U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Qffice of the Clerk

5107 leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Rivas, Martin J., Esq. OHS/ICE Office of Chief Counsel - MIA
Attorney At Law 333 South Miami Ave., Suite 200
801 Madrid Street, Suite 205 Miami, FL 33130
Coral Gables, FL 33134-0000

Name: LUCIANO, KENIA MORILLO A 060-183-622

Date of this notice: 6/8/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure
Panel Members:
Grant, Edward R.
Kelly, Edward F.
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Kenia Morillo Luciano, A060 183 622 (BIA June 8, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Fans' Church, Virginia 22041

File: A060 183 622 - Miami, FL Date:

JUN - 8 2011
In re: KENIA MORILLO LUCIANO a.k.a. Kenia Morillo a.k.a. Kenia M. Luciano
a.ka. Kenia Raymond

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Martin J. Rivas, Esquire

ON BEHALF OF DHS: Richard Jurgens

Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(A)(i), I&N Act [8 U.S.C. 1227(a)(2)(A)(i)] -

Convicted of crime involving moral turpitude

APPLICATION: Termination

The Department of Homeland Security ("DHS") appeals from the Immigration Judge's
November 25, 2013, decision terminating these removal proceedings against the respondent. The
respondent has filed a brief in opposition of the appeal. The appeal will be dismissed.

We review for clear error the findings of fact, including the determination of credibility, made
by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion and
judgment. 8 C.F.R. 1003.l(d)(3)(ii).

The determinative issue on appeal is whether the respondent's conviction for grand theft in the
third degree in violation of Florida Statutes 812.014 qualifies as a crime involving moral
turpitude, so as to support the DHS's charge of removability under section 237(a)(2)(A)(i) of the
Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(i). 1 The Immigration Judge concluded
that it does not, and terminated these proceedings. For the following reasons, we will affirm the
Immigration Judge's decision.

As an initial matter, we are unpersuaded by the DHS's argwnent that the categorical and
modified categorical approaches, as established by Taylor v. United States, 495 U.S. 575 (1990),
are inapplicable when determining whether a conviction falls within the confines of a crime
involving moral turpitude (DHS's Br. at 7-15). This argument is foreclosed by precedent of the
1
The Record of Proceeding contains a group of documents, marked pages 1 through 7, relating to
the respondent's conviction, which will be collectively cited to hereinafter as "Conviction
Documents."

Cite as: Kenia Morillo Luciano, A060 183 622 (BIA June 8, 2017)
A060 183 622

United States Court of Appeals for the Eleventh Circuit, in whose jurisdiction this case arises,
which holds that these approaches are fully applicable in this context. See Fajardo v. U.S. Atty
Gen., 659 F.3d 1303, 1305 (11th Cir. 2011).

The Board recently concluded in Matter ofSilva-Trevino, 26 l&N Dec. 826, 830 (BIA 2016),
that the categorical and modified categorical approaches provide the proper framework for

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determining whether an offense constitutes a crime involving moral turpitude. To this end, when
determining whether a conviction for a State or Federal offense involves moral turpitude, we held
that unless controlling case law of the governing Federal court of appeals expressly dictates
otherwise, the realistic probability test, which focuses on the minimum conduct that has a realistic
probability of being prosecuted under the statute of conviction, should be applied in determining
whether an offense is a categorical crime involving moral turpitude. In evaluating what is a
"realistic probability" in a given case, it is appropriate to consider how the controlling Federal
circuit applies that test. See Matter of Chairez, 26 l&N Dec. 819, 820 (BIA 2016). While the
Eleventh Circuit Court of Appeals has adopted the categorical approach based on Supreme Court
precedent, it has not expressly addressed the realistic probability test. See e.g., Walker v. U.S.
Att'y Gen. 783 F.3d 1226, 1229 (11th Cir. 2015).

In cases where the statute of conviction includes some crimes that involve moral turpitude and
some that do not, adjudicators must determine if the statute is divisible and thus susceptible to a
modified categorical analysis. A criminal statute is divisible so as to warrant a modified
categorical inquiry only if (1) it lists multiple discrete offenses as enumerated alternatives or
defines a single offense by reference to disjunctive sets of "elements," more than one combination
of which could support a conviction and (2) at least one, but not all, of those listed offenses or
combinations of disjunctive elements is a categorical match to the relevant generic standard.
Matter of Chairez, 26 l&N Dec. 822 (citing Descamps v. United States, 133 S. Ct. 2276, at 2281,
2283 (2013)).

The statute under which the respondent was convicted requires proof of the following three
elements: (1) knowingly obtaining or using, or endeavoring to obtain or use, the property of
another (2) with the intent to permanently or temporarily (3) either (a) deprive the other person of
a right or benefit of the property or (b) appropriate the property to one's own use or to the use of
any person not entitled to the use of the property. Fla. Stat. 812.014(1) (2008); see also Fla. Stat.
812.014(2)(c) (providing that a violation is punished as a third-degree felony where the property
stolen is valued between $300 and $5,000 and pursuant to Fla Stat 812.014(3)(a), is punished
as a misdemeanor where the property stolen is valued under $300).

The Board recently held in Matter of Diaz-Lizarraga, 26 l&N Dec. 847 (BIA 2016), that 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

2 We are not persuaded by the DHS's argument that all theft offenses involve moral turpitude.
There is no question, as the OHS properly points out, that a number of states, and even some
provisions of Federal law, punish the act of taking or appropriating property where the intent to

2
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A060 183 622

Although any bright-line distinction between intent to deprive permanently versus temporarily has
been clarified by Matter of Diaz-Lizarraga, supra, we conclude that the respondent's statute of
conviction applies to conduct in which moral turpitude does not necessarily inhere. Section
812.014(1) of the Florida Statutes, by its very terms, applies even if a temporary taking or
appropriation of property is intended. See generally Jaggernauth v. U.S. Atty Gen., 432 F.3d
1346, 1353-54 (11th Cir. 2005) (per curiam) (discussing the requirements of Florida Statutes

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812.014(1)). There is no required element that the "theft" occur under circumstances where the
owner's property rights are substantially eroded. Thus, the offense of grand or petit theft under
Florida law is categorically broader than a generic crime involving moral turpitude.

The next issue we must address, then, is whether the statute of conviction is divisible.
See Descamps v. United States, supra, at 2281 (explaining that resort to the modified categorical
approach is appropriate only where the statute of conviction is "divisible," meaning "one or more
of the elements of the offense [are set out] in the alternative"). The Eleventh Circuit's approach
to divisibility focuses on whether jury unanimity is required with respect to the alternative,
overbroad portion(s) of the statute of conviction. See United States v. Estrella, 758 F.3d 1239,
1246 (11th Cir. 2014) ("[W]e should ask ourselves the following question when confronted with
a statute that purports to list elements in the alternative: If a defendant charged with violating the
statute went to trial, would the jurors typically be required to agree that their decision to convict is
based on one of the alternative elements?"). The OHS, the party bearing the burden of proof on
the issue of removability, has identified no authority for concluding that jury unanimity is required
with respect to any alternative, overbroad portion(s) of the statute of conviction. See Matter of
Chairez, supra.

Even if we assume arguendo that Florida Statutes 812.014(1) is divisible with respect to the
intent to deprive requirement, we conclude that the OHS has nevertheless failed to establish, under
the modified categorical approach, that the respondent's conviction involved a permanent tal<lng
or a taking under circumstances where the owner's property rights are substantially eroded. The
record of conviction in this case includes a judgment entry, disposition order, and criminal
information (Conviction Documents at 1, 3-6). Notably, while the judgment entry reflects that the
respondent pled no contest to the charge contained in the information, the charge in the information
merely alleges that she committed the offense "with the intent to either temporarily or permanently
deprive . . . [or] appropriate" the property (I.J. at 3-4; Conviction Documents at 1, 5). As the
Immigration Judge properly found, such evidence does not establish, by clear and convincing
evidence, that the respondent committed the type of theft in which moral turpitude necessarily
inheres (I.J. at 3-4). See Matter ofDiaz-Lizarraga, supra

Finally, we are not persuaded by the DHS's argument that we can infer, based on the facts
underlying the respondent's conviction, that this offense involved a crime involving moral

deprive is less than total or permanent. "That only explains, however, why we choose to
criminalize [theft] in the first place. It says nothing about whether [taking of property under
circumstances where the owner's property rights are substantially eroded] is worse than any other
crime" or whether such conduct is morally turpitudinous in in nature. Robles-Urrea v. Holder,
678 F.3d 702, 710 (9th Cir. 2012).

3
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. A060 183 622

turpitude because the conviction documents purport to reflect that the respondent stole from a retail
store. Inasmuch as the DHS relies on our decision in Matter of Jurado, 24 I&N Dec. 29 (BIA
2006), that case involved a Pennsylvania statute where theft from a retail store was an element of
the offense. See 18 Pa Const. Stat. 3929(a)(l) (1991); (DHS's Br. at 15-20). The respondent's
statute of conviction here contains no such requirement. In fact, grand theft under Florida law is
a distinct offense from retail theft, each requiring proof of different elements. See Fla Stat.

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812.015; Rimondi v. State, 89 So. 3d 1059, 1062 & n.3 (Fla. Dist. Ct. App. 2012) (explaining
that retail theft requires the property to be that of "a merchant," whereas grand theft can be
committed against the property of "any person"). The modified categorical approach is not a
vehicle by which we can examine the conduct underlying the respondent's grand theft conviction
to determine that she, in fact, committed a different crime. See Descamps v. United States, supra,
at 2285 ("The modified approach . . . retains the categorical approach's central feature: a focus on
the elements, rather than the facts, of a crime.").

In sum, the DHS has not established, by clear and convincing evidence, that the respondent
has been convicted of a crime involving moral turpitude and is thus removable under section
237(a)(2)(A)(i) of the Act. As there are no other charges pending against the respondent at this
time, the removal proceedings will be terminated. In reaching this conclusion we note that the
minimum conduct that has a realistic probability of being prosecuted under the statute of
conviction is not a crime involving moral turpitude and the respondent is thus not removable under
sections 237(a)(2)(A)(i) or (ii) of the Act. See Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA
2016). Accordingly, the following order shall be entered.

ORDER: The DHS's appeal is dismissed.

Cite as: Kenia Morillo Luciano, A060 183 622 (BIA June 8, 2017)
 .r'-

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
MIAMI, FLORIDA

In the Matter of: )

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)
LUCIANO, Kenia Morillo )
A# 060-183-622 ) IN REMOVAL PROCEEDINGS
)

___________
RESPONDENT )
)

CHARGE: Section 237(a)(2)(A)(i) of the Immigration and Nationality Act ("INA")

as an alien who, within five years of admission, has been convicted of a
crime involving moral turpitude for which a sentence of one year or longer
may be imposed.

ON BEHALF OF RESPONDENT: ON BEHALF OF DEPARTMENT

Martin J. Rivas, Esq. Richard Jurgens, Esq.
801 Madrid Street, Suite 205 Assistant Chief Counsel
Coral Gables, FL 33134 Department of Homeland Security
333 S. Miami Avenue, Suite 200
Miami, FL 33130

WRITTEN DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. Procedural History

Respondent, Kenia Morillo Luciano, is a thirty-nine-year-old female. She is a citizen and

native of the Dominican Republic. See Notice to Appear (''NTA")(Apr. 5, 2013). Respondent
was admitted to the United States on August 17, 2008, as a Conditional Resident. See id. On
September 27, 2010, Respondent adjusted her status to that of a Lawful Permanent Resident
("LPR"). Id.

On November 14, 2012, Respondent was convicted of one count of grand theft in
violation of sections 812.014(1)(a), 812.014(l)(b), and 812.014(2)(c)(l) of the Florida statutes.
See Respondent's Judgment (Nov. 14, 2012). Respondent received an eighteen-month probation
sentence. Id.

On April 5, 2013, the Department of Homeland Security ("DHS") served Respondent

with an NTA, charging her with removability under section 237(a)(2)(A)(i) of the INA, as an
alien who, within five years of admission, has been convicted of a crime involving moral
turpitude for which a sentence of one year or longer may be imposed. See NTA (Apr. 5, 2013).
 During a master calendar hearing on July 30, 2013, Respondent admitted all factual
allegations in the NTA. Specifically, Respondent admitted that: she is not a citizen or national of
the United States; she entered the United States on August 17, 2008, as a Conditional Resident;
she adjusted her status to that of an LPR on September 27, 2010; she was convicted on
November 14, 2012, of one count of grand theft in violation of section 812.014(2)(C) of the
Florida statutes for which a sentence of eighteen months of probation was imposed and

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restitution ordered.

Respondent contests removability under section 237(a)(2)(A)(i) of the INA. On

September 30, 2013, Respondent filed a motion to terminate removal proceedings, arguing that
DHS has failed to establish by clear and convincing evidence that Respondent has been
convicted of a crime involving moral turpitude. See Respondent's Motion to Terminate (Sept.
30, 2013). On October 18, 2013, DHS filed an opposition to Respondent's motion to terminate.
See DHS Opposition to Respondent's Motion to Terminate (Oct. 18, 2013).

II. Removability under section 237(a)(2)(A)(i) of the INA

An alien is removable under section 237(a)(2)(A)(i) of the INA if she is convicted, within
five years of admission, of a crime involving moral turpitude ("CIMT") for which a sentence of
one year or longer may be imposed. DHS alleges that Respondent's 2012 conviction for grand
theft is a conviction for a CIMT for which a sentence of one year or longer may be imposed. See
NTA (Apr. 5, 2013). In the case of an alien who has been admitted to the United States, DHS
bears the burden of establishing by clear and convincing evidence that the alien is deportable.
See INA 240(c)(3); 8 C.F.R. 1240.S(a). Therefore, in this case, DHS must establish by clear
and convincing evidence that Respondent has been convicted of a CIMT for which a sentence of
one year or longer may be imposed.

The BIA has described a CIMT as a "nebulous concept, which refers generally to conduct
that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules
of morality and the duties owed between man and man, either one's fellow man or society in
general." Matter of Perez-Contreras, 20 I&N Dec. 615, 617-18 {BIA 1992). A finding that a
crime is a CIMT under the INA requires that the crime involve both a culpable mental state and
reprehensible conduct. Matter of Silva-Trevino, 24 l&N Dec. 687, 689 n.1 (A.G. 2008).

To determine whether a particular conviction is a CIMT, the Court must first engage in a
"categorical" inquiry and look to ''the inherent nature of the offense, as defined in the relevant
statute, rather than the circumstances surrounding a defendant's particular conduct." Fajardo v.
U.S. Att'y Gen., 659 F.3d 1303, 1305 (11th Cir. 2011). If the statute of conviction punishes only
conduct that involves moral turpitude, then the conviction is for a crime that is categorically a
CIMT. Matter of Ortega-Lopez, 26 I&N Dec. 99, 100 (BIA 2013)(internal citations omitted).

If the statute is overbroad, in that it punishes conduct that involves moral turpitude as
well as conduct that does not, the Court applies the '1nodified categorical approach." See
Fajardo, 659 F.3d at 1305; Jaggemaugth v. U.S. Att'y Gen., 432 F.3d 1346, 1354 (11th Cir.
2005). Under the modified categorical approach, the Court may examine the record of
conviction, which includes the charging document, plea, verdict or judgment, and sentence, but

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does not include the police report. Jaggemaugth, 432 F.3d at 1355.

Generally, theft crimes 3!e considered to be CIMTs. A theft offense involves moral
turpitude if the talcing is committed with the intent to keep the property permanently. Matter of
Grazley.. 1 4 l&N Dec. 330, 333 (BIA 1973) ("Ordinarily, a conviction for theft is considered to
involve moral turpitude only when a permanent talcing is intended."); See also Matter of R-, 2

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l&N Dec. 819, 828 (BIA 1947) ("It is settled law that the offense of talcing property temporarily
does not involve moral turpitude."). Retail theft, in particular, is often deemed to be a CIMT.
See Matter of Jurado-Delgado, 24 l&N Dec. 29, 33 (BIA 2006) (explaining that the BIA has
previously held that "offenses involving theft of goods from a retail establishment are crimes
involving moral turpitude.")

On November 14, 2012, Respondent was convicted of one count of grand theft in
violation of sections 812.014(l){a), 812.014(1)(b), and 812.014(2)(c)(l) of the Florida statutes.
See Respondent's Judgment (Nov. 1 4, 2012). Those sections provide:

(1) A person commits theft if he or she knowingly obtains or uses, or endeavors to

obtain or use, the property of another with intent to, either temporarily or
pennanently:

(a) Deprive the other person of a right to the property or a benefit from the property.

(b) Appropriate the property to his or her own use or to the use of any person not
entitled to the use of the property.

(2)(c) It is grand theft of the third degree and a felony of the third degree, punishable
as provided in s. 775.082, 775.083, or s. 775.084, if the property stolen is:

(1) Valued at $300 or more, but less than $5,000.

Fla. Stat. 812.014(1)(a); 812.014(l)(b); 812.014(2)(c)(l). By the statute's plain language, a

defendant can be convicted under section 812.014 of the Florida statutes for either temporarily or
permanently depriving a victim of property. As discussed above, only takings that are
committed with an intent to permanently deprive the victim of property involve moral turpitude.
See Grazley, 14 I&N Dec. at 333; R-, 2 I&N Dec. at 828. Thus, Respondent's statute of
conviction is overbroad in that it punishes conduct that involves moral turpitude as well as
conduct that does not. Therefore, the Court finds that section 812.014 of the Florida statutes is
divisible and the Court proceeds to the modified categorical approach. Jaggemaugth.. 432 F.3d at
1354.

Under the modified categorical approach, the Court looks to Respondent's Criminal
Information and Judgment. With respect to the grand theft charge, Respondent's Criminal
Information states that Respondent:

did then and there unlawfully and knowingly obtain or endeavor to obtain the
property of Macy's, to wit: store merchandise, of the value of three hundred

Page 3 of 5
 dollars (300.00) or more, but less than five thousand dollars ($5,000.00) with the
intent to either temporarily or permanently deprive Macy's of the right to the
property or a benefit from the property, or to appropriate the property to her own
use or the use of any person not entitled to the use of the property.

See Respondent's Criminal Information. The language in Respondent's Criminal Information

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mimics the statutory language and does not specify whether Respondent was convicted of a
temporary or permanent talcing. The Court is unable to determine from the record of conviction
whether Respondent was convicted under the part of the Florida statute that punishes conduct
that involves moral turpitude. Therefore, the Court finds that OHS has failed to meet its burden
to demonstrate that Respondent's grand theft conviction is a conviction for a CIMT.

Respondent's Criminal Information states that Respondent's crime involved theft from a
Macy's store. See Respondent's Criminal Information. Accordingly, DHS argues that
Respondent committed retail theft, which is presumptively a CIMT. See Jurado-Delgado, 24
l&N Dec. at 34. However, the Court does not find this argument persuasive. Unlike the statute
of conviction in this case, the statute analyzed by the BIA in Jurado-Delgado required a general
intent to deprive rather than a temporary or permanent intent to deprive, as the Florida statute in
this case does. Jurado-Delgado, 24 l&N Dec. at 34. Florida has a retail theft statute similar to
the one in Jurado-Delgado, but Respondent was not convicted under that statute. See Fla. Stat.
812.015 (2013). Therefore, the retail theft presumption in Jurado-Delgado does not apply to this
case.

Based on the foregoing, the Court finds that DHS has failed to establish by clear and
convincing evidence that Respondent has been convicted of a CIMT for which a sentence of one
year or longer may be imposed. Therefore, the Court will not sustain removability under section
237(a)(2)(A)(i) of the INA. Accordingly, the Court will grant Respondent's motion and
terminate these removal proceedings.

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..
ORDER

IT IS HEREBY ORDERED that the charge of removability under section

237(a)(2)(A)(i) of the INA IS NOT SUSTAINED.

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IT IS FURTHER ORDERED that Respondent's motion to terminate is GRANTED.

IT IS FURTHER ORDERED that Respondent's removal proceedings be

TERMINATED.

DATED this 25th day ofNovember, 2013.

H. Kevin Mart
Immigration Judge

Appeal Due Date:

cc: Assistant Chief Counsel

Counsel for Respondent
Respondent

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