeshtein. The INS alleged that Goldeshtein was deportable under section 241(a)(4) of the INA, 8 U.S.C. § 1251(a)(4) (1988), because he had been convicted of a crime involving moral turpitude within five years after entry and had been sentenced to prison for more than a year.*fn2 The INS further alleged that Goldeshtein was deportable under section 241(a)(4)(B) of the INA, 8 U.S.C. § 1251(a)(4)(B) (1988), because he had been convicted of an aggravated felony.*fn3 In October and November 1990, and January 1991, deportation hearings were held before an immigration Judge ("IJ"). Goldeshtein admitted his convictions, but denied an allegation that the money involved in the offenses had come from drug sales. On January 28, 1991, the IJ ruled that Goldeshtein was deportable under section 241(a)(4) of the INA because the offense of structuring financial transactions to avoid currency reports was a crime involving moral turpitude. The IJ ruled, however, that the INS had failed to establish deportability under section 241(a)(4)(B) of the INA because the evidence was insufficient to prove that Goldeshtein's offense was drug-related. Finally, the IJ denied Goldeshtein's request for a discretionary waiver of deportation under section 212(h) of the INA. The IJ ordered Goldeshtein deported to Israel. Goldeshtein appealed to the BIA. In August 1991, the BIA affirmed the IJ's decision and dismissed the appeal. In September 1991, Goldeshtein filed a petition for review.
A. Statutory Definition of the Crime
Goldeshtein contends that he is not deportable because structuring financial transactions to avoid currency reports does not constitute a crime involving moral turpitude within the meaning of 8 U.S.C. § 1251(a)(2)(A)(i) (Supp. IV 1992). We agree.*fn4
Our prior decisions have made it quite clear that the question whether a crime is one of moral turpitude must be answered categorically. "Whether a crime is one with intent to defraud as an element, thereby making it a crime involving moral turpitude, is determined by the statutory definition or by the nature of the crime not by the specific conduct that resulted in the conviction." McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980); see also United States ex rel. Robinson v. Day, 51 F.2d 1022, 1022-23 (2d Cir. 1931) ("Neither the immigration officials, nor we, may consider the circumstances under which the crime was in fact committed. When by its definition [the crime] does not necessarily involve moral turpitude, the alien cannot be deported because in the particular instance his conduct was immoral"). For a crime to involve moral turpitude within the meaning of the INA, the crime "'must necessarily involve moral turpitude.'" Chu Kong Yin, 935 F.2d at 1003 (quoting Tseung Chu v. Cornell, 247 F.2d 929, 935 (9th Cir.), cert. denied, 355 U.S. 892, 2 L. Ed. 2d 190, 78 S. Ct. 265 (1957)) (emphasis in Tseung Chu).
The first question we must face, then, is whether, by its definition, the crime of structuring financial transactions with domestic financial institutions to avoid the filing of currency reports necessarily involves moral turpitude. The resolution of this question turns on whether evil intent - in this case intent to defraud - is an essential element of the crime. See Hirsch v. INS, 308 F.2d 562, 567 (9th Cir. 1962) ("A crime that does not necessarily involve evil intent, such as intent to defraud, is not necessarily a crime involving moral turpitude."); see also Jordan v. De George, 341 U.S. 223, 227, 95 L. Ed. 886, 71 S. Ct. 703 (1951) (analyzing judicial definitions of moral turpitude and citing with approval the Second Circuit's statement that "fraud has ordinarily been the test to determine whether crimes not of the gravest character involve moral turpitude") (citing United States ex rel. Berlandi v. Reimer, 113 F.2d 429 (2d Cir. 1940)).
The statute under which Goldeshtein was convicted provides in pertinent part:
No person shall for the purpose of evading the reporting requirements of section 5313(a) . . . with ...