Molot, David, Esq. Law Offices of Arcia & Associates 82-17 Roosevelt Avenue, 2nd FL Jackson Heights, NY 11372

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 leesburg Pike. Suite 2000 Falls Church, Virginia 20530

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

Name: HERNANDEZ HERNANDEZ, JOR ... A 045-582-968

Date of this notice: 5/20/2014

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

Enclosure

Panel Members: Guendelsberger, John Hoffman, Sharon Adkins-Blanch, Charles K.

Sincerely,

DawtL cl1/VL)

Donna Carr Chief Clerk

schwarzA

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

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Cite as: Jorge Hernandez-Hernandez, A045 582 968 (BIA May 20, 2014)

U.S. Department of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A045 582 968 - New York, NY

mre: JORGE HERNANDEZHERNANDEZ

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: David Molot, Esquire

ON BEHALF OF DHS: Amanda Jeannopoulos Assistant Chief Counsel

APPLICATION: Termination of proceedings

Date: MAY .2 0 2014

The Department of Homeland Security (DHS) appeals the Immigration Judge's decision, dated November 29, 2011, in which the Immigration Judge terminated the removal proceedings against the respondent. The appeal will be dismissed.

The Board reviews findings of fact made by the Immigration Judge under a clearly erroneous standard. 8 C.F.R. § 1003.l(d)(3)(i). We review questions of law, including whether the parties have met the relevant burden of proof, and issues of discretion under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(ii).

The respondent, a native and citizen of Mexico, was admitted to the United States as a lawful permanent resident on January 17, 1997. He was subsequently convicted on September 9, 1999, in the New York County Court, Westchester County, for the crime of Arson in the Fourth Degree under New York State Penal Law section 150.05. He later applied for admission to the United States as a lawful permanent resident on March 2, 2006. Section 150.05 provides that ''a person is guilty of arson in the fourth degree when he recklessly damages a building or motor vehicle by intentionally starting a fire or causing an explosion. " The government contends that the respondent's conviction is a crime involving moral turpitude which renders him inadmissible under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(Q.

The question on appeal is whether the offense of arson in the fourth degree under section 150.05 of the New York State Penal Code qualifies categorically or under the modified categorical approach as a crime involving moral turpitude ("CIMT'') so as to support a charge of inadmissibility under section 212(a)(2)(A)(i)(Q of the Act. Determining whether a criminal conviction is a crime involving moral turpitude requires an analysis of the statute

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Cite as: Jorge Hernandez-Hernandez, A045 582 968 (BIA May 20, 2014)

A045 582 968

under which the alien has been convicted (as opposed to the alien's conduct that resulted in the conviction). See Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008) (holding that, when determining whether a conviction is for a crime involving moral turpitude, the Board should first look to the statute of conviction under the categorical inquiry and determine whether there is a "realistic probability " that the state criminal statute pursuant to which the alien was convicted would be applied to reach conduct that does not involve moral turpitude).

AB the United States Supreme Court recently explained, the modified categorical approach is a tool that helps courts implement the categorical approach by supplying them with a mechanism to identify the "elements " of offenses arising under "divisible " criminal statutes. See Descamps v. United States, 133 S. Ct. 2276, 2285 (2013). Under Descamps, the modified categorical approach applies only if: (1) the statute of conviction is "divisible " in the sense that 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) some (but not all) of those listed offenses or combinations of disjunctive elements are a categorical match to the relevant generic standard. Id. at 2281, 2283. The modified categorical approach does not apply merely because the elements of the crime can sometimes be proved by reference to conduct that fits the generic federal standard; in the view of the Descamps Court, such crimes are "overbroad, " but not "divisible." Id. at 2285-86, 2290-92 (emphasis added). Thus, the Supreme Court has overruled Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012), in which the Board held that a criminal statute is divisible, regardless of its structure, if, based on the elements of the offense, some but not all violations of the statute give rise to grounds for removal or ineligibility for relief.

AB the Supreme Court explained, the modified categorical approach:

retains the categorical approach's central feature: a focus on the elements, rather than the facts, of a crime. And it preserves the categorical approach's basic method: comparing those elements with the generic offense's. All the modified categorical approach adds is a mechanism for making that comparison when a statute lists multiple, alternative elements, and so effectively creates "several different ... crimes." ... If at least one, but not all of those crimes matches the generic version, a court needs a way to find out which the defendant was convicted of. That is the job, as we have always understood it, of the modified categorical approach: to identify, from among several alternatives, the crime of conviction so that the court can compare it to the generic offense.

Descamps, supra, at 2285 (internal citation omitted).

We find that the statute under which the respondent was convicted is not categorically a crime involving moral turpitude. The statute at issue, New York Penal law § 150.05 provides that "[A] person is guilty of arson in the fourth degree when he recklessly damages

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a building or motor vehicle by intentionally starting a fire or causing an explosion. " Under the statute, the least culpable conduct necessary to sustain a conviction is recklessly engaging in conduct which damages a building or motor vehicle. See Michel v. LN.S., 206 F.3d 253 (2nd Cir. 2000). The generic elements of arson require the specific intent of a wilful and malicious burning of personal property. U.S. v. Hathaway, 949 F.2d 609 (2nd Cir. 1991). Because the statute under which the respondent was convicted does not have an element of specific intent, we conclude that the statute is not categorically a crime involving moral turpitude.

We further find that the respondent's conviction is not a crime involving moral turpitude when considered under the modified categorical approach. The Supreme Court held in Descamps, supra, that the modified categorical approach applies only if: (1) the statute of conviction is "divisible " in the sense that 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) some (but not all) of those listed offenses or combinations of disjunctive elements are a categorical match to the relevant generic standard. The statute in this case is not divisible since it does not contain discrete offenses or contain a disjunctive set of elements. Accordingly, we are not permitted to refer to the record of conviction for clarification.

Even if we found that the modified categorical inquiry permitted an examination of the record of conviction to discern the nature of the �derlying offense of conviction, we would reach the same conclusion. Although the DHS correctly argues that the language contained in the Felony Complaint describes conduct that may constitute turpitudinous conduct, namely throwing gasoline and a lit match on the kitchen floor of a woman's home while she was present, the record reveals that the respondent was not convicted under that language. In fact, that language relates to the charge under section 150.15 New York State Penal Code. Instead, the respondent was convicted of the less serious conduct described in section 150.05 of the New York Penal Law. Accordingly, we agree with the Immigration Judge that the statute under which the respondent was actually convicted is insufficient to constitute a crime involving moral turpitude.

Accordingly, the Immigration Judge's decision is affirmed and the charge of inadmissibility under section 212(a)(2)(A)(i)(I) of the Act is not sustained.

ORDER: The appeal is dismissed and these proceedings are terminated.

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Cite as: Jorge Hernandez-Hernandez, A045 582 968 (BIA May 20, 2014)

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.UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE . FOR IMMIGRATION REVIEW

IMMIGRATION COURT New York, New Yo�k

File No . : A 045 582 968 November 2 9� 2 011

In the Matter of

JORGE HERNANDEZ. HERN�NDEZ IN REMOVAL PROCEEDINGS

CHARGE:

APPLICATION:

Respondent

Section· 212 (a). ( 2) (A) ( i )" (I) of the· Immigration Act - an alien who has been convicted of a crime involving moral turpitude· .

. · ·

Termination .

ON BEHALF OF RESPONDENT:· ON BE HALF OF DHS:

David Melot Ilia Yuctman

ORAL -D$CISION OF THE IMMiGRATION. '.JUDGE·

Respondent was placed in removal pJ:"oc�edings· through the

Notice to Appear, Exhibit No. 1, issued December 12, 2 006',

stating the charge_ ��fer�nc�d above.

Based on �ll�gati�ns, in pertinent. part,. the. respondent· was ..

convicted of arson . in the fourth . deg.ree Under New York· Law

Section 150. 05, ··the·· GOmtiction occ�r�ing in .. $�ptember 19� 9 in

Westchester County, ··N_ew Y_ork.

The prior history.-of the case is se:t · out in the decision

from the Board of Immi.grat_ion Appeals .and the .p'.rior decision fr.om

.. 1

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. this Inunigratiop �udge.

The Cou�t has reccinsidered the case and the evidence

piesented in light of the d�cision in Matter of Silva-Trevino.

The Court still believes that DHS has not met its burden of

establishing that the respondent's conviction. for arson ·in the

four.th degree· under New York Law is a crime involving moral . . .

turpitude. The Department of Homeland Security h�s presented

evidence that tends to show that the respondent ·committed certain

acts at the time ·of ·the crime and that these acts involved moral

trirpitude in the ordinary Niew. The Department of Homeland

Security has not, however, shown that the r�spon��nt was

convicted of a criminal offense under New York Law that involves

the elements of mo.ral turpitude.

The Court believes that whether a person conunits some

particularly obje�tionable, vicious act· �nd.then later is

convicted for a relatively minor criminal offense related to that

conduct it does n6t mean that he has bean co�victed of all the

bad acts and the vicious charact�r that �nvolves� in.the most

.extreme vers�on, of the allegations ·against him.

This is s9, first, be.cause it has not ·been· proven- in a Court ·oV. .

. of Law .by Government evj,.dence 'i!J!? �he defendant's· · plea of·. guilty

artd, second, b�baus� ·th� essenfial element is.not what a.person

did, but r.ather what a person has been convicted" o� under our

legal system.

We have traditionally said that. Immigration ·"courts ·do not

A 04·5 582 968 2 ·November 29l 2011

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look behind the face of the conviction. S-o that if a person was

convicted of robbery and says that he· simply picked up some lost

property and intended to return it to the ·owner but forgot to do

so in time, we do not say t_hat he is not removable even though he

has a rpbbery conviction on his books. We say he is removable.

· Likewise, as far as the Court is concerned, if the respondent may

have done something more serious but eventually is only convicted

of something less serious,. the fact that· there _is some evidence

to support the view that he committed the more serious conduct is

not enough to :g:\ake him suhject to removal when. the charge of

removal depends on ·what he w.as "convicted qf" · +ather than what he

"probably d�d."

For these.reasons, the Court still believes that the

Department ·has not proven ·that the respondent \·tas convicted of a

crime involving moral turpitude. I do not believe that the New

York statutory offense of recklessly damaging a. building, which I

note need not be a home, need not have qnyone in 1t, et cetera,

is in fact a ·crime.involving moral turpitude beca:�se it occurred

as the.result _ of "intentionally �taring� fire�� w�ich in itself

is not a crime?° i�vC?l ving moral turpi tilde., . but.- pof?sibly one of tl;le

achieveme'I1ts.· ·of· human.kind.

For these reasons, the cas·e is hereby t.erm.inated.

·

. A� \J ALAN A. VOMACKA Unit�d �tates Inimigra�ion Judge ·

A 04s s·a2 96.a 3 N·ovember 2-9, .2011

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CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE ALAN

A. VOMACKA, in the matter of:

JORGE HERNANDEZ HERNANDEZ

A 045 582 968

New York, New York

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.

Karen Coen Brooks, Transcriber Free State Reporting, Inc .

February 4, 2012 (completion date)

By submission of this CERTIFICATE PAGE, the Contractor certifies that a Sony BEC/T-147, 4-channel transcriber or equivalent, and/or CD, as described in Section C, paragraph C.3.3.2 of the contract, was used to transcribe the Record of Proceeding shown in the above paragraph.

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