                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             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Precedential or Non-Precedential: Non-Precedential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                                                              NOT PRECEDENTIAL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
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



                                             2
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



  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
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.



  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
       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.



  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
       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.”




                                              6
