In re Diaz-Lizarraga

• Decision Date: 16 November 2016
• Docket Number: Interim Decision #3877
• Citation: 26 I&N Dec. 847
• Parties: Matter of Guillermo DIAZ-LIZARRAGA, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

26 I&N Dec. 847

Matter of Guillermo DIAZ-LIZARRAGA, Respondent

Interim Decision #3877

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

November 16, 2016

(1) A theft offense is a crime involving moral turpitude if it involves a taking or exercise of control over another's property without consent and with an intent to deprive the owner of his property either permanently or under circumstances where the owner's property rights are substantially eroded.

(2) Shoplifting in violation of section 13-1805(A) of the Arizona Revised Statutes is categorically a crime involving moral turpitude.

FOR RESPONDENT: Laura M. St. John, Esquire, Florence, Arizona

FOR THE DEPARTMENT OF HOMELAND SECURITY: Elly Laff, Assistant Chief Counsel

BEFORE: Board Panel: PAULEY and GREER, Board Members; GELLER, Temporary Board Member.

PAULEY, Board Member:

In a decision dated February 10, 2016, an Immigration Judge terminated the removal proceedings against the respondent. The Department of Homeland Security ("DHS") has appealed from that decision. The appeal will be sustained, the removal proceedings will be reinstated, and the record will be remanded to the Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico and lawful permanent resident of the United States. In July 2015, the DHS charged him with removability under section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(ii) (2012), as an alien convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct. In support of that charge, the DHS presented evidence indicating that the respondent was convicted in 2010, 2012, and 2013 of shoplifting property worth less than $1,000 in violation of section 13-1805(A) of the Arizona Revised Statutes. At all relevant times, that section has provided, in pertinent part, as follows:

Page 848

A person commits shoplifting if, while in an establishment in which merchandise is displayed for sale, the person knowingly obtains such goods of another with the intent to deprive that person of such goods by:

1. Removing any of the goods from the immediate display or from any other place within the establishment without paying the purchase price; or
2. Charging the purchase price of the goods to a fictitious person or any person without that person's authority; or
3. Paying less than the purchase price of the goods by some trick or artifice such as altering, removing, substituting or otherwise disfiguring any label, price tag or marking; or
4. Transferring the goods from one container to another; or
5. Concealment.

(Emphasis added.) For purposes of this provision, section 13-1801(A)(4) of the Arizona Revised Statutes defines the term "deprive" as follows:

"Deprive" means to withhold the property interest of another either permanently or for so long a time period that a substantial portion of its economic value or usefulness or enjoyment is lost, to withhold with the intent to restore it only on payment of any reward or other compensation or to transfer or dispose of it so that it is unlikely to be recovered.¹

There is no dispute that the respondent sustained his shoplifting convictions. However, the Immigration Judge dismissed the removal charge and terminated the proceedings, concluding that section 13-1805(A) is overbroad relative to the definition of a crime involving moral turpitude because the term "deprive" is defined in such a manner that a shoplifter need not intend to "permanently" deprive the owner of the property in order to be convicted, as required by our precedent decisions. The Immigration Judge also found that section 13-1805(A) is an "indivisible" statute relative to the definition of a turpitudinous offense, thus precluding him from consulting the respondent's conviction record under the modified categorical approach.

The DHS argues on appeal that shoplifting under section 13-1805(A) is a categorical crime involving moral turpitude. According to the DHS, in finding to the contrary, the Immigration Judge misinterpreted the statute's elements and misunderstood our decisions addressing when a theft offense should be considered a crime involving moral turpitude. The respondent opposes the appeal. Whether a particular offense involves moral turpitude

Page 849

is a legal question that we review de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2016).

II. ANALYSIS

The phrase "crime involving moral turpitude" describes a class of offenses involving "reprehensible conduct" committed with some form of "scienter"—that is, with a culpable mental state, such as specific intent, deliberateness, willfulness, or recklessness. See, e.g., Matter of Leal, 26 I&N Dec. 20, 21 (BIA 2012); see also Matter of Silva-Trevino, 26 I&N Dec. 826, 828 n.2, 833-34 (BIA 2016). Conduct is "reprehensible" if it is "inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general." Matter of Leal, 26 I&N Dec. at 25 (quoting Matter of Ruiz-Lopez, 25 I&N Dec. 551, 553 (BIA 2011)). To determine whether an offense is a crime involving moral turpitude, we employ the categorical approach, which requires us to focus on the elements of the crime, rather than the conduct of the respondent. See Almanza-Arenas v. Lynch, 815 F.3d 469, 475 (9th Cir. 2016) (en banc); Matter of Silva-Trevino, 26 I&N Dec. at 831-33.

From the Board's earliest days we have held that a theft offense categorically involves moral turpitude if—and only if—it is committed with the intent to permanently deprive an owner of property. See, e.g., Matter of Grazley, 14 I&N Dec. 330, 333 (BIA 1973) ("Ordinarily, a conviction for theft is considered to involve moral turpitude only when a permanent taking is intended."); Matter of P-, 2 I&N Dec. 887, 887 (BIA 1947) (holding that the Canadian statute of conviction did not require an intent to permanently deprive the owner of her property and therefore did not involve moral turpitude); Matter of H-, 2 I&N Dec. 864, 865 (Central Office, BIA 1947) ("[T]he element which must exist before the crime of theft or stealing is deemed one involving moral turpitude is that the offense must be one which involves a permanent taking as distinguished from a temporary one."); Matter of T-, 2 I&N Dec. 22, 27 (BIA, A.G. 1944) (concluding that theft under the law of Canada is a crime involving moral turpitude even though intent to deprive may be permanent or temporary);²

Page 850

Matter of D-, 1 I&N Dec. 143, 145-46 (BIA 1941) (holding that driving an automobile without the consent of the owner is not a turpitudinous offense because the statute reached cases where there was only an intent to temporarily deprive, which might involve mere prankishness).³ At the same time, we have found it appropriate to presume—absent evidence to the contrary—that retail theft and theft of cash involve an intent to permanently deprive the owner of the merchandise or cash, without the necessity of affirmative proof. See Matter of Jurado, 24 I&N Dec. 29, 33-34 (BIA 2006); Matter of Grazley, 14 I&N Dec. at 333.

A careful examination of our early cases reflects that our purpose in adopting the "intent to permanently deprive" requirement was to distinguish between substantial and reprehensible deprivations of an owner's property on the one hand and, on the other, mere de minimis takings in which the owner's property rights are compromised little, if at all. It is telling in this regard that all of our early cases involved theft statutes that were phrased or interpreted to encompass "joyriding"—the nonconsensual taking of a motor vehicle with the intent to return it to the owner shortly thereafter—or other short-term takings of property. For example, we explained in Matter of P-, 2 I&N Dec. at 887-88, that

Page 851

the appellant is not inadmissible because of his conviction in Canada in 1947 for violation of section 285 (3), Criminal Code of Canada. It has been determined that such statute is similar to the various statutes in this country covering "joy riding" and does not comprehend theft of automobile or intent to deprive the owner thereof permanently, and, therefore, does not involve moral turpitude . . . .
. . . .
The appellant testified that he entered the home of a Mrs. C— in Rockport, Ontario, Canada, through an open window, to obtain a victrola for use at a party and thereafter return same. He admitted that he did not secure Mrs. C—'s permission, since she was then residing in the United States. The evidence establishes that the taking was purely a temporary one . . . .

We continue to believe that it is appropriate to distinguish between substantial and de minimis takings when evaluating whether theft offenses involve moral turpitude. However, criminal law has evolved significantly in the seven decades since we first addressed this issue. In most jurisdictions, legislation and judicial opinions have refined the distinction between substantial and de minimis takings to such an extent that the traditional dichotomy of permanent versus temporary takings has become anachronistic. In particular, responding to new economic and social realities, lawmakers and judges across the country have come to recognize that many temporary takings are as culpable as permanent ones. This trend finds cogent expression in section 223.0(1) of the Model Penal Code, which addresses theft crimes generally and defines the term "deprive" as

(a) to withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value, or with intent to restore only upon payment of reward or other compensation; or (b) to dispose of the property so as to make it unlikely that the owner will recover it.

Nineteen States—including Arizona—have adopted the Model Penal Code's definition of the term "deprive" more or less verbatim.⁴ Five other

Page 852

States have statutes that...