You are on page 1of 10

U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office of the Clerk

5107 leesburg Pike, Suite 2000


Falls Church. Virginia 22041

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


Bassey, Aniefiok OHS/ICE Office of Chief Counsel - ORL
Bassey Immigration Law Center, P.A 3535 Lawton Road, Suite 100
P .0 Box 272065 Orlando, FL 32803
Tampa, FL 33688

Name: MACHADO BRINDIS, HUMBERT . A 078-968-678

Date of this notice: 10/3/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Pauley, Roger
Adkins-Blanch, Charles K.
Mann, Ana

. .._;
'

'
':; f .

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index

Cite as: Humberto Aristides Machado Brindis, A078 968 678 (BIA Oct. 3, 2017)
,.
,. l[.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A078 968 678 - Orlando, FL Date:

OCT -3 2017
In re: Humberto Aristides MACHADO BRINDIS

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


IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Aniefiok Bassey, Esquire

APPLICATION: Termination

The respondent is a native and citizen of Cuba and a lawful permanent resident of the United
States. He appeals from the Immigration Judge's decision dated November 12, 2014, finding him
removable from the United States pW'Suant to section 212(a)(2)(A)(i)(I) of the Immigration and
Nationality Act, 8 U.S.C. 1182(a)(2)(A)(i)(I), and denying his application for a waiver of
inadmissibility under section 212(h) of the Act, 8 U.S.C. 1182(h). The appeal will be sustained.

We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. 1003. l(d)(3)(i). We review
all other issues, including issues of law, discretion, or judgment, under a de novo standard.
8 C.F.R. 1003.1(d)(3)(ii).

The respondent was, on April 30, 2009, convicted for Dealing in Stolen Property in violation
of Florida Statute 812.019(1), which states that any person who traffics in, or endeavors to traffic
in, property that he or she knows or should know was stolen shall be guilty of a felony of the second
degree (emphasis added). On appeal, the respondent argues that his conviction lacks the requisite
intent to constitute a crime involving moral turpitude, and he is therefore not removable from the
United States pursuant to the section 212(a)(2)(A)(i)(I) of the Act.

A crime involving moral turpitude refers to "an act of baseness, vileness, or depravity in the
private social duties which a man owes to his fellow man, or to society in general, contrary to the
accepted and customary rule of right and duty between man and man." See Cano v. U.S. Att'y
Gen., 709 F.3d 1052, 1053 (11th Cir. 2014) (per curiam) (quoting United States v. Gloria, 494 F.2d
477, 481 (5th Cir. 1974)) (internal quotation marks omitted). It does not include offenses where
intentional or reckless conduct is excluded from the statutory definition of the crime. See Matter
ofPerez-Contreras, 20 l&N Dec. 615 (BIA 1992). See also Matter ofDiaz, 26 l&N Dec. 847 (BIA
2016).

The United States Court of Appeals for the Eleventh Circuit, in whose jurisdiction this case
arises, applies the traditional categorical and modified categorical approaches, as established by
Taylor v. United States, 495 U.S. 575 (1990), to determine whether a conviction meets this
definition. See Fajardo v. U.S. Att'y Gen., 659 F.3d 1303, 1305 (11th Cir. 2011). The first step
of this analysis requires that we determine whether the elements of the respondent's statute of
conviction "are the same as, or narrower than, those of the generic" definition of a crime involving
Cite as: Humberto Aristides Machado Brindis, A078 968 678 (BIA Oct. 3, 2017)
A078 968 678

moral turpitude. See Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). If some, but not
all, of the conduct encompassed by the statute falls within the generic definition, and the statute
punishes the generic and non-generic conduct in a "divisible" manner, we may proceed to the
modified categorical approach to determine which of the statute's alternative elements formed the
basis of the conviction. See Descamps v. United States, 133 S. Ct. at 2281.

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


Subsequent to the hearing, the Board decided Matter ofDeang, 27 l&N Dec. 57 (BIA 2017),
which considered whether receipt of stolen property under section 32-4-5 of the South Dakota
Codified Laws constituted an aggravated felony pursuant to section 10l(a)(43)(G) of the Act,
8 U.S.C. l10l(a)(43)(G). We noted that a conviction did not require an actual intention to
deprive another person of property ownership. Rather, a conviction required only receipt of
property with a "reason to believe" that it is stolen. As a result, the Board concluded that the South
Dakota statute was not categorically an aggravated felony because the offense lacked, as an
element, the requisite degree of intent.

Similarly, under Florida Statute 812.019(1), a conviction could occur for trafficking in
property that a person "should know'' is stolen. The phrase "should know'' appears to be
synonymous with the phrase "reason to believe," which is discussed above, and is the equivalent
of criminal negligence which is not sufficient for a finding of moral turpitude. See Partyka v. Atty
General ofthe U.S., 417 F.3d 408, 414 (3d Cir. 2005). Based on our analysis in Matter ofDeang,
the respondent's conviction is not categorically a crime involving moral turpitude.

In addition, even if we assume that Florida Statutes 812.019(1) is divisible with respect to
the intent to deprive requirement, we conclude that the Department of Homeland Security ("DHS")
has not established under the modified categorical approach that the respondent was convicted for
knowingly trafficking in stolen property. The record of conviction and criminal information do
not indicate whether the respondent was convicted for knowing or merely should have known that
the property that he had trafficked was stolen property (Exh. 3). In light of the foregoing, the OHS
has not established that the respondent's conviction under Florida law is for a crime involving
moral turpitude. The charge of removability under section 212(a)(2)(A)(i)(I) of the Act of the Act
is therefore not sustained. As there are no other charges pending against the respondent at this
time, the removal proceedings will be terminated.

Accordingly, the following order will be entered.

ORDER: The appeal is sustained, the Immigration Judge's decision is vacated, and the
removal proceedings are terminated.

FOR THE BOARD

Cite as: Humberto Aristides Machado Brindis, A078 968 678 (BIA Oct. 3, 2017)

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ORLANDO, FLORIDA

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


File: A078-968-678 November 12, 2014

In the Matter of:

)
HUMBERTO ARISTEDES MACHADO BRINDIS, ) IN REMOVAL PROCEEDINGS
)
RESPONDENT ) Transcript of Hearing

CHARGE: 212(a)(2)(A)(i)(1) of the Immigration and Nationality Act.

APPLICATION: Waiver under INA Section 212H.

ON BEHALF OF RESPONDENT: Aniefiok Bassey, Esquire

ON BEHALF OF OHS: Richard Jacobs, Assistant Chief Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a 40-year-old male native and citizen of Cuba who was

issued a Nootice to Aappear on December 7, 2011. In written pleadings the respondent

admitted the allegations and conceded the charge on the NTA. We had a discussion

today before -- or when we went on the record. The court agrees with Mr. Bassey that

offenses of this grand theft of a motor vehicle is not a crime involving moral turpitude,

but the court finds that dealing in stolen property in violation of Florida statute 812.0191

is a crime involving moral turpitude. The issue before the court now concerns the

application for relief from removal. An immigration judge may weigh the ground of

removal relating to a conviction or a crime involving moral turpitude if the alien

establishes that a) he is the spouse, parent, son, or daughter of a United States citizen

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


or lawful permanent resident and b) denial of his or her admission would result in

extreme hardship to that qualifying relative. Extreme hardship is not a definable term of

fixed content. It is dependent on the facts and circumstances particular to each case.

Furthermore, Section 212i.b.1M is a discretionary form of relief requiring the immigration

judge to balance the adverse factors, evidence in the alien's undesirability with a

positive consideration as presented on his or her behalf. Matter of Mendez 21 l&N Dec

296 (BIA 1996).

I have carefully considered the documentary evidence in Exhibit 1 through

4 and the respondent's testimony and testimony from his girlfriend, Iliana Borroto. Mr.

Machado testified that he's 40 years old. He's married, currently married, to a lady

who's from Venezuela. Unfortunately a few months after they were married she left him

for another man and the last communication respondent had with this lady is an internet

communication about a year ago, so he has no idea where this lady is. For all he

knows she could be in Venezuela.

In any event, the respondent came to the United States in August 2002

and became a lawful permanent resident retroactive to August 2003. He worked until

about 2009 when for three years he was unemployed except for doing odd jobs. He

was employed up to two days ago when some problem arose with his current

supervisors. They apparently didn't want to pay him money he was due so he quit that

job. In addition, it appears that the respondent is in arrears in back taxes to the Internal

Revenue Service. He still owes them $400.

The respondent testified that here in the United States he has a father

who is a lawful permanent resident, a brother who's a citizen, and a sister who lives in

A078-968-678 2 November 12, 2014


Miami who is a U.S. citizen. His mother lives in Cuba and he has other uncles and

cousins here in the United States. The respondent testified that his father spends some

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


six months out of the year here in the United States and the other six months in

Panama. We learned on cross that his father owns several properties and a trucking

business that loads or transports stone in Panama.

The respondent testified that he's been arrested here in the United States

one time and that was on or about 2009. The best I could understand the testimony is

that the respondent worked for Dollar Rent A Car. He would take a car from Dollar Rent

A Car and either take that car home, take the spare tire out of the car, take the car back

to Dollar Rent A Car, or he would deliver -- or he would drive the car, the Dollar Rent A

Car, to his privately owned vehicle, unload the spare into that and then keep the spare.

So, in any event the respondent did this apparently some three times and that offense

came to light and he was convicted of stealing a car, two counts of stealing cars and

one count of trafficking and dealing in stolen property.

Mr. Machado testified that he lives with Iliana Borroto and he's lived with

her -- they've known each other for some four and a half years and he has lived with her

the last four years and helps her with her household expenses. Ms. Borroto said that

not only that, she described him as someone who doesn't smoke or drink or do drugs.

She's never had to call the police. He's very calm. He's never been violent toward her

and looks out for her physically, or financially and emotionally and takes care of her, Ms.

Borroto's, 18-year-old daughter that lives with them.

The most relevant issue here is the extreme hardship that his qualifying

relative would suffer. The respondent has to show in this case that his lawful

permanent resident father would suffer the requisite -- would suffer extreme hardship if

he, the respondent, were ordered removed to Cuba. Mr. Machado testified that his

A078-968-678 3 November 12, 2014


father, as far as he knows, has no medical condition. Mr. Machado's relationship with

his father is "so-so." They don't get along very well and apparently since Mr. Machado

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


was born his father didn't even want him, the respondent, to have his, the father's, last

name. The respondent, the court notes, though, does suffer apparently from diabetes.

There's no documents in the file that corroborate this, but apparently the respondent

himself suffers from diabetes and he found this out two years ago and has to take

medication to control that diabetes daily.

On cross, Mr. Jacobs brought out that the respondent does not contribute

financially to his father. The court notes that the respondent does have ties to Cuba.

His mother -- the respondent has left the United States many times to see his mother in

Cuba who, unfortunately, is suffering from cancer, and to see his grandmother, the lady

who raised him, essentially raised him, his life. She's now 99 years old and she is

about to die also in Cuba. So those -- that's the respondent's testimony.

His girlfriend, Iliana Borroto, next testified. Ms. Borroto is a 48-year-old

U.S. citizen. She's currently receiving disability and this stems from -- some $720 a

month. This stems from her affliction that was diagnosed in 1995 of Hodgkin's

lymphoma. She suffered -- that cancer is now in remission, but apparently she suffered

some side effects from the treatment of that cancer, problems involving her thyroid and

caused her to have her spleen and gallbladder removed and a hysterectomy. Ms.

Borroto doesn't drive. She relies on Mr. Machado to do that for her to get her to her

required medical appointments. He does provide some financial support and performs

chores around the home. They've discussed marriage, according to Ms. Borroto, the

respondent and Ms. Borroto, but the stumbling block is that the respondent is married.

He doesn't know where his wife is, but assuming he can find her and divorce her, Ms.

Borroto said that she's willing to marry Mr. Machado.

A078-968-678 4 November 12, 2014


So that's the facts of the case. As both attorneys know, this is a two-step

process. First the respondent has to show extreme hardship to a qualifying relative and

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


then the court weighs the issue in a matter of discretion. As Mr. Jacobs says, though,

on the facts of this case the respondent is unfortunately unable to show that his lawful

permanent resident father would suffer the requisite extreme hardship. His father

appears to be successful. He owns a number of properties. He owns a trucking

company. He travels back and forth from the United States to Panama. There is some

testimony that the relationship is estranged at best. So, looking at the totality of the

circumstances here and the evidence, the court finds that the respondent has not

shown that his father would suffer the requisite extreme hardship if Mr. Machado were

ordered removed to Cuba.

We've all speculated on whether, even if he were to marry Ms. Borroto,

whether one, she can show an extreme hardship and two, the respondent is deserving

of a waiver in the exercise of discretion. So both of those issues the court will not

address today. All I'm doing on the case today is showing -- is saying that one, the

respondent has been convicted of a crime involving moral turpitude and under INA

Section 212!.hlH he's failed to show that his lawful permanent resident father -- there's

just a.Q.aucity-(f_ndiscernible] OQf evidence here. I mean, there's very -- we don't even

have evidence that he has a father, one, who is a lawful permanent resident, two, and

that Humberto Machado is that man's child. I mean, there's no birth certificates.

There's no LPR card from the father. We have nothing other than the respondent's

testimony. So, even assuming that all his testimony is true, the respondent is not even

corroborating his claim about his lawful permanent resident father.

So, for those reasons I find that unfortunately the respondent is not eligible

for INA Section 212.(h)J=I- waiver. The court will [indiscernible] following orders

A078-968-678 5 November 12, 2014


[indiscernible]. The respondent's application for a waiver under INA Section 212.(.bJJ=f. is

hereby denied. It is further ordered that the respondent be removed to Cuba on the

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


charge contained in the Notice to Appear.

Please see the next page for electronic

signature
KEVIN CHAPMAN
Immigration Judge

A078-968-678 6 November 12, 2014


/Isl!

Immigration Judge KEVIN CHAPMAN

chapmank on January 22, 2015 at 9:38 PM GMT

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

A078-968-678 7 November 12, 2014