I

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MONTINAR, ROLDIMY
P.O. BOX 9778
NAPLES, FL 34101
Name: MONTINAR, ROLDIMY
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Fals Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - MIA
333 South Miami Ave., Suite 200
Miami, FL 33130
A 025-54-851
Date of this notice:
6
/13/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Manuel, Elise
Sincerely,
DO c a
Donna Carr
Chief Clerk
Lulseges
Usertea m: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Roldimy Montinar, A025 454 851 (BIA June 13, 2014)

U.S. Department of Justce
Executive Ofce fr Imigation Review
Decision of the Boad of I  igration Appeals
Falls Church, Viginia 20530
File: A025 454 851 - Miami, FL
In re: ROLDTY MONTINAR
IN REMOVAL PROCEEDINGS
APP EA;
Date:
ON BEHALF OF RESPONDENT: Pro se
ON BEHALF OF DHS:
CHARGE:
Angel L. Fleming
Assistt Chief Counsel
:JUN 13 2014
Notice: Sec. 237(a)(2)(A)(ii), l&N Act [8 U.S.C. § 1227(a)(2)(A)(ii)] -
Convicted of two or more crimes involving moral titde
Sec. 237(a)(2)(A)(i), l&N Act [8 U.S.C. § 1227(a)(2)(A)(i)] -
Convicted of crime involving moral turpitude
APPLICATION: Termination
The Departent of Homeland Security (DHS) has appealed fom the Immigation Judge's
decision dated December 5, 2012, grating the respondent's motion to terminate proceedings.
Te appea will be dismissed.
The Board reviews an Immigration Judge's fndings of fct, including fndings as to the
credibility of testimony, under a clearly eroneous standad. See 8 C.F.R. § 1003.l(d)(3)(i).
The Board reviews questions of law, discretion, and judgent, and all other issues raised i a
Immigration Judge's decision de novo. See 8 C.F.R. § 1003. l(d)(3)(ii).
As fund by te Immigration Judge, the respondent is a native and citizen of Haiti who
entered the United States as a refgee and subsequently adjusted his status to tat of a lawl
peranent resident alien on June 28, 1999. On May 12, 2000, the respondent wa convicted of
the ofenses of issuing a worthless check and gad thef in violation of Florida Statutes
Annotated sections 832.05 and 812.014, respectively. On May 23, 2000, the respondent was
convicted of three counts of grand thef in violation of Fla.Stat.Ann. § 832.05.
We afrm te Immigration Judge's decision to terminate the proceedings based upon a
deterination that the DHS did not meets its burden of proving that te respondent's convictions
were fr crimes involving moral tpitude. We have previously held tat Fla.Stat.An. § 832.05
is not a crime involving moral tpitude absent evidence of intent to defaud. See Mater of
Zangill, 18 l&N Dec. 22, 27 (BIA 1981), overuled on other grounds, Mater ofOzkk, 19 l&N
Dec. 546 (BIA 1988). Similarly, Fla.Stat.An. § 812.014, which was held to be a divisible
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Cite as: Roldimy Montinar, A025 454 851 (BIA June 13, 2014)
. ,,.
A025 454 851
statute by the Eleventh Circuit in Jaggernauth v. United States Att' Gen., 432 F.3d 1346
(11
t
Cir. 2005), because it includes two disjunctive intent requirements - an intent to deprive
versus a intent to approprate - would require evidence of a intent to deprive peranently to
qualif as a crime involving moral turitude. See Matter ofGraz/ey, 14 I&N Dec. 330, 333 (BIA
1973) ("Ordinarily, a conviction fr thef is considered to involve mora titude ony when a
peranent taing is intended.").
As te Immigration Judge correctly noted, the moral turitude aalysis of a criminal statute
in the Eleventh Circuit is limited to consideration of te nature of te ofense, and where the
crime involves some conduct that is morally turitudinous and some conduct whch is not, the
record of conviction - i.e., the chaging document, plea, verdict, and sentence - may also be
considered. See Faardo v. United States Att' Gen., 659 F.3d 1303, 1305 (1 lth Cir. 2011). I
this case, the judgment of conviction merely refects that the respondent pled no contest and was
convicted of violating the statutes prohibiting gand thef and issuce of woress checks
without specifing a particular subsection. The record does not include any plea agreements to
indicate whether te respondent admitted to paricula conduct, ad consulting the charging
documents, as urged by the DHS, provides no enlightenment because they merely track te
statutory laguage. Under the circumstances, we agree with the Immigration Judge the evidence
presented is insufcient to sustain the charges that the respondent has been convicted of crimes
involving moral turitude.
Accordingly, the appeal will be dismissed and the proceedings terminated.
ORER: The appeal is dismissed. and the removal proceedings against the respondent are
hereby terinated.
FOR THE BOARD
2
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Cite as: Roldimy Montinar, A025 454 851 (BIA June 13, 2014)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
MIAMI, FLORIDA
File: A025-454-851
In the Matter of
ROLDIMY MONTINAR
RESPONDENT
December 5, 2012
IN REMOVAL PROCEEDINGS
CHARGES: Section 237(a} (2) (A) (ii), an alien who has been
convicted of two crimes involving moral turpitude not arising
out of a single scheme of criminal misconduct;
237(a) (2) (A) (i), an alien who has been convicted of a crime
involving moral turpitude comitted within five years of
admission for which a sentence of a year or longer may be
imposed
APPLICATIONS:
ON BEHALF OF RESPONDENT: STEVEN GOLDSTEIN, ESQUIRE
ON BEHALF OF OHS: ANGEL L. FLEMING, ESQUIRE, ASSISTANT CHIEF
COUNSEL
ORAL DECISION OF THE IMMIGRATION JUDGE
The Respondent is a native and citizen of Haiti who
was issued a Notice to Appear on December 14, 2011. See Exhibit
lA. The Department of Homeland Security charged an additional
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charge of removability by filing a I-261 on June 15, 2012. That
was filed with the Court. That's Exhibit
#
lB.
Respondent appeared at a Master Calendar hearing and
through counsel, admitted the nine factual allegations, but
denied removability under both charges of removabili
i
y. The
Court has allowed both parties to file, supplement the record
and make arguments as to whether the Respondent is subject to
removal.
STATEMENT OF THE LAW
To qualify as a crime involving moral turpitude for
purposes of the Immigration and Nationality Act, a crime must
involve both reprehensible conduct and some degree of scienter,
whether it's specific intent, deliberateness, willfulness or
recklessness. Matter of Silva-Trevino, 24 I&N Dec. 687, 689
note 1 (AG 2008). Under precedent arriving from both the Board
and the Eleventh Circuit, it's appropriate for Imigration Court
to apply the categorical and modified categorical approaches of
Taylor v. United States, 495 U.S. 575, 599-602 (1990), when
determining whether a crime involves moral turpitude. Matter of
Silva-Trevino, 24 I&N Dec. at 689-90; Jaggernauth v. Attorney
General, 432 F.3d 1346 (11th Cir. 2005).
Although the Attorney General has held that when a
Record of Conviction is inconclusive, Judge may, to the extent
they deem necessary and appropriate, consider evidence beyond
the formal record of conviction. Matter of Silva-Trevino, 24
A025-454-851 2 December 5, 2012
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I&N Dec. at 690. The Eleventh Circuit has rejected this third
step inquiry. See Sanchez Fajardo v. U. S. Attorney General, 659
F. 3d 1303 (11th Cir. 2001). (Rejecting the third step approach
while holding that Congress unambiguously intended adjudicators
to use the categorical and modified categorical approach to
determine whether a person was convicted of a crime involving
moral turpitude) .
As a consequence, the Immigration Court will only
apply the categorical and modified categorical approaches when
considering Respondent's convictions qualify as crimes involving
moral turpitude.
FINDINGS AND CONCLUSIONS OF THE COURT
The Court has considered the documentary evidence
submitted, both Exhibit 2 and Exhibit 3, as to what the Court
can consider in the instant case.
All right, the Court has considered the record of
conviction and in this case, in Exhibit 2, it does include
certain arrest reports that are not part of the record of
conviction. See Matter of Milian, 25 I&N Dec. 197 (BIA 2010).
In applying the modified categorical approach to
assess an alien's conviction, it is proper to consider the
contents of police reports as part of the Record of Conviction
if they were specifically incorporated into the guilty plea or
were admitted by the alien during the criminal proceedings. 25
I&N Dec. 197 (BIA 2010). In the instant case, there is no
A025-454-851 3 December 5, 2012
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evidence in either of Respondent's convictions that the police
reports were a part of the Record of Conviction and therefore,
they will not be considered as part of the Record of Conviction
and they're excluded as what the Court can consider.
The Respondent here has been convicted of a theft
offense. The Florida theft offense is a divisible statute and
the Respondent has been charged with, in both instances, of
either the intent to temporarily or permanently deprive the
owner or custodian of the right of property or money.
The Court cannot determine from the Record of
Conviction whether it was a permanent taking or a temporary
taking. Therefore, the Court is going to be terminating
proceedings. I find the Respondent is not subject to removal
from the United States. The Court finds the government has
failed to meet its burden of proof of establishing removability
by clear and convincing evidence, based on specifically the case
law that exists in the Eleventh Circuit, based on the Sanchez
Fajardo case. The Court realized that in another jurisdiction,
the Respondent could possibly be subject to removal but not
under this jurisdiction and the Court is terminating
proceedings.
The Court is not sustaining either charge of
removability. The crime involving moral turpitude within five
years and the Court has not sustained the other charge, the two
crimes involving moral turpitude within five years.
A025-454-851 4 December 5, 2012
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Therefore, the following order is entered.
ORDER
HEREBY ORDERED both charges under 237(a) (2) (A) (ii) are
not sustained.
HEREBY FURTHER ORDERED charge of removability under
237 (a} (2) (A) (i} is not sustained.
Proceedings are hereby terminated.
A025-454-851
Piease see the net page for e1ectronic sigature
LOURDES MARTINEZ-ESQUIVEL
Imigration Judge
5 December 5, 2012
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..
//s//
Imigration Judge LOURDES MARTINEZ-ESQUIVEL
martinlo on February 26, 2013 at 10:12 PM GMT
A025-454-851 6 December 5, 2012
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CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE
LOURDES MARTINEZ-ESQUIVEL, in the matter of:
ROLDIMY MONTINAR
A025-454-851
MIAMI, 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 Immigration Review.
Cak/Bjn
c t Q w
CHRISTINE KEEHNER (Transcriber)
YORK STENOGRPHIC SERVICES, Inc.
FEBRUARY 11, 2013
(Completion Date)
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