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

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.
Sincerely,

DonrtL ca.AA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Creppy, Michael J.
Mullane, Hugh G.
Mann, Ana

Lulseges
Userteam: Docket

For more unpublished BIA decisions, visit

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

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OHS/ICE Office of Chief Counsel - SNA

8940 Fourwinds Drive, 5th Floor

San Antonio, TX 78239

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

In re:

SANTINO FABIAN ALARCON-GOMEZ

APR

2 2014

REMOVAL PROCEEDINGS

APPEAL
ON BEHALF OF RESPONDENT:

Pro se

Patrick Callahan
Assistant Chief Counsel

ON BEHALF OF DHS:

CHARGE:
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).

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

Date:

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.

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 offender 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 cash
based businesses who avoid using traditional financial institutions." USA PATRI 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,
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).
24

__

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

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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.

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.

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


\1L

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
800 DOLOROSA, SUITE 300
SAN ANTONIO, TX 78207
)

ALARCON-GOMEZ, SANTINO FABIAN

RESPONDENT

Case No. A201-227-554

)
)
)

IN REMOVAL PROCEEDINGS

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

ON BEHALF OF THE GOVERNMENT

Pro Se

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 turpi tu de (CIMT) for whi ch 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.

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IN THE MATTER OF

II.

A.

Section

Removal

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

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 ofFranklin, 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. C uellar , 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).

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OHS must prove by clear and convincing evidence that an alien admitted to the United States

C.

Case Law

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-V
C-, 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 cover
up 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-C
required 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.

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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.

..
....

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.

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.

If If"', 2012
Glenn P. McPhaul
United States Immigration Judge

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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.