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 2204/

DHS/ICE office of Chief Counsel - HLG

1717 Zoy Street
Harlingen, TX 78552

Name:HERNANDEZ,JOEL

A 074-043-821

Date of this notice: 12/27/2016

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

bonrtL

{!t1ftA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Adkins-Blanch, Charles K.
O'Connor, Blair

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Joel Hernandez, A074 043 821 (BIA Dec. 27, 2016)

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Solomiany, Alex
ALEX SOLOMIANY, P.A.
999 BRICKELL AVENUE PH1102
Miami, FL 33131

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A074 043 821 - Harlingen, TX

Date:

DEC 2 7 2016

In re: JOEL HERNANDEZ

APEAL
ON BEHALF OF RESPONDENT: Alex Solomiany, Esquire
CHARGE:
Notice: Sec.

212(a)(2)(A)(i)(I), I&N Act [8 U.S.C. 1182(a)(2)(A)(i)(I)] Crime involving moral turpitude

APPLICATION: Reopening

The respondent, a native and citizen of Cuba, appeals from the Immigration Judge's decision
dated June 23, 2016, which denied his motion to reopen removal proceedings. The Department
of Homeland Security (DHS) has not replied to the respondent's brief on appeal. The request for
oral argument is denied. 8 C.F.R. 1003.1(e)(7). Reopening will be granted, and proceedings
will be terminated.
We review Immigration Judges' findings of fact for clear error, but we review questions of
law, discretion, and judgment, and all other issues in appeals de novo. 8 C.F.R.
1003.l(d)(3)(i), (ii).
The record shows that the DHS served the respondent with a Notice to Appear on April 11,
2009, alleging that he was an arriving alien and that he was convicted on April 11, 2008, in
Florida State court of grand theft in the third degree and charging him as inadmissible under
section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Ac, 8 U.S.C. 1182(a)(2)(A)(i)(I)
(crime involving moral turpitude) (Exh. 1). On April 21, 2009, the respondent, who was
detained and not represented, had his first scheduled master calendar hearing. At that time, the
Immigration Judge issued a decision sustaining the charge, finding that there was no relief
sought, and ordering the respondent removed to Cuba.
On February 29, 2016, the respondent, through counsel, filed a motion to reopen sua sponte,
arguing that his conviction was not for a crime involving moral turpitude under the analysis
announced in Descamps v. United States, 133 S. Ct. 2276 (2013). The DHS opposed the motion.
The Immigration Judge denied reopening, finding that the motion was untimely and not filed
within a reasonable time after the issuance of the Descamps decision on June 20, 2013.
Under the circumstances, including the circumstances under which the respondent was
ordered removed in 2009, we find that sua sponte reopening is appropriate and termination of
proceedings is warranted.
Cite as: Joel Hernandez, A074 043 821 (BIA Dec. 27, 2016)

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

IN REMOVAL PROCEEDINGS

A 074 043 821

We find that Fla. Stat. 812.014 does not defme a categorical crime involving moral
turpitude. The statute, by its terms, includes offenses in which only a temporary taking or
appropriation of property is intended. In the jurisdiction of the United States Court of Appeals
for the Fifth Circuit, where this case arises, a conviction is for a crime involving moral turpitude
only if the minimum reading of the statute of conviction necessarily reaches only offenses
involving moral turpitude. Gomez-Perez v. Lynch, 829 F.3d 323, 327 (5th Cir. 2 016). See
Matter of Silva-Trevino, 26 l&N Dec. 826, 832-33 (BIA 2 016). We have previously held that
temporary takings of property are not crimes involving moral turpitude. See Matter of Grazley,
14 l&N Dec. 330, 333 (BIA 1973).
Thus, the inadmissibility charge may be proved only if the statute is "divisible," such that the
modified categorical approach may be applied. See Descamps, supra, at 2282. See also Mathis
v. United States,_ U.s. _, 136 S.Ct. 2243 (2 016). A statute is divisible only if it: (1) 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." Matter of Chairez, 26 l&N Dec. 819,
822 (BIA 2 016) (citing Descamps, supra, at 2281, 2283).
The relevant inquiry then becomes, for the statute in question, what constitutes an "element"
of the crime, as opposed to a "means" to satisfy an element of the crime. Descamps, supra, at
2297-98. As recently clarified, "elements" are not defined simply by the use of alternative or
disjunctive phrases; rather "elements" are the things the prosecution must prove to sustain a
conviction or what a defendant necessarily admits when he pleads guilty; "means" are "brute
facts" that describe the various methods by which the offense can be committed. Matter of
Chairez, supra, at 822-23 (quoting Mathis, supra, at 2248).
The respondent was convicted of violating a statute that covers either "permanent" or
"temporary" takings. See Fla. Stat. 812.014. In light of Descamps, this disjunctive phrasing
does not render the statute divisible so as to warrant a modified categorical inquiry. Permanent
and temporary takings are alternative means of committing grand theft in Florida; we find no
authority suggesting that they are alternative elements of grand theft about which Florida jurors
must agree in order to convict. See Descamps, supra, at 2285 n. 2.

2
Cite as: Joel Hernandez, A074 043 821 (BIA Dec. 27, 2016)

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

The record of conviction submitted with the motion to reopen establishes that the respondent
was convicted under Fla. Stat. 812.014(1), (2)(c). Respondent's Motion to Reopen, Tab A.
In pertinent part, the statute of conviction provides that "[a] person commits theft if he or she
knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent
to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a
benefit from the property [or] (b) Appropriate the property to his or her own use or to the use of
any person not entitled to the use of the property." Fla. Stat. 812.014(1). The statute further
provides: "It is grand theft in the third degree and a felony of the third degree ... if the property
stolen is ...[v]alued at $3 0 0 or more, but less than $5,00 0 ..." Fla. Stat. 812.014(2)(c).

A 074 043 821

In conclusion, we find that the conviction under Fla. Stat. 812.014 is not categorically for a
crime involving moral turpitude. We also find that the statute is not divisible, such that the
modified categorical approach does not apply. Thus, the sole charge of inadmissibility cannot be
sustained, and termination of proceedings is appropriate. Accordingly, the following order will
be entered.

3
Cite as: Joel Hernandez, A074 043 821 (BIA Dec. 27, 2016)

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

ORDER: The appeal is sustained, and proceedj.ngs are reopened and terminated.

..

'

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
2009 W. JEFFERSON AVE, STE 300
HARLINGEN, TX 78550

IN THE MATTER OF
HERNANDEZ, JOEL

FILE A 074-043-821

DATE: Jun 24, 2016

UNABLE TO FORWARD - NO ADDRESS PROVIDED

.:,;ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO:
BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c)(3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c)(3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c)(6),
8 U.S.C. SECTION 1229a(c)(6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
2009 W. JEFFERSON AVE, STE 300
HARLINGEN, TX 78550
OTHER:

COURr;/Z

CC: ASSISTANT CHIEF COUNSEL

1717 ZOY ST.
HARLINGEN, TX, 785520000

IMMIGRATION COURT

FF

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

Alex Solomiany, P.A.

Solorniany, Alex
80 S.W. 8th Street
Suite 1710
Miami, FL 33130

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
2009 WEST JEFFERSON AVENUE, SUITE 300
HARLINGEN, TEXAS 78550
JOEL HERNANDEZ

CASE NO. A074 043 821

RESPONDENT
IN REMOVAL PROCEEDINGS
MEMORANDUM AND ORDER
On February 29, 2016, Respondent, through his counsel of record, filed a
motion to reopen this removal proceeding. Respondent has requested that the
Court exercise its discretion and reopen this removal proceeding sua sponte
based on a change in the law in light of the United States Supreme Court's
decision in Descamps v. United States, 133 S. Ct. 2276 (2013). The
Department of Homeland Security filed a timely response in opposition to the
motion to reopen. The removal order was issued in this case on April 21, 2009.
The Court concludes that Respondent's motion to reopen is untimely
because it was not filed within 90 days of the date of entry of the final
administrative order of removal. Section 240(c)(7)(C)(i) of the Immigration and
Nationality Act; 8 C.F.R. 1003.23(b)(l). The Court also concludes that sua
sponte reopening is not warranted in this case. The Supreme Court's decision
in.Descamps was issued on June 20, 2013, and Respondent did not file his
motion to reopen until February 29, 2016. Therefore, the Court concludes that
Respondent did not file his motion to reopen within a reasonable period of time
after the issuance of the decision in Descamps and, accordingly, sua sponte
reopening is not warranted. Matter of G-C-L-, 23 I&N Dec. 359, 362 (BIA 2002).
WHEREFORE, it is hereby Ordered that Respondent's motion to reopen
be denied.
DATED THIS

HEA/bjr

?.. "'"'

.;1

day of June, 2016.

HOWARD ACHTSAM
IMMIGRATION JUDGE

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IN THE MATIER OF: