Archive for March, 2008

What if he was a foreigner?

Sunday, March 16th, 2008

Eliot Spitzer

Eliot Spitzer has not been convicted of a crime. An alien need not be convicted of a crime to be inadmissible to the United States. An alien, for example, can be denied admission to the United States if he admits committing acts which constitute the essential elements of a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime. INA § 212(a)(2)(A)(i)(I). It is not clear from the law whether going to a prostitute is a crime of moral turpitude. In my practice I have seen this issue decided both ways (it was and it was not so considered). My own view of the case law is that going to a prostitute in this day and age is not a crime of moral turpitude.

Press reports indicate that Mr. Spitzer could be convicted of crimes under the Mann Act or for money laundering. Because of interest in the matter, a detailed examination of the these statutes is useful. The immigration laws reference the Mann Act sections found at 8 U.S.C. §§ 2421-2423. Section 2421 states:

Whoever knowingly transports any individual in interstate or foreign commerce, or in any Territory or Possession of the United States, with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 10 years, or both.

Section 2422(a) states:

(a) Whoever knowingly persuades, induces, entices, or coerces any individual to travel in interstate or foreign commerce, or in any Territory or Possession of the United States, to engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

Sections 2422(b) and 2423 relate to sexual activity with persons under 18 years old, so are not relevant to a Spitzer analysis as his friend/partner/employee/independent contractee is reported to be 22 years old.

The immigration act references a money laundering statute found at 18 U.S.C. § 1956, which states:

Laundering of monetary instruments

(a) (1) Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity–
(A)(i) with the intent to promote the carrying on of specified unlawful activity; or
(ii) with intent to engage in conduct constituting a violation of section 7201 or 7206 of the Internal Revenue Code of 1986 [26 USCS § 7201 or 7206]; or
(B) knowing that the transaction is designed in whole or in part–
(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or
(ii) to avoid a transaction reporting requirement under State or Federal law,
shall be sentenced to a fine of not more than $ 500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than twenty years, or both. For purposes of this paragraph, a financial transaction shall be considered to be one involving the proceeds of specified unlawful activity if it is part of a set of parallel or dependent transactions, any one of which involves the proceeds of specified unlawful activity, and all of which are part of a single plan or arrangement.
(2) Whoever transports, transmits, or transfers, or attempts to transport, transmit, or transfer a monetary instrument or funds from a place in the United States to or through a place outside the United States or to a place in the United States from or through a place outside the United States–
(A) with the intent to promote the carrying on of specified unlawful activity; or
(B) knowing that the monetary instrument or funds involved in the transportation represent the proceeds of some form of unlawful activity and knowing that such transportation, transmission, or transfer is designed in whole or in part–
(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or
(ii) to avoid a transaction reporting requirement under State or Federal law,
shall be sentenced to a fine of not more than $ 500,000 or twice the value of the monetary instrument or funds involved in the transportation, transmission, or transfer, whichever is greater, or imprisonment for not more than twenty years, or both. For the purpose of the offense described in subparagraph (B), the defendant’s knowledge may be established by proof that a law enforcement officer represented the matter specified in subparagraph (B) as true, and the defendant’s subsequent statements or actions indicate that the defendant believed such representations to be true.
(3) Whoever, with the intent–
(A) to promote the carrying on of specified unlawful activity;
(B) to conceal or disguise the nature, location, source, ownership, or control of property believed to be the proceeds of specified unlawful activity; or
(C) to avoid a transaction reporting requirement under State or Federal law,
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 fined under this title or imprisoned for not more than 20 years, or both. For purposes of this paragraph and paragraph (2), the term “represented” means any representation made by a law enforcement officer or by another person at the direction of, or with the approval of, a Federal official authorized to investigate or prosecute violations of this section.

Reports that money was concealed to hide its use in prostitution and also sent overseas to hide its use in prostitution seem to implicate laundering for unlawful activity. Hence the speculation about potential prosecution.

Regarding the Mann Act, under immigration laws, at INA § 101(a)(43)(K)(ii), a conviction under 18 U.S.C. §§ 2421, 2422, or 2423 is an aggravated felony “if committed for commercial advantage.” So far, nothing indicates that Mr. Spitzer induced transportation to Washington from New York for Mr. Spitzer’s friend/partner/employee (independent contractee) for commercial advantage. Thus, at this early stage, one is inclined to conclude that Mr. Spitzer is not an aggravated felon under the Mann Act.

Regarding money laundering, at INA § 101(a)(43)(D), an aggravated felony is defined as a conviction under 18 U.S.C. § 1956 “if the amount of the funds exceeded $10,000.” Press reports indicate that Mr. Spitzer concealed funds more than once and that each concealment was of an encounter that cost $4,300.00. If there were more than 2.33 encounters at that price, then Mr. Spitzer could be convicted of laundering more than $10,000 and he could be deported as an aggravated felon. An aggravated felon cannot seek the usual form of relief from deportation for lawful permanent residents, Cancellation of Removal at INA § 240A(a). Thus, he would be deported from the United States.

Of course, if Mr. Spitzer were not a permanent resident, he could seek adjustment of status as a remedy to deportation. See, http://www.montaglaw.com/articles/articles_20.html. If money laundering is not a crime of moral turpitude, he would be able to adjust status based on petitions from a United States citizen spouse or a United States citizen child who is at least 21 years old. Assuming his wife is willing to petition for him, he could become a permanent resident at the discretion of an immigration judge. If his wife is not willing, his eldest daughter is 18 years old. Hopefully, Mr. Spitzer could keep his case alive for three years until she turns 21. She could then peitition for him to keep him here if she was willing. If the crime is deemed a crime of moral turpitude, Mr. Spitzer is eligible for a waiver under INA § 212(h). See, http://www.montaglaw.com/articles/articles_9.html. Based on the equities in his case: long residence, family ties, hardship to him and his family if he was deported, business and property ties (huge in this case as the man inherited millions), service to the community (also huge in this case), and remorse, one would imagine he would receive the waiver.

Two things are worth some additional comment. First, some commentators have indicated that the Mann Act is an antiquated, long-forgotten law and it would be anomalous to prosecute Mr. Spitzer for it. A counter to the argument is that in 1996 when Congress re-defined an aggravated felony to include the Mann Act, it must have thought the Mann Act had some vitality or it would not have included it in the list of new aggravated felonies. Second, the fact that Mr. Spitzer would be better off if he were not a permanent resident than if he was points out what many argue is an irrationality and equal protection flaw in the law, though the courts of appeal disagree. (See the footnotes 10-14 of the link above).

National Customer Service Center redux

Sunday, March 9th, 2008

I recently posted a description of the uselessness of the National Customer Service Center. I described my experiences with two cases, and I-212 and an N-565. After I received my unsatisfactory response regarding the N-565, I sought another avenue for satisfaction — the American Immigration Lawyers Association inquiry program. A week after I submitted the inquiry, I got a response from a noble AILA volunteer who helps run the program. The answer, forwarded to me from the Nebraska Service Center, was that the case was already approved and had been approved before I inquired of the National Customer Service Center. The new naturalization certificate was in the mail. It seems the inquiry is what prompted someone to put the certificate in the mail. My client told me yesterday that he received it. The lesson is simple, if you lose your naturalization certificate, you can pay $380 to the government for a replacement. You will get it after a year if you are willing to spend an hour on the phone checking up and then hiring a lawyer who can access the AILA inquiry system to get the certificate made. And we should be clear — this was not an application for naturalization, this was a request to glue a photograph on a piece of paper and print in a name, a date, a birth date, and a city and mail it. Think if it took that much money effort and time to get a replacement drivers license — there would be a revolution.

As for the I-212 case, no answer.

What if he was a foreigner?

Sunday, March 2nd, 2008

James Barbour

James Barbour, a Broadway actor who played the Beast in Beauty of the Beast pled guilty to two counts of endangering the welfare of a minor, presumably Section 260.10 of the New York State Penal Law. Mr. Barbour was originally charged with sexual abuse of a minor. Had Mr. Barbour pled guilty to a sexual abuse charge, he would have been deportable without a means of relief, as sexual abuse of a minor is an aggravated felony, INA § 101(a)(43)(A), not allowing for the usual relief from removal called Cancellation of Removal. His actual conviction, for endangering the welfare of a child, is also a deportable offense under INA § 237(a)(2)(E)(i), which renders deportable, “Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment….” This ground of inadmissibility can be forgiven through Cancellation of Removal. Mr. Barbour was also compelled to admit to two episodes of sexual misconduct which would likely also render him inadmissible for morally turpitudinous behavior.

What if he was a foreigner?

Sunday, March 2nd, 2008

Pete Rose

Pete Rose, former Major League Baseball star and manager, pled guilty on April 22, 1990,to two charges of filing false income tax returns not showing income he received from selling autographs, memorabilia, and from horse racing winnings. On July 20, 1990, Rose was sentenced to five months in the medium security Prison Camp at the United States Penitentiary in Marion, Illinois and fined $50,000. He was released on January 7, 1991 after having paid $366,041 in back taxes and interest. According to INA § 101(a)(43)(M), this conviction is likely an aggravated felony. The statute defines an aggravated felony as an offense that “(i) involves fraud or deceit in which the loss to the victim or victims exceeds $ 10,000; or (ii) is described in section 7201 of the Internal Revenue Code of 1986 [26 USCS § 7201] (relating to tax evasion) in which the revenue loss to the Government exceeds $ 10,000.” The Board of Immigration Appeals has recently held that the loss can be determined from evidence outside of the record of conviction. Mr. Rose had to pay $366,041 in back taxes, probably probative of a loss of more than $10,000.