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Tameka Lorraine Butler, A097 998 935 (BIA July 26, 2013)

Tameka Lorraine Butler, A097 998 935 (BIA July 26, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) denied a DHS appeal and upheld the termination of proceedings upon finding the respondent's conviction for grand theft in violation of Fla. Stat. 812.014 was not a crime involving moral turpitude because the statute is divisible and the record of conviction did not establish an attempt to permanently deprive the owner of property. The decision was written by Member Elise Manuel.
In this unpublished decision, the Board of Immigration Appeals (BIA) denied a DHS appeal and upheld the termination of proceedings upon finding the respondent's conviction for grand theft in violation of Fla. Stat. 812.014 was not a crime involving moral turpitude because the statute is divisible and the record of conviction did not establish an attempt to permanently deprive the owner of property. The decision was written by Member Elise Manuel.

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Published by: Immigrant & Refugee Appellate Center, LLC on Jul 30, 2013
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02/12/2014

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Soberal-Vigh, Rosa H.

U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesb11rg Pike. Suite 2000
Fals Ch11rch. Virginia 220./
Law Office of Rosa H. Soberal-Vigh, P.A.
2101 Vista Parkway
OHS
/
ICE Ofice of Chief Counsel - MIA
333 South Miami Ave., Suite 200
Miami, FL 33130
W. Palm Beach, FL 33411
Name: BUTLER, TAMEKA LORRAINE A 097-998-935
Date of this notice: 7/26/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Manuel, Elise
Sincerely,
DOCav
Donna Carr
Chief Clerk
schuckec
Userteam: Docket
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Cite as: Tameka Lorraine Butler, A097 998 935 (BIA July 26, 2013)
For more unpublished BIA decisions, visit www.irac.net/unpublished
> Y
<'
. U.S. Deparent of Justce
Executive Ofce fr Immigation Review
Decision of te Board of Immigation Appeals
Falls Church, Vkginia 22041
File: A097 998 935 - Miami, FL
In re: TAMEKA LORRAIE BUTLER
I REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Rosa H. Soberal-Vigh, Esquire
ON BEHALF OF DHS: Vera Hochberg
Assistant Chief Counsel
APPLICATION: Terination
JUL 2
6 20\3
The Departent of Homeland Security (DHS) appeals fom the Immigation Judge's
July 18, 2012, decision terinating proceedings. Te appeal will be dismissed.
We review Immigration Judges' fndings of fct, including the deterination of credibility,
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).
As an initial matter, we agee with the Immigation Judge's conclusion that the DHS has not
met its burden to demonstate by clear and convincing evidence that the respondent is removable
as charged under section 237(a)(2)(A)(i) of the Immigation and Nationality Act, 8 U.S.C.
§ 1227(a)(2)(A)(i), fr having been convicted of a crime involving moral titude committed
within 5 years of admission fr which a sentence of 1 year or longer may be imposed (I.J. at 3-4).
See section 240(c)(3) of the Act, 8 U.S.C. § 1229a(c)(3); 8 C.F.R. § 1240.8(a). We agree with
the Immigation Judge that the record does not establish that the respondent's 2008 conviction
fr gad tef in violation of Florida Statutes section 812.014 is fr a crime involving moral
titude (l.J. at 3-4).
Florida Statutes section 812.014(1) states, in relevant pa: "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 peraently: (a) Deprive the other person of a right to the
property or a beneft fom the propert (b) Approprate the property to his or her own use or to
the use of any person not entitled to the use of the propery." Te statute also provides: "It is
gad thef in the third degree and a felony of the third degee .. . 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
titude, a permaent taking must be intended. See, e.g., Matter of Grazley, 14 I&N Dec. 330,
333 (BIA 1973). We agree wit the Immigration Judge that Florida Statutes § 812.014 is
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Cite as: Tameka Lorraine Butler, A097 998 935 (BIA July 26, 2013)
· A097' 998 93
·
5
a divisible sttute. See Ramos v. US Att' Gen., 709 F.3d 1066, 1070 (I Ith Cir. 2013)
(Florida Statutes § 812.014 is divisible, as it requires either an intent to deprive or an intent to
appropriate, and specifcally contemplates a temporary taking); Jaggerauth v. US. Att'. Gen.,
432 F.3d 1346, 1354 (11th Cir. 2005) ("Because two distinct intent standards exist in
§ 812.014(1), we canot say that both subparts would necessarily involve a intent to deprive
another person of a right to the property."). We therefre must apply the modifed categorical
approach to deterine whether the ofense constitutes a crime involving moral turpitde.
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
chaging document, plea, verdict, and sentence. See Fajardo v. US. Att '. Gen., 659 F.3d 1303
(11th Cir. 20 l 1 ). The Infration asociated with the respondent's conviction indicates that the
respondent acted "with the intent to either temporarily or peranently deprive Macy's of the
rght to the property or to a beneft fom the proper, or to appropriate the propery to their own
use or the use of any person not entitled to the use of the property" (emphasis added). The
respondent pleaded no contest to the charge; she was sentenced to I yea of probation.
In the instant matter, the record of convicton does not establish that the respondent was
convicted fr intent to permanently deprive, as opposed to intent to temporarly deprive or to
merely appropriate. Therefre, our inquiry ends here. See Fajardo v. US. Att' Gen., supra
(holding that this Board can ot consider evidence beyond the record of conviction i
deterining whether an alien ha been convicted of a crime involving moral tuitude).
Accordingly, we agee with the Immigation Judge that the OHS did not meet its burden of proof
to establish that the respondent's conviction is fr a crime involving moral titude, ad the
respondent therefre is not removable under section 237(a)(2)(A)(i) of the Act.
Furtherore, we do not fnd eror in the Immigration Judge's decision fnding that the
additional charge of removability under 237(a)(l)(D)(i) of the Act was not sustained. In this
regad, we note that at the time of the fnal heaing the respondent had a For 1-751 Petition to
Remove the Conditions of Residence pending with United States Citizenship and Immigation
Serices (USCIS). Additionally, her conditional residence was extended by the issuance of an
I 551 stamp on her passport, such that she wa i lawfl status. We also take administative
notice that according to the USCIS website, it appears that the respondent's For 1-751 was
approved and a new resident alien card mailed to her. Accordingly, the fllowing order shall
be entered.
ORER: The DHS' appeal is dismissed.
FOR THE BOARD
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Cite as: Tameka Lorraine Butler, A097 998 935 (BIA July 26, 2013)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
MIAMI, FLORIDA
File: A097-998-935
In the Matter of
July 18, 2012
TAMEKA LORRAINE BUTLER IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES:
APPLICATIONS:
ON BEHALF OF RESPONDENT: ROSA H. SOBRERO
2101 Vista Parkway
West Palm Beach, Florida 33411
ON BEHALF OF OHS: VERA HOCHBERG
333 South Miami Avenue
Miami, Florida 33130
ORAL DECISION OF THE IMMIGRATION COURT
This matter came onto the record based upon a Notice to
Appear that was filed on July 23, 2011 (Exhibit 1). On that
notice, the respondent was designated as having been admitted to
the United States, but becoming deportable as she is not a
#
citizen or national of the United States, she is a native and
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citizen of Jamaica, and she was admitted to the United States in
Miami, Florida, on July 1, 2003, as a visitor, and that her
status was adjusted to permanent resident on April 19, 2005 .
The notice continues to allege that the respondent was convicted
on January 28, 2008, for the offense of grand theft, third
degree, comitted on April 4, 2007, contrary to Florida Statute
812. 014 and that the respondent was sentenced for one year
probation. These factual allegations were admitted.
The Service set out a charge under Section 237(a) (2) (A) (i)
of the Act, as having been convicted of a crime involving moral
turpitude within five years after admission to the United States
Ior which a sentence of one year or longer may be imposed.
Respondent denied that charge.
Subsequently, the Service filed an amended charging
document, which is marked as Exhibit 1-A, on May 8, 2012. That
document, Form I-261 that was marked as Exhibit 1-A, alleged
that the respondent had her conditional permanent resident
status terminated on June 29, 2009, because she failed to file
her required petition to remove conditions. Evidence was
presented in the nature of the respondent's passport showing
that there was a late file application that remains pending
before the Service. Therefore, at this time, the Court finds
that allegation, while being denied, is simply not supported by
the evidence, nor is the charge under Section 237(a) (1) (D) (i).
The evidence that now is pertinent relates to the criminal
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A097-998-935 2 July 18, 2012
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charge that was admitted on the Notice to Appear. As far as the
documentation to support that conviction is concerned, the Court
notes that there has been criminal information that was filed
mentioning the respondent and a codefendant setting out the
taking of property from Macy's without authorization or without
payment. In the information it sets out that it was a temporary
O� takfn/ It sets out that this was contrary to
Sections 812.14(1) (a), 812.14(1) (b) and 812.14(2) (c). The
additional documents that were submitted included a Circuit
Court decision from Broward County showing that there was a plea
of no contest, withheld adjudication and 12 months probation.
The documents also said that restitution was ordered, but it
reserved the amount. There has not been any indication of what
happened with that. But on. the bottom of that order, it says
that the respondent should not return to Macy's.
Government counsel has argued that this is a crime
involving moral turpitude, which it was comitted within five
years of her arrival in the United States or entry, and,
therefore, removability should stand.
To the contrary, private counsel argues that that is not
the case because the statute is: (a) divisible and (b) there is
adequate precedent to require evidence that the conviction was
for a charge that inarguably involved moral turpitude. The
respondent argues that the statute is divisible pursuant to
Matter of Sanudo, 23 I&N Dec. 968 (2006), that this could not
A097-998-935 3 July 18, 2012
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stand for that charge.
Again, recourse to conviction involves a modified
categorical approach and under that categorical approach, the
Court should not view matters that are outside of the formal
Record of Proceedings. Based upon the formal Record of
Proceedings which has been presented to this Court, the Court
does not find that this per se is a crime involving moral
turpitude within the framework of Jaggernauth v. Attorney
General, 432 F.3d 1346 (11th Cir. 2005), and based upon the
totality of the evidence that has been presented.
The Service is required to prove removability by clear,
convincing and unequivocal standards and that certainly has not
occurred in this case. As such, the charges fail.
ORDER
Proceedings are terminated.
Imigration Judge
A097-998-935 4 July 18, 2012
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:
B W Æ
CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE
STEPHEN E. MANDER, in the matter of:
TAMEKA LORRINE BUTLER
A097-998-935
MIAMI, FLORIDA
is an accurate, verbatim transcript of the recording as provided
by the Executive Office for Imigration Review and that this is
the original transcript thereof for the file of the Executive
Office for Imigration Review.
ª W" -ª²%- W
CALIOPE K. FARBER (Transcriber)
FREE STATE REPORTING, Inc.
AUGUST 29, 2012
(Completion Date)
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