Hakim v. Holder
2010 U.S. App. LEXIS 25376
| 5th Cir. | 2010Background
- Hakim, a native of Israel, was convicted of money laundering (>$10,000) and tax fraud in 2003.
- DHS issued a Notice to Appear in 2006 charging removability for an aggravated felony based on money laundering over $10,000.
- IJ found by clear and convincing evidence that Hakim laundered more than $10,000 and Hakim sought withholding and CAT protection.
- BIA affirmed removal and held the money laundering was a particularly serious crime; CAT relief was denied for lack of evidence of torture or Israeli acquiescence.
- On remand, DHS submitted new evidence showing Hakim’s laundering involvement exceeded $10,000, including a case involving approximately $113,000; Hakim argued only tainted funds are counted and only charged-amounts should be considered.
- The Fifth Circuit affirmed the finding of a >$10,000 money-laundering aggravated felony, remanded the CAT issue for correct standard, and denied relief on the other issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hakim laundered more than $10,000 | Hakim argued only tainted funds count and not commingled lawful funds. | DHS contends any part of the transaction involving tainted funds suffices to exceed $10,000. | Hakim laundered more than $10,000; aggravated felony established. |
| Whether BIA used the correct Frentescu standard for 'particularly serious crime' | Hakim contends BIA failed to apply individual Frentescu factors; should be case-specific analysis per Afridi. | BIA performed case-specific analysis consistent with precedent. | BIA applied correct legal standard. |
| Whether BIA used correct standard for CAT and acquiescence (willful blindness) | Matter of S-V- requires willful acceptance; Fifth Circuit and others reject S-V- as proper CAT standard. | BIA used established CAT framework referencing S-V- | BIA's CAT standard was incorrect; case remanded for proper 'actual knowledge' or 'willful blindness' standard. |
Key Cases Cited
- United States v. Tencer, 107 F.3d 1120 (5th Cir. 1997) (money laundering includes commingled funds; need only exceed $10,000)
- United States v. Davis, 226 F.3d 346 (5th Cir. 2000) (section 1956 allows tainted funds to count toward laundering amount)
- Chowdhury v. INS, 249 F.3d 970 (9th Cir. 2001) (counts laundered money as amount involved, not victim's total loss)
- Allen v. United States, 76 F.3d 1348 (5th Cir. 1996) (amount laundered includes all funds diverted, not just losses)
- Ontunez-Tursios v. Ashcroft, 303 F.3d 341 (5th Cir. 2002) (willful blindness satisfies acquiescence for CAT in some contexts)
- Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003) (overruled Matter of S-V-’s willful blindness formulation)
- Ochoa v. Gonzales, 406 F.3d 1166 (9th Cir. 2005) (acknowledges willful blindness approach in CAT acquiescence)
- Chen v. Gonzales, 470 F.3d 1131 (5th Cir. 2006) (cited willful blindness standard consistent with circuit precedent)
- Matter of S-V-, 22 I. & N. Dec. 1306 (2000) (acquiescence requires more than mere awareness; willful blindness discussed later literature)
- Trejo-Robles v. Holder, 348 F.Appx. 982 (5th Cir. 2009) (unpublished; addressed CAT relief but not Merits here)