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Dieuvu Forvilus, A071 552 965 (BIA Jan. 28, 2014)

Dieuvu Forvilus, A071 552 965 (BIA Jan. 28, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) sustained the respondent’s appeal and terminated proceedings upon finding third degree theft under Fla. Stat. 812.014 not to be divisible under Descamps v. United States, 133 S. Ct. 2276 (2013), because permanent and temporary takings are alternative means of committing the offense, not alternative elements about which Florida jurors must agree in order to convict. The Board also stated that prior Board decisions regarding the divisibility of criminal statutes were "necessarily superseded to the extent they are inconsistent with Descamps." The decision was written by Member Roger Pauley and joined by Member John Guendelsberger and Member Anne Greer.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) sustained the respondent’s appeal and terminated proceedings upon finding third degree theft under Fla. Stat. 812.014 not to be divisible under Descamps v. United States, 133 S. Ct. 2276 (2013), because permanent and temporary takings are alternative means of committing the offense, not alternative elements about which Florida jurors must agree in order to convict. The Board also stated that prior Board decisions regarding the divisibility of criminal statutes were "necessarily superseded to the extent they are inconsistent with Descamps." The decision was written by Member Roger Pauley and joined by Member John Guendelsberger and Member Anne Greer.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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10/08/2015

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U.S.

Department of Justice Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk
5 I 07 Leesburg Pike, Suite 2000 Falls Church. Virginia 20530

Elizee, Patricia Elizee Hernandez Law Firm 1110 Brickell Avenue, #315 Miami, FL 33131

OHS/ICE Office of Chief Counsel - KRO 18201 SW 12th St. Miami, FL 33194

Immigrant & Refugee Appellate Center | www.irac.net

Name: FORVILUS, DIEUVU

A 071-552-965

Date of this notice: 1/28/2014

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

Don.JtL CtVvV
Donna Carr Chief Clerk

Enclosure Panel Members: Guendelsberger, John Pauley, Roger Greer, Anne J.

yungc Userte am: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Dieuvu Forvilus, A071 552 965 (BIA Jan. 28, 2014)

U.S. Department of Justice Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk
5107 Leesburg Pike, Suire 2000 Falls Church, Virginia 20530

FORVILUS, DIEUVU A071-552-965 C/O KROME SPC 18201 SW 12 STREET MIAMI, FL 33194

OHS/ICE Office of Chief Counsel - KRO 18201 SW 12th St. Miami, FL 33194

Immigrant & Refugee Appellate Center | www.irac.net

Name: FORVILUS, DIEUVU

A 071-552-965

Date of this notice: 1/28/2014

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 served with this decision pursuant to

8 C.F.R. § 1292.S(a). If the attached decision orders that you be

removed from the United States or affirms 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. Sincerely,

DGnltL ctl./VL)
Donna Carr Chief Clerk

Enclosure Panel Members: Guendelsberger, John Pauley, Roger Greer, Anne J.

yungc Userteam: Docket

Cite as: Dieuvu Forvilus, A071 552 965 (BIA Jan. 28, 2014)

U.S. Department of Justice Executiv� Office for Immigration Review
Falls Church, Virginia 20530

Decision of the Board of Immigration Appeals

File: A071 552 965 - Miami, FL In re: DIEUVU FORVILUS IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:

Date:

JAN 2 B 2014

Immigrant & Refugee Appellate Center | www.irac.net

Patricia Elizee, Esquire

Margarita I. Cimadevilla Assistant Chief Counsel

CHARGE: Notice: Sec. 2 l2(a)(2)(A)(i)(I), I&N Act [8 U.S.C. § l l8 2(a)(2)(A)(i)(I)] Crime involving moral turpitude

APPLICATION: Termination

The respondent appeals from an Immigration Judge's October 3, 2013, decision ordering him removed from the United States. The Department of Homeland Security ("DHS") opposes the appeal. The appeal will be sustained and the removal proceedings will be terminated. The respondent is a native and citizen of Haiti and a lawful permanent resident ("LPR") of the United States. In 20 I 0 the respondent was convicted in Florida of third-degree grand theft in violation of Fla. Stat. § 812.014. In 2013, after traveling abroad, the respondent presented himself for DHS inspection at the Miami International Airport port of entry, where he requested permission to reenter the United States as a returning LPR. Upon discovering the respondent's 2010 conviction, however, the DHS denied his request to reenter the United States and initiated the present removal proceedings. In a notice to appear filed in August 2013, the DHS charged the respondent with inadmissibility to the United States as an arriving alien convicted of a crime involving moral turpitude ("CIMT"). Sections 101 (a)(13)(C)(v) and 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § l 10l(a)(l3)(C)(v), 1182(a)(2)(A)(i)(I). 1 The Immigration Judge sustained the charge and ordered the respondent removed. This timely appeal followed, in which the respondent argues that the offense defined by Fla. Stat.§ 812.014 is not a CIMT. We review that legal question de novo. 8 C.F.R.§ 1003. l(d)(3)(ii). At all relevant times, Fla. Stat. § 812.014(1) has stated in relevant part that "[a] person commits theft 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 benefit from the property [or] (b) Appropriate the property As the respondent is a returning LPR, the DHS bears the burden of proving by clear and convincing evidence that he has committed an offense which renders him amenable to a charge of inadmissibility. Matter ofRivens, 25 I&N Dec. 623 (BIA 20 I 1).
Cite as: Dieuvu Forvilus, A071 552 965 (BIA Jan. 28, 2014)
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A071 552 965

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 theft in the third degree and a felony of the third degree . . . if the property stolen is . . . [v]alued at $300 or more, but less than $5,000 . " Fla. Stat. § 812.014(2)(c). The United States Court of Appeals for the Eleventh Circuit, in whose jurisdiction this case arises, has held that an offense is a CIMT if it "involves '[a]n act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man."' Cano v. U.S. Atty Gen. , 709 F.3d 1052, 1053 (1 lth Cir. 2013) (quoting United States v. Gloria, 494 F.2d 477, 481 (5th Cir. 1974)). To determine whether a crime qualifies as a CIMT in cases arising within the Eleventh Circuit, we apply the traditional "categorical approach," under which we focus upon the statutory definition of the crime rather than the facts underlying the particular offense. Fajardo v. U.S. Atty Gen., 659 F.3d 1303, 1305 (IIth Cir. 2011). The categorical approach requires that "we analyze whether the least culpable conduct necessary to sustain a conviction under the statute meets the standard of a crime involving moral turpitude." Cano v. U.S. Atty Gen., supra, at 1053 n. 3 (quoting Keungne v. U.S. Att'y Gen., 561 F.3d 1281, 1284 n. 3 (1 lth Cir. 2009)). It is undisputed that Fla. Stat. § 812.014 does not define a categorical CIMT because the statute, by its terms, encompasses offenses in which only a temporary taking or appropriation of property is intended. Under this Board's precedents, temporary takings of property are not CIMTs E.g., Matter of Grazley, 14 l&N Dec. 330, 333 (BIA 1973). As the "least culpable conduct" necessary to support a conviction for third-degree grand theft under Fla. Stat. § 812.014 does not involve moral turpitude, the DHS can carry its burden only if the statute is "divisible" vis-a-vis the CIMT concept, such that the Immigration Judge may consult the respondent's conviction record under the "modified categorical" approach with a view to determining whether his particular offense of conviction involved moral turpitude.
.

Immigrant & Refugee Appellate Center | www.irac.net

The Immigration Judge found that Fla. Stat. § 812.014 is divisible because it encompasses some turpitudinous offenses in which a permanent taking or appropriation of property is intended, as well as some non-turpitudinous offenses involving temporary takings or appropriations. Thus, he found it proper to consider the respondent's plea agreement and charging document which, taken together, show that he was convicted of unlawfully obtaining food stamps and cash assistance from the State of Florida (l.J. at 2-3). Based on that evidence, the Immigration Judge concluded that the DHS had carried its burden of proving that the respondent was convicted of third-degree grand theft involving the intent to permanently take or appropriate the victim's property, a CIMT. On appeal, the respondent maintains that the Immigration Judge's divisibility analysis was erroneous in light of the Supreme Court's decision in Descamps v. United States, 133 S. Ct. 2276 (2013). We agree with the respondent.

In Descamps, the Supreme Court explained that the modified categorical approach operates narrowly, and applies only if: (1) the statute of conviction is divisible in the sense that it lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to
2

Cite as: Dieuvu Forvilus, A071 552 965 (BIA Jan. 28, 2014)

A071 552 965
disjunctive sets of "elements,"2 more than one combination of which could support a conviction, and (2) some (but not all) of those listed offenses or combinations of disjunctive elements are a categorical match to the relevant generic standard. Id. at 2281, 2283. Thus, after Descamps the modified categorical approach does not apply merely because the elements of a crime can sometimes be proved by reference to conduct that fits the generic federal standard; according to the Descamps Court, such crimes are "overbroad" but not "divisible." Id. at 2285-86, 2290-92. 3 The Immigration Judge found that Fla. Stat. § 812.01 4 was divisible vis-a-vis the CIMT concept because it covers either "permanent" or "temporary" takings. In light of Descamps, however, this disjunctive phrasing does not render the statute divisible so as to warrant a modified categorical inquiry. Permanent and temporary takings are alternative means of committing grand theft in Florida; however, the DHS-which bears the burden of proof--has identified no authority to suggest that they are alternative elements of grand theft about which Florida jurors must agree in order to convict. See Descamps v. United States, supra, at 2285 n. 2; accord Schad v. Arizona, 501 U.S. 624, 636 (1991) (plurality) ("(L]egislatures frequently enumerate alternative means of committing a crime without intending to define separate 4 elements or separate crimes."). As the offense defined by Fla. Stat. § 812.014 is neither a categorical CIMT nor divisible vis-a-vis the CIMT concept under Descamps, we conclude that the removal charge must be dismissed. No other charges are pending against the respondent, moreover, and therefore the removal proceedings will be terminated. ORDER: The appeal is sustained, the Immigration Judge's decision is vacated, and the removal proceedings are terminated.

Immigrant & Refugee Appellate Center | www.irac.net

2 By "elements," we understand the Descamps Court to mean those facts about a crime which must be proved to a jury beyond a reasonable doubt and about which the jury must agree by whatever margin is required to convict in the relevant jurisdiction. Id. at 2288 (citing Richardson v. United States, 526 U.S. 81 3, 817 (1999)). 3

The Eleventh Circuit has held that the requirements of the categorical and modified categorical approaches may not be relaxed in CIMT cases. Fajardo v. U.S. Atty. Gen., supra.

In its appellate brief, the DHS argues that "Descamps is of no applicability to the instant " largely because this Board has previously found statutes resembling Fla. Stat. § 812.014 to be divisible. On the contrary, we view Descamps as authoritative intervening precedent as to the scope of the "divisibility" concept; thus, after Descamps a theft statute can be divisible in CIMT cases on the basis of the permanent-versus-temporary-taking dichotomy only if permanent and temporary takings are set forth by the convicting statute as alternative elements. Prior Board decisions embracing a more expansive understanding of divisibility are necessarily superseded to the extent they are inconsistent with Descamps.
in quiry
,

4

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Cite as: Dieuvu Forvilus, A071 552 965 (BIA Jan. 28, 2014)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT KROME PROCESSING CENTER MIAMI, FLORIDA

Immigrant & Refugee Appellate Center | www.irac.net

File: A071-552-965 In the Matter of

October 3, 2013

DIEUVU FORVILUS RESPONDENT

) ) ) )

IN REMOVAL PROCEEDINGS

CHARGE:

Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (Act) Convicted of a crime involving moral turpitude.

APPLICATION: Motion to terminate.

ON BEHALF OF RESPONDENT: PATRICIA ELIZEE ON BEHALF OF OHS: GEORGINA PICOS

ORAL DECISION OF THE IMMIGRATION JUDGE The respondent is a native and citizen of Haiti who, on or about September 10, 2002, was accorded the status of lawful permanent resident of the United States. On or about February 3, 2010, respondent was convicted in the 19th Judicial Circuit Court in and for St. Lucie County, Florida, for the offense of grand theft in the third degree under Case No. 562004CF002333A and in violation of Florida Statute 812.014. For this offense, the respondent was sentenced to 22 days in jail and three years' probation, along with restitution ordered.

1

On or about April 29, 2013, the respondent arrived in Miami International Airport and applied for admission to the United States as a lawful permanent resident. On or about August 1, 2013, the Department of Homeland Security (Department) issued a Notice to Appear charging the respondent with being removable pursuant to

Immigrant & Refugee Appellate Center | www.irac.net

the aforementioned section of law. The document was filed with the Immigration Court on August 5, 2013, and the respondent, through counsel, admitted the truth of the allegations, but denied removability. And as a result, the respondent put filed a motion to terminate these proceedings on the basis that he is not removable for having been convicted of a crime involving moral turpitude; specifically, that the offense that he was convicted of is not a crime involving moral turpitude; that the Government has not met its burden of establishing removability; that the Court is limited as to what it can review; that because of the statute, because of the way the statute is written, that the Government cannot presume that the taking was of a permanent nature. And therefore, again, the Government has not met its burden. The Court has taken into consideration the respondent's arguments, as well as the arguments presented by the Government's memorandum of law, and the Court finds that the respondent's conviction is a crime involving moral turpitude because there is a presumption that it is a permanent taking due to the items that were taken. The conviction record is here. It is Exhibit 2. There is an amended information, which is part of the record, and it shows that the respondent endeavored to obtain, or did obtain, food stamps and excessive cash assistance which was the property of the Florida Department of Children and Families, value of $300 or more. The rest of that, it just mirrors the statute that it was the intent to permanently or temporarily deprive the owner of the right to the property or a benefit there from or to appropriate the property, the use of the taker. The statute involved is a divisible statute because it does punish

A071-552-965

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October 3, 2013

conduct that is a crime involving moral turpitude, which would be the intentional, permanent taking of property, and it also punishes conduct that is not a crime involving moral turpitude, which would be the temporary taking or the temporary appropriation of the property. So I believe that under current case law, the Court is allowed to use a

Immigrant & Refugee Appellate Center | www.irac.net

modified categorical approach. But that still limits what the Court can look at. And what it can look at is the criminal conviction, which shows that the items taken were cash, as well as food stamps. There is a precedent Board decision which the Court finds is on point, and does not believe that it has been overturned. And that is Matter of Grazley, 14 l&N Dec. 330, 333 (BIA 1973). In that case, I believe the person was convicted of a theft under the Canadian statute, which pretty much had language that it was a temporary or absolute taking. And in that case, the items taken were cash and also some stamps. And in that decision, the Board said that "while we have no direct evidence as to what the respondent's intent was at the time he took the purse, we believe it is reasonable to assume, since cash was taken, that he took it with the intention of retaining it permanently." And here, we have cash and food stamps. Again, I believe it is on point. There is also the case of Matter of Garcia-Madruga, 24 l&N Dec. 436 (BIA 2008), where they say a theft offense under Section 101(a)(43)(G) ordinarily requires a taking of or exercise of control over property without consent and with the criminal intent to deprive the owner of the rights and benefits thereof, even if such deprivation is less than total or permanent. There is a recent Eleventh Circuit decision, Ramos v. United States Attorney General, 709 F.3d 1066 (11th Cir. 2013), holding that a conviction under a Georgia Statute, a statute that criminalizes shoplifting, is not categorically an aggravated felony under 101(a)(43)(G) of the Act because it included two disjunctive intent requirements,

A071-552-965

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October 3, 2013

an intent to deprive and an intent to appropriate, and was divisible. And I believe where the statutory language itself demonstrates the visibility, it is not required of the respondent to provide case law to demonstrate a realistic probably that the statute could be used to prosecute conduct outside the scope of a certain offense or its generic

Immigrant & Refugee Appellate Center | www.irac.net

definition. That case dealt with whether it was an aggravated felony under 101(a)(43)(G) of the Act. What we are dealing here is with a crime involving moral turpitude. Although, Georgia case did deal with the issue of theft. But I do not believe that case overruled Matter of Grazley, and since I believe that Grazley is still good law, I must follow it. I, therefore, find that it is a crime involving moral turpitude and that he is removable as charged. And consequently, the motion to terminate must be denied. Now, as to relief from removal, the respondent has not submitted any application for relief other than this motion to terminate and, consequently, the Court has to issue the following order: ORDER IT IS HEREBY ORDERED that the respondent be removed from the United States to Haiti pursuant to the charge contained in the Notice to Appear.

ADAM OPACIUCH Immigration Judge

A071-552-965

4

October 3, 2013

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE ADAM OPACIUCH, in the matter of:

DIEUVU FORVILUS

Immigrant & Refugee Appellate Center | www.irac.net

A071-552-965

MIAMI, FLORIDA

was held as herein appears, and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.

JU FREE STATE REPORTING, lnc.-2 OCTOBER 29, 2013 (Completion Date)

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