In re Hernandez

• Decision Date: 12 September 2014
• Docket Number: Interim Decision #3812
• Parties: Matter of E. E. HERNANDEZ, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

26 I&N Dec. 397

Matter of E. E. HERNANDEZ, Respondent

Interim Decision #3812

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

September 12, 2014

Malicious vandalism in violation of section 594(a) of the California Penal Code with a gang enhancement under section 186.22(d) of the California Penal Code, which requires that the underlying offense be committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members, is categorically a crime involving moral turpitude.

FOR RESPONDENT: Andrew L. Reback, Esquire, Los Angeles, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Jailuk Parrino, Senior Attorney

BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members.

MALPHRUS, Board Member:

In a decision dated April 18, 2012, an Immigration Judge terminated the removal proceedings against the respondent without prejudice. 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.

The respondent is a native and citizen of Mexico who adjusted his status to that of a lawful permanent resident on April 26, 2008. In 2011, in the Superior Court of California for the County of Los Angeles, he was charged in count 1 of a felony complaint with committing vandalism causing over $400 in damages in violation of section 594(a) of the California Penal Code with a gang enhancement. On August 31, 2011, the respondent pled no contest to count 1 and admitted the gang enhancement allegation pursuant to section 186.22(d) of the California Penal Code, which provides that the offense was "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." Concluding that there was a factual basis for the plea, the criminal court found the respondent guilty, suspended the imposition of his sentence, and placed him on probation for 3 years with the condition that he serve 364 days in jail.

Page 398

On March 9, 2012, the DHS issued a notice to appear charging the respondent with removability under section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2012), as an alien convicted of a crime involving moral turpitude. The respondent contested the charge, and the Immigration Judge granted his motion to terminate the proceedings, concluding that the DHS did not meet its burden to show by clear and convincing evidence that the respondent's offense was a crime involving moral turpitude. On appeal, the DHS asserts that the Immigration Judge erred in determining that the respondent was not removable under section 237(a)(2)(A)(i) of the Act. We agree.¹

We have interpreted "moral turpitude" as generally referring to conduct that 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 Ortega-Lopez, 26 I&N Dec. 99, 100 (BIA 2013) (citation and internal quotation mark omitted). For a crime to involve moral turpitude, there must be two essential elements, namely, reprehensible conduct and a culpable mental state. Id.; Matter of Louissaint, 24 I&N Dec. 754, 756-57 (BIA 2009) (stating that a "crime involving moral turpitude involves reprehensible conduct committed with some degree of scienter, either specific intent, deliberateness, willfulness, or recklessness").

"In considering whether a particular offense constitutes a crime involving moral turpitude, we must first engage in the traditional categorical analysis of the elements of the statute." Matter of Louissaint, 24 I&N Dec. at 757 (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007)). Under this approach, "we compare the statute of conviction to the generic definition of moral turpitude. If the statute bans only actions that involve moral turpitude, then it is categorically a crime involving moral turpitude." Rohit v. Holder, 670 F.3d 1085, 1088 (9th Cir. 2012) (citation omitted); see also Olivas-Motta v. Holder, 746 F.3d 907, 916 (9th Cir. 2013) (limiting an Immigration Judge "to the record of conviction in determining whether an alien has been 'convicted of' a [crime involving moral turpitude]"). For a crime not to be a categorical crime involving moral turpitude, there must be a "realistic probability," as opposed to a "theoretical possibility," that the statute of conviction would be applied to reach conduct that does not involve moral turpitude. Matter of Louissaint, 24 I&N Dec. at 757; see also Gonzales v. Duenas-Alvarez, 549 U.S. at 193;

Page 399

Rohit v. Holder, 670 F.3d at 1088-89; Matter of Cortez Medina, 26 I&N Dec. 79, 82 (BIA 2013).

The respondent was convicted of maliciously defacing the property of another with graffiti or other inscribed material. Cal. Penal Code § 594(a) (West 2011). Further, pursuant to the gang enhancement, the respondent admitted that he committed this crime for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members. Cal. Penal Code § 186.22(d) (West 2011). Under California law, a gang enhancement can be imposed only if each element of the enhancement is proven to a jury beyond a reasonable doubt or admitted by the defendant in connection with a plea agreement. See In re Daniel C., 125 Cal. Rptr. 3d 337, 342-43 (Cal. Ct. App. 2011). Accordingly, a California conviction involving the application of this enhancement is considered a conviction for the enhanced offense under the immigration laws. See Matter of Martinez-Zapata, 24 I&N Dec. 424, 426 (BIA 2007).

In analyzing whether the respondent was convicted of a crime involving moral turpitude, the Immigration Judge erred by separately analyzing whether malicious vandalism under section 594(a) of the California Penal Code and a violation of section 186.22(d) involve moral turpitude. For purposes of determining whether the...