Sibirsky, Daniel Bruce

Sibirsky Law Firm, P.A.

169 East Flagler Street, Suite 1431
Miami, FL 33131
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesburg Pike. Suite 2000
Fall s Church. Virginia 20530
OHS/ICE Ofice of Chief Counsel - MIA
333 South Miami Ave., Suite 200
Miami, FL 33130
Name: ALVAREZ FERNANDEZ, KARIN ... A 046-941-394
Date of this notice: 9/23/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Cole, Patricia A.
Guendelsberger, John
Liebowitz, Ellen C
Sincerely,
DG c Q
Donna Carr
Chief Clerk
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Karina J. Alvarez Fernandez, A046 941 394 (BIA Sept. 23, 2014)
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U.S. Deparment of Justice
Executive Ofce fr Immigration Review
Decision of the Boad of Immigration Appeals
Falls Church, Virginia 20530
File: A046 941 394 - Miami, FL Date:
In re: KARINA J. ALVAREZ FERANDEZ a.k.a. Karina J. Alvaez
IN RMOVAL PROCEEDINGS
APPEAL AND MOTION
ON BEHALF OF RESPONDENT: Daniel B. Sibirsky, Esquire
ON BEHALF OF DHS:
CHARGE:
Michelle M. Ressler
Senior Attorey
SEP 28 2014
Notice: Sec. 237(a)(2)(A)(i), I&N Act [8 U.S.C. 1227(a)(2)(A)(i)] -
Convicted of crime involving moral turitude (sustained)
Lodged: Sec. 237(a)(2)(A)(iii), l&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -
Convicted of aggavated felony (as defned in section 10 l(a)(43)(M)(i))
(not sustained)
APPLICATION: Terination
On September 27, 2007, the Immigration Judge fund the respondent, a native and citizen of
Bolivia, removable under section 237(a)(2)(A)(i) of the Immigration and Nationality Act,
8 U.S.C. 1227(a)(2)(A)(i), based on the conclusion that her Mach 7, 2005, conviction fr
third-degee gand tef in violation of Fla. Stat. 812.014 was fr a crime involving moral
turpitude ("CIMT"). 1 We afrmed this decision on Februay 24, 2009. Subsequently, on
November 12, 2009, we granted the respondent's motion to reopen so she could present evidence
relevant in determining her removability under Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G.
2008). The Immigration Judge once again sustained the section 237(a)(2)(A)(i) chage on
August 18, 2011. This matter was last befre the Board on May 6, 2013. Acknowledging
Fajardo v. US Att' Gen., 659 F.3d 1303 (llth Cir.2011) (reversing Matter ofSilva-Trevino,
supra, ad reafrming the cour's categorical analysis fr determining whether an alien has been
convicted of a CIMT), we afred the Immigration Judge's decision, holding that the
Depament of Homeland Security ("DHS") had established removability pursuant to the
modifed categorical approach.
1 The Immigration Judge did not sustain the chage of removability under section
237(a)(2)(A)(iii) of the Act.
Cite as: Karina J. Alvarez Fernandez, A046 941 394 (BIA Sept. 23, 2014)
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k046 941 394
This case is now befre us pursuant to an October 1, 2013, order of the United States Court
of Appeals fr the Eleventh Circuit that vacated our May 6, 2013, decision ad granted the
goverent's unopposed motion to remand.
The DHS has fled a motion to remand. The respondent has fed a opposition to the DHS's
motion, a supplemental brief, a motion to accept a second supplementa brief,
2
a statement of
new legal authorities, ad a additional statement of new legal autorities. The DHS's motion
will be denied, the respondent's appeal will be sustained, ad the proceedings will be terinated.
Befre the court of appeals, the goverent requested a remad so the Board could consider
the respondent's removability in light of Descamps v. United States, 133 S. Ct. 2276 (2013).
The goverent stated that a remand would allow the Board to consider whether the respondent
has been convicted of a CIMT within the famework identifed in Fajardo v. US. Aty Gen.,
supra. Moreover, in so doing, the Board could determine the applicability of Descamps to
immigration proceedings and whether the Supreme Court's decision precludes the Board fom
considering the fcts of the respondent's criminal infrmation in deterining wheter she acted
with the intent required to fnd that her conviction was fr a CIMT. Since the remand solely
presents questions of law, we deny the DHS's motion to remad to the Immigration Judge. See
8 C.F.R. 1003.1 (d)(3)(ii) (stating that the Board may review issues of law, discretion, ad
judgment de novo); cf 8 C.F.R. 1003.l(d)(3)(iv) (providing that the Boad may remand when
additional fct-fnding is necessary).
With her frst statement of new legal authorities, the respondent submitted an unpublished
decision in which the Board held that Fla. Stat. 812.014 is not divisible under Descamps fr
puroses of determining an alien's removability fr being convicted of a CIMT. See
Matter of Forvilus, 2014 WL 1120166 (BIA Jan. 28, 2014). Although this decision is not
precedential, we adopt a similar analysis in addressing the instant circuit court remand. See also,
Matter of Chairez, 26 I&N Dec. 349 (BIA 2014 ), holding that the approach to divisibility
outlined in Descamps is applicable in removal proceedings.
In pertinent part, the statute of conviction provides that "[a] person commits thef 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
beneft fom 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 propery." Fla. Stat. 812.014(1). The statute fher
provides: "It is gad thef in the third degree and a flony of te third degee ... if the property
stolen is . .. [v]alued at $300 or more, but less than $5,000 .... " Fla. Stat. 812.014(2)(c).
The Eleventh Circuit has held that an ofense is a CIMT if it "involves '[a]n act of baseness,
vileness, or depravity in the private and social duties which a ma owes to his fllow men, or to
society in general, contay to the accepted and customary rule of right and duty between ma
ad man."' Cano v. US. Att' Gen., 709 F.3d 1052, 1053 (11th Cir. 2013) (quoting
2 The motion is granted.
2
Cite as: Karina J. Alvarez Fernandez, A046 941 394 (BIA Sept. 23, 2014)
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A046 941 394
United States v. Gloria, 494 F.2d 477, 481 (5th Cir. 1974)). To determine whether a crime
qualifes as a CIMT in cases aising within the Eleventh Circuit, we must apply the traditional
categorical approach, which requires fcusing on the statutory defnition of the crme rather tha
the fcts underlying the paticula ofense. Fajardo v. US. Att ' Gen. , supra, at 1305. The
categorcal approach requires that "we analyze whether the least culpable conduct necessary to
sustain a conviction under te statute meets te standard of a crme involving moral turpitude."
Cano v. US. Att' Gen., supra, at 1053 n. 3 (quoting Keunge v. US Att' Gen. , 561 F.3d 1281,
1284 n. 3 (I1th Cir. 2009)).
Fla. Stat. 812.014 does not defne a categorical CIMT because the statute, by its ters,
includes ofenses in which only a temporary taking or appropriation of property is intended.
Temporay takings of property are not CIMT's. See Matter of Grazley, 14 I&N Dec. 330,
333 (BIA 1973). Since the "least culpable conduct" necessay to suppor a conviction fr third
degree gad thef under Fla. Stat. 8 I 2.0 I 4 does not involve moral titude, te DHS can
satisf its burden of proving removability only if the statute is "divisible" in relation to the CIMT
concept, such that the Immigation Judge may examine the respondent's record of conviction
under the modifed categorical approach with a view to deterining wheter her paricular
ofense of conviction involved moral turitude.
In her second supplemental brief, the respondent argues that Fla Stat. 812.014 is not
divisible in light of Descamps ad, therefre, the modifed categorical approach does not apply
in the instant matter. We agree.
In Descamps, the Supreme Court explained that the modifed categorical approach operates
narowly, and applies only if: (1) the sttute of conviction is divisible in the sense that it lists
multiple discrete ofenses as enumerated alteratives or defnes a single ofense by refrence to
disjunctive sets of "elements,"
3
more than one combination of which could support a conviction,
and (2) some (but not all) of those listed ofenses or combinations of disjunctive elements are a
categorical match to the relevant generic standard. Id. at 2281, 2283. Thus, aer Descamps the
modifed categorical approach dos not apply merely because the elements of a crime can
sometimes be proved by refrence to conduct that fts the generic fderal standad; according to
the Cour, such crimes are "overbroad" but not "divisible." Id. at 2285-86, 2290-92.
The respondent was convicted of violating a statute that covers eiter "peranent" or
"temporary" tings. See Fla. Stt. 812. 014. In light of Descamps, this disjunctive phrasing
does not render the statute divisible so as to wa ant a modifed categorical inquiry. Peranent
and temporary taings are alterative means of commiting grand thef in Florida; however, the
DHS-which beas the burden of proof-has identifed no authorty suggesting that they are
alterative elements of gand thef about which Florida jurors must agree in order to convict. See
Descamps, supra, at 2285 n. 2; accord Schad v. Arizona, 501 U.S. 624, 636 (1991) (plurality)
3 By "elements,'' we understand the Court to mean those fcts about a crime which must be
proved to a jury beyond a reasonable doubt and about which the jury must agee by whatever
margin is required to convict in the relevant juisdiction. Descamps, supra, at 2288 (citing
Richardson v. United States, 526 U.S. 813, 817 (1999)).
3
Cite as: Karina J. Alvarez Fernandez, A046 941 394 (BIA Sept. 23, 2014)
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M46 941 394
("[L ]egislatures fequently enumerate alterative meas of comiting a crime witout intending
to defne sepaate elements or sepaate crimes."). On the contary, the respondent has submitted
Florida Supreme Court Jury Instctions fr Fla. Stat. 812.014, which support the conclusion
tat peraent ad temporary tings are alterative means of committing gand thef.
Since the ofense defned by Fla. Stat. 812.014 is neither a categorical CIMT nor divisible
in relation to the CIMT concept under Descamps, we hold that the removal charge must be
dismissed. As no other charges are pending against the respondent, the removal proceedings will
be terminated.
Accordingly, the fllowing orders are entered.
ORDER: The DHS's motion to remand is denied.
FURTHER ORDER: The respondent's appeal is sustained and the removal proceedings ae
terinated.

fuRF BOAR
4
Cite as: Karina J. Alvarez Fernandez, A046 941 394 (BIA Sept. 23, 2014)
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