Da Silva Neto v. Holder, 2012 U.S. App. LEXIS 9550

Background

Neto is a Brazilian citizen who entered the U.S. in 1994 with his wife, and they have two U.S. citizen children.
In 2006, at his wife's house party despite a restraining order, Neto kicked in a door, destroyed property, and was arrested at the scene.
He admitted sufficient facts to support a Massachusetts malicious destruction of property conviction under Mass. Gen. Laws ch. 266, § 127 and received probation and anger-management; charges were later dismissed in state court in 2007.
DHS instituted removal proceedings; Neto sought cancellation of removal, which the IJ denied for lack of exceptional hardship, the BIA remanded for consideration of good moral character and additional evidence.
On remand, the IJ held the conviction barred cancellation as a CIMT under Massachusetts law; the BIA affirmed; Neto petitioned for review challenging whether Massachusetts malicious destruction of property qualifies as a CIMT.
The court reviews the BIA’s CIMT determination de novo for legal questions, deferring to reasonable BIA interpretation of the INA.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Massachusetts malicious destruction of property is a CIMT	Neto argues the statute may not categorically involve CIMT.	BIA concluded the act, when malicious, is inherently reprehensible and CIMT.	Yes; malicious destruction of property qualifies as a CIMT when accompanied by malice toward an owner.
Whether §127 is divisible and the BIA used the proper modified categorical approach	Statute may not be properly treated as divisible; record analysis may be inappropriate.	BIA properly treated §127 as divisible and relied on the record to identify the malicious (CIMT) variant.	BIA’s divisible-statute and record-based analysis were reasonable.
Whether the CIMT requires a vicious motive toward an identifiable owner under Massachusetts law	Malice toward an owner is not required; hostility toward inanimate objects could suffice.	Massachusetts case law requires malice toward an owner (cruelty/hostility/revenge toward an owner).	Massachusetts requires cruelty/hostility toward an owner; the conduct satisfies CIMT.
Whether the court may consider Silva-Trevino’s third step beyond the record of conviction	Third step should allow looking beyond the record to determine CIMT.	The court may not always apply third step; framework is unsettled and not necessary here.	Not decided here; court applies first two steps and leaves third-step question for another day.
What is the proper standard of review for the BIA’s CIMT determinations	Chevron deference should govern BIA’s CIMT interpretations.	Legal conclusions reviewed de novo; BIA’s interpretation of the INA entitled to Chevron deference unless arbitrary or contrary to law.	Legal conclusions reviewed de novo with Chevron deference to the BIA’s CIMT interpretation unless arbitrary or contrary to law.

Key Cases Cited

In re Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008) (outlined three-step CIMT framework (realistic probability, modified categorical, beyond-record evidence))
Maghsoudi v. INS, 181 F.3d 8 (1st Cir. 1999) (defining CIMT as conduct that is inherently base and morally reprehensible with vicious motive)
Idy v. Holder, 674 F.3d 111 (1st Cir. 2012) (deference to BIA interpretation of INA; framework alignment)
Cabral v. INS, 15 F.3d 193 (1st Cir. 1994) (origin of CIMT concept in federal statute; no statutory definition by Congress)
In re Fualaau, 21 I. & N. Dec. 475 (BIA 1996) (tests to determine moral turpitude include vicious motive)
Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994) (focus on criminal intent and vicious motive in CIMT analysis)
Commonwealth v. Redmond, 757 N.E.2d 249 (Mass. App. Ct. 2001) (malice requires hostility toward the property owner, not mere destruction)
Commonwealth v. Morris M., 876 N.E.2d 465 (Mass. App. Ct. 2007) (malice toward the owner required; cruelty, hostility, or revenge toward owner)
Commonwealth v. McGovern, 494 N.E.2d 1298 (Mass. Supreme Judicial Ct. 1986) (destructive acts hostile to the owner can be sufficiently malicious)
Commonwealth v. Cimino, 611 N.E.2d 738 (Mass. App. Ct. 1993) (deliberate acts with malicious intent satisfy CIMT considerations)