1

United States Court of Appeals

Fifth Circuit

FILED

December 15, 2003

Charles R. Fulbruge III

Clerk

REVISED JANUARY 13, 2004

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-60231

 

IAN SMALLEY

Petitioner

v.

JOHN ASHCROFT, ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit

Judges.

KING, Chief Judge:

Ian Smalley petitions this court to review a March 8, 2002,

decision of the Board of Immigration Appeals ordering him

deported for overstaying his visa and denying his application for

an adjustment of status because he had committed a crime

involving moral turpitude. For the following reasons, the

petition is DISMISSED.

I. BACKGROUND

Smalley, a citizen of the United Kingdom, legally entered

the United States in 1982 with permission to remain for one year. 
1 Section 241 of the INA, 8 U.S.C. 1251 (1994), was

renumbered by the Illegal Immigration Reform and Immigrant

Responsibility Act (“IIRIRA”) of 1996, Pub. L. No. 104-208,

§ 305(a)(2), 110 Stat. 3009-546, -598, and now appears in § 237

of the INA, 8 U.S.C. § 1227 (2000).

2

Without authorization, Smalley overstayed his visa. Before his

arrival, Smalley had been convicted of “Fraudulent Trading,” in

violation of Section 332(3) of the Companies Act of 1948, in

London, England. In January 1993, while Smalley remained in the

United States without permission, he pleaded guilty to

“Interstate Travel in Aid of Racketeering Enterprise,” in

violation of 18 U.S.C. § 1952. 

On October 26, 1994, the Immigration and Naturalization

Service (“INS”) served Smalley with an Order to Show Cause,

charging him with being a deportable alien for two reasons:

first, because he had remained in the United States for a time

longer than permitted, see Immigration and Nationality Act

(“INA”) § 241(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B) (1994);1 and

second, because he had committed a crime of moral turpitude and

was, therefore, an alien excludable at the time of entry, see INA

§ 241(a)(1)(A), 8 U.S.C. § 1251(a)(1)(A) (1994). The INS argued

that Smalley’s 1981 London conviction and his 1993 U.S.

conviction qualified as crimes of moral turpitude and that each

was sufficient to sustain the second ground of deportability.

Smalley’s immigration case was administratively closed in

December 1995, while his wife, a U.S. citizen, submitted a
3

petition for Smalley to receive a visa as her immediate relative. 

In June 1998, after the petition was granted, Smalley asked the

Immigration Judge (“IJ”) to consider adjusting his status (to

that of a lawful permanent resident) under INA § 245, 8 U.S.C.

§ 1255 (2000). But on October 24, 1998, the INS lodged an

additional ground of deportability against Smalley, arguing that

his 1993 conviction constituted an aggravated felony as that term

is defined in INA § 101(a)(43)(B), (D), and (U), 8 U.S.C.

§ 1101(a)(43)(B), (D), and (U) (2000).

In August 2000, after holding a hearing on all of the

outstanding issues, the IJ concluded that Smalley was not

deportable as an alien excludable at the time of entry because

his foreign fraudulent trading conviction was not for a crime

involving moral turpitude (“CIMT”). In addition, the IJ

concluded that Smalley’s conviction under 18 U.S.C. § 1952, after

he entered the United States, did not constitute an aggravated

felony. Nevertheless, the IJ held that Smalley was deportable

under INA § 241(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B) (1994),

because he had illegally overstayed his visa. The IJ next

addressed whether Smalley qualified for an adjustment of status. 

After reviewing the 1993 conviction, the IJ found that Smalley

had “effectively admitted to acts which constitute” money

laundering under 18 U.S.C. § 1956(a)(3)(B) (2000): Smalley had

pleaded guilty to agreeing to conduct a financial transaction to

disguise money that he believed was the proceeds of illegal drug
4

activity. Because he found that Smalley’s conviction for

laundering drug money constituted a CIMT, he held that Smalley

was not an “admissible” alien eligible for a status adjustment

under INA § 245(a), 8 U.S.C. § 1255(a). Instead, to obtain a

waiver of his inadmissibility under INA § 212(h), 8 U.S.C.

§ 1182(h) (2000), Smalley had to demonstrate that his deportation

would cause extreme hardship to his wife. Ultimately, the IJ

denied Smalley’s request for a discretionary waiver but did grant

him permission to voluntarily depart the United States instead of

being forcibly deported.

Both parties appealed the IJ’s decision to the Board of

Immigration Appeals (“BIA”), which confirmed Smalley’s

deportability for overstaying his visa. The BIA also affirmed

the IJ’s denial of Smalley’s application for an adjustment of

status on the basis that Smalley’s 1993 conviction for violating

18 U.S.C. § 1952 qualified as a CIMT. As an alien convicted of

such a crime, the BIA agreed with the IJ that Smalley was

ineligible for a discretionary adjustment of status unless he

first received a waiver of his criminal inadmissibility under INA

§ 212(h), 8 U.S.C. § 1182(h). Nevertheless, the BIA held that

the IJ had not given Smalley adequate notice to present his

position regarding the waiver issue, and it remanded the case to

the IJ.

On remand, the IJ heard additional testimony concerning the

hardship Smalley’s wife would face if he were deported. The IJ
2 Admitting that a bench warrant for his arrest is extant

in his native country, Smalley requested that he be deported to

Portugal instead of the United Kingdom.

5

recommended that Smalley’s inadmissibility for committing a CIMT

be waived and that he then be granted an adjustment of status. 

The BIA declined to follow these recommendations, however, and on

March 8, 2002, the BIA denied the discretionary waiver and

ordered that Smalley be “deported from the United States to

Portugal”2 without addressing the IJ’s August 2000 decision to

grant Smalley a voluntary departure. Smalley filed a petition

for review of the BIA’s deportation decision in this court. On

July 15, 2002, the government filed a motion to dismiss, claiming

that federal appellate courts lack jurisdiction to review a BIA

decision to deport an alien who has committed a CIMT. This

motion was carried with the case.

II. DISCUSSION

A. Jurisdiction

Before addressing the merits of the petition, we must first

determine whether we have appellate jurisdiction over the BIA’s

deportation order. Nehme v. INS, 252 F.3d 415, 420 (5th Cir.

2001). In 1996, Congress sought to curb appellate review of BIA

deportation decisions through the IIRIRA. As we explained in

Nguyen v. INS, 208 F.3d 528 (5th Cir. 2000), a set of

transitional rules applies to cases in which an alien’s criminal

deportation proceedings “commence before IIRIRA’s general
6

effective date of April 1, 1997, and conclude more than thirty

days after its passage on September 30, 1996.” Id. at 531. 

Specifically, the transitional rules state that “there shall be

no appeal permitted in the case of an alien who is inadmissible

or deportable by reason of having committed a criminal offense

covered in section 212(a)(2) . . . of the [INA] (as in effect as

of the date of the enactment of this Act).” IIRIRA of 1996, Pub.

L. No. 104-208, § 309(c)(4)(G), 110 Stat. 3009-546, -626 to -627. 

Section § 309(c)(4)(G) thus appears to deprive this court of

jurisdiction over Smalley’s petition for review because (1) the

INS initiated deportation proceedings against Smalley in October

1994; (2) these proceedings concluded on March 8, 2002; and (3)

the BIA found that Smalley’s money laundering conviction

qualified as a CIMT, making him inadmissible under § 212(a)(2) of

the INA–-as it existed when the IIRIRA was enacted. See 8 U.S.C.

§ 1182(a)(2)(A)(i)(I) (1994) (stating that “any alien convicted

of . . . acts which constitute the essential elements of–-a crime

involving moral turpitude” “shall be excluded from admission into

the United States”). 

Nevertheless, before we may conclude that the IIRIRA

completely forecloses our jurisdiction to review Smalley’s

deportation order, we must first determine whether the

jurisdictional facts required for § 309(c)(4)(G)’s bar to operate

are present in this case. Nguyen, 208 F.3d at 531. As we

clarified in Nehme, “we always have jurisdiction to consider
7

whether the specific conditions exist that bar our jurisdiction

over the merits, namely, whether the petitioner is (1) an alien,

(2) who is deportable, (3) for committing the type of crime that

bars our review.” 252 F.3d at 420 (discussing the IIRIRA’s

nearly identical “final” rules of judicial review, codified at 8

U.S.C. § 1252 (2000)); accord Okoro v. INS, 125 F.3d 920, 925

n.10 (5th Cir. 1997).

 In his petition for review, Smalley concedes both that he

is an alien and that he is deportable for overstaying his visa. 

He disagrees with the BIA, however, that his 1993 conviction for

agreeing to launder drug money constitutes a CIMT; therefore, he

argues that § 309(c)(4)(G) does not bar us from reviewing the

BIA’s deportation order. Whether Smalley’s crime involved moral

turpitude is a question of law that must be answered in the

affirmative in order for the IIRIRA’s jurisdictional bar to

operate; therefore, we hold (as our precedent requires) that we

have the authority to review this “jurisdictional fact.” See

Balogun v. Ashcroft, 270 F.3d 274, 278 (5th Cir. 2001)

(explaining that “we retain jurisdiction to review jurisdictional

facts” in immigration cases).

B. Crime Involving Moral Turpitude

The INA “does not define the term ‘moral turpitude’ and

legislative history does not reveal congressional intent”

regarding which crimes are turpitudinous. Pichardo v. INS, 104
8

F.3d 756, 759 (5th Cir. 1997). Instead, Congress left the

interpretation of this phrase to both the BIA and the federal

courts. Okoro, 125 F.3d at 926. In light of these observations,

our precedents apply a two-part standard of review to the BIA’s

conclusion that an alien has committed a CIMT. First, we accord

“substantial deference to the BIA’s interpretation of the INA”

and its definition of the phrase “moral turpitude.” Id. at 926. 

Second, we review de novo whether the elements of a state or

federal crime fit the BIA’s definition of a CIMT. See Omagah v.

Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002); Okoro, 125 F.3d at

926. Importantly, this two-step approach provides both

consistency––concerning the meaning of moral turpitude––and a

proper regard for the BIA’s administrative role––interpretation

of federal immigration laws, not state and federal criminal

statutes. Id. (“Determining a particular federal or state

crime’s elements lies beyond the scope of the BIA’s delegated

power or accumulated expertise.”); see also Michel v. INS, 206

F.3d 253, 262 (2d Cir. 2000).

Through its administrative decisions, the BIA has crafted

the following definition of moral turpitude:

Moral turpitude refers generally to conduct that shocks

the public conscience as being inherently base, vile, or

depraved, and contrary to the accepted rules of morality

and the duties owed between persons or to society in

general. Moral turpitude has been defined as an act

which is per se morally reprehensible and intrinsically

wrong, or malum in se, so it is the nature of the act

itself and not the statutory prohibition of it which

renders a crime one of moral turpitude. Among the tests
9

to determine if a crime involves moral turpitude is

whether the act is accompanied by a vicious motive or a

corrupt mind.

Hamdan v. INS, 98 F.3d 183, 186 (5th Cir. 1996) (quoting the

BIA’s decision in that case) (internal citations omitted). In

the past, we have adopted the BIA’s definition as a reasonable

interpretation of the INA. Id.; see also Omagah, 288 F.3d at

259-60. We categorically apply this definition of moral

turpitude to an alien’s crime: “[w]hether a crime involves moral

turpitude depends on the inherent nature of the crime, as defined

in the statute concerned, rather than the circumstances

surrounding the particular transgression.” Okoro, 125 F.3d at

926. A crime involves moral turpitude only if all of the conduct

it prohibits is turpitudinous. Hamdan, 98 F.3d at 187. “An

exception to this general rule is made if the statute is

divisible into discrete subsections of acts that are and those

that are not CIMTs.” Id. In this situation, we look at the

alien’s record of conviction to determine whether he “has been

convicted of a subsection” that qualifies as a CIMT. Id.; see

also Omagah, 288 F.3d at 260.

 In 1993, Smalley pleaded guilty to “Interstate Travel in

Aid of Racketeering Enterprise” under 18 U.S.C. § 1952. Section

1952 penalizes a defendant who “travels in interstate or foreign

commerce or uses the mail or any facility in interstate or

foreign commerce, with intent to . . . facilitate the promotion,

management, establishment, or carrying on, of any unlawful
3 The relevant language of § 1952(a) and (b)(3) has not

been amended since Smalley’s 1993 conviction.

10

activity.” 18 U.S.C. 1952(a)(3) (2000).3 Because § 1952 covers

defendants who intend to facilitate a broad range of “unlawful

activity,” the BIA correctly noted in its April 11, 2001, order

that this statute “encompasses” both “conduct that is

turpitudinous and conduct that is not.” Thus, we must determine

whether Smalley’s crime, as charged, falls within a narrow

subsection of the statute that only covers turpitudinous acts. 

See Hamdan, 98 F.3d at 187. 

According to the criminal information, Smalley pleaded

guilty to “travel[ing] in interstate commerce with intent to

facilitate the carrying on of an unlawful activity; namely, money

laundering in violation of Title 18 . . . § 1956(a)(3)(B).” See

18 U.S.C. § 1952(b)(3) (defining “unlawful activity” to include

offenses committed under 18 U.S.C. § 1956). This subsection of

§ 1956 prohibits “money laundering” of certain illegal funds: 

(3) Whoever, with the intent––

. . . 

(B) to conceal or disguise the nature, location,

source, ownership, or control of property believed to be

the proceeds of specified unlawful activity

. . .

conducts or attempts to conduct a financial transaction

involving property represented to be the proceeds of

specified unlawful activity, or property used to conduct

or facilitate specified unlawful activity, shall be

[found guilty of this offense].
4 The relevant language of § 1956(a)(3)(B) has not been

amended since Smalley’s 1993 conviction.

5 Section 1956(c)(7) includes, in its definition of

“specified unlawful activity,” “any act or activity constituting

an offense listed under section 1961(1) of this title.” 18

U.S.C. § 1956(c)(7)(A). Further, “buying, selling, or otherwise

dealing in narcotic or other dangerous drugs” was one of the

offenses enumerated by § 1961(1) when Smalley was convicted. See

18 U.S.C. § 1961(1)(D) (1988).

11

18 U.S.C. § 1956(a)(3)(B) (2000).4 Viewed narrowly, Smalley

pleaded guilty to traveling in interstate commerce with the

intent to facilitate the crime defined in this statutory

subsection: conducting a financial transaction to conceal the

proceeds of a specified unlawful activity. According to the

criminal information, Smalley believed that the money he agreed

to conceal was the proceeds of illegal drug transactions, one of

the specified unlawful activities in § 1956.5

In his petition for review, Smalley asks this court to

ignore the fact that he believed the money he agreed to conceal

was the proceeds of illegal drug sales and focus instead on the

question whether money laundering, as a whole, is turpitudinous.

But, at oral argument, Smalley conceded that the government would

have had to prove this fact in order to convict him of intending 

to facilitate an offense prohibited by § 1956(a)(3)(B). This

concession demonstrates the flaw in Smalley’s argument; we have

emphasized that, in our categorical analysis of whether a crime

involves moral turpitude, the answer depends upon our analysis of

the elements of the crime that the government must prove before
12

obtaining a conviction. Omagah, 288 F.3d at 260; see also id. at

261 (concluding that parsing a crime’s statutory language to

determine which of its elements were met in a particular case,

before deciding whether the crime was a CIMT, is appropriate

under our precedent); cf. Johnson v. INS, 971 F.2d 340, 342-43

(9th Cir. 1992) (rejecting a similar challenge to including the

type of “unlawful activity” prohibited by § 1952 in the court’s

categorical analysis of whether an alien’s crime was an

“aggravated felony” under the INA). 

In sum, this court must decide whether Smalley’s 1993

crime––traveling in interstate commerce with the intent “to

conceal or disguise the nature, location, source, ownership, or

control of property believed to the proceeds” of unlawful drug

activity––qualifies as a CIMT. 18 U.S.C. § 1956(a)(3)(B). 

The government argues that moral turpitude inheres in this crime

because Smalley had the intent “to conceal or disguise” the

source of illegal drug money when he committed the offense. This

argument draws support from our recent observation that “[c]rimes

including dishonesty or lying as an essential element involve

moral turpitude.” Omagah, 288 F.3d at 260. Moreover, the

government contends that Smalley’s offense was inherently

fraudulent under our precedent, which explains that fraud may be

inferred from “‘conduct, the likely effect of which would be to

mislead or conceal.’” Payne v. Comm’r, 224 F.3d 415, 420 (5th

Cir. 2000) (quoting Spies v. United States, 317 U.S. 492, 499
13

(1943)). If we agree, then we must conclude that Smalley

committed a CIMT because, as the government points out, “fraud

has consistently been regarded as such a contaminating component

in any crime that American courts have, without exception,

included such crimes within the scope of moral turpitude.” 

Jordan v. De George, 341 U.S. 223, 229 (1951); accord Balogun v.

Ashcroft, 270 F.3d 274, 278-79 (5th Cir. 2001).

Smalley attempts to rebut the government’s assertion that

his crime was inherently fraudulent by noting that fraud is not

part of the language of either § 1952(a) or § 1956(a)(3)(B). The

Ninth Circuit has aptly noted, however, that “[e]ven if intent to

defraud is not explicit in the statutory definition, a crime

nevertheless may involve moral turpitude if such intent is

‘implicit in the nature of the crime.’” Goldeshtein v. INS, 8

F.3d 645, 648 (9th Cir. 1993) (quoting Winestock v. INS, 576 F.2d

234, 235 (9th Cir. 1978)); accord In re Flores, 17 I. & N. Dec.

225, 228 (BIA 1980). Smalley stridently disagrees that his

offense is implicitly fraudulent and therefore turpitudinous,

however, because he analogizes money laundering to the regulatory

crime of structuring financial transactions to evade reporting

requirements under 31 U.S.C. § 5324, which both the BIA and the

Ninth Circuit have held is neither fraudulent nor a CIMT. See

Goldeshtein, 8 F.3d at 648; In re L-V-C-, 22 I. & N. Dec. 594,

602 (BIA 1999) (following Goldeshtein).

We disagree that Smalley’s offense, as we have defined it
14

above, has the same moral import as a financial structuring

crime. Section 5324 makes it unlawful for a person to

“structure . . . any transaction with one or more domestic

financial institutions” “for the purpose of evading . . .

reporting requirements.” 31 U.S.C. § 5324(a)(3) (2000). The

Ninth Circuit has held that violations of this statute, even when

they are willful, do not constitute CIMTs because “section 5324

requires no intent to defraud the government.” Goldeshtein, 8

F.3d at 648. Smalley’s attempt to apply this conclusion to his

benefit is, however, unconvincing. First, unlike the crime to

which Smalley pleaded guilty, a § 5324 conviction “requires only

structuring to avoid a reporting requirement,” which is not an

activity that in and of itself appears criminal, see id. at 647-

48, or “inherently fraudulent.” Id. at 648 (citing United States

v. Varbel, 780 F.2d 758, 762 (9th Cir. 1986)). This lack of an

“evil intent” has led the Ninth Circuit to conclude that the

structuring crime does not involve “deceit, graft, trickery, or

dishonest means” and is not, therefore, turpitudinous. Id. at

648-49.

We believe that Smalley’s offense, however, is both “per se

morally reprehensible” and “contrary to the accepted rules of

morality” in our society: qualities which meet the definition of

moral turpitude crafted by the BIA and which set his actions

apart from defendants who have engaged in regulatory offenses. 

See Hamdan, 98 F.3d at 186 (quoting BIA decision). As the Ninth
15

Circuit noted, when a defendant commits a structuring crime, he

merely chooses to “conduct cash transactions in amounts of less

than $10,000 with the intent to prevent reporting.” Goldeshtein,

8 F.3d at 649. His goal, for example, might be simply to avoid

the hassle of filling out the paperwork required for reporting

purposes. Smalley provides no similarly innocent explanation

that might accompany the act of intentionally concealing the

proceeds of illegal drug sales. Money laundering provides drug

dealers with the means to carry on their unlawful drug trade;

intentionally facilitating this enterprise is certainly morally

reprehensible. In addition, because of the great toll that drugs

have exacted from our society, Smalley’s agreement to conceal

drug money was clearly “contrary to the accepted rules of

morality.” The Supreme Court has described, by contrast, the

“minimal” harm caused by a defendant who has violated a mere

reporting requirement: 

Failure to report his currency affected only one party,

the Government, and in a relatively minor way. There was

no fraud on the United States, and respondent caused no

loss to the public fisc. Had his crime gone undetected,

the Government would have been deprived only of the

information [about the transaction].

United States v. Bajakajian, 524 U.S. 321, 339 (1998). For both

of these reasons, we do not agree with Smalley’s assertion that

his facilitation of the drug trade is analogous to the non-CIMT

crime of evading financial reporting requirements.

Smalley also attempts to draw an analogy between his
6 We note that while the BIA has held otherwise, this

decision lacks any precedential value because it was overruled in

1968 by the United States Attorney General. In re Sloan, 12 I. &

N. Dec. 840, 853, 854 (Op. Att’y Gen. 1968) (reversing a 1966 BIA

decision, which had held that misprision of a felony is not a

CIMT).

16

agreement to “conceal or disguise” the proceeds of unlawful drug

transactions and the crime of “misprision of a felony” found in

18 U.S.C. § 4. The misprision statute, he notes, makes it a

crime for someone who has “knowledge of the actual commission of

a felony” to “conceal[]” this knowledge from the authorities. 18

U.S.C. § 4 (2000). While we agree that § 4 and § 1956(a)(3)(B)

may, in fact, involve a similar degree of moral turpitude, we

fail to see how this analogy counsels against our conclusion in

this case. The Eleventh Circuit has held that a misprision

offense “is a crime of moral turpitude because it necessarily

involves an affirmative act of concealment or participation in a

felony, behavior that runs contrary to accepted societal duties

and involves dishonest or fraudulent activity.” Itani v.

Ashcroft, 298 F.3d 1213, 1216 (11th Cir. 2002).6 In our opinion,

this decision provides strong support for concluding that crimes

involving the intentional concealment of illegal drug activity

are intrinsically wrong and, therefore, turpitudinous. Because

we find that Smalley has been convicted of a CIMT, we hold that

IIRIRA § 309(c)(4)(G) precludes our jurisdiction over his final

order of deportation.

Having concluded that we lack jurisdiction over Smalley’s
7 IIRIRA § 309(c)(4)(E) also prevents us from reaching

this issue because it removes our “jurisdiction to review claims

for discretionary relief, including claims regarding voluntary

departure.” Eyoum v. INS, 125 F.3d 889, 891 (5th Cir. 1997).

17

Petition for Review, we may not address the issue of whether the

BIA improperly ordered Smalley deported without affirming the

IJ’s August 2000 decision to grant a voluntary departure. See

IIRIRA § 309(c)(4)(G) (stating that “there shall be no appeal

permitted in the case of an alien who is inadmissible” for having

committed a CIMT); cf. Okoro, 125 F.3d at 927 (concluding, after

finding that jurisdiction over an alien’s appeal was precluded by

the IIRIRA, that “[w]e therefore do not reach [the alien’s] other

claims”).7

III. CONCLUSION

Accordingly, because we lack jurisdiction to review the

BIA’s deportation order, we DISMISS the petition for review.