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


There is a two-part standard of review applied to the Board of Immigration Appeals' (BIA) conclusion that an alien has committed a crime involving moral turpitude (CIMT). First, a reviewing court accords substantial deference to the BIA's interpretation of the Immigration and Nationality Act (INA), 8 U.S.C.S. § 1101 et seq., and its definition of the phrase "moral turpitude." Second, the court reviews de novo whether the elements of a state or federal crime fit the BIA's definition of a CIMT. 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.


Petitioner Ian Smalley, a citizen of the United Kingdom, legally entered the United States in 1982 with permission to remain for one year. Without authorization, Smalley overstayed his visa. In Jan. 1993, he pleaded guilty to Interstate Travel in Aid of Racketeering Enterprise. On Oct. 26, 1994, the Immigration and Naturalization Service served Smalley with an Order to Show Cause, charging him with being a deportable alien. The Immigration Judge (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). Nevertheless, the IJ held that Smalley was deportable because he had illegally overstayed his visa. On appeal, the Board of Immigration Appeals (BIA)confirmed Smalley's deportability for overstaying his visa. Smalley filed a petition for review. Respondent federal government filed a motion to dismiss the petition for review.


Should the petition for review be granted?




The appellate court held it was deprived of jurisdiction over Smalley's petition because: (1) deportation proceedings were initiated in Oct. 1994; (2) those 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 8 U.S.C.S. § 1182(a)(2)(A)(i)(I). Smalley's offense was not similar to the offense of structuring a financial transaction to avoid reporting requirements, under 31 U.S.C.S. § 5324, which was not a CIMT. His offense was both per se morally reprehensible and contrary to the accepted rules of morality, which met the definition of moral turpitude crafted by the BIA and which set his actions apart from defendants who engaged in regulatory offenses. Because Smalley was convicted of a CIMT, the appellate court had no jurisdiction over his final order of deportation and thus it granted the government's motion to dismiss.

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