2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-22-2005

Tejwani v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3930

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 04-3930

 

MAHESH NENUMAL TEJWANI,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent 

 

 

Petition for Review of an Order of the

United States Department of Justice

Board of Immigration Appeals

(BIA No. A44-741-386)

 

Argued December 5, 2005

Before: RENDELL, FISHER and VAN ANTWERPEN, Circuit Judges.

(Filed: December 22, 2005)

 

Thomas E. Moseley [ARGUED]

One Gateway Center

Suite 2600

Newark, NJ 07102

 Counsel for Petitioner

Christopher C. Fuller

Thankful T. Vanderstar [ARGUED]

U.S. Department of Justice
2

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

 Counsel for Respondent

 

OPINION OF THE COURT

 

RENDELL, Circuit Judge.

Mahesh Nenumal Tejwani petitions for review of the September 13, 2004 decision

of the Board of Immigration Appeals (“BIA”) summarily affirming the Immigration

Judge (“IJ”)’s June 20, 2003 removal order. That order followed the IJ’s determination,

in a series of opinions, that New York Penal Law section 470.10(1) was a “crime

involving moral turpitude,” and that Tejwani’s 2000 conviction for violating that

provision rendered him deportable pursuant to 8 U.S.C. § 1227(a)(2)(A)(i).

We have jurisdiction under 8 U.S.C. § 1252(a)(1) and, for the reasons that follow,

will grant the petition for review.

I.

We will limit our factual discussion to those events relevant to our analysis. 

Tejwani is a native and citizen of India who was admitted to the United States as a lawful

permanent resident in 1995. On November 30, 2000, Tejwani pleaded guilty to two

counts of money laundering in the second degree, N.Y. Penal § 470.10(1), in New York

Supreme Court. The statute as it was then written required proof that the actor knew that
 1

The statute provided, in relevant part:

A person is guilty of money laundering in the second degree when that person

exchanges or receives in exchange, in one or more transactions, one or more

monetary instruments which are the proceeds of specified criminal conduct

and have a total value exceeding ten thousand dollars for one or more other

monetary instruments and/or equivalent property when that person knows that

the monetary instrument or instruments exchanged or received in exchange are

the proceeds of any criminal conduct and that person:

1. intentionally makes the exchange to conceal or disguise the nature, the

location, the source, the ownership, or the control of such proceeds . .

. .

N.Y. Penal Law § 470.10 (McKinney 2000).

3

he was laundering the proceeds of “any criminal conduct.”1

The Immigration and Naturalization Service (“INS”) served Tejwani with a Notice

to Appear on October 5, 2001, charging that he was removable for conviction of an

aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). When that charge was dismissed,

the INS charged Tejwani with removability for conviction of a crime involving moral

turpitude within five years of the date of admission to the United States. 8 U.S.C. §

1227(a)(2)(A)(i).

Tejwani applied to terminate removal proceedings. The IJ assigned to Tejwani’s

case issued three interlocutory orders concerning Tejwani’s deportability. Each time, she

concluded that Tejwani was deportable, albeit for slightly different reasons. In the first

order, the IJ relied on language in the indictment that described acts to which Tejwani

had not pleaded guilty. March 17, 2003 IJ Decision at *1. Tejwani moved to reconsider
 2

We note that the IJ’s statement in this opinion that the underlying drug trafficking

“cannot be ignored,” May 30, 2003 IJ Decision at *6, contradicts her seeming recognition

that such conduct should not have been taken into account. It is also at least potentially at

odds with our case law requiring IJs and the BIA to analyze whether a crime is a crime

involving moral turpitude under the “categorical approach,” see De Leon-Reynoso v.

Ashcroft, 293 F.3d 633, 635 (3d Cir. 2002), unless one of the two exceptions to that

approach applies. See Knapik v. Ashcroft, 384 F.3d 84, 92 n.8 (3d Cir. 2004).

4

and, in a second order, dated March 17, 2003, the IJ acknowledged her earlier mistake. 

Id. at *2. Nevertheless, the IJ sustained the charge of deportability on the grounds that

N.Y. Penal Law § 470.10(1) qualified as a crime involving moral turpitude. Id. at *5. 

The IJ determined, based on the indictment, that the “criminal conduct” underlying

Tejwani’s money laundering conviction was drug trafficking, and reasoned that, because

drug trafficking is a crime involving moral turpitude, Tejwani’s crime similarly involved

moral turpitude. Id. at *6-7. 

Tejwani again moved for reconsideration. On May 30, 2003, the IJ issued a third

order, which incorporated the rationale of the March 17 order and further sustained the

charge against Tejwani on the grounds that money laundering itself, regardless of the

underlying criminal conduct, qualifies as a crime of moral turpitude. See May 30, 2003

IJ Decision, at *6-7.2

 The IJ issued her final decision, ordering Tejwani’s removal to

India, on June 20, 2003. The BIA subsequently affirmed the IJ’s decision without

opinion pursuant to 8 C.F.R. § 1003.1(e)(4).

II.
 3

Since the IJ’s decision, the Fifth Circuit Court of Appeals has opined that money

laundering to conceal drug proceeds does constitute a crime involving moral turpitude. 

Smalley v. Ashcroft, 354 F.3d 332, 339 (5th Cir. 2003).

5

Tejwani claims that the BIA abused its discretion in summarily affirming the IJ’s

decision. We agree. The BIA is entitled to streamline its case load, but it must do so in

accordance with the applicable regulations. Accordingly, we may grant a petition for

review where we conclude that the BIA’s decision to streamline a case was “arbitrary and

capricious.” Smriko v. Ashcroft, 387 F.3d 279, 296 (3d Cir. 2004). 

Before a case can be properly streamlined, the reviewing BIA member must

determine that either (A) the issues on appeal are squarely controlled by existing BIA or

federal court precedent or (B) the issues raised on appeal are not so substantial that the

case warrants the issuance of a written opinion. 8 C.F.R. § 1003.1(e)(4)(i). Neither

condition was met here. The issue in this case was one of first impression. Over the

course of her three interlocutory orders, the IJ made the need for guidance abundantly

clear, see May 30 Decision at *2 (“[T]here really is no case precedent on this issue of

whether money laundering is a crime involving moral turpitude.”); id. at *5 (“[Q]uite

honestly, there is simply no case law that interprets whether money laundering is a crime

involving moral turpitude that this court has been able to locate.”).3

 Moreover, the

question presented here – whether money laundering involves moral turpitude – is a legal

issue substantial enough to warrant the issuance of a written opinion by a panel of the

BIA.
6

We therefore conclude that the BIA’s decision to affirm the IJ’s decision on this

matter of first impression without issuing an opinion was arbitrary and capricious in light

of the requirements of 8 C.F.R. § 1003.1(e)(4). 

III.

As we have noted, “arbitrary and capricious application of the streamlining

regulations can result in building case law that is fashioned without the benefit of agency

expertise.” Smriko, 387 F.3d at 297. This is particularly so where, with respect to an

issue such as this, we would owe the BIA’s reasoned determination Chevron deference.

See Knapik v. Ashcroft, 384 F.3d 84, 87-88 (3d Cir. 2004) (adopting the majority view

that courts owe Chevron deference “not only to the BIA’s definition of moral turpitude

but also to its determination that the elements of a criminal statute satisfy that

definition”). “Rather than usurping the role of the BIA and establishing a precedent that

the Board’s expertise might counsel against,” Smriko, 387 F.3d at 297, we will grant

Tejwani’s petition for review, vacate the BIA’s decision, and remand for further

proceedings in order that the BIA may determine, in the first instance, whether money

laundering, as it is defined in the New York statute under which Tejwani was convicted,

is a “crime involving moral turpitude.”