Bracamonte, Jose A., Esq.

Law Ofices of J. A Bracamonte, PC

2627 Norh Third Street, Ste 104
Phoenix, A 85004-0000
U.S. Department of Justice
Executive Ofce fr Immigation Review
Board of Immigration Appeals
Ofce of the Clerk
5107 lcesburg Pike, Suile 2000
Flls Cl111rch, Virinia 22041
OHS/ICE Ofice of Chief Counsel FLO
P .0. Box 25158
Phoenix, A 85002
Name: RIVERA-CARRILLO, MARCO ANTONIO A00607 -697
Date of this notice: 4/22/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Marco Antonio Rivera Carrillo, A200 607 697 (BIA April 22, 2011)
RIVERA-CARRILLO, MARCO ANTONIO
2060 N CENTER ST LOT#281
MESA, A 85201
U.S. Department of Justice
Executive Ofce fr Immigation Review
Board of Immigration Appeals
Ofce of the Clerk
5107 /.eesb11rg Pike, Suite 2000
Falls C/111rcl1, Vrgi11ia 22041
OHS/ICE Ofice of Chief Counsel - FLO
P .0. Box 25158
Phoenix, A 85002
Name: RIVERA-CARRILLO, MARCO ANTONIO A00-607-697
Date of this notice: 4/22/2011
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been sered with this
decision pursuant to 8 C.F .R. 1292.5(a). If the attached decision orders that you be removed
from the United States or afirms an Immigration Judge's decision ordering that you be
removed, any petition for review of the attached decision must be filed with and received by the
appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Sincerelv.
|o Cw
Donna Car
Chief Clerk
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Cite as: Marco Antonio Rivera Carrillo, A200 607 697 (BIA April 22, 2011)
U.S. Deparent of Justce.
Executive Ofce fr Imigation Review
Decision ofthe Board of Immigation Appeals
Falls Chuch, Virginia 2201
File: A200 607 697 - Florence, A
In re: MCO ANTONIO RER CARILLO
IN BOND PROCEEDIGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Jose A. Bracamonte, Esquire
ON BEHALF OF OHS: Dion A. Morwood
Assistant Chief Counsel
APPLICATION: Change in custody status
APR 112011
Te Depaent of Homeland Security ("OHS") has appealed fom the Immigration Judge's
July 15, 2010, bond order granting the respondent's request fr a change in custody status. The
Immigation Judge's decision is supported by a bond memorandum dated August 31, 2010. The
appeal will be dismissed.
The Boad reviews a Immigration Judge's fndings of fct, including fndings as to the
credibility of testimony, under the "clearly eroneous" stadard. 8 C.F.R. 1003.1 (d)(3)(D; Marer
of S-H-, 23 l&N Dec. 462, 464-65 (BIA 2002) (stating that the Board must defer to the fctual
deterinations of a Immigration Judge in the absence of clear eror). Te Board reviews questions
of law, discretion, and judgement and all other issues in appeals fom decisions of Immigration
Judges de novo. 8 C.F.R. 1003. l (d)(3)(ii).
Te OHS argues that the Immigation Judge ered in concluding that the respondent had
established that the goverent was substantially unlikely to prove that the respondent had been
convicted of a crime involving moral tpitude that subjects h to the madator detention
provisions of section 236(c)(l )(A) of the Immigation ad Nationality Act.1
We affr te Immigration Judge's decision. The Act prescribes mandator detention fr
cerain aliens, including those who, like the respondent, have been charged with removability fr
commission of a crime involving moral turpitude. The regulations generally do not confer
jurisdiction on an Immigation Judge over custody or bond deterinations govering those aliens
who are subject to madatory detention. See 8 C.F.R. 1003 .19(h)(2)(i)(D). However, an alien may
seek a determination by an Immigation Judge that the alien is "not properly included witn" certain
of the regulator provisions which would deprive the Immigration Judge of
bond jurisdiction, including the madatory detention provisions at issue in this matter.
1 Section 236(c)(l)(A) of the Act provides fr mandator detention of "ay alien convicted of, or
who admits having committed, or who admits committing acts which constitute the essential
elements of' "a crime involving moral turpitde." See section 212(a)(2)(A)(I) of the Act.
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Cite as: Marco Antonio Rivera Carrillo, A200 607 697 (BIA April 22, 2011)
A200 607 697
See 8 C.F .R. 1003.19(h)(2)(ii); see also Matter of Joseph, 22 I&N Dec. 799, 802 (BIA 1999). A
alien will n<t be considere ''properly included" within a madator detention categor only when
a Igton Judge detene that the Depaent ofHomelad Seurty is substatially uniely
to estalish, at te merits heag, the chage or chages that subject the alien to madator detention.
See Id.
We fnd no clear eror in the Immigaton Judge's conclusion that te record of conviction
does not estalish which subsection of Arizona Revised Stattes section 13-2006 the resondent wa
convicted uder. While subsections (A)(l) ad (A)(2) contan the laguage of"intent to defaud,"
subseton (A)(3) does not contain such laguage. Therefre, the statute is not categorically a crme
involving moral tuitude. See Matter of Silva-Trevino, 24 I&N Dec. 687, 689 n. 1 (A.G. 2008) (if
a conviction is not categorically a crime involving moral turpitude the record must be aalyzed
under a modifed categorical approach that involves a exaination of the reord of conviction).
The Im gton Judge aalyed the record of conviction under the modifed categorical approach
and detenined that the record of conviction also did not estalish the specifc subsection under
which the respondent was convicted. Similarly, the Immigation Judge considered the third basis
descrbed in Matter of Silva-Trevino, supra, ad concluded that none of the evidence outside the
fral reord of conviction established that the respondent had been convicted of a crime involving
moral tuitude as descrbed in subsections (A)(l) or (A)(2) of A.R.S. 13-2006.
The DHS agues on appeal that the Immigaton Judge ered in concluding that the
respondent's conviction was not a crime involving moral turpitude beause even subsection (A)(3)
contains the laguage "intent to induce," which establishes the requisite scienter under Matter of
Silva-Trevino, supra. A basic tenet of statutor interretation holds that a legslatve body uses
specifc laguage fr a reason. The Azona legslatue specifcally included the laguage "intent
to defaud" i subsections (A)(l) ad (A)(2) of A.R.S. 13-2006. We conclude that the asence of
that specifc intent laguage is subsection (A)(3) was by commission ad not omssion. The
legislature's decision not to include laguage that requires speifc intent suppors the Imgaton
Judge's conclusion. Therefre, we fnd tat the laguage in subsection (A)(3) is insufcient to
establish the requisite scienter to conclude that the respondent committed a crime involving moral
turpitude.
For te reaons stated above, we fd no eror in the Iigation Judge's deterination tha
the DHS did not establish that the goverent was substatially uliely to establish that the
respondent was properly included within the mandator detention provisions of secton 236 of the
Act. A te OHS has not presented ay agument that the aount of bond set by the Imigaton
Judge wa inapropriate, the Imigaton Judge's decision is also afed on that bais. See e.g.,
Matter of Patel, 15 I&N Dec. 666 (1976) (fctors unique to each alien must be evaluated in
deterg suitability fr release fom custody).
ORDER: The appeal is dismissed.
FOR T BOARD
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Cite as: Marco Antonio Rivera Carrillo, A200 607 697 (BIA April 22, 2011)
(
U.S. DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
3260 N. PINAL PARKWAY
FLORENCE, ARIZONA 85132
FILE: A200-607-697
IN THE MTTER OF:
RIVR-CARILLO, MRCO
RESPONDENT
- ' , .
- - l
- : }
J

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--

v
0
"
IN REMOVAL PROCEEDINGS
ORER OF THE IMIGRTION JUDGE
WITH RESPECT TO CUSTODY
f,'I
0
Request having been made for a change in the custody status of respondent
pursuant to 8 CFR 236.l(c), and full consideration having been given to the
representations of the Department of Homeland Security and the respondent,
it is hereby
ORDERED that the request for a change in custody status be denied.

ORDERED that the request be granted and that respondent be:
released from custody on his own recognizance

5`

released from custody under bond of $
OTHER

1-
Copy of this decision has been served on the respondent and the
Department of Homeland Securit
`
APPEAL, '"i"e<-- e / ' ~;( / ~
FLORENCE -- FLORENCE, ARIZONA
Date: July 15, 2010
BRUCE A. TAYLOR
Immigration Judge
XS
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ATTACHMENT TO NOTICE OF APPEAL
Marco Antonio RIVERA-CARRILLO
A200-607-697
The Department of Homeland Security ("Department" or "OHS") appeals the
immigration court's July 15, 2010 decision to grant the respondent bond in the amount of
$5,000.
I.
ISSUE PRESENTED
Did the immigration court err as a matter of law when it exercised
jurisdiction over the respondent's custody conditions and ordered him
released on bond in the amount of $5,000, where the respondent's criminal
history includes a class 6 flony conviction fr Criminal Impersonation;
where this ofense includes the intent to induce by deception by "assuming
a flse identity" and "pretending to be" an employee or a representative of
some person or organization; where this ofense subjects the respondent to
mandatory detention under INA section 236(c)(l)(A), as an alien
convicted of a crime of moral turpitude; and, where the Department need
not charge an alien with the ground of removability that provides the basis
fr mandatory detention under INA section 236(c)(l)?
II.
STATEMENT OF THE CASE AND THE FACTS
The respondent is a thirty-two-year-old male, native and citizen of Mexico who
allegedly frst entered the United States without admission or parole in approximately
1993. (Bond Exh. 1.)
On (February 8, 2009), the frmer Immigration and Naturalization Service
("Service" or "INS") voluntarily retured the respondent to Mexico.
On February 28, 2009, the respondent reentered the United States without
admission or parole. (Exh. 1.)
On April 2, 2010, the Superior Court, State of Arizona, County of Maricopa,
convicted the respondent of two felony counts of Criminal Impersonation, in violation of
sections 13-2001, 13-2006, 13-701, 13-702, and 13-801 of the Arizona Revised Statutes
("A.R.S."). (Bond Exh. 5.) As a result, the court sentenced him to fur months'
imprisonment on one count; it sentenced him to 1. 75 years' probation on the other count.
(Id.)
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On April 8, 2010, the Department placed the respondent in removal proceedings
through the issuance of a Notice to Appear ("NT A") and charged him with removability
under section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("Act" or "INA"),
alien present in the United States without admission or parole.
On June 2, 2010, the respondent appeared with counsel befre the immigration
court in Florence, Arizona fr a scheduled bond redetermination hearing. At that time, he
requested that the court take "no action" and indicated that he would seek bond at a later
date.
On June 23, 2010, the respondent appeared with counsel befre the court fr
another custody redetermination hearing. At that time, he claimed that his April 2, 2010
Criminal Impersonation conviction is not a crime involving moral turpitude, and argued
that he is not subject to mandatory detention under INA section 236(c). The respondent
added that he is not a danger to the community or a fight risk, and noted that his only
criminal ofense is non-violent. In addition, the respondent stated that he is the fther of
three United States citizen children ranging in age fom seven to sixteen years and
claimed that his eldest child sufers fom seizures. He added that his spouse does not
reside in the United States legally and explained that, prior to his detention, he worked as
a manager fr a business in Phoenix. Last, the respondent stated that he owns a vehicle
and has a bank account and noted that, if released, he will reside with his fmily.
In support, the respondent submitted a bond worksheet (Bond Exh. 1 ); a copy of a
September 13, 1993 Certifcate of Live Birth fom the State of Arizona bearing the name
"Gari Modi-Montanez Amador" (id.); a copy of an August 15, 1997 Certifcation of
Vital Record fom the State of Arizona bearing the name "Yhaneth Rivera-Montanez"
(id.); a copy of a September 13, 2003 Certifcate of Live Birth fom the State of Arizona
bearing the name "Gissell Rivera-Montanez" (id.); copies of medical records fom
Arizona Children's Neurology bearing the name "Gari Amador," dated April 9, 2010
(id.); and, a copy of an Arizona Certifcate of Title fr a 1999 Ford Mustang registered to
"Marco Antonio Rivera-Carrillo" (id.).
The respondent also argued that A.R.S. section 13-2006, the Arizona criminal
impersonation statute, is not categorically a crime involving moral turpitude. In doing so,
he disputed that A.R.S. section 13-2006(A)(3) requires faud. The respondent added that,
as the criminal court did not convict him of a particular subsection under A.R.S. section
13-2006, the immigration court could not apply the modifed categorical approach to
determine whether he committed a crime involving moral turpitude.
In response, the Department argued that the respondent's 20 I 0 Criminal
Impersonation conviction is categorically a crime involving moral turpitude, and cited to
the Attorey General's opinion in Matter o/Silva-Trevino, 24 l&N Dec. 687 (A.G. 2008).
In support, the Department noted that the Presentence Investigation report ("PSI")
associated with his ofense, as well as police reports, indicate that the respondent used
another person's social security number to obtain employment, and during contacts with
police, over the past twelve years. The documents add that the victim, now eighteen,
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discovered the respondent's deceit when she experienced difculty obtaining student
loans fr college. She then had to have her credit fxed, as well as clear the police record
associated with her social security card. As a result, the Department argued that the
respondent is subject to mandatory detention pursuant to INA section 236(c)(l).
In suppor, the Department submitted a copy of a Form 1-213, "Record of
Inadmissible/Deportable Alien," bearing the name "Marco Antonio Rivera-Carrillo"
(Bond Exh. 2). It also submitted conviction records and related documents associated
with the respondent's April 2, 2010 Criminal Impersonation conviction. These included
a copy of a Direct Complaint fled in the Superior Court, State of Arizona, County of
Maricopa, bearing the name "Marco A. Rivera-Carrillo" (Bond Exh. 3); a copy of a
Probable Cause Statement, bearing the name "Marco Antonio Rivera-Carrillo" (Id.); a
copy of an Infrmation fled in the Superior Court, State of Arizona, County of Maricopa,
bearing the name "Marco Antonio Rivera-Carrillo" (Id.); a copy of an
Incident/Investigation Report prepared by the Mesa, Arizona, Police Department, bearing
the name "Marco Antonio Rivera-Carrillo" (Id); a copy of an April 2, 2010 Sentence of
Imprisonment document fom the Superior Court, State of Arizona, County of Maricopa,
bearing the name "Marco Antonio Rivera-Carrillo" (relating to count one) (Bond Exh. 5);
a copy of an April 2, 2010 Suspension of Sentence - Unsupervised Probation document
fom the Superior Court, State of Arizona, County of Maricopa, bearing the name "Marco
Antonio Rivera-Carrillo" (relating to count two) (id.); a copy of an Order of Confnement
document fom the Superior Court, State of Arizona, County of Maricopa, bearing the
name "Marco Antonio Rivera-Carrillo" (id.); a copy of an Restitution Ledger Request in
behalf of victim Ashley Zollinger ("Zollinger"), bearing the name "Marco Antonio
Rivera-Carrillo" (id.); a copy of a Presentence Report fom the Superior Court, State of
Arizona, County of Maricopa, bearing the name "Marco Antonio Rivera-Carrillo" and
associated with the respondent's April 2, 2010 Criminal Impersonation conviction (id.);
and, a copy of a Plea Agreement fom the Superior Court, State of Arizona, County of
Maricopa, bearing the name "Marco Antonio Rivera-Carrillo" (id).
At the conclusion of the hearing, the court continued the matter to July 15, 2010
in order to provide the Department with an opportunity to obtain transcripts of the plea
colloquy.
At the continued July 15, 2010 hearing, the Department notifed the court that it
was unable to obtain transcripts of the plea colloquy associated with the respondent's
Criminal Impersonation conviction. As a result, the court determined that the respondent
is not subject to mandatory detention and ordered him released on bond in the amount of
$5,000. In doing so, the court provided the paries with a Bond Memorandum bearing the
name "Douglas Alberto Chavez," (Bond Exh. 6), and indicated that it adequately stated
its position in this case. The court added that A.R.S. section 13-2006 is a divisible statute
and stated that it believed that A.R.S. sections 13-2006(A)(l) and (2) defne ofenses that
constitute crimes involving moral turpitude. However, it explained that A.R.S. section
13-2006(A)(3) does not do so. According to the court, the Department's documentary
evidence filed to identif the subsection that the respondent pied guilty to. Further, it
concluded that Matter of Silva Trevino does not allow it to rely on conduct described in
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the PSI and police reports as part of its analysis because it could not be certain that it was
the conduct that the criminal court based the respondent' s conviction on. The
Department reserved appeal, and hereby submits its timely Notice of Appeal.
Ill.
LAW AND ANALYSIS
The Board of Immigration Appeals ("Board" or "BIA") reviews fctual
detenninations of the immigration court under the "clearly erroneous" standard. 8 C.F.R.
I 003. I (d)(3)(i) (2005); Matter of R-S-H-, 23 I&N Dec. 625, 637 (BIA 2003)
(discussing the "clearly erroneous" standard of review).
"A fnding is 'clearly erroneous' when although there is evidence
i
o support it, the
reviewing court on the entire evidence is lef with the defnite and fn conviction that a
mistake has been committed." United States v. United States Gypsum Co:, 33 U.S. 364,
395(1948.) "A fct fnding may not be overtured simply because the Board would have
weighed the evidence diferently or decided the fcts diferently had it been the
fctfnder." Board of Immigration Appeals: Procedural Refrms to Improve Case
Management, 67 Fed. Reg. 54,878, 54,899 (Aug. 26, 2002) (Supplementary Infrmation)
(citing Anderson v. Cit of Bessemer, 470 U.S. 564, 573 (1985))
The Board reviews questions of law, discretion, and judgment and all other issues
in appeals fom decisions of the immigration court de novo. 8 C.F.R. 1003.l(d)(3)(ii).
Id
INA section 236(c) provides in pertinent part as fllows:
(I) CUSTODY. -The Atorey General shall take into custody any
alien who-
(A) is inadmissible by reason of having committed any ofense covered
in section 212(a)(2) (emphasis added),
(B) is deportable by reason of having committed any ofense covered in
section 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D);
(C) is deportable under section 237(a)(2)(A)(i) on the basis of an ofense
fr which the alien has been sentence[ d] to a ter of imprisonment of at
least 1 year, or
(
0
) is inadmissible under section 212(a)(3)(B) or deportable under
section 237(a)(4)(B), when the alien is released, without regard to whether
the alien is released on parole, supervised released, or probation, and
without regard to whether the alien may be arrested or imprisoned again
fr the same ofense.
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INA section 236(c) requires mandatory detention of a criminal alien ifhe is
released fom custody afer October 8, 1998, the last day that the Transition Rules were
in efect. 1 Matter of Adenii, 22 I. & N. Dec. 1102 (BIA 1999); see also 8 C.F.R.
1003. l 9(h)(2)(D) (2007). This requirement applies to an alien who is not immediately
taken into custody by immigration ofcials when released fom incarceration. Matter of
Kotliar, 24 I&N Dec. 124 (BIA 2007); Matter of Rojas, 23 l&N Dec. 117 (BIA 2001 );
Matter of West, 22 l&N Dec. 1405 (BIA 2000).
The Department need not charge an alien with the ground that provides the basis
fr mandatory detention under IA section 236( c )( 1 ). Matter of Kot/iar, 24 l&N Dec. at
127 (BIA 2007). However, the Department must give the alien notice of the
circumstances or convictions that provide the basis fr mandatory detention and an
opportunity to challenge the mandatory detention befre the immigration court during a
bond redetermination hearing. Id.
For purposes of determining custody conditions under INA section 236, an alien
will not be considered "properly included" in a mandatory detention category when the
court or Board of Immigration Appeals ("Board" or "BIA") fnds, on the basis of the
bond record as a whole, that it is substantially unlikely that the Department will prevail
on a charge of removability specifed in INA section 236( c )( 1 ). See Matter of Joseph, 22
I. & N. Dec. 799, 802, 808 (BIA 1999) 8 C.F.R. 1003. l 9(h)(2)(ii).
Id.
According to INA section 2 l 2(a)(2)(A)(i)(I),
Any alien who has been convicted of, or who admits having committed, or
who admits committing acts which constitute the essential elements of a
crime involving moral turpitude (other than a purely political ofense) or
an attempt or conspiracy to commit such a crime is inadmissible.
Moral turpitude is a nebulous concept, which refrs generally 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 generl. See Jordan v. De George, 341 U.S.
223, 229 (1951); see also Matter of Olquin, 23 l&N Dec. 896 (BIA 2006) (moral
turpitude refrs generally 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 Torres-Varela, 23 l&N Dec. 78, 83 (BIA 200l)(moral
turpitude has long been the subject of interpretation, and its precise meaning has never
been flly settled); Matter o/Tran, 21 I&N Dec. 291, 292 (BIA 1996) (citing Matter of
Franklin, 20 I & N Dec. 867 (BIA 1994)); Matter of L-V-C-, 22 l&N Dec. 594, 600 (BIA
See also Section 303(b)(2) of the Illegal Immigration Refnn and Immigrant Responsibility Act of
1996, Division "C" of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-586 ("IIRIRA"), which provides
that the provisions of INA 236(c) "shall not apply to individuals released afer: October 8, 1998, the date
on which the Transition Rules expired.
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1999) (moral turpitude has been defned as an act which is per se morally reprehensible
and intrinsically wrong or ma/um in se, so it is the nature of the act itself and not the
statutor prohibition of it which renders a crime one of moral turpitude); Grageda v. INS,
12 F.3d 919, 921 (9th Cir. 1993) (noting that courts have described moral turpitude in
general ters as "an act of baseness or depravity contrary to accepted moral standards"
(quoting Guerrero de Nodahl v. INS, 407 F.2d 1405, 1406 (9th Cir. 1969)), and as
"basically ofensive to American ethics and accepted moral standards" (quoting Castle v.
INS, 541 F.2d 1064, 1066 (4th Cir. 1976))).
In order to determine whether a conviction is fr a crime involving moral
turpitude, the courts have applied the categorical and modifed categorical approaches
established by the United States Supreme Court. Navarro-Lopez v. Gonzales, 503 F.3d
1063, 1067 (9th Cir.2007)(citing Taylor v. United States, 495 U.S. 575 (1990) (directing
courts to frst make a categorical comparison of the elements of the statute of conviction
to the generic defnition, and decide whether the conduct proscribed is broader than, and
so does not categorically fll within, this generic defnition); Shepard v. United States,
544 U.S. 13, 26 (2005)(limiting evidentiary inquiry under modifed categorical approach
to the ters of the charging document, the terms of a plea agreement or transcript of
colloquy between judge and defendant in which the fctual basis fr the plea was
confrmed by the defendant, or to some comparable judicial record)).
Employing these approaches in Cuevas-Gaspar, the Ninth Circuit Court of
Appeals concluded that the act of entering a structure "is not itself ' base, vile or
depraved,' and that it is the particular crime that accompanies the act of entry that
determines whether the ofense is one involving moral turitude." Cuevas-Gaspar v.
Gonzales, 430 F.3d at 1019 (9th Cir. 2005). Signifcantly, the Ninth Circuit decided
Cuevas-Gaspar prior to the Attorey's General clarifcation of the term "crime involving
moral turpitude" in Maller of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).
In Malter of Silva-Trevino, the Attorey General rejected the application of the
Taylor/Shepard analytical famework in the context of moral turpitude deterinations in
fvor of the "realistic probability test" adopted by the Supreme Court in Gonzalez v.
Duenas-Alvarez, 549 U.S. 183 (2007).
2
Silva-Trevino, 24 l&N Dec. at 687. The
Attorey General explained,
[I]n evaluating whether an alien's prior ofense is categorically one that
involved moral turpitude, immigration judges should determine whether
there is a "realistic probability, not a theoretical possibility," that a State or
Federal criminal statute would be applied to reach conduct that does not
involve moral turpitude.
3
Under INA section 103(a)(l ) and 8 C.F.R. 1003.3(d)(I) (2008), a detennination and ruling by the
Attorey General with respect to all questions of law shall be controlling.
In proceedings under INA section 212, the burden is on the alien to demonstrate that his conviction is
not categorically a crime involving moral turpitude.
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Id. (citing Gonzalez v. Duenas-Alvarez, 549 U.S. at 193 (2007)).
The Attorey General added,
To qualif as a crime involving moral turpitude fr puroses of the
Immigration and Nationality Act, a crime must involve both
reprehensible conduct and some degree of scienter, whether
specifc intent, deliberateness, willflness, or recklessness.
Id. (emphasis added).
Id
Last, the Attorey General instructed,
To determine whether a conviction is fr a crime involving moral
turpitude, immigration judges and the Board of Immigration
Appeals should: (1) look to the statute of conviction under the
categorical inquiry and determine whether there is a "realistic
probability" that the State or Federal criminal statute pursuant to
which the alien was convicted would be applied to reach conduct
that does not involve moral turpitude; (2) if the categorical inquiry
does not resolve the question, engage in a modifed categorical
inquiry and examine the record of conviction, including documents
such a the indictment, the judgent of conviction, jury
instructions, a signed guilty plea, and the plea transcript; and (3) if
the record of conviction is inconclusive, consider any additional
evidence deemed necessary or appropriate to resolve accurately the
moral turpitude question.
In this case, the Superior Cour, State of Arizona, County of Maricopa, convicted
the respondent of Criminal Impersonation, a class six flony, in violation of A.R.S.
sections 13-2001, 13-2006, 13-701, 13-702, and 13-80 I . As a result, the court sentenced
him to fur months' imprisonment on one count; it sentenced him to 1.75 years'
probation on the other count.
According to A.R.S. section 13-2006,
A. A person commits criminal impersonation by:
I. Assuming flse identity with intent to defraud
'
another; or
2. Pretending to be a representative of some person or organization
with intent to de. faud; or
4
A crime that has as a element the intent to defaud involves morl turpitude. McNaughton v. INS,
612 F. 2d 234, 235 (9th Cir. 1978) (citing Jordan v. DeGeorge, 341U.S.223, 227-32 (1951).
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3. Pretending to be, or assuming a flse identity of, employee or a
representative of some person or organization with intent to induce
another person to provide or to allow access to property. This
paragraph does not apply to peace ofcers in the perfrmance of
their duties.
Id. (emphasis added).
Subsection (B) adds that criminal impersonation is a class 6 felony. Id
Subsections (A)(l), (A)(2), and (A)(3) all include a specifc intent, namely the
intent to defraud (subsections (A)(l) and (A)(2)) and the intent to induce (subsection
(A)(3)). Thus, the statute, in its entiret, satisfes the scienter requirement discussed in
Silva-Trevino. Although subsection (A)(3) does not include the words, "intent to
defaud," one may, nonetheless, argue that it describes such a purpose through its
language. Indeed, the Ninth Circuit has held that a crime can involve "faudulent
conduct, and thus is a crime involving moral turpitude, if intent to defaud is . . . 'implicit
in the nature' of the crime." Blanco v. Muksey, 518 F.3d 714, 718, 719 (9th Cir. 2008)
(emphasis added) (quoting Go/deshtein v. INS, 8 F.3d 645, 648 (9th Cir. 1993)). "(I]ntent
to defaud is implicit in the nature of the crime when the individual makes false
statements in order to procure something of value, either monetary or non-monetary." Id.
(emphais added); see also Maller of Koch/ani, 24 l&N Dec. 128, 130-31 (BIA 2007)
(explaining that, although "crimes that have a specifc intent to defaud as an element
have always been fund to involve moral turitude, [the Board has] also fund that
certain crimes are inherently faudulent and involve moral turpitude even though they can
be committed without a specifc intent to defraud," where a conviction requires proof that
the defndant willflly or knowingly committed an act that causes "signifcant societal
harm").
Here, the intent to deceive, which necessarily involves an intent to defaud,
appears to be an indispensable element of subsection (A)(3). Specifcally, subsection
(A)(3) reiterates acts described in subsections (A)(l ) and (A)(2) that involve deceit or
trickery (i.e., "assuming a flse identity" and "pretending to be"). Further, and as a
corollary, like subsections (A)(l) and (A)(2), subsection (A)(3) involves reprehensible
conduct. Indeed, in order to fll within the ambit of this subsection, the perpetrator
pretends to be, or assumes a flse identity, in order to induce another person to provide or
to allow access to property. These actions, as noted, involve the intent to deceive, which
necessarily involves the intent to defaud. Therefre, because subsection (A)(3)
"contains an inherent intent to deceive or mislead and because moral turpitude inheres in
the criminal intent," the respondent's conduct is "inherently wrong and morally
reprehensible, not merely prohibited by statute of recent origin." Maller of P-, 6 I&N
Dec. 795, 798 (BIA 1955).
These fcts establish that A.R.S. section 13-2006(A)(3) describes acts that
constitute a categorical crime involve moral turpitude. See Jordan v. De George, 341
U.S. 223, 232 (1951) ("The phrase 'crime involving moral turpitude' has without
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exception been construed to embrace faudulent conduct."); Cuevas-Gaspar v. Gonzales,
430 F.3d 1013, 1018 (9th Cir. 2005) (same); Blanco 518 F.3d at 718 ("The Supreme
Court has held that crimes that involve faud categorically fll into the defnition of
crimes involving moral turpitude."); Matter of L-V-C-, 22 l&N Dec. 594 (BIA 1999)
(noting that crimes involving faud are "generally considered crimes involving moral
turitude"); Matter of Flores, 17 I&N Dec. 225, 228 (BIA 1980) ("[W]here faud is so
inextricably woven into the statute as to clearly be an ingredient of the crime, it
necessarily involves moral turpitude."). Cf Matter of Sera, 20 I&N Dec. 579 (BIA
1992) (holding that mere possession of illegal documents, without intent to use such
documents faudulently or unlawlly, is not a crime involving moral turpitude).
The respondent's conviction is also a crime involving moral turitude under the
modifed categorical approach. The available documents comprising the respondent's
record of conviction do not recite any fcts to establish the specifc conduct that he pied
guilty to on April 2, 2010. Where the record of conviction does not resolve the moral
turpitude inquiry, courts may look to documents outside the frmal record of conviction
to deterine whether the alien's crime actually involved moral turpitude. See Silva
Trevino, 24 I&N Dec. at 698-99. Here, both the PSI and the police reports associated
with the respondent's 2010 flony Criminal Impersonation conviction indicate that the
respondent used another person's social security number to obtain employment, and
during contacts with police, over the past twelve years. The documents add that the
victim, now eighteen, discovered the respondent's deceit when she experienced difculty
obtaining student loans fr college. The respondent's actions frced her to fx her credit
and to clean the record associated with her social security card. Signifcantly, the report
establishes that the respondent's ofense involved an identifable victim.
Using another person's personal identifing infrmation in order to illegally
obtain employment (a tangible beneft of value) is deceptive and is, therefre, inherently
faudulent. See Black's Law Dictionary (8th ed., 2004) (defning faud as "[a] knowing
misrepresentation of the truth or concealment of a material fct to induce another to act to
his or her detriment"). The respondent's conduct induced an employer to act to its own
detriment, because it exposed the employer to possible liability fr hiring an individual
who, in fct, has no legal authorization to work in the United States. See, e.g. , 8 U.S.C.
1324a (prohibiting employers fom hiring unauthorized aliens). The respondent's crime
is also harmfl to sodety, in that he took a job that would have otherwise been available
fr a United States citizen, lawfl permanent resident, or other individual with legal
authorization to work in the United States. See, e.g. , Matter of Hal, 18 l&N Dec. 203,
206-07 (BIA 1982) (noting that unauthorized employment can negatively impact the
American work frce); 8 U.S.C. 1182(a)(5)(A) (requiring that aliens entering the
United States to work must obtain labor certifcation establishing that "there are not
sufcient workers who are able, willing, qualifed ... and available at the time of
application . . . and at the place where the alien is to perfr such skilled or unskilled
labor," and that "the employment of such alien will not adversely afect the wages and
working conditions of workers in the United States similarly employed").
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Signifcantly, the Ninth Circuit's decision in Beltran-Tirado v. INS, 213 F.3d
1179 (9th Cir. 2000), is clearly distinguishable fom the respondent's case. In that case, a
court convicted the alien of "flsely representing a social security number" in violation of
42 U.S.C. 408(g)(2), now recodifed at 42 U.S.C. 408(a)(7)(B). See id. at 1182.
When the frer Immigration and Naturalization Service ("Service" or "INS") moved to
deport Beltran in 1993, she applied fr permanent resident status under the "registy"
statute, 8 U.S.C. 1259. The immigration court, however, denied her application
because it fund that her conviction was a crime involving moral turpitude that precluded
her fom meeting the statutory requirement of good moral character. See id. at 1183.
The Ninth Circuit, however, disagreed. See id at 1184-85.
In reaching its decision, the court examined a 1990 statutory amendment to 42
U.S.C. 408, which provided that aliens who had been granted peranent resident status
under the amnesty or registry statutes were exempted fom prosecution fr certain past
uses of flse social security numbers, including using a flse social security number to
obtain employment which results in eligibility fr social security benefts. See id at
1183-84, n.8. Relying on a congressional confrence report accompanying the statutor
amendment, in which Congress indicated that "individuals provided exemption fom
prosecution under this proposal should not be considered to have exhibited moral
turitude with respect to the exempted acts fr purposes of determinations made by the
[INS]," the Ninth Circuit concluded that Beltran's use of a flse social security number
did not involve moral turpitude. Id at 1184 (emphasis added). The Ninth Circuit noted
that "Beltran was not exempted fom prosecution under 408(d)," but the only reason fr
this was "that her crimes were committed a fw weeks too late and she had already been
convicted of them." Id.
In a dissenting opinion, Circuit Judge John T. Noonan wrote,
The court reaches very fr to perfrm a kindly deed. It reads meaning into
two statutes that Congress has not inscribed there, and it goes on to
attribute to the Board a motive that the Board does not articulate. Beltran
needed a social security number to live in the United States. But when she
caused t trouble fr the number's owner and was asked to stop, she did
not. Not to mention that the Board's interpretation of a statutory term
should control, it was not an unreasonable exercise of discretion fr the
Board to deny her relief.
Id. at 1186.
The statutory amendment and legislative history that the Ninth Circuit relied upon
in Beltran-Tirado applies only to aliens who were granted lawfl permanent resident
status under the amnesty or registry statutes. See 42 U.S.C. 408(e). The fct that
Congress chose to grant one class of aliens exemption fom prosecution fr certain acts
and to deem such acts not morally turpitudinous fr that class of aliens does not
necessarily mean that such acts do not inherently involve moral turpitude. Indeed, that
Congess felt a need to create an exemption fr certain aliens suggests that aliens who fll
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.
outside the exemption category, who have used a flse social security number, would be
considered to have committed moral turpitude. As discussed above, use of another
person's social security number is morally turpitudinous due to the deception and fraud
that are inherent in the ofense.
Notably, the respondent is not within the class of aliens described in 42 U.S.C.
408(e). He is not a permanent resident; rather, he is charged as an alien who entered the
United States without inspection. Moreover, unlike Beltran, the respondent has not
applied fr registry. Thus, the reasoning of Beltran-Tirado is inapplicable to this case.
The Ninth Circuit's recent published decision in Tiani v. Holder, 598 F.3d 647
(9th Cir. 2010) fher dilutes the Beltran-Tirado holding. In that case, the court held that
an alien' s convictions fr obtaining credit through flse means, including submission of
fctitious social security numbers, constitute crimes involving moral turpitude. The court
explained,
Credit is today the most widespread means of acquiring wealth in this
country. To suppose that it is not faud to try to tap into this wealth by lies
is to ignore the economic elements of the modem world. Credit card not
faud? No, in the modem United States it is the paradigm of faud.
Id. at 648
The Ninth Circuit added that intent to repay back the faudulently obtained credit
is no defnse; rather, the "intent of the faudster is evil: to get what he has no right to
get." Id at 651. Last, it stated, "the creditor who is induced through misrepresentations
to give credit sufers measurable and freseeable harm the moment the creditor enters
into the transaction with the faudster." Id at 652.
While the respondent in this case has not been convicted of credit card faud,
much of the rationale that the Ninth Circuit used in Tiani is relevant and applicable.
Based on these fcts, the court erred as a matter of law when it determined that
the respondent's ofense is not a crime involving moral turpitude, exercised jurisdiction
over his custody conditions, and ordered him released on bond in the amount of $5,000.
IV.
CONCLUSION
For the fregoing reasons, the Department respectflly requests that the Board
sustain its appeal, vacate the immigration court's July 15, 2010 decision, and order the
respondent held in the Department's custody without bond pending resolution of his
removal proceedings.
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