DOS Cable on Aliens Inadmissible for Money Laundering

R 040059Z DEC 01
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
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UNCLAS STATE 207482


VISAS INFORM CONSULS

E.O. 12958: N/A
TAGS: CVIS
SUBJECT: VISA PROVISIONS IN USA PATRIOT ACT SERIES: NO. 4
NEW MONEY LAUNDERING INELIGIBILITY UNDER 212(a)(2)(I)

REF: STATE 190946

1. SUMMARY: THIS TELEGRAM PROVIDES A GENERAL OVERVIEW OF
NEW SECTION 212(a)(2)(I) OF THE INA, 8 U.S.C. 1182 (a)(2)(I) REGARDING THE INADMISSIBILITY OF ALIENS ENGAGED IN MONEY LAUNDERING, AS ADDED BY SECTION 1006 OF THE USA PATRIOT ACT. INCLUDED IS THE TEXT OF THE INA SECTION AND EDITED TEXTS OF OTHER SECTIONS OF LAW TO WHICH IT REFERS AND WHICH FORM THE BASIS OF MONEY LAUNDERING ACTS RENDERING ALIENS INELIGIBLE UNDER THE NEW INA SECTION. NEW CLASS CODES HAVE BEEN CREATED FOR THIS INELIGIBILITY: 2I (FOR INELIGIBILITY FINDINGS) AND P2I (FOR SUSPECTED MONEY LAUNDERERS WHO HAVE NOT YET APPLIED FOR VISAS). PENDING THE RECEIPT OF FURTHER INSTRUCTIONS, POSTS SHOULD ENTER SUSPECTED MONEY LAUNDERERS IN CLASS UNDER THE P2I CODE AND, IF POST BELIEVES A VISA APPLICANT (OR CURRENT VISA HOLDER) MAY BE SUBJECT TO THIS INELIGIBILITY, POST MUST SUBMIT THE CASE TO CA/VO/L/A FOR AN ADVISORY OPINION.

2. TEXT OF INA SECTION 212(a)(2)(I)
-------------------------------

"(I) MONEY LAUNDERING. - ANY ALIEN-

(i) WHO A CONSULAR OFFICER OR THE ATTORNEY GENERAL
KNOWS, OR HAS REASON TO BELIEVE, HAS ENGAGED, IS ENGAGING, OR SEEKS TO ENTER THE UNITED STATES TO ENGAGE, IN AN OFFENSE WHICH IS DESCRIBED IN SECTION 1956 OR 1957 OF TITLE 18 UNITED STATES CODE (RELATED TO LAUNDERING OF MONETARY INSTRUMENTS) [NOTE: DESCRIBED GENERALLY BELOW]; OR

(ii) WHO A CONSULAR OFFICER OR THE ATTORNEY GENERAL
KNOWS IS, OR HAS BEEN, A KNOWING AIDER, ABETTOR,
ASSISTER, CONSPIRATOR, OR COLLUDER WITH OTHERS IN AN
OFFENSE WHICH IS DESCRIBED IN SUCH SECTION; IS
INADMISSIBLE."

3. (EDITED) TEXT OF 18 U.S.C.1956:
------------------------------

SEC. 1956. MONEY LAUNDERING

(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 FINANCIAL TRANSACTION WHICH IN FACT INVOLVES THE PROCEED OF SPECIFIED UNLAWFUL ACTIVITY-

(A) (i) WITH THE INTENT TO PROMOTE THE CARRYING ON OF SPECIFIED UNLAWFUL ACTIVITY; OR

(ii) WITH THE INTENT TO ENGAGE IN CONDUCT
CONSTITUTING [CERTAIN TAX VIOLATIONS], 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, (ETC).

(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 THE MONETARY INSTRUMENT OR FUNDS INVOLVED IN THE TRANSPORTATION, TRANSMISSION, OR TRANSFER REPRESENT THE PROCEEDS OF SOME FORM OF UNLAWFUL ACTIVITY AND KNOWING THAT [SUCH ACTION] 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, (ETC.).

(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, SHALL BE FINED, ETC.

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.

(b)(1)WHOEVER CONDUCTS, OR ATTEMPTS TO CONDUCT A FINANCIAL TRANSACTION DESCRIBED IN SUBSECTION (a)(1) OR (a)(3), OR SECTION 1957 [SEE BELOW], OR A TRANSPORTATION, TRANSMISSION OR TRANSFER AS DESCRIBED IN SUBSECTION (a)(2), IS LIABLE TO THE UNITED STATES FOR A CIVIL PENALTY OF NOT MORE THAN, ETC.

(c) TERMS USED IN THIS SECTION -

(1) THE TERM "KNOWING THAT THE PROPERTY INVOLVED IN A
FINANCIAL TRANSACTION REPRESENTS THE PROCEEDS OF SOME FORM OF UNLAWFUL ACTIVITY" MEANS THAT THE PERSON KNEW THE PROPERTY INVOLVED IN THE TRANSACTION REPRESENTED PROCEEDS FROM SOME FORM, THOUGH NOT NECESSARILY WHICH FORM, OF ACTIVITY THAT CONSTITUTE A FELONY UNDER STATE, FEDERAL OR FOREIGN LAW, REGARDLESS OF WHETHER OR NOT SUCH ACTIVITY IS SPECIFIED IN PARAGRAPH (7);

(2) THE TERM "CONDUCTS" INCLUDES INITIATING, CONCLUDING,
OR PARTICIPATING IN INITIATING, OR CONCLUDING A
TRANSACTION;

(3) THE TERM "TRANSACTION" INCLUDES A PURCHASE, SALE,
LOAN, PLEDGE, GIFT, TRANSFER, DELIVERY, OR OTHER DISPOSITION, AND WITH RESPECT TO A FINANCIAL INSTITUTION INCLUDES A DEPOSIT, WITHDRAWAL, TRANSFER BETWEEN ACCOUNTS, EXCHANGE OF CURRENCY, LOANS, EXTENSION OF CREDIT, PURCHASE OR SALE OF ANY STOCK, BOND, CERTIFICATE OF DEPOSIT, OR OTHER MONETARY INSTRUMENT, USE OF A SAFE DEPOSIT BOX, OR ANY OTHER PAYMENT, TRANSFER OR DELIVERY BY, THROUGH, OR TO A FINANCIAL INSTITUTION, BY WHATEVER MEANS AFFECTED;

(4) THE TERM "FINANCIAL TRANSACTION" MEANS-

(A) A TRANSACTION IN ANY WAY OR DEGREE AFFECTS
INTERSTATE OR FOREIGN COMMERCE
(i) INVOLVING THE MOVEMENT OF FUNDS BY WIRE OR OTHER MEANS OR
(ii) INVOLVING ONE OR MORE MONETARY INSTRUMENTS, OR
(iii) INVOLVING THE TRANSFER OF TITLE TO ANY REAL PROPERTY,
VEHICLE, VESSEL, OR AIRCRAFT,

(B) A TRANSACTION INVOLVING THE USE OF A FINANCIAL
INSTITUTION WHICH IS ENGAGED IN, OR THE ACTIVITIES
WHICH AFFECT, INTERSTATE OR FOREIGN COMMERCE IN ANY
WAY OR DEGREE;

(5) THE TERM "MONETARY INSTRUMENTS" MEANS
(i) COIN OR CURRENCY OF THE UNITED STATES OR OF ANY OTHER
COUNTRY, TRAVELERS' CHECKS, PERSONAL CHECKS, BANK
CHECKS, AND MONEY ORDERS, OR
(ii) INVESTMENT SECURITIES OR NEGOTIABLE INSTRUMENTS, IN BEARER FORM OR OTHERWISE IN SUCH FORM THAT TITLE THERETO PASSES UPON DELIVERY;

(6) THE TERMS "FINANCIAL INSTITUTION" INCLUDES

(A) ANY FINANCIAL INSTITUTION, AS DEFINED IN [a
REFERENCED SECTION IN 31 U.S.C.] AND

(B) ANY FOREIGN BANK, AS DEFINED IN [a REFERENCED
SECTION OF 12 U.S.C.];

(7) THE TERM "SPECIFIED UNLAWFUL ACTIVITY" MEANS -

(A) ANY ACT OR ACTIVITY CONSTITUTING [CERTAIN
RACKETEERING OFFENSES LISTED IN 18 U.S.C. 1961(1)];

(B) WITH RESPECT TO A FINANCIAL TRANSACTION
OCCURRING IN WHOLE OR IN PART IN THE UNITED STATES, AN
OFFENSE AGAINST A FOREIGN NATION INVOLVING - -
(i) THE MANUFACTURE, IMPORTATION, SALE, OR
DISTRIBUTION OF CONTROLLED SUBSTANCE, (AS SUCH TERM
IS DEFINED FOR THE PURPOSES OF THE CONTROLLED
SUBSTANCES ACT),
(ii) MURDER, KIDNAPPING, ROBBERY, EXTORTION, DESTRUCTION OF PROPERTY BY MEANS OF EXPLOSIVE OR FIRE OR A CRIME OF VIOLENCE (AS DEFINED IN [18 U.S.C. 16];
(iii) FRAUD, OR ANY SCHEME OR ATTEMPT TO DEFRAUD, BY
OR AGAINST A FOREIGN BANK [AS DEFINED IN THE FOREIGN BANKING ACT];
(iv) BRIBERY OF A PUBLIC OFFICIAL, OR THE MISAPPROPRIATION, THEFT, OR EMBEZZLEMENT OF PUBLIC FUNDS BY OR FOR THE BENEFIT OF A PUBLIC OFFICIAL;
(v) SMUGGLING OR EXPORT CONTROL VIOLATIONS
INVOLVING--
(I) AN ITEM CONTROLLED ON THE UNITED STATES MUNITIONS LIST [REFERRING TO A SECTION OF 22 U.S.C.]; OR
(II) AN ITEM CONTROLLED UNDER [CERTAIN EXPORT CONTROL REGULATIONS IN 15 CFR]
(vi) AN OFFENSE WITH RESPECT TO WHICH THE UNITED
STATES WOULD BE OBLIGATED BY A MULTILATERAL TREATY,
EITHER TO EXTRADITE THE ALLEGED OFFENDER OR TO
SUBMIT THE CASE FOR PROSECUTION, IF THE OFFENDER
WERE FOUND WITHIN THE TERRITORY OF THE UNITED
STATES;

(C) ANY ACT OR ACTS CONSTITUTING A CRIMINAL
ENTERPRISE, AS THAT TERM IS DEFINED IN [CONTROLLED
SUBSTANCES ACT];

(D) [AN EXTREMELY LENGTHY LIST OF FEDERAL CRIMINAL
OFFENSES AGAINST PERSONS AND PROPERTY];

(E) AND (F) [ACTS COVERED BY CERTAIN ENVIRONMENTAL
STATUTES AND HEALTH CARE OFFENSES].

(8) THE TERM "STATE" INCLUDES A STATE OF THE UNITED STATES, THE DISTRICT OF COLUMBIA, AND ANY COMMONWEALTH,
TERRITORY, OR POSSESSION OF THE UNITED STATES.

(d)-(g) (PROCEDURAL AND JURISDICTIONAL SECTIONS)

(h) ANY PERSON WHO CONSPIRES TO COMMIT ANY OFFENSE DEFINED IN THIS SECTION OR SECTION 1957 SHALL BE SUBJECT TO THE SAME PENALTIES AS THOSE PRESCRIBED FOR THE OFFENSE THE
COMMISSION OF WHICH WAS THE OBJECT OF THE CONSPIRACY.

(i) (VENUE SECTIONS)

4. (EDITED) TEXT 0F 18 U.S.C. 1957
------------------------------

"SEC 1957. ENGAGING IN MONETARY TRANSACTIONS IN PROPERTY
DERIVED FROM SPECIFIED UNLAWFUL ACTIVITY.

(a) WHOEVER, IN ANY OF THE CIRCUMSTANCES SET FORTH IN
SUBSECTION (d), KNOWINGLY ENGAGES OR ATTEMPTS TO ENGAGE
IN MONETARY TRANSACTION IN CRIMINALLY DERIVED PROPERTY OF A VALUE GREATER THAN $10,000 AND IS DERIVED FROM
SPECIFIED UNLAWFUL ACTIVITY, SHALL BE PUNISHED AS
PROVIDED IN SUBSECTION (b).

(b) (PENALTIES)

(c) IN A PROSECUTION FOR AN OFFENSE UNDER THIS SECTION, THE
GOVERNMENT IS NOT REQUIRED TO PROVE THE DEFENDANT KNEW THAT THE OFFENSE FROM WHICH THE CRIMINALLY DERIVED PROPERTY WAS SPECIFIED UNLAWFUL ACTIVITY.

(d) THE CIRCUMSTANCES REFERRED TO IN SUBSECTION (A) ARE --

(1) THAT THE OFFENSE UNDER THIS SECTION TAKES PLACE IN
THE UNITED STATES OR IN THE SPECIAL MARITIME AND TERRITORIAL JURISDICTION OF THE UNITED STATES; OR

(2) THAT THE OFFENSE UNDER THIS SECTION TAKES PLACE
OUTSIDE THE UNITED STATES AND SUCH SPECIAL JURISDICTION, BUT THE DEFENDANT IS A UNITED STATES PERSON ( AS DEFINED IN SECTION 3077 OF THIS TITLE, BUT EXCLUDING THE CLASS DESCRIBED IN PARAGRAPH (2)(D) OF SUCH SECTION).

(e) (PROCEDURAL)

(f) AS USED IN THIS SECTION-

(1) THE TERM "MONETARY TRANSACTION" MEANS THE DEPOSIT,
WITHDRAWAL, TRANSFER, OR EXCHANGE, IN OR AFFECTING
INTERSTATE OR FOREIGN COMMERCE, OF FUNDS OR A MONETARY
INSTRUMENT (AS DEFINED IN SECTION 1956(c)(5) OF THIS TITLE)
BY, THROUGH, OR TO A FINANCIAL INSTITUTION (AS DEFINED IN
SECTION 1956 OF THIS TITLE), INCLUDING ANY TRANSACTION THAT
WOULD BE A BENEFICIAL TRANSACTION UNDER SECTION
1956(c)(4)(B) OF THIS TITLE, BUT SUCH TERM DOES NOT INCLUDE
ANY TRANSACTION NECESSARY TO PRESERVE A PERSON'S RIGHT TO
REPRESENTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE CONSTITUTION;

(2) THE TERM "CRIMINALLY DERIVED PROPERTY" MEANS ANY
PROPERTY CONSTITUTING, OR DERIVED FROM, PROCEEDS OBTAINED
FROM A CRIMINAL OFFENSE; AND

(3) THE TERM "SPECIFIED UNLAWFUL ACTIVITY" HAS THE MEANING GIVEN THAT TERM IN SECTION 1956 OF THIS TITLE."
[SEE PARA 3 OF THIS CABLE, ABOVE]

MONEY LAUNDERING WATCH LIST AND MANDATORY AO REQUIREMENT
-------------------------------------------------------

5. THE PATRIOT ACT ALSO REQUIRES THAT WITHIN 90 DAYS OF
ENACTMENT (10/26/01) THE SECRETARY OF STATE IN COOPERATION
WITH THE ATTORNEY GENERAL, THE SECRETARY OF TREASURY, AND
THE DIRECTOR OF CENTRAL INTELLIGENCE AGENCY, MUST DEVELOP
AND THEREAFTER MAINTAIN A MONEY LAUNDERING WATCH LIST WHICH IDENTIFIES INDIVIDUALS WORLDWIDE WHO ARE KNOWN OR SUSPECTED OF MONEY LAUNDERING. THE WATCH LIST MUST BE READILY ACCESSIBLE TO AND MUST BE CHECKED BY A CONSULAR OFFICER OR OTHER FEDERAL OFFICIAL PRIOR THE ISSUANCE OF A VISA OR ADMISSION OF AN ALIEN TO THE UNITED STATES. THE DEPARTMENT IS CURRENTLY IN DISCUSSIONS WITH RELEVANT AGENCIES CONCERNING THE DEVELOPMENT AND IMPLEMENTATION OF SUCH A LIST. THE LIST WILL BE ADDED TO THE CLASS DATABASE UNDER AN APPROPRIATE CODE (P2I OR PERHAPS 00). IN THE INTERIM,
IF A KNOWN OR SUSPECTED MONEY LAUNDERER COMES TO A POST'S ATTENTION OUTSIDE THE CONTEXT OF A VISA APPLICATION OR VISA REVOCATION, THE POST SHOULD ENTER THE ALIEN IN THE CLASS SYSTEM UNDER THE NEW CODE P2I.

6. THE DEPARTMENT HAS BEEN DISCUSSING WITH INS AND THE
DEPARTMENT OF JUSTICE HOW CERTAIN PROVISIONS OF THIS NEW
LAW WILL BE INTERPRETED. POTENTIALLY, THE SCOPE OF SECTIONS 1956 AND 1957 OF 18 U.S.C. AS THEY ARE APPLIED TO 212(A)(2)(I) MAY BE VERY BROAD.

7. THEREFORE, IF AN ALIEN APPLIES FOR A VISA OR CURRENTLY
HOLDS A VALID VISA AND A POST BELIEVES THAT THE ALIEN 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, THE ADJUDICATING POST MUST REFER THE CASE TO CA/VO/L/A FOR AN ADVISORY OPINION. THE ADVISORY OPINION REQUEST SHOULD SPECIFY/DESCRIBE THE NATURE AND LOCATION OF THE ILLEGAL ACTIVITY THAT IS BELIEVED TO HAVE BEEN THE SOURCE OF THE MONEY LAUNDERING TRANSACTION(S), AS WELL AS THE NATURE AND LOCATION OF THE LAUNDERING TRANSACTION(S) THEMSELVES.

POWELL