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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Qffice ofthe Clerk

5107 leesb11rg Pike, S11ile 2000


Falls Church. Virginia 20530

Immigrant & Refugee Appellate Center, LLC | www.irac.net


Urizar, Mario Rene OHS/ICE Office of Chief Counsel - MIA
Eduardo Soto PA 333 South Miami Ave., Suite 200
999 Ponce de Leon Blvd., Ste. 1040 Miami, FL 33130
Coral Gables, FL 33134

Name: PASTRANA, ALAIN A 025-441-027

Date of this notice: 12/22/2014

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Cole, Patricia A.

Usertea m: Docket

For more unpublished decisions, visit


www.irac.net/unpublished/index

Cite as: Alain Patrana, A025 441 027 (BIA Dec. 22, 2014)
U�S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 20530

File: A025 441 027 - Miami, FL Date:

In re: ALAIN PATRANA

Immigrant
IN REMOVAL PROCEEDINGS

Immigrant
APPEAL

ON BEHALF OF RESPONDENT: Mario Rene Urizar, Esquire

& Refugee
ON BEHALF OF DHS: Diana I. Alvarez
Deputy Chief Counsel

& Refugee
CHARGE:

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

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Convicted of crime involving moral turpitude (not sustained)

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APPLICATION: Termination

Center,
The Department of Homeland Security (DHS) appeals from the Immigration Judge's
May 22, 2013, decision, declining to find the respondent deportable as charged and terminating

CenterLLC
the instant proceedings. The DHS appeal will be dismissed.

We review findings of fact, including credibility findings, for clear error. See 8 C.F.R.
§ 1003.l(d)(3)(i); see also Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007); Matter of S-H-,

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23 l&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all
other issues de novo. See 8 C.F.R. § 1003.l(d)(3)(ii).

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The following facts are not in dispute. The respondent is a native and citizen of Cuba who
has been a lawful permanent resident of the United States since April 24, I 993 (l.J. at I; Tr. at 3;
Exh. 1). On August 18, 1998, he was convicted of criminal mischief in violation of Florida
Statute section 806.13(l)(b)(3), as committed on June 17, 1997 (I.J. at I; Tr. at 3; Exhs. 1-2).

The Immigration Judge concluded that the respondent's conviction was not under a statute
that categorically proscribes conduct involving moral turpitude (l.J. at 2). See Donawa v. United
States Attorney General, 735 F.3d 1275, 1280 (I Ith Cir. 2013). Instead, the Immigration Judge
found that the statute of conviction is divisible in that, by its elements it punishes some conduct
involving moral turpitude but other conduct that does not (l.J. at 3). Accordingly, when applying
the modified categorical approach, the Immigration Judge concluded that the documents related
to the respondent's record of conviction did not provide sufficient evidence in allowing the
DHS to carry its burden of proof to establish that the respondent had been convicted of
a crime involving moral turpitude (l.J. at 4). See id. at 1281 (quoting Descamps v. United States,

133 S. Ct. 2276, 2281 (2013)).

Cite as: Alain Patrana, A025 441 027 (BIA Dec. 22, 2014)
- 44iA.%
_.. .
A025 44i 027

On appeal, the DHS maintains that the Immigration Judge erred as a matter of law in finding
that the statute of conviction does not categorically prescribe morally turpitudinous conduct
(OHS Brief at 6-8). Alternatively, the OHS asserts that, assuming arguendo the modified
categorical approach applies, the respondent's specific conviction is supported by statutory
elements involving morally turpitudinous conduct (OHS Brief at 8-9). 'J.:'he respondent maintains

Immigrant
that the Immigration Judge correctly terminated proceedings because the statute does not
categorically describe a crime involving moral turpitude and there is insufficient record evidence

Immigrant
to establish that his specific conviction is supported by conduct that shocks the public conscience
(Resp.Brief at 3-9).

The criminal mischief statute in effect at the time that the respondent was convicted provides
that "[a] person commits ... criminal mischief if he ... willfully and maliciously injures or

& Refugee
damages by any means any real or personal property belonging to another, including, but not
limited to, the placement of graffiti thereon . . " See Florida Statute section 806.13(1)(a)

& Refugee
.

( 1997). The specific sub-section supporting the respondent's conviction further requires damage
of $1,000 or greater. See Florida Statute section 806.13(l)(b)(3) ( 1997). Although not further
defined by statute, Florida case law defines willful as used in Florida Statute section 806.13 to
require an intentional act. See Williams v. State, 109 So. 805 ( 1926). Similarly malicious as

Appellate
used in the provision has been defined as an act done "voluntarily, unlawfully, and without
justification." See id.

Appellate
Because the statute of conviction requires an intentional and voluntary act, the scienter
requirement for a crime involving moral turptitude has been satisfied. See Matter of Olquin,
23 I&N Dec. 896 (BIA 2006). However, in addition to the scienter requirement, the statute of

Center,
conviction by its elements must also punish conduct that is inherently base, vile, or depraved. In
determining whether criminal mischief convictions under the Florida statute in question-or

CenterLLC
similar offenses like vandalism and malicious destruction or injury of property-qualify as
crimes involving moral turpitude, we look to our prior precedents, wherein we have examined
a number of factors, including the nature and extent of damage or destruction to property
required to support a conviction.

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Using this framework, we have held that several statutes punishing criminal mischief,

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, malicious destruction of property, or vandalism involve moral turpitude. For instance, in Matter
of M-, 3 l&N Dec.272, 273 (BIA 1948), we examined a respondent's conviction under a statute
that applied to those who "maliciously or wantonly kill, wound, disfigure, or injure any animal,
the property of another." Therein, we found that the respondent had been convicted of a vile and
vicious offense that qualified as a crime involving moral turpitude. See id. at 274. Similarly, in
Matter of R-, 5 l&N Dec. 612, 6 16 n.1 (BIA 1954), the alien was convicted under a statute that
applies to any person who "wantonly, willfully and maliciously, by . . .explosive substances . ..
destroys, attempts to destroy, damages or injures any property, " which we concluded qualified as
a crime involving moral turpitude. See id. at 621. Most recently, in Matter of E. E. Hernandez,
26 I&N Dec. 397, 399 (BIA 20 14), we concluded that malicious vandalism including a gang
enhancement element constitutes a crime involving moral turpitude where the gang enhancement
provision requires proof that the underlying offense was committed for the benefit of a criminal
street gang with specific intent to promote criminal conduct by the gang members.

Cite as: Alain Patrana, A025 441 027 (BIA Dec. 22, 2014)
A025 44i 027

However, in Matter of N-, 8 l&N Dec. 466 (BIA 1959), we concluded that the respondent's
vandalism conviction did not involve moral turpitude. In that case, the respondent was convicted
under a statute that applied to any person who "unlawfully, maliciously and mischievously
destroys or injures any real or personal property, or any other thing of value, to the value of less
than $100." See id. at 467. In declining to find that the conviction involved moral turpitude, we

Immigrant
noted that the criminal statute was "extremely broad in scope, including offenses which may or
may not involve moral turpitude" and therefore, requiring assessment of the statute's divisibility.

Immigrant
See id. Thus, it was necessary in Matter of N-, supra, to examine the record of conviction in
determining the scope of the respondent's specific conviction. See id. According to the record
of conviction, the respondent was convicted for causing "damage to the furnishing" of a girls
club, but there was no indication that the respondent's conviction involved conduct that is

& Refugee
inherently base and vile, as opposed to conduct merely prohibited by law. See id. In
distinguishing Matter of N-, supra, from Matter of M-, supra, and Matter of R-, supra, we noted
that in Matter of M-, supra, the respondent's conviction involved "stabbing, striking, and killing

& Refugee
[two] hogs with an axe," and in Matter of R-, supra, the alien was convicted of "attempting to
destroy property by the use of explosives."

When examining Matter of E.E. Hernandez, supra; Matter of R-, supra; Matter of M-, supra;

Appellate
and Matter of N-, supra, together, we note that each of the statutes examined in those cases
included an element of malice, but not all of the statutes categorically punished morally

Appellate
turpitudinous conduct. Instead, where the statute punished a broad range of conduct and the
specific conviction was only supported by proof of limited damage or loss of property, we
concluded that the conviction did not involve moral turpitude. See Matter of N-, supra.
However, where the malicious destruction of property was coupled with another aggravating

Center,
statutory element enhancing the inherently base, vile, or depraved nature of the conduct
in question, such as the killing or injury of animals, the use of explosives, or furtherance of

CenterLLC
a street gang's criminal objectives, the conduct did involve moral turpitude. See Matter of
E.E. Hernandez, supra; Matter ofM-, supra; Matter of R-, supra.

Although the amount of property damage supporting the respondent's conviction here is

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more than that involved in Matter of N-, supra, the Florida statute in question most closely
resembles the statute involved in Matter of N-, supra, as it applies to injury or damage to "real or

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personal property belonging to another," and a conviction may be secured under the statute
without requiring additional aggravating factors, including killing or injuring animals, the use of
dangerous devices, like explosives, or activities in furtherance of a street gang's criminal
enterprise. In addition, the Florida Statute under which the respondent was convicted is very
broad in scope. As a result, it has been applied to punish conduct that we have considered
morally turpitudinous. See, e. g., Jones v. State, 20 So.2d 901 (Fla. 1945) (punishing the
disfiguring and/or killing of an animal); Martin v. State, 183 So. 634 (Fla.1938 (punishing the
act of destroying property by burning); Parker v. State, 169 So. 411 (Fla. 1936) (punishing
maiming animals); Love v. State, 144 So. 843 (Fla. 1932) (same as Martin v. State, supra).
However, it has also been applied to punish conduct that we have concluded is not inherently
base, vile, or depraved. See, e.g., G.H. v. State, 599 So.2d 231 (Fla.App. 1992) (punishing
scratching damage to a vehicle imposed by a key); D.B. v. State, 559 So.2d 305 (Fla.App. 1990)
(punishing destruction of a chest of drawers); Koenig v. State, 214 So.2d 627 (Fla.App. 1968)
(punishing damage to a public telephone booth); Cragin v. De Pape, 159 F. 691 (5th Cir. 1908)

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Cite as: Alain Patrana, A025 441 027 (BIA Dec. 22, 2014)
A025 441 027

(punishing an employee for the act of damaging his employer's door by kicking it when he
where he was locked out of the property). Accordingly, we agree with the Immigration Judge's
conclusion that the respondent was convicted under a statute that does not categorically proscribe
only morally turpitudinous conduct by its elements, and we note that there is a realistic
probability that the statute will be applied to conduct that is not morally turpitudinous in light of

Immigrant
prior published decisions (I.J. at 3). See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).

Immigrant
However, unlike the Immigration Judge, we conclude that Florida Statute section
806.13(l)(a) is not divisible, because although the statute has been used to secure convictions for
morally turpitudinous and non-turpitudinous conduct, the statute by its elements only requires
proof of willful and malicious property damage and does not require proof of an additional
aggravating factors in securing a conviction under this provision, such that the statute is

& Refugee
overbroad. See Descamps v. United States, supra; compare Florida Statute sections
806.13(1)(a), (2) (where the first punishes malicious and willful destruction of property,

& Refugee
generally, but the later specifically punishes such conduct with the aggravating factor involving
property damage to a place of worship). We do acknowledge that the statute is divisible under
section 806.13(1)(b) in that the amount of damage is a specific element in identifying whether
the offense is a misdemeanor or a felony. See Fla. Stat. §§ 806.13(l)(b)(l-3). In addition, we

Appellate
conclude that the respondent's conviction here is for a felony, in that the amount of damage
involved equaled or exceeded $1,000 (l.J. at 3-4; Tr. at 3; Exhs. 1-2). Notwithstanding the

Appellate
foregoing, we conclude that the amount of damage, alone, is insufficient to establish that the
respondent was convicted of an offense involving moral turpitude, and therefore, we ultimately
agree with the Immigration Judge's conclusion that the DHS did not carry its burden of proof in
establishing that the respondent is removable as charged.

Center,
Accordingly, the following order will be entered.

CenterLLC
ORDER: The DHS appeal is dismissed.

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ERTHEBOARD

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Cite as: Alain Patrana, A025 441 027 (BIA Dec. 22, 2014)
'"lj . ·,

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
MIAMI, FLORIDA

Immigrant
IN THE MATTER OF: )
)

Immigrant
PASTRANA, Alain )
) IN REMOVAL PROCEEDINGS
A# 025-441-027 )
)

& Refugee
RESPONDENT )
��������- )

& Refugee
ON BEHALF OF RESPONDENT ON BEHALF OF THE DEPARTMENT
Mario R. Urizar, Esq. Maria T. Armas, Assistant Chief Counsel
Law Offices of Eduardo Soto, P.A. Department of Homeland Security
999 Ponce de Leon Blvd., Suite l040 333 South Miami Ave., Suite 200

Appellate
Coral Gables, Florida 33129 Miami, Florida 33130

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

WRITTEN DECISION ON A MOTION TO TERMINATE

Center,
I. Background

CenterLLC
The respondent is a forty-year-old male, native, and citizen of Cuba. The respondent
adjusted status to that of lawful permanent resident pursuant to section 209 of the Act as a
refugee on July 26, 1994, as of April 24, 1993. On August 18, 1998, the respondent was

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convicted in the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County,
Florida, for the offense of Felony Criminal Mischief, for offenses committed on June 17, 1997,

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in violation of Fla. Stat. § 806.13. On June 27, 2012, the Department of Homeland Security
(OHS) issued a Notice to Appear (NTA) that charged the respondent with removability pursuant
to section 237(a)(2)(A)(i) of the Act as an alien convicted of a crime involving moral turpitude
committed within five years after admission for which a sentence of one year or longer may be
imposed. Exh. 1. On December 6, 2012, the respondent, with the assistance of counsel,
admitted all NTA factual allegations. On March 7, 2013, the respondent expressed his intention
to contest the charge of removabi lity. On April I 2, 2013, the respondent filed a motion to
terminate alleging that criminal mischief under Fla. Stat. § 806.13 is not a crime involving moral
turpitude. On April 23, 2013, the Court terminated the respondent's removal proceeding. On
May 10, 2013, OHS filed a memorandum in support of the respondent's removability.
Consistent with the arguments presented in the respondent's motion to terminate, itnow becomes
necessary for the Immigration Court to evaluate whether removability under section
237(a)(2)(A)(i) of the Act has been established.

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Pastrana, Alain A# 025-441-027

II. Discussion

Section 237(a)(2)(A)(i) of the Act provides that any alien convicted of a crime involving
moral turpitude committed within five years after admission for which a sentence of one year or
longer may be imposed is deportable.

Immigrant
"[T]o qualify as a crime involving moral turpitude for purposes of the Act, a crime must

Immigrant
involve both reprehensible conduct and some degree of scienter, whether specific intent,
deliberateness, willfulness, or recklessness. " Matter of Silva-Trevino, 24 I&N Dec. 687, 689 n.1
(A.G. 2008). Under precedent arising from both the Board of Immigration Appeals (Board) and
the United States Court of Appeals for the Eleventh Circuit (Eleventh Circuit), it is appropriate
for an Immigration Court to apply the "categorical" and "modified categorical" approaches of

& Refugee
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. U.S.

& Refugee
Att Y. Gen., 432 F.3d 1346, 1355 (11th Cir. 2005). Although the Attorney General has held that
"[w]hen the record of conviction is inconclusive, judges may, to the extent they deem it
necessary and appropriate, consider evidence beyond the formal record of conviction," Matter of
Silva-Trevino, 24 l&N Dec. at 690, the Eleventh Circuit has rejected this third-step i nquiry. See

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Sanchez Fajardo v. U.S. Atty Gen., 659 F. 3d 1303, 1310 (11th Cir. 2011) (rejecting the third­
step approach while holding that "Congress unambiguously intended adjudicators to use the

Appellate
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 whether the respondent's
convictions qualify as crimes involving moral turpitude.

Center,
In the present case, the record reflects that the respondent has been convicted for the

CenterLLC
offense of felony criminal mischief. 1 This conviction occurred pursuant to Fla. Stat. § 806.13.
As written, Fla. Stat. § 806.13 defines the crime of criminal mischief as follows:

A person commits the offense of criminal mischief if he or she willfully and

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maliciously injures or damages by any means any real or personal property
belongin g to another, including, but not limited to, the placement of graffiti

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thereon or acts of vandalism thereto.

"Willfully" as used in section 806.13 means intentionally knowingly, and purposely.


MH. v.
State, 936 So. 2d 1, 2-3 (Fla . 3d DCA 2006) (citing Fla. Std. Jury Instr. (Crim.) 12.4).
"Maliciously," as used in the statue means wrongfully, intentionally, without legal justification
or excuse and with the knowledge that injury or damage will or may be caused to another person
or the property of another person.2 Id. at 3. Thus, criminal mischief under Florida law "requires
an act that is willful (intentional) and wrongful . . . . " Id.; see also J.R.S. v. State, 569 So. 2d
1323, 1325 (Fla. 1st DCA 1990) (finding evidence that a juvenile damaged a door lock while

1 The Court notes that the sole difference between felony criminal mischief and misdemeanor criminal mischief is
the value of the property damaged. Valdes v. State, 510 So. 2d 63 l, 632 (Fla. 3d DCA 1987).
2 This definition ofumaliciously" seems to describe ulegal malice" or "malice in law," which is different from
0actual malice" or 0malice in fact" tha t requires "ill will, hatred, spite, [or] an evil intent." Reed v. State, 837 So. 2d
366, 368 (Fla. 2002).

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Pastrana, Alain A# 025-441-027

attempting to gain entry into his locked home was insufficient to demonstrate malice).3 A
Florida state court cannot uphold a criminal mischief conviction based upon a finding that the act
which caused the damage was an accidental act, rather than one committed wantonly or
maliciously. Gonedes v. State, 574 So. 2d 1198, 1199 (Fla. 4th DCA 1991); see also K. G. v.
State, 330 So. 2d 519 (Fla. 1st DCA 1976) (reversing conviction for vandalism based upon trial

Immigrant
court's finding that the window in question was broken accidental1y). Thus, the statute requires
some form of scienter in line with applicable case law. 4 Matter of Silva-Trevino, 24 I&N Dec. at

Immigrant
689 n. J.

In order to qualify as a crime involving moral turpitude, however, criminal mischief must
also involve an act that is "per se morally reprehensible and intrinsically wrong." Matter of
Tran, 21 l&N Dec. 291, 293 (BIA 1996) (citing Matter of Esfandiary, 16 I&N Dec. 659 (BIA

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1979); Matter of P-, 6 I&N Dec. 795 (BIA 1955)). Fla. Stat. § 806 . 13 does not require any risk
of physical harm to another person, which can render conduct inherently reprehensible. See

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Matter of Leal, 26 l&N Dec. 20, 25 (BIA 2012) (finding that "recklessly exposing another
person to a 'substantial risk of imminent death' is morally turpitudinous because it is a base act
that transgresses the socially accepted rules of morality and breaches the individual's ethical duty
to society"). Moreover, the respondent's crime does not involve fraudulent conduct. See Jordan

Appellate
v. De George, 341 U.S. 223, 232 ( l 951) ("The phrase 'crime involving moral turpitude' has
without exception been construed to embrace fraudulent conduct."). Fla. Stat. § 806.13 solely

Appellate
addresses damage to real or personal property, including the placement of graffiti or acts of
vandalism. The destruction of property, "even with an evil mindset, is not necessarily 'base,
vile, or depraved' behavior, or the sort of crime that should render an individual deportable." Da
Silva Neto v. Holder, 680 F.3d 25, 33 (1st Cir. 2012) (persuasive authority). Thus, the Court

Center,
finds that Fla. Stat. § 806.13 is divisible.

CenterLLC
Accordingly, the Immigration Court must apply a second-step modified categorical
approach to determine if the respondent's theft conviction is morally turpitudinous. In support
of the contention that the respondent's criminal mischief conviction is a crime involving moral
turpitude, OHS has submitted certified conviction records. The criminal Information, which is

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part of the conviction record, •indicates that the respondent "did willfully and maliciously inj ure
or damage real or personal property, to-wit: interior of an apartment, said property belonging to

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RIVER COVE APARTMENTS, resulting in damage in the value of more than one thousand
($1,000.00) dollars." Exh. 2. Because the criminal Information provides no further detail as to
whether the respondent's conduct was reprehensible besides the mere recitation of the statute in
question, the Court cannot find that the respondent's conviction involved moral turpitude.

3 The additional cases the respondent has cited only underscore the fact that criminal mischiefrequires more than
mere accidental or negligent actions. See T.D.B. v. State, 85 So. 3d 1212 (Fla. lst DCA 2012) (finding that evidence
was insufficient to establish that a juvenile who dropped a weight into a pool acted with malice as req ui red to
support charge of criminaJ mischief); Marrero v. State, 22 So. 3d 822 (Fla. 3d DCA 2009) (The defendant drove his
Ford F-150 pickup tr uck into an entrance at the Miccosukee Casino after gambling losses).
4 The Court notes, however, that Fla. Stat. § 806.13 does not go so far as to require a state of mind that is cruel,
hostile, or seeking revenge. See e.g., Mass. Gen. Laws ch. 266, § 127; Commonwealth v. Morris M, 876 N.E.2d
462, 466 (Mass. App. Ct. 2007) (Malic io us means that the "intentional acts were done out of cruelty, hostility, or
revenge" toward the owner of the property, even if the de fendant did not know who the owner was); see also Reed v.
State, 837 So. 2d at 368.

M
Pastrana, Alain A# 025-441-027

Consequently, the Immigration Court concludes that the respondent's criminal mischief
conviction does not qualify as a crime involving moral turpitude.

I I I. Conclusion

Immigrant
OHS has charged the respondent with removability pursuant to section 237(a)(2)(A)(i) of
the Act. In support of this removal charge, OHS alleges that the respondent's conviction for

Immigrant
criminal mischief is a crime involving moral turpitude. Yet, this conviction is not a categorical
crime involving moral turpitude, and OHS has failed to provide sufficient judicially noticeable
documentation to narrow the respondent's convictions under the modified categorical approach
and, thus, DHS has failed to meet their burden of proof. Finally, because the Eleventh Circuit in
Sanchez Fajardo rejected the third-step approach set forth in Matter of Silva-Trevino, the

& Refugee
Immigration Court is foreclosed from considering whether evidence outside the conviction
records-such as arrest affidavits-narrow the respondent's convictions to crimes involving

& Refugee
moral turpitude.

Inasmuch as removability has not been established under section 237(a)(2)(A)(i) of the
Act, it follows that the instant removal proceeding must be terminated.

Appellate
In light of the foregoing, the following orders hereby enter:

Appellate
ORDERS

IT IS HEREBY ORDERED that the section 237(a)(2)(A)(i) of the Act charge of

Center,
removability be NOT SUSTAINED.

CenterLLC
IT IS FURTHER ORDEREDthat the respondent's removal proceeding be
TERMINATED without prejudice to either party.

APPEAL RIGHTS: A notice of appeal must be filed with the Board of Immigration Appeals

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within 30 calendar days of the issuance date of this decision. If the final date for filing the notice
of appeal occurs on a Saturday, Sunday, or legal holiday, the time period for filing will be

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extended to the next business day. If the time period expires and no appeal has been filed, this
decision becomes final.

DATED this __
1;1/ day of May 2013.

CC: The Respondent, Respondent's Counsel, and the Assistant Chief Counsel

i£i£ii A - ,;;;
Immigrant & Refugee
Immigrant Appellate
& Refugee Center,
Appellate CenterLLC | www.irac.net
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A# 025-441-027
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Pastrana, Alain
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