U.S. Department of Justice

Executive Office for Immigration Review Board of Immigration Appeals Office
Isaacson, David A., Esq. Cyrus D. Mehta & Associates, PLLC 2 Wall Street, 6th Floor. New York, NY 10005

DHS/ICE Office of Chief Counsel - NYC 26 Federal Plaza, 11th Floor New York, NY 10278

Name:

A

Date of this notice: 10/3,0/2017

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

· Donna Cari:' Chjef Clerk

Enclosure Panel Members: Kelly, Edward F. Adkins-Blanch , Charles K. Mann, Ana

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Userteam: Docket

U.S. Department of Justice

Decision of the Board oflmmigration Appeals

Executive Office for Immigration Review Falls Church, Virginia 22041

File: P

- New York, NY

Date:

OCT 3 0 2017

In re:

IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: David A. Isaacson, Esquire APPLICATION: Termination; waiver of inadmissibility under section 212(h)

The respondent, a native of the United Kingdom, citizen of Spain and lawful permanent resident of the United States since 1985, appeals from the decision of the Immigration Judge dated September 14, 2012. The Immigration Judge found the respondent removable as charged as an alien convicted of a crime involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I), and further found that the respondent was not eligible for a waiver of inadmissibility under section 212(h) of the Act, 8 U.S.C. § 1182(h). On appeal, the respondent urges that he is not removable as charged and that proceedings must be terminated. The Department of Homeland Security (DHS) has not responded to the appeal. The appeal will be sustained and these removal proceedings will be terminated. The Board reviews an Immigration Judge's findings of fact, including findings as to the credibility of testimony, under the "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). The Board reviews questions of law, discretion, and judgment and all other issues in appeals from decisions oflmmigration Judges de nova. 8 C.F.R. § 1003. l(d)(3)(ii). In 1999, the respondent was convicted in the United States District Court, District of New Jersey, of Tokens or Paper Used as Money, in violation of 18 U.S.C. § 491 (IJ at 1). As the Immigration Judge found, in 2010, pursuant to a deferred inspection, the DHS took the respondent into custody and served him with a Notice to Appear, charging.him as an arriving alien who is removable under section 212(a)(2)(A)(i)(I) of the Act based on his 1999 conviction (IJ at 1-2). The parties do not dispute that if the respondent's 1999 conviction under 18 U.S.C. § 491 is for a CIMT, then the respondent is properly categorized as an alien seeking admission and is removable as charged under section 212(a)(2)(A)(i)(I) of the Act. See Vartelas v. Holder, 132 S. Ct. 1479 (2012). The parties also do not dispute that the DHS bears the burden to prove by clear and convincing evidence that the respondent, a returning lawful permanent resident, should be regarded as seeking admission pursuant to section 10l(a)(l3)(C)(v) of the Act, 8 U.S .C. § l 101(a)(13)(C)(v), based on his alleged conviction for a CIMT. See Matter of Rivens, 25 l&N Dec. 623, 626 (BIA 2011). Thus, the dispositive issue before us is whether the DHS has established that the respondent's conviction is for a CIMT. We conclude that it has not. We recently clarified that the categorical and modified categorical approaches provide the proper framework for determining whether a conviction is for a CIMT. Matter ofSilva-Trevino, 26 I&N Dec. 826 (BIA 2016). Unless circuit law dictates otherwise, the realistic probability test,

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which focuses on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, is applied in determining whether an offense is a categorical crime involving moral turpitude. See id.; see also Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013); Efstathiadis v. Holder, 752 F.3d 591, 595 (2d Cir. 2014) (noting that the focus is on the question of whether or not the minimum conduct criminalized by the statute would support classification of a crime as a crime involving moral turpitude). If a statute of conviction is not categorically a crime involving moral turpitude, the next step is to determine whether the statute is divisible such that the modified categorical approach may be applied. See Matter a/Silva-Trevino, 26 l&N Dec. at 833; see also Matter a/Chairez, 26 I&N Dec. 819,822 (2016). Moral turpitude refers generally to conduct that is "inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed between man and man, either one's fellow man or society in general." See Mendez v. Mukasey, 547 F.3d 345,347 (2d 2008) (internal citations omitted); see also Matter ofSejas, 24 I&N Dec. 236, 237 (BIA 2007). Crimes involving fraud as an "ingredient" have long been regarded as involving moral turpitude. See Mendez v. Mukasey, 547 F.3d at 347 (citing Jordan v. De George, 71 S. Ct. 703 (1951)). However, where intent is not an element of the crime, generally, that crime does not involve moral turpitude. See id.; see also Efstathiadis v. Holder, 752 F.3d at 595 (noting that it is in the intent that moral turpitude inheres). The respondent's statute of conviction, 18 U.S.C. § 491 is separated into three subsections, and the Immigration Judge concluded that the offense proscribed under the statute is not categorically a CIMT because there is a realistic probability that the statute can apply to conduct that falls outside of the generic definition of CIMT given the broad scope of the statute. Specifically, section 491(a) proscribes, in part, passing a coin intended to be used as money. We agree with the Immigration Judge that such offense, without any knowledge or intent requirement with respect to the nature of the coin, would not constitute a CIMT (IJ at 3). We therefore agree that 18 U.S.C. § 491 is not categorically a CIMT. As such, we turn to whether the statute is divisible such that the modified categorical approach may be applied. A criminal statute is divisible so as to warrant a modified categorical inquiry only if (1) it lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of "elements," more than one combination of which could support a conviction and (2) at least one, but not all, of those listed offenses or combinations of disjunctive elements is a categorical match to the relevant generic standard. See Matter of Chairez, 26 l&N Dec. at 822 (citing Descamps v. United States, 133 S. Ct. 2276, 2281-83 (2013)); see also Matter ofSilva-Trevino, 26 l&N Dec. at 833. If the statue is divisible, the record of conviction may be examined to identify the statutory provision that the respondent was convicted of violating. See Descamps v. United States, 133 S. Ct. at 2281-83; Matter of Chairez, 26 I&N Dec. at 819-20; Matter ofSilva-Trevino, 26 I&N Dec. at 833. We observe that 18 U.S.C. § 491 lists two discrete enumerated alternatives, set forth respectively in subsections (a) and (b). We further observe that at least one of those alternatives, namely a portion of subsection (a) constitutes a categorical CIMT because it specifically requires

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A an intent to defraud. 1 See Mendez v. Mukasey, 547 F.3d at 347. Thus, we conclude that 18 U.S.C. § 491 is divisible. Because the statute is divisible, we may look to the record of conviction to identify the statutory provision that the respondent was convicted of violating. As the Immigration Judge found, the record of conviction consists of the misdemeanor information and the criminal judgment, the latter of which specifies that the respondent pleaded guilty to "count(s) 1 of the misdemeanor information, and was adjudged guilty of 18 U.S.C. § 491" (IJ at 3). Count 1 of the information states: From on or about , 1998, through on or about , 1998, in Middlesex Countv, in the District of New Jersey and elsewhere, defendant did knowingly and willfully offer and keep with intent to furnish paper similar in size and shape to lawful currency of the United States, with knowledge and reason to believe that such paper was intended to be used to unlawfully and fraudulently to [sic] procure things of value. Count 1 as stated in the information tracks the statutory language of 18 U.S.C. § 49l(b). Accordingly, the Immigration Judge found, and we agree, that the respondent was convicted of violating 18 U.S.C. § 49l(b) (IJ at 3). The Immigration Judge further found, and we agree, that the respondent was convicted under a charging document listing elements in the conjunctive ("knowingly and willfully", "offer and keep", "with knowledge and reason to believe" and "unlawfully and fraudulently") (emphasis added) (IJ at 3). Pursuant to Matter ofEspinosa, 10 I&N Dec. 98 (BIA 1962), because the DHS carries the burden of proof with respect to the CIMT charge, we must assume that the respondent was found guilty of the least culpable alternatives set forth in the conjunctive. In this matter, then, as the Immigration Judge found, the respondent was found guilty of "knowingly keeping, with intent to furnish, paper similar in size and shape to lawful currency of the United States, with reason to believe that such paper was intended to be used unlawfully" (IJ at 4). We disagree with the Immigration Judge that the respondent's conviction is for a CIMT under the modified categorical approach. Specifically, we conclude that "knowingly keeping, with an intent to furnish paper with reason to believe the paper will be intended to be used unlawfully" does not include a sufficient mens rea with respect to whether the paper will be used unlawfully. The Immigration Judge asserts that, pursuant to Matter ofSilva-Trevino, a mental state of "having reason to know" can support a moral turpitude finding (IJ at 4). We agree with the respondent that such a determination is limited to statutes like the one considered in Silva-Trevino, specifically crimes involving sexual conduct by an adult with a child. 26 I&N Dec. at 834. In general, we conclude that a "reason to believe" mental state falls short of establishing the requisite intent to support a CIMT determination. See Matter ofK-, 2 l&N Dec. 90 (BIA 1944) (finding that a receipt 1

Section 49l(a) provides, in relevant part: "Whoever, being 18 years of age or over, with intent to defraud, makes, utters, inserts, or uses any card, token, slug, disk, device, paper or other thing similar in size and shape to any of the lawful coins or other currency of the United States ... to procure anything of value ... shall be fined under this title, or imprisoned not more than one year, or both."

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of stolen goods statute where the perpetrator "must assume on the basis of the given conditions" that the property was stolen, was not a CIMT because the property need not be acquired with guilty knowledge or wrongful intent)2; Matter of M-, 7 I&N Dec. 147, 149 (BIA 1956) (finding that having "cause to believe" that something is intended for fraudulent or unlawful use suggests that "a person who was merely negligent might be convicted"); see also Matter of Deang, 27 I&N Dec. 57 (BIA 2017) (finding that the mental state "reason to believe" in a receipt of stolen goods statute was not an aggravated felony theft offense because it did not establish an intentional taking). The Immigration Judge cites to two Second Circuit cases in support of his conclusion that "reason to believe" is a sufficient mens rea for a CIMT determination (IJ at 4). We agree with the respondent that these cases are not determinative in this case. Specifically, one involves a civil matter wherein the relevant discussion of "reason to believe" took place in a concurring opinion. Chris-Craft Industries, Inc., v. Piper Aircraft Corp., 480 F.2d 341 (2d Cir. 1973). The other case, United States v. Griffiths, 41 F.3d 844, 845 (2d Cir. 1994), states that "reasonable cause to believe" was a form of scienter in a federal firearms statute. However, referring to "reasonable cause to believe" as a form of scienter does not establish that it is a sufficient mental state to establish moral turpitude. See e.g. Matter of Fualaau, 21 l&N Dec. 475 (BIA 1996) (discussing that an offense with a mens rea of recklessness can be, but it not per se, a CIMT). Finally, we find most instructive a recent unpublished case wherein the Second Circuit concluded that the offense of aggravated unlicensed operation of a motor vehicle was not a categorical CIMT because, in relevant part, an individual can be found guilty if he is operating a motor vehicle while "having reason to know" that his license is suspended. See Aguilar v. Holder, 576 Fed.Appx. 13 (2d Cir. 2014). Because the modified categorical analysis does not establish that the respondent was convicted of a CIMT, the DHS has not met its burden of proof to establish, by clear and convincing evidence, that the respondent was convicted of a CIMT. See Matter ofRivens, 25 l&N Dec. at 626. As such, the respondent, who is a lawful permanent resident, is not seeking admission pursuant to section 101(a)(13)(C)(v), and is not removable as charged under section 212(a)(2)(A)(i)(I) of the Act. Vartelas v. Holder, 132 S. Ct. at 1491-92. The appeal will be sustained and removal proceedings will be terminated. ORDER : The appeal is sustained and the Immigration Judge's September 14, 2012, decision is vacated. FURTHER ORDER: The removal proceedings are terminated and the record is returned to the Immigration Court without further action.

~ FORTHEBOARD

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Contrary to the Immigration Judge' s statement that Matter ofK, 2 l&N Dec. 90 (BIA 1944), was overruled by Matter of Flores, 17 I&N Dec. 225 (BIA 1980), Flores overruled a different case of the same name, Matter of K- , 7 I&N Dec. 178 (BIA 1956). The holding in Matter of K, 2 I&N Dec. 90 (BIA 1944) has not been disturbed.

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