Matter of Louissaint
| Decision Date | 18 March 2009 |
| Docket Number | Interim Decision No. 3635.,File A072 033 702. |
| Citation | 24 I&N Dec. 754 |
| Parties | Matter of Leroinex LOUISSAINT, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated April 21, 2008, an Immigration Judge found that the respondent is not inadmissible under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2006), as an alien convicted of a crime involving moral turpitude, and terminated the removal proceedings. The Department of Homeland Security ("DHS") has appealed from that decision. The appeal will be sustained, the proceedings will be reinstated, and the record will be remanded to the Immigration Judge.
The respondent is a native and citizen of Haiti who was granted lawful permanent resident status on or about January 8, 2001. The record reflects that on August 27, 2001, he committed the offense of burglary in Florida. On August 16, 2002, the respondent was convicted of second degree burglary of an occupied dwelling in violation of section 810.02(3)(a) of the Florida Statutes, for which he was sentenced to 2 years' probation.
On September 3, 2007, the respondent was detained at the Miami International Airport upon returning to the United States. The DHS initiated removal proceedings against the respondent, charging that he is inadmissible on the basis of his burglary conviction. The Immigration Judge concluded that the respondent's conviction was not for a crime involving moral turpitude and therefore would not render him inadmissible under section 212(a)(2)(A)(i)(I) of the Act. The proceedings were accordingly terminated.1
The only issue on appeal is whether the Immigration Judge erred in concluding that the respondent's conviction for the offense of burglary of an occupied building in violation of section 810.02(3)(a) of the Florida Statutes was not a conviction for a crime involving moral turpitude.
The relevant Florida statutes relating to the crime of burglary of a dwelling provide, in pertinent part, as follows:
(1)(b) For offenses committed after July 1, 2001, "burglary" means:
1. Entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter . . . .
. . . .
(3) Burglary is a felony of the second degree . . . if, in the course of committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a:
(a) Dwelling, and there is another person in the dwelling at the time the offender enters or remains . . . .
Fla. Stat. §§ 810.02(1)(b), (3)(a) (2001).
The Immigration Judge relied on Matter of M-, 2 I&N Dec. 721 (BIA, A.G. 1946), in concluding that the determinative factor in deciding whether the respondent's offense was a crime involving moral turpitude was whether the crime he intended to commit after breaking into a residence involved moral turpitude. In Matter of M-, we held that third degree burglary in violation of section 404 of the New York Penal Law2 was not a crime involving moral turpitude. We indicated that we did not consider such an offense to be inherently immoral, base, vile, or depraved, because a person could be convicted under that statute for simply pushing ajar the unlocked door of an unused structure and putting one's foot across the threshold. Id. at 723. Thus, we determined that it is only the particular crime that accompanies or precedes the act of breaking out that has any significance in determining whether third degree burglary under New York law involves moral turpitude. Because the record of conviction in the case before us did not indicate the particular offense that accompanied the breaking and entering, the Immigration Judge found that it did not demonstrate whether the respondent's underlying offense involved moral turpitude. He therefore concluded that the DHS failed to sustain its burden of establishing that the respondent is inadmissible under section 212(a)(2)(A)(i)(I) of the Act.
Although our decision in Matter of M-, supra, indicates that third degree burglary of a building under New York law is not itself a crime involving turpitude, we also noted in that case that the offense differed in several material respects from common law burglary, which is defined as the breaking and entering of the dwelling house of another in the nighttime with intent to commit a felony. In addition, we specifically noted that we were not determining whether first or second degree burglary involved moral turpitude. We therefore find that our holding in Matter of M-, which involved a third degree burglary offense, is distinguishable because the offense at issue here is second degree burglary under section 810.02(3)(a) of the Florida Statutes, which involves the burglary of an occupied dwelling.
Additionally, during the pendency of this appeal, the Attorney General issued a comprehensive decision clarifying the concept of moral turpitude and articulating a methodology for determining whether a particular offense is a crime involving moral turpitude. Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008). According to the Attorney General, a crime involving moral turpitude involves reprehensible conduct committed with some degree of scienter, either specific intent, deliberateness, willfulness, or recklessness. Id. at 706 & n.5.
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. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007) (). In Matter of Silva-Trevino, supra, the Attorney General found that the "categorical inquiry" also requires an examination of the law of the convicting jurisdiction to determine whether there is a "`realistic probability,'" as opposed to a "`theoretical possibility,'" that the statute under which the alien was convicted would be applied to reach conduct that does not involve moral turpitude. Id. at 698 (quoting Gonzales v. Duenas-Alvarez, supra, at 193). This requires asking whether, at the time of the alien's removal proceedings, any actual (as opposed to hypothetical) case exists in which the relevant criminal statute was applied to conduct that did not involve moral turpitude. If the statute has not been so applied in any actual case, the Immigration Judge, in applying the "realistic probability" method, may reasonably conclude that all convictions under the statute may categorically be treated as ones involving moral turpitude.
Should the language of the criminal statute encompass both conduct that involves moral turpitude and conduct that does not, however, and there is a case in which the relevant criminal statute has been applied to the latter category of conduct, the Immigration Judge cannot categorically treat all convictions under that statute as convictions for crimes that involve moral turpitude. Matter of Silva-Trevino, supra, at 697. Should such an inquiry reveal that there is, in fact, a realistic probability that the statute would reach offenses that are not turpitudinous, we must then engage in a "modified categorical inquiry" in which we examine the record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript, in order to determine whether the particular conviction in question was for a morally turpitudinous offense. Id. at 698-99. Finally, if consideration of the conviction record does not reveal whether the alien's particular offense involved moral turpitude, we may then consider any other admissible evidence bearing on that question. Id. at 699-704. Applying the foregoing methodology to the facts of this case, we conclude that the respondent has been convicted of a crime involving moral turpitude.
As we noted previously, the respondent was convicted of the offense of burglary of an occupied building in violation of section 810.02(3)(a) of the Florida Statutes. By judicial construction, burglary, as defined at section 810.02(1)(b) of the Florida Statutes, has been interpreted by the Florida courts to require three essential elements: "`(1) knowing entry into a dwelling, (2) knowledge that such entry is without permission, and (3) criminal intent to commit an offense within the dwelling.'" M.E.R. v. State, 993 So.2d 1145, 1146 (Fla. Dist. Ct. App. 2008) (emphasis added) (quoting R.J.K. v. State, 928 So.2d 499, 502 (Fla....
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