26 I. & N. Dec. 397
BIA2014Background
- Respondent, a Mexican national and LPR since 2008, was convicted in California of malicious vandalism under Cal.Pen.Code § 594(a) with a gang enhancement under § 186.22(d).
- The gang enhancement required that the underlying offense be committed for the benefit of a criminal street gang with specific intent to promote criminal conduct by gang members.
- The California criminal court accepted a no-contest plea, admitted the gang enhancement, and imposed probation with 364 days in jail.
- DHS issued a notice to appear treating the respondent as removable for a crime involving moral turpitude (CIMT).
- Immigration Judge terminated proceedings without prejudice; DHS appealed this termination.
- Board held that the respondent’s offense, as enhanced, is a CIMT and that the proceedings must be reinstated for removal with a remand for relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does malicious vandalism with a gang enhancement constitute a CIMT? | DHS argues the enhanced offense is a CIMT. | Hernandez contends the record does not show CIMT under the statute. | Yes; the offense with the gang enhancement is a CIMT. |
| What is the proper analytical focus for CIMT where a gang enhancement is involved? | Use the offense of conviction including the enhancement. | Examine the underlying acts separately from the enhancement. | The offense of conviction includes the enhanced, gang-related conduct and is CIMT. |
Key Cases Cited
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (U.S. 2007) (categorical approach to CIMT analysis)
- Matter of Louissaint, 24 I&N Dec. 754 (BIA 2009) (realistic probability standard for CIMT applicability)
- Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013) (definition of moral turpitude and essential elements)
- Rohit v. Holder, 670 F.3d 1085 (9th Cir. 2012) (cognizance of record-of-conviction approach in CIMT cases)
- Olivas-Motta v. Holder, 746 F.3d 907 (9th Cir. 2013) (limits of JI’s reliance on conviction record for CIMT)
- People v. Albillar, 244 P.3d 1062 (Cal. 2010) (gang enhancement requires specific intent to promote gang conduct)
- City of Chicago v. Morales, 527 U.S. 41 (U.S. 1999) (gang-related conduct and public safety context in CIMT analysis)