Castillo, Rudy

2621 Rockgate
San Antonio, 78227
Name: ARELLANO-SARABIA, ROBERTO
L.b. 6Q8IH60 0J05c6
Executive Ofce fr Immigation Review
Board of Immigration Appeals
Ofce of the Clerk
J1J7Lrr10lIrgfkr, tiIcJJJ
o1 Lhlirch, @Io J11
OHS/ICE Ofice of Chief Counsel - SNA
8940 Fourinds Drive, 5th Floor
San Antonio, TX 78239
A059-086-627
Date of this notice: 5/21/2012
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Greer, Anne J.
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Roberto Arellano Sarabia, A059 086 627 (BIA May 21, 2012)
For more unpublished BIA decisions, visit www.irac.net/unpublished
' PW
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.. M6gBMc0t 008tcc Decision of te Board of I igation Appeals

Executive Ofce RrIigation Review
Falls Church, Virginia 2241
File: A059 086 627 - San Antonio, J
In re: ROBERTO AELLANO SARAIA
RMOVAL PROCEEDINGS
APPEAL
ON BEHAF OF RESPONDENT: Rudy Catillo, Esquire
ON BEHALF OF DHS:
CHARGE:
Patick Callahan
Assistat Chief Counsel
Date:
Notice: Sec. 237(a)(2)(A)(i), I&N Act [
8 U.S.C. 1227(a)(2)(A)(i)
] -
Convicted of crime involving moral turpitude
APP LI CATION: Terination
MAY .12012
The Depaent of Homeland Security ("DHS") appeals fom an Immigation Judge's decision,
dated September 8, 2011, which terminated proceedings against the respondent. The respondent
moves fr sMa dismissal of the appeal pursuant to 8 C.F .R. 1003 .1 ( d)(2)(ii).1 The appeal will
be dismissed.
The respondent, a native and citizen of Mexico, wa admitted to the United States as a lawl
peranent resident in 2008. On April 11, 2011, he was convicted of bulk cash smuggling into or
out of te United States, in violation of 31 U.S.C. 5332, a ofense that is punishable by not more
tha 5 years in prison (Exh. 2). 31 U.S.C. 5332(b)(l) (2004). Based on the fregoing, the DHS
initiated removal proceedings chaging te respondent with deportability as an alien convicted of a
crime involving moral tuitude ("CIMT"), committed within 5 years afer the date of admission,
fr which a sentence of at least 1 year may be imposed. Section 237(a)(2)(A)(i) of the Immigation
ad Nationality Act, 8 U.S.C. 1227(a)(2)(A)(i). The Immigration Judge dismissed the charge and
terinated the proceedings, concluding that the respondent's ofense was not a CIMT. On appeal,
the DHS maintains that the ofense is a CIMT. We disagee.
To qualif as a CIMT, a crime must involve both "reprehensible conduct" and "some degree of
scienter." Mater of Silva-Trevino, 24 I&N Dec. 687, 689 n. l (A.G. 2008). Generally, moral
tpitude encompasses conduct that is "inherently base, vile, or depraved, and contrar to the
acepted rules of morality ad the duties owed between persons or to societ in general."
We fnd no adequate basis to sMaily dismiss the appeal under 8 C.F.R.
1003.l(d)(ii)(2)(i)(A)-(H). Therefre, we will decide the merits of the appeal.
- -W

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Cite as: Roberto Arellano Sarabia, A059 086 627 (BIA May 21, 2012)
A059 086 627
Hamdan v. IS, 98 F.3d 183, 186 (5th Cir. 1996) (citations omited); see also Smalley v. Ashcrof,
354 F.3d 332, 336 (5th Cir. 2003). To deterine whether the respondenf s conviction is fr a CIMT,
we frst conduct a "categorical" inquir whereby we examine te statute of conviction to ascertain
whether moral turpitde inheres in all ofenses tat have a "realistic probability" ofbeing prosecuted
tereunder. Matter of Silva-Trevino, supra, at 689-90, 696-98.
The statute under which the respondent was convicted provides, in pertinent part:
Whoever, wit the intent to evade a curency reporting requirement under section
5316, knowingly conceals more than $10,000 in curency or other monetary
instments on te person of such individual or in any conveyance, article ofluggage,
merchadise, or other container, ad tansports or tansfrs or attempts to tansport
or tansfer such curency or monetary instents fom a place within the United
States to a place outside the United States, or fom a place outside the United States
to a place within te United States, shall be guilty of a curency smuggling ofense
31 U.S.C. 5332(a)(l ).
Upon de novo review, we conclude that moral tupitude does not inhere in ofenses 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 curency reporting requirement.
See Regalado Cuellar v. United States, 553 U.S. 550, 560 (2008). However, such a violation does
not require that the ofender defaud the goverent or otherise engage in "reprehensible conduct."
Violation of3 l U .S.C. 5332 is not inherently reprehensible because it is essentially a "reporting
ofense" and does not require proof that the concealed curency or monetary instruments were the
proceeds of criminal activity. See Smalley v. Ashcrof, supra, at 339 (contasting money laundering
ofenses, which involve concealment of the proceeds of ulawfl activity, with mere reporting
violations). Compare Matter of L-V-C-, 22 I&N Dec. 594 (BIA 1999) (holding that the ofense of
structuring curency tansactions 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 fr a CIMT where it
requires proof that criminal proceeds were deliberately concealed). We recognize that when
31 U.S.C. 5332 was enacted, Congess indicated that the provision was targeted at "drug dealers
and other criminals engaged in cash-based businesses who avoid using traditional fnancial
institutions," USA PATROT Act of2001, Pub. L. No. 107-56, 371(a), 115 Stat. 272, 337. Its
relationship with other ofenses that may be CIMTs, however, is not a sufcient basis to conclude
that the ofense defned by 5332, as written, is "inevitably nefarious." Matter of L-V-C-, supra,
at 599 (quoting Ratzlalv. United States, 510 U.S. 135, 144-5 (1994)). Because the ofense does
not in and ofitself involve reprehensible conduct, we hold that convictions under 31 U .S.C. 5332
do not involve moral turitude. See Matter of Silva-Trevino, supra, at 689 n. .
Our holding in this regard is bolstered by United States v. Bajakjian, 524 U.S. 321, 339 (1998),
in which the Supreme Court held that a defndant's willfl violation of the 31 U.S.C. 5316
curency reporting requirement involved "no faud on the United States," explaining tat, had te
"crime gone undetected, the Goverent would have been deprived only of the inforation that
2
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Cite as: Roberto Arellano Sarabia, A059 086 627 (BIA May 21, 2012)
A059 086 627
$357,144 had lef the count." See also Smaley V. Ashcrof, supra, at 339 (discussing Bajakjian
as illustative of a case involving a non-tpitudinous reporting violation); Mater of L-V-C-, supra,
at 600-601. For puroses of our analysis here, we see no meaningfl distinction between a violation
of 31 U.S.C. 5332 and the willul violation of the 31 U.S.C. 5316 reporting requirement
discussed in Bajakjian. U either case, the individual who commits the ofense intentionally
violates the cuency reporting requirement without c ommitting faud. Accordingly, fllowing
Bajakjian, supra, we conclude that a violation of31 U.S.C. 5332 is not inherently faudulent such
that it constitutes a CIMT. Cf Matter ofTejwani, supra, at 98 (noting that crimes involving an
intent to defaud are CIMTs).
Inasmuch as the ofense defned by 31 U.S.C. 5332 is not a CIMT, we will dismiss the DHS's
appeal. Accordingly, the fllowing order shall be entered.
ORER: The appeal is dismissed.
FOR TE BO
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Cite as: Roberto Arellano Sarabia, A059 086 627 (BIA May 21, 2012)
fr) P.o
\ . C '',.,,
#
V
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
San Antonio, Texas
File No.: A 059 086 627 Date: September 8, 2011
In the Matter of
ROBERTO ARELLANO-SARABIA IN REMOVAL PROCEEDINGS
Respondent
CHARGE: Section 237(a} (2} (A} (i} of the Immigration and
Nationality Act, as amended - in that you have
been convicted of a crime involving moral
turpitude comitted within five years after
admission to which a sentence of one year or
longer may be imposed.
APPLICATIONS: Termination of proceedings.
ON BEHALF OF RESPONDENT: ON BEHALF OF OHS:
Rudy Castillo Warren R. Kauffman
ORDER AND ORAL DECISION OF THE IMMIGRATION COURT
The respondent is a 26-year-old native and citizen of Mexico
who was admitted to the United States at El Paso, Texas, on or
about January 8, 2008, as a legal permanent resident. The
respondent was convicted on April 11, 2011, in the Western
District of Texas, Del Rio, for the offense of bulk cash
f `
smuggling in violation of 18 U.S.C. 5332.
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The respi S
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admitted to the allegations on the charging document aile
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that he is a native and citizen of Mexico, and that `
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convicted for said offense for bulk cash smuggling. However, the
respondent denied the charge of removability under Section
237{a) (2) {A) (i) in that he contested that it was a "crime
involving moral turpitude. u
On September 8, 2011, the Court concluded pleadings and
determined that the Government had failed to meet its burden of
proof with regards to the charge of removability.
The following evidentiary record was considered. Exhibit
No. 1 is the Notice to Appear. Exhibit No. 2 is the respondent's
conviction record for bulk cash smuggling. Exhibit 2A is the
underlying statute for bulk cash smuggling. The Court having
considered the evidence presented as well as arguments by both
parties opined that the underlying offense was not for a crime
involving moral turpitude.
While there is no definition in the Act for a crime
involving moral turpitude there is ample case law that defines
what a crime involving moral turpitude is. In adjudicating this
decision the Court relied on the Attorney General's decision in
Silva-Trevino, 24 I&N Dec. 687 {A.G. 2008), and the Board's more
recent decision in Ahortalejo-Guzman, 25 I&N Dec. 465 (BIA 2011).
Those decisions highlight the legal analysis the Court must
conduct in finding whether a crime is for one involving moral
turpitude. Therein, the A. G. and the Board state that there is a
hierarchal review that must be accomplished. First, the Court
must determine, as delineated in Silva-Trevino, whether the
A 059 086 627 2 September 8, 2011
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offense is categorically one that is a crime involving moral
turpitude. Only then and there can the Court if it is
unresponsive in looking at the statute Lm E turn to the
conviction record, and if the conviction record is again
unresponsive then the Court can go beyond the conviction record
to determine if the offense is one which would be considered a
crime involving moral turpitude.
Having reviewed the controlling case law, the Court
determined that said offense was not a crime involving moral
turpitude. The Court finds in keeping with the A.G.'s decision
in Silva-Trevino, particularly Footnotes 3 and 5, that the
offense in question lacks the reprehensible conduct necessary to
go along with the scienter, that is the mental state, necessary
to be qualified as a crime involving moral turpitude. Here we
have a crime that has the requisite mental state, it was done
with intent and knowledge. However, the Court finds that it
lacks the requisite reprehensible nature in that it is not malum
per se. The conduct is one that involves a regulatory scheme,
see Exhibit 2A, and unlike the offenses described in Footnote 5
for the A.G.'s decision in Silva-Trevino, the Court finds that
this offense lacks the reprehensible nature because it is one
that is criminalized based on the amount of money in question.
If one looks at, say, theft, theft would be a crime
involving moral turpitude regardless of the amount in question or
the item that is stolen. That is theft is malum per se, and
A 059 086 627 3 September 8, 2011
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reprehensible if you steal a pencil or if you steal 1, 000 bricks
of gold from Fort Knox. Here, however, the offense is
criminalized when the respondent takes outside of the United
States an amount of money in excess of the statutory requirement
of more than $10, 000. That is, had the respondent only
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transferred $9, 999, he would not be
l
violation of this law.
Accordingly, the Court finds that the statute in question lacks
the requisite reprehensible nature and malum per se to qualify as
a crime involving moral turpitude, and it finds as a matter of
law the Government has failed to sustain its burden of proof in
e
the charge that was submitted with the charging document.
ORDER
IT IS HEREBY ORDERED the proceedings be terminated without
prejudice.
States Judge
P 059 086 627 4 September 8, 2011
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CERTIFICATE PAGE
I hereby certify that the attached proceeding before
JUDGE ANIBAL D. MARTINEZ, in the matter of:
ROBERTO ARELLANO-SARBIA
A 059 086 627
San Antonio, Texas
is an accurate, verbatim transcript of the recording as provided by
the Executive Office for Inigration Review and that this is the
original transcript thereof for the file of the Executive Off ice
for Inigration Review.
w
D a Lee M. McGarry,
Free State Reporting,
October 31. 2011
(completion date}
By submission of this CERTIFICATE PAGE, the Contractor certifies
that a Sony BEC/T-147, 4-channel transcriber or equivalent and/or
CD, as described in Section C, paragraph C.3. 3. 2 of the contract,
was used to transcribe the Record of Proceeding shown in the above
paragraph.
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