RUSTEN C. HURD, ESQ.

COLOMBO & HURD, PL.

U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5 IU7 /.elsh11rg Pik. S11il<' :000
Falls Church. l'irgil1ia ::41
OHS/ICE Office of Chief Counsel - ORL
3535 Lawton Road, Suite 100
5555 E MICHIGAN STREET, STE.100
Orlando, FL 32822
Orlando, FL 32803
Name: EDMOND, MARK L A 099-116-705
Date of this notice: 7/29/2013
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Guendelsberger, John
Hofman, Sharon
Manuel, Elise
Sincerely,
Donna Carr
Chief Clerk
Userteam: Docket
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Cite as: Mark L. Edmond, A099 116 705 (BIA July 29, 2013)
For more unpublished BIA decisions, visit www.irac.net/unpublished
U.S. Department of Justice
Executive Ofce fr Immigration Review
Decision of the Board oflmmigation Appeals
Falls Church, Virginia 2204 J
File: A099 116 705 - Orlando, FL
In re: MARK L EDMOND
I REMOVAL PROCEEDIGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Rusten C. Hurd, Esquire
APPLICATION: Termination
JUL 2 9 2013
The respondent, a native and citizen of Trinidad and Tobago and a lawfl peranent resident
of the United States, appeals fom an Immigration Judge's August 22, 2012, decision ordering
his removal. The appeal will be sustained and the proceedings will be terminated.
We review Immigration Judges' fndings of fct, including the deterination of credibilit,
under a clearly eroneous standard. 8 C.F.R. 1003.l (d)(3)(i). We review questions of law,
including whether the parties have met the relevant burdens of proof, and issues of discretion
under a de novo standard. 8 C.F.R. 1003.l(d)(3)(ii).
The Immigation Judge determined that the respondent's conviction fr gand thef in
violation of Florida Statutes section 812.014(2)(c)(l ) is fr a crime involving moral turpitude
(1.J. at 2; Tr. at 35-36; Exh. 2). The Imigration Judge fund the respondent removable under
section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(i), fr
having been convicted of a crime involving moral turpitude committed within 5 years of
admission fr which a sentence of I year or longer may be imposed.
Florida Statutes section 812.014( 1) states, in relevant part: "A person commits thef if he or
she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with
intent to, either temporarily or permanently: (a) Deprive the other person of a right to the
property or a beneft fom 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." The statute also provides: "It is
grand thef in the third degree and a flony of the third degree ... if the property stolen is ...
[v]alued at $300 or more, but less than $5,000 ... " See Fla. Stats. 812.014(2)(c).
We have long held that in order fr a taking to be a thef ofense that involves moral
turpitude, a peranent taking must be intended. See, e.g., Matter of Graley, 14 l&N Dec. 330,
333 (BIA 1973). The United States Court of Appeals fr the Eleventh Circuit has addressed the
divisibility of Florida Statutes 812.014 in Jaggerauth v. US. Att' Gen., 432 F.3d 1346
(11th Cir. 2005). Although in Jaggernauth the Eleventh Circuit analyzed the elements of Florida
Statutes 812.014 to deterine whether this provision described a "thef" ofense fr purposes
of section 101(a)(43)(G) of the Act, the analysis is relevant to the context of crimes involving
moral turpitude. The Eleventh Circuit fund that 812.014 is a divisible statute that describes
two distinct intent standards. According to the Cour, certain subparts do not necessarily involve
intent to permanently deprive another person of a right to property or a beneft fom the property.
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Cite as: Mark L. Edmond, A099 116 705 (BIA July 29, 2013)

A099 116 705
The Court noted that an "appropriation" is defned as an "exercise of control over property; a
taking of possession," which does not necessarily entail that the property owner be deprived of
rights to the property's use or benefts. Jaggernauth v. US Att ' Gen., supra, at 1354. The
Court also noted that the statute includes permanent and temporary takings. The Eleventh
Circuit held that an appropriation is not a "thef" fr purposes of section 101(a)(4)(0) of the Act,
and remanded fr fher fndings on whether the ofense could be classifed as involving moral
turitude.
Thus, we agree with the Immigration Judge that Florida Statutes 812.014 is divisible.
See also Ramos v. US. Att' Gen. , 709 F.3d 1066, 1070 (I Ith Cir. 2013). We therefre must
apply the modifed categorical approach to determine whether the respondent's conviction is fr
a crime involving moral turpitude. See Descamps v. United States, 133 S.Ct. 2276, 2281 (2013)
(application of the modifed categorical approach is appropriate when the statute of conviction
"sets out one or more of the elements in the alterative"); Shepard v. United States, 544 U.S. 13
(2005).
Under the modifed categorical approach, we consider the record of conviction, that is, the
charging document, plea, verdict, and sentence. See Fajardo v. US. Att'. Gen., 659 F.3d 1303
(11th Cir. 2011). Count 1 of the Information associated with the respondent's conviction
indicates that the respondent "did, in violation of Florida Statute 812.014(2)(b), knowingly
obtain or use, or endeavor to obtain or use United States money current. . . the property of
another, to-wit: TARGET OR JACOB DA TILMA, as owner or custodian thereof, with the intent
to temporarily or peranently deprive said owner or custodian of a right to the property or a
beneft therefom, or to appropriate the propery to the defndant's own use or to the use of a
person not entitled thereto" (emphasis added) (Exh. 2 at 8). The respondent plead guilty to a
lesser included ofense, a violation of 812.014(2)(c)(l); he was sentenced to 4 years of
probation and ordered to pay restitution (Exh. 2 at 1-2).
In the instant matter, the record of conviction does not establish that the respondent was
convicted fr intent to permanently deprive, as opposed to intent to temporarily deprive or to
merely appropriate.
1
Therefre, our inquiry ends here. See Faardo v. US. Att' Gen., supra
(holding that this Board cannot consider evidence beyond the record of conviction in
determining whether an alien has been convicted of a crime involving moral turpitude). Thus,
we conclude that the DHS has not met its burden to demonstrate by clear and convincing
evidence that the respondent is removable as charged under section 237(a)(2)(A)(i) of the Act,
fr having been convicted of a crime involving moral turpitude committed within 5 years of
admission fr which a sentence of 1 year or longer may be imposed. See section 240(c)(3) of the
Act, 8 U.S.C. 1229a(c)(3); 8 C.F.R. 1240.8(a). No other charges are pending against the
respondent, and therefre the proceedings will be terinated.
1 Furthermore, in light of Ramos v. US. Att ' Gen., supra, we do not fnd it appropriate to
presume such intent on the basis that the respondent's ofense involved thef fom a retail
establishment. Cf Matter of Jurado-Delgado, 24 l&N Dec. 29 (BIA 2006); Matter of Grazley,
supra.
2
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Cite as: Mark L. Edmond, A099 116 705 (BIA July 29, 2013)
I . A099 116 705
Accordingly, the fllowing order will be entered.
ORER: The appeal is sustained and the removal proceedings are tenninated.
3
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Cite as: Mark L. Edmond, A099 116 705 (BIA July 29, 2013)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ORLANDO, FLORIDA
File: A099-116-705
In the Matter of
MARK L. EDMOND
RESPONDENT
August 22, 2012
IN REMOVAL PROCEEDINGS
CHARGES: Section 237(a} (2) (A} (i} of the Inigration and
Nationality Act - convicted of a crime involving moral turpitude
within five years after admission for which a sentence of one
year or longer was imposed
APPLICATIONS:
ON BEHALF OF RESPONDENT: MICHAEL MENDEZ, ESQUIRE, COLOMBO AND
HURD, 5555 EAST MICHIGAN STREET, SUITE 100, ORLANDO, FLORIDA
32822
ON BEHALF OF OHS: JAMES E.M. CRAIG, ESQUIRE
ORAL DECISION OF THE IMMIGRATION JUDGE
At a previous Master hearing, the Respondent first had
admitted the allegations, but denied that the charge constituted
a CIMT. That is a crime involving moral turpitude. At a
hearing on June 27, 2012, the Court found that the charge had
been sustained by clear and convincing evidence, and the Court
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#
incorporates the analysis from that hearing. To summarize, it
appeared that it had been at a retail establishment as evidenced
by Exhibit #2, and then adopting the findings from Grazely and
other BIA precedent that taking from a retail establishment was
a crime involving moral turpitude. Matter of Grazely, 14 I&N
Dec. 330 (BIA 1973) . See also Matter of B-Z-S-, 22 I&N Dec.
1338 (BIA 2000) and Matter of Jurado-Delgado, 24 I&N Dec. 29
(BIA 2006) .
The Respondent has indicated that he has no other
relief available, and therefore, having found the charge
sustained by clear and convincing evidence, the Court will have
the following orders entered.
ORDERS
IT IS HEREBY ORDERED the Respondent is removable
pursuant to Section 237(a) (2) (A) (i) of the Imigration and
Nationality Act as amended.
IT IS FURTHER ORDERED the Respondent is removed to
Trinidad and Tobago.
Immigration Judge
A099-116-705 2 August 22, 2012
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l+
W W ? W
CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE
STUART F. KARDEN, in the matter of:
MARK L. EDMOND
A099-116-705
ORLANDO, FLORIDA
is an accurate, verbatim transcript of the recording as provided
by the Executive Office for Immigration Review and that this is
the original transcript thereof for the file of the Executive
Office for Imigration Review.
SEV/BJN
M
SARAH E. VANDERVORT (Transcriber)
YORK STENOGRAPHIC SERVICES, Inc.
OCTOBER 29, 2012
(Completion Date)
MP~~ --~. ?FMP. - . ... W . . c F ~ Y--=
.
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