U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

FQl/s Chi;rch, Virginia 22041

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Valencia, Fermin, Esq. OHS/ICE Office of Chief Counsel - LOS
116 W. 4th Street, Unit A 606 S. Olive Street, 8th Floor
Santa Ana, CA 92701 Los Angeles, CA 90014

Name: G -F ,J A 130

.
Date of this notice: 12129/2017

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

Sincerely,

Dcn:..ia Carr
Chi�f Clerk

Enclosure

Panel Member.s: .

Mullane, Hugh G. ·

Liebowitz, Ellen C
Creppy, Michael J.

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: J-G-F-, AXXX XXX 130 (BIA Dec. 29, 2017)
 U.S. Department of Justice Decision of the Board of Immigration Appeals
· Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 130 - Los Angeles, CA Date:

DEC 2 9 2017
In re: J G -F a.k.a.

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Fermin Valencia, Esquire

APPLICATION: Cancellation of removal

The respondent appeals from an Immigration Judge's July 9, 2014, decision ordering him
removed from the United States. Pursuant to the Board's request, the parties filed supplemental
briefs. The appeal will be sustained and the record will be remanded.

The respondent, a native and citizen of Mexico, concedes that he is removable by virtue of his
unlawful presence in the United States (Exh. 1; Tr. at 19). See section 212(a)(6)(A)(i) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A}(i). As the respondent' s removability
is undisputed, the only issue before us on appeal is whether his criminal record renders him
ineligible for cancellation of removal under section 240A(b) of the Act, 8 U.S.C. § 1229b(b).

The Immigration Judge found that the respondent is ineligible for cancellation of removal
because he has a 2009 conviction for vandalism in violation of section 594(a) of the California
Penal Code - an offense which the Immigration Judge deemed a crime involving moral turpitude
("CIMT") under the immigration laws. See section 240A(b)( l )(C) of the Act (requiring an
applicant for cancellation of removal to prove that he has not been convicted of.-among other
things-a CIMT under sections 212(a)(2) or 237(a)(2) of the Act). Upon de novo review, see
8 C.F.R. § 1003. l (d)(3)(ii}, we reverse.

The phrase "crime involving moral turpitude" describes a class of offenses involving
reprehensible conduct committed with a culpable mental state. See Matter of Silva-Trevino
("Silva-Trevino l/f'}, 26 l&N Dec. 826, 834 (BIA 2016). Conduct is "reprehensible" in the
pertinent sense if it is "inherently base, vile, or depraved, and contrary to the accepted rules of
morality and the duties owed between persons or to society in general." See id. at 833 (citation
omitted). To determine whether the respondent's offense is a CIMT, we employ the "categorical
approach," which requires a focus on the minimum conduct punishable under section 270l(a)(l},
rather than on the actual conduct which led to the respondent's particular conviction. Id. at 831-33.

Cite as: J-G-F-, AXXX XXX 130 (BIA Dec. 29, 2017)
 130

The respondent was convicted under Cal. Penal Code§ 594(a)(2009), which states as follows:

(a) Every person who maliciously commits any of the following acts with respect to any
real or personal property not his or her own, in cases other than those specified by state
law, is guilty of vandalism:
(1) Defaces with graffiti or other inscribed material.

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(2) Damages.
(3) Destroys.

(b)(2)(A) If the amount of defacement, damage, or destruction is less than four hundred
dollars ($400), vandalism is punishable by imprisonment in a county jail not exceeding one
year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and
imprisonment.

The parties stipulated below that section 594(a) was overbroad, i.e. that there is a realistic
probability that the statute would be applied to conduct outside the generic CIMT definition and
thus it is not categorically a CIMT (Tr. at 49-51). However, the Immigration Judge did not
determine whether the statute is "divisible" via-a-vis the CIMT concept before proceeding
to apply the modified categorical approach (Written Decision of the Immigration Judge, dated
June 20, 2014, at 3-4).

Upon our de novo review, we conclude that section 594(a) is not a divisible statute. While we
have considered the arguments raised in the parties supplemental briefs, we are not persliaded that
the statute is divisible. Although the provision is defined by reference to three separate acts which
are listed in the disjunctive, the Supreme Court has held that disjunctive statutory language does
not render a criminal statute divisible unless each statutory alternative defines an independent
"element" of the offense, as opposed to a mere "brute fact" describing various means or methods
by which the offense can be committed. Mathis v. United States, 136 S. Ct. 2243, 2248 (2016);
see also Matter of Chairez ("Chairez /If'), 26 I&N Dec. 819 (BIA 2016) (holding that the
approach to divisibility announced in Mathis is applicable in removal prQceedings nationwide).

Under the approach to divisibility adopted in Mathis, which was rendered after the Immigration
Judge's decision, section 594(a) can be regarded as "divisible" into three separate offenses only if
California law requires a unanimous jury verdict as to the particular conduct that caused the injury
to property. If a California jury can find a defendant guilty of violating the statute without coming
to an agreement about the particular conduct with which he caused the property injury, then it
follows that defacing with graffiti or other inscribed material, damages, and destroys are not
alternative "elements." Pursuant to Mathis, they are instead mere "brute facts"-alternative means
by which the conduct element can be proven.

According to the California Criminal Jury Instructions, in order to sustain a conviction under
section 594(a), a prosecutor must prove that: (1) the defendant maliciously (defaced with graffiti
or with other inscribed material[,]/ [or] damaged[,]/ [or] destroyed) (real/ [or]personal)
property; and (2) the defendant (did not own the property/owned the property with someone else).
See CALCRIM Nos. 2900, 2901 (2009). As the jury need not distinguish which conduct resulted
in the property damage to sustain a conviction under section 594(a), defacing with graffiti or other

Cite as: J-G-F-, AXXX XXX 130 (BIA Dec. 29, 2017)
, ' 130

inscribed material, damaging, and destroying operate as alternative "means." Moreover, the
respondent's conviction record-at which we have "peek[ed] ... for 'the sole and limited purpose
of determining whether [defacing, destroying, and damaging are] element[s] of the offense," see
Mathis v United States, 136 S.Ct. at 2256--reflects that he was charged by means of an
Information which alleged all three conducts rather than any one conduct to the exclusion of the
others (Respondent's Filing of March 6, 2014, at Tab E). As the Mathis Court explained, when a
criminal charge alleges all statutory alternatives in this manner,"[t]hat is as clear an indication as

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any that each alternative is only a possible means of commission,not an element that the prosecutor
must prove to a jury beyond a reasonable doubt." See Mathis v. United States, 136 S.Ct. at 2257.
Under the circumstances,we are satisfied that section 594(a) is both overbroad and indivisible vis­
a-vis the CIMT concept, notwithstanding that it lists three different conducts in the alternative.

As section 594(a) is overbroad and indivisible, the respondent has met his burden of
proving the absence of a disqualifying CIMT conviction for cancellation of removal purposes.
See Matter of Chairez III, 26 l&N Dec. at 825 & n.7. We will therefore vacate the Immigration
Judge's decision in part and remand the record for further consideration of the respondent's
eligibility for cancellation of removal and any other relief that may now be available to him.

ORDER: The appeal is sustained.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.

'
FOR THE BOARD

Cite as: J-G-F-, AXXX XXX 130 (BIA Dec. 29, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LOS ANGELES, CALIFORNIA

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File: 130 July 9, 2014

In the Matter of

)
J G -F ) IN REMOVAL PROCEEDINGS
a/k/a )
)
RESPONDENT )

CHARGE: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as

amended (alien present in the United States without being admitted
or paroled or who arrived in the United States at any time or place
other than as designated by the Attorney General).

APPLICATION: Cancellation of removal for certain non-lawful permanent residents.

ON BEHALF OF RESPONDENT: RICARDO MACIAS, Esquire

116 W. Fourth Street, Unit #A
Santa Ana, CA 92701

ON BEHALF OF OHS: MATTHEW C. CHAN, Esquire

606 S. Olive Street, Suite 800
Los Angeles, CA 90014

ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE

Respondent is a male, who admits that he is a native and citizen of Mexico. He

was placed in removal proceedings with the filing of a Notice to Appear (NTA) with the

Immigration Court. The NTA, which is dated March 10, 2011, was marked and admitted

as Exhibit No. 1.

1
 I •

During a November 14, 2012, hearing, the respondent admitted the four factual

allegations set out in the NTA and conceded removability, as charged therein. Based

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on the respondent's admissions and concession of removability, the Court found and

does find him removable as charged in the NTA. Respondent designated Mexico as the

country of removal, in the event removal should become necessary.

Respondent applied for relief from removal solely in the form of cancellation of

removal for certain non-lawful permanent residents. The respondent did not apply for

any other form of relief. During a hearing conducted on July 9, 2014, the Court inquired

of counsel for the respondent if the respondent was eligible for and was pursuing any

form of voluntary departure. Counsel for the respondent advised the Court that the

respondent did not wish to pursue voluntary departure, were he to be deemed to be

eligible for this minimal form of relief. The Court did inquire of counsel whether he had

fully explained to the respondent that minimal form of relief and whether he was

confident that the respondent was knowingly, willingly and voluntarily foregoing that

minimal form of relief, to which the respondent indicated that that was the case. The

Court did confirm that also with the respondent during the July 9, 2014, hearing.

With reference to the respondent's eligibility for cancellation of removal for

certain non-lawful permanent residents, the Court would note that, in an order dated

June 20, 2014, the Court did, in fact, make a ruling, with reference to the respondent's

eligibility for non-lawful permanent resident cancellation of removal. By virtue of this

reference, the Court incorporates its written decision, again dated June 20, 2014, on

this matter. In summary, the Court did, in its written order, determine that the

respondent, by virtue of his conviction, is not statutorily eligible for this form of relief. In

fact, that decision includes an order to the effect that the respondent's application for

cancellation of removal for certain non-lawful permanent residents under Section

240A(b) of the Act, is denied. The Court again, by this reference, incorporates both its

130 2 July 9, 2014

 •

.
.

analysis, finding and order in this decision. As previously noted, the respondent has not

pursued any other forms of relief and he has been found to be removable from the

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United States, based on his admissions and concession.

In light of the foregoing, the following order will be entered:

ORDER

IT IS HEREBY ORDERED that the respondent is ordered removed to Mexico on

the charge set out in the NTA. As previously noted and articulated in the Court's prior

order, respondent's application for cancellation of removal for certain non-lawful

permanent residents is hereby denied on statutory ineligibility grounds.

MONICA M. LITTLE
Immigration Judge

130 3 July 9, 2014