Matter of E. E. HERNANDEZ, Respondent
U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
September 12, 2014
26 I&N Dec. 397 (BIA 2014)
Interim Decision #3812
FOR RESPONDENT: Andrew L. Reback, Esquire, Los Angeles, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jailuk Parrino, Senior Attorney
BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members.
MALPHRUS, Board Member:
In a decision dated April 18, 2012, an Immigration Judge terminated the removal proceedings against the respondent without prejudice. The Department of Homeland Security (DHS) has appealed from that decision. The appeal will be sustained, the removal proceedings will be reinstated, and the record will be remanded to the Immigration Judge.
The respondent is a native and citizen of Mexico who adjusted his status to that of a lawful permanent resident on April 26, 2008. In 2011, in the Superior Court of California for the County of Los Angeles, he was charged in count 1 of a felony complaint with committing vandalism causing over $400 in damages in violation of
On March 9, 2012, the DHS issued a notice to appear charging the respondent with removability under
We have interpreted moral turpitude as generally referring to conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Matter of Ortega-Lopez, 26 I&N Dec. 99, 100 (BIA 2013) (citation and internal quotation mark omitted). For a crime to involve moral turpitude, there must be two essential elements, namely, reprehensible conduct and a culpable mental state. Id.; Matter of Louissaint, 24 I&N Dec. 754, 756-57 (BIA 2009) (stating that a crime involving moral turpitude involves reprehensible conduct committed with some degree of scienter, either specific intent, deliberateness, willfulness, or recklessness).
In considering whether a particular offense constitutes a crime involving moral turpitude, we must first engage in the traditional categorical analysis of the elements of the statute. Matter of Louissaint, 24 I&N Dec. at 757 (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007)). Under this approach, we compare the statute of conviction to the generic definition of moral turpitude. If the statute bans only actions that involve moral turpitude, then it is categorically a crime involving moral turpitude. Rohit v. Holder, 670 F.3d 1085, 1088 (9th Cir. 2012) (citation omitted); see also Olivas-Motta v. Holder, 746 F.3d 907, 916 (9th Cir. 2013) (limiting an Immigration Judge to the record of conviction in determining whether an alien has been convicted of a [crime involving moral turpitude]). For a crime not to be a categorical crime involving moral turpitude, there must be a realistic probability, as opposed to a theoretical possibility, that the statute of conviction would be applied to reach conduct that does not involve moral turpitude. Matter of Louissaint, 24 I&N Dec. at 757; see also Gonzales v. Duenas-Alvarez, 549 U.S. at 193;
The respondent was convicted of maliciously defacing the property of another with graffiti or other inscribed material.
In analyzing whether the respondent was convicted of a crime involving moral turpitude, the Immigration Judge erred by separately analyzing whether malicious vandalism under
A malicious act of vandalism under California law involves damage or destruction to the property of another which can be remedied only at a direct cost to the property owner and planning, execution and a malicious intent on the part of the offender. United States v. Martinez, 69 F.3d 999, 1000-01 (9th Cir. 1995). The malice requirement of
Criminal gangs pose a serious danger to public safety and have a taxing burden on society and our moral culture. See People v. Rodriguez, 290 P.3d 1143, 1148 (Cal. 2012) (Crimes committed by gang members . . . pose dangers to the public and difficulties for law enforcement not generally present when a crime is committed by someone with no gang affiliation. (quoting People v. Albillar, 244 P.3d 1062, 1068 (Cal. 2010)) (internal quotation marks omitted)); see also City of Chicago v. Morales, 527 U.S. 41, 99 (1999) (Thomas, J., dissenting) (Gangs fill the daily lives of many of our poorest and most vulnerable citizens with a terror that [is not given] sufficient consideration, often relegating them to the status of prisoners in their own homes.).
In 1988, the California Legislature enacted the Street Terrorism Enforcement and Prevention Act (STEP Act) in an attempt to eradicate criminal activity by street gangs.3 1988 Cal. Legis. Serv. 1242 (West); see also
That being said,
Furthermore, the gang enhancement requires more than a general intent to commit a crime. People v. Ramon, 96 Cal. Rptr. 3d 459, 466 (Cal. Ct. App. 2009). The California Legislature required that the underlying crime be committed with the specific intent to promote, further, or assist the criminal conduct of a street gang to make it clear that a criminal offense is subject to increased punishment under the STEP Act only if the crime is gang related, given that not all crimes committed by gang members are related to a gang. People v. Albillar, 244 P.3d at 1071 (quoting People v. Gardeley, 927 P.2d 713, 724 (Cal. 1996)) (internal quotation marks omitted). It is only when a defendant‘s intentional acts are combined with his knowledge that those acts would assist crimes by fellow gang members that there is sufficient evidence of the requisite specific intent to support a gang enhancement. People v. Morales, 5 Cal. Rptr. 3d 615, 633 (Cal. Ct. App. 2003). Thus, to be convicted of felony vandalism with a gang enhancement, the offender must have been found beyond a reasonable doubt to have had a malicious or evil intent in committing vandalism for the benefit of a criminal street gang and to have done so with the specific intent to promote criminal activity by gang members.
It is noteworthy that the gang enhancement does not criminalize gang membership itself. In re Alberto R., 1 Cal. Rptr. 2d 348, 354 (Cal. Ct. App. 1991) (Section 186.22 does not prohibit membership; it prohibits the promotion, furtherance or assistance in any felonious criminal conduct by members. (citation and internal quotation mark omitted)). The statute does not encompass conduct engaged in by a lone individual for his own purposes or unintended conduct that incidentally may have some benefit to a gang. See People v. Rios, 165 Cal. Rptr. 3d 687, 713 (Cal. Ct. App. 2013). It addresses the threat that criminal gang activity poses to public safety and public order in a targeted manner by requiring that the offender have committed a specified offense with the specific intent to advance criminal gang conduct.
The crime of vandalism is a well-recognized way of advancing gang activity. The legislative history regarding a 1993 amendment to the offense of malicious vandalism under
We conclude that it is inherently reprehensible to maliciously deface, damage, or destroy property for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members in violation of sections
The respondent is removable under
ORDER: The appeal of the Department of Homeland Security is sustained, the decision of the Immigration Judge is vacated, and the removal proceedings are reinstated.
FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.