The grounds of inadmissibility, which include money laundering, apply to both foreign nationals outside the U.S. who are applying for a visa, as well as foreign nationals within the U.S. who are applying for adjustment to permanent residency. Not only that, but they may apply to permanent residents of the U.S. as well.
Foreign nationals outside the U.S. may be barred from entering the U.S. under 8 USC §1182(a)(2)(I), if the US State Department finds that there is “reason to believe” that the visa applicant “may have engaged in (or may intend to engage in) money laundering activity, as described in Section 1956 or 1957, no matter where the activity may have taken place, whether in the U.S. or abroad”, and must request a State Department legal advisory opinion. See, US Department of State cable, R 040059Z DEC 01, to all diplomatic posts, “Visa Provisions in USA Patriot Act Series: No.4 New Money Laundering Ineligibility Under 212(a)(2)(I)” (December 4, 2001).
The U.S. State Department will deny both immigrant visas (for the green card) and nonimmigrant visas (for temporary status) based on a “reason to believe” that the applicant has engaged in money laundering, or may do so in the U.S. at some point in the future. It does not matter if all the money laundering activity occurred outside the U.S., nor does it matter if the individual has never been accused of a crime or formally charged. The “reason to believe” standard allows consular officers to deny a visa based on the exercise of discretion and is subjective.
The same “reason to believe” standard is used by USCIS when adjudicating an application for adjustment to permanent residency for a foreign national who is already residing within the U.S. Similarly, an Immigration Judge will apply the grounds of inadmissibility to a respondent in removal proceedings who has applied for adjustment to permanent residency (or re-adjustment for those who are already permanent residents).
Much of the case law regarding the “reason to believe” standard is in the context of drug trafficking, under the ground for inadmissibility. No conviction is required, and not even a formal criminal charge. Even those who have been acquitted or had their conviction expunged may be found inadmissible for “reason to believe” money laundering. For example, in Mena-Flores v. Holder, 776 F.3d 1152 (10th Cir. 2015), the Tenth Circuit found substantial evidence supported the BIA’s holding that the applicant was inadmissible under INA §212(a)(2)(c) “reason to believe” he was an illicit drug trafficker, even though he had been acquitted of all charges.
This low standard for finding inadmissibility and denying a visa or adjustment of status to permanent residency, is in spite of the fact that most ‘hits’ regarding money laundering turn out to be false positives – i.e., the individual is not a money launderer at all and has been falsely accused. See, Reuters, ”Anti-money laundering controls failing to detect terrorists, cartels and sanctioned states” https://www.reuters.com/article/bc-finreg-laundering-detecting/anti-money-laundering-controls-failing-to-detect-terrorists-cartels-and-sanctioned-states-idUSKCN1GP2NV
In the banking context, according to a study by Price Waterhouse Cooper, “over 95 percent of system-generated alerts are closed as “false positives” in the first phase of review, with approximately 98 percent of alerts never culminating in a suspicious activity report (SAR).” Id. Banks at least have some incentive to correct their errors, since they must appeal to their customers and naturally want to do business. However, with the U.S. government in the immigration context, there is no incentive for government workers to investigate and determine if the computer-generated finding is correct or not. It is just very easy to deny a visa, or to deny an application for adjustment to permanent residency, regardless of whether the finding is erroneous. Because of the doctrine of consular nonreviewability, it is very difficult for a foreign national outside of the U.S. to get real review by a federal court. Similarly, because of USCIS directions to find a pretext for denial of adjustment, or denial in the exercise of discretion, it is very difficult for a foreign national to find out what the denial was based on. If the denial states that it is due to “reason to believe” money laundering, most likely USCIS will not inform the applicant of the details of the factual basis for denial. You will certainly need an experienced immigration attorney if you find yourself in such a predicament.
A conviction for money laundering described in 18 USC §1956 or §1957 may also constitute an aggravated felony under 8 USC §1101(a)(43)(D) if the amount of the funds exceeded $10,000. A foreign national convicted at any time after admission is deportable under 8 USC §1227(a)(2)(A)(iii). This includes permanent residents. In Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), reviewing a similar aggravated felony provision, which also specified a greater than $10,000 monetary loss, 8 USC §1101(a)(43)(M)(i), an offense which involves fraud or deceit and the loss to the victim exceeds $10,000, the US Supreme Court held that the $10,000 amount did not refer to an element of the crime in the statute, but rather required an examination of the particular facts of which the defendant had been convicted. In Nijhawan, even though the statute did not require any particular amount of loss, the defendant had stipulated that the loss exceeded $100 million. Thus, in interpreting those aggravated felonies which specify a particular amount of loss, courts do not use the categorical approach, but rather look at the particular amount of loss that the individual was convicted of, or pled guilty to.
If you are convicted of an aggravated felony, you do not qualify for cancellation of removal for permanent residents, nor do you qualify for cancellation of removal for non-permanent residents. An aggravated felony conviction also bars you from eligibility for asylum. However, you still may be eligible for withholding of removal and relief under the Convention against Torture, if you can show that you have a clear probability of being persecuted should you be returned to your home country, or that you would probably be tortured (for any reason) if returned to your home country (these have their own complex legal requirements which we will not review now).
In a recent decision this May 2021, the Fifth Circuit, in Maniar v. Garland, 998 F.3d 235 (5th Cir. 2021), held that a conviction under 8 USC 1101(a)(43)(D), which includes federal offenses under 18 USC 1956 (laundering of monetary instruments) and 18 USC 1957 (monetary transactions in property derived from specific unlawful activity), is an aggravated felony, and that the petitioner was not eligible for a waiver under 8 USC 1182(h). And thus, he was ordered removed.
The states also have criminal statutes regarding money laundering, which may not correspond to the federal ones, and may be for amounts less than $10,000. In such a scenario, you may be eligible for a 212(h) waiver in conjunction with an adjustment application as relief from removal. Again, these are very complex legal issues that may take years of litigation in immigration court as well as in federal court in order to sort them out.
Copyright © Heidi J Meyers, all rights reserved. This article is for informational purposes only, and is not intended as legal advice.
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