U.S.

Department of Justice

Executive Office for Immigration Revicvv

Board of /mmigration llppeals
Office of the Clerk
5107 Leesb11rg Pike, S11ite 2000
Falls Church. Virginia 220./ I

DHS/ICE Office of Chief Counsel - PSD

566 Veterans Drive
Pearsall, TX 78601

Name: LOPEZ-GUERRA, JOSE

A 205-659-456

Date of this notice: 1/7/2016

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

[) C,n.J1L, CUf'l,,"u
Donna Carr
Chier Clerk
Enclosure
Panel Members:
Greer, Anne J.
Pauley, Roger
Mullane, Hugh G.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
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Caballero, Elizabeth Ann

Law Offices of Elizabeth Caballero
1802 NE Loop 410, Suite 300
San Antonio, TX 78217

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A205 659 456 - Pearsall, TX

Date:

In re: JOSE LOPEZ-GUERRA

JAN - 7 201B

APPEAL
ON BEHALF OF RESPONDENT: Elizabeth A. Caballero, Esquire
ON BEHALF OF DHS: Eric C. Bales
Assistant Chief Counsel
CHARGE:
Notice: Sec.

237(a)(2)(A)(ii), l&N Act [8 U.S.C. 1227(a)(2)(A)(ii)] Convicted of two or more crimes involving moral turpitude

APPLICATION: Termination

The Department of Homeland Security ("DHS") appeals from an Immigration Judge's

September 17, 2015, decision terminating removal proceedings against the respondent. The
appeal will be sustained, the removal proceedings will be reinstated, and the record will be
remanded.
The respondent-a native and citizen of Honduras and a lawful permanent resident of
the United States-was convicted in May 2015 of two counts of theft of property valued at
$50 or more but less than $500, a class B misdemeanor 1 in violation of section 31.03 of the
Texas Penal Code. For each count, the respondent was sentenced to 20 days' confinement
in county jail, plus payment of a fine and court costs, with the sentences to run concurrently.
In June 2015, the DHS filed a notice to appear in Immigration Court alleging that the
foregoing conviction renders the respondent removable from the United States pursuant to
section 237(a)(2)(A)(ii) of the lnunigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(ii),
which provides for the deportability of"[a]ny alien who at any time after admission is convicted
of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal
misconduct, regardless of whether confined therefor and regardless of whether the convictions
were in a single trial. . . ." In his written decision of September 17, 2015, however, the
Immigration Judge dismissed that charge and terminated the removal proceedings, concluding
that theft under TEX. PENAL CODE 31.03 is not a crime involving moral turpitude ("CIMT")
1

Texas law provides that a class B misdemeanor is punishable by "confinement in jail for a term
not to exceed 180 days." See TEX. PENAL CODE 12.22(2).
Cite as: Jose Lopez-Guerra, A205 659 456 (BIA Jan. 7, 2016)

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IN REMOVAL PROCEEDINGS

.
A205 659 456

(I.J. at 4-6) and, alternatively, that the respondent's two counts of theft were part of a "single
scheme of criminal misconduct," thereby precluding them from triggering his deportability
whether or not they are CIMTs (I.J. at 6-7). The DHS challenges both determinations on appeal.
Upon de novo review, we reverse.

It is well settled that traditional theft or larceny offenses-Le., those involving the exercise of
dominion or control over the property of another without consent and with the intent to
permanently deprive the rightful owner of the property's value-are categorical CIMTs.
See, e.g., Okoro v. INS, 125 F.3d 920, 926 (5th Cir. 1997); United States ex rel. McKenzie
v. Savoretti, 200 F.2d 546, 548 & n.7 (5th Cir. 1952); Matter ofJurado, 24 l&N Dec. 29, 33-34
(BIA 2008). We have also long recognized, however, that moral turpitude does not inhere in
"joyriding" and similar offenses, i.e., unauthorized takings of property which are intended to be
temporary and of no significant harm to the owners' property rights. See, e.g., Matter of H-,
2 I&N Dec. 864, 865 (BIA 1947); Matter ofD-, 1 l&N Dec. 143, 145 (BIA 1941).
We employ the "categorical approach" to determine whether a particular offense is a CIMT.
In cases arising within the jurisdiction of the United States Court of Appeals for the Fifth Circuit,
the categorical approach requires us to focus not on the specific facts underlying the respondent's
particular violation of law, but rather upon the statutory elements which define the offense of
conviction. See Cisneros-Guerrerro v. Holder, 774 F.3d 1056, 1058-59 (5th Cir. 2014).
As noted, the respondent was convicted under section 31.03 of the Texas Penal Code, which
at the time of his offense provided as follows, in pertinent part:
31.03. Theft
(a) A person commits an offense if he unlawfully appropriates property with
intent to deprive the owner of property.
(b) Appropriation of property is unlawful if:
(1) it is without the owner's effective consent;
(2) the property is stolen and the actor appropriates the property knowing it
was stolen by another; or
(3) property in the custody of any law enforcement agency was explicitly
represented by any law enforcement agent to the actor as being stolen and the
actor appropriates the property believing it was stolen by another.
2
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The statutory phrase "crime involving moral turpitude" is broadly descriptive of a class of
offenses involving "reprehensible conduct" committed with some form of "scienter"-that is,
with a culpable mental state, such as specific intent, deliberateness, willfulness, or recklessness.
Conduct is "reprehensible" in the pertinent sense if it 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." See, e.g., Matter of O.A. Hernandez, 26 l&N Dec. 464, 465 (BIA 2015) (citations
omitted).

A205 659 456

For purposes of section 3 1.03, the term "appropriate" means:

(B) to acquire or otherwise exercise control over property other than real property.
TEX. PENAL CODE 31.01(4). Further, the term "deprive" means:
(A) to withhold property from the owner permanently or for so extended a period
of time that a major portion of the value or enjoyment of the property is lost to the
owner;
(B) to restore property only upon payment of reward or other compensation; or
(C) to dispose of property in a manner that makes recovery of the property by the
owner unlikely.
TEX. PENAL CODE 31.01(2).
Like the DHS, we are convinced that moral turpide inheres in the full range of conduct
punishable under TEX. PENAL CODE 31.03. Specifically, the statutory language quoted above
makes clear that a defendant cannot be convicted of theft under Texas law unless he appropriates
(i.e., acquires or exercises control over) the property of another without the owner's consent2 and
with the intention of depriving the owner of the roperty in such a manner that its value to the
owner is permanently and substantially eroded. 3 This reading of the statutory language is
confirmed by controlling Texas case law, which has held for more than a century that a theft
2

The types of"appropriation" listed in TEX. PENAL CODE 31.03(b)(2) and 31.03(b)(3) are not
phrased in terms of the absence of consent, but the conduct described in those paragraphs-Le.,
the appropriation of property that the defendant knew or believed to be stolen-involves moral
turpitude in its own right. Matter of Islam, 25 I&N Dec. 637, 638 (BIA 2011); Matter of Salvail,
17 l&N Dec. 19, 20 (BIA 1979); Matter of R-, 6 l&N Dec. 772 (BIA 1955).
3

In this regard, we note that the familiar requirement of an intention to "permanently" deprive
the owner of his or her property is not to be read literally. For instance, a thief who takes
another's property with the sincere intention of returning it after it has become worthless to the
owner, or who honestly intends to return the stolen property but only for a price, has committed
a crime no less reprehensible than one who takes property with the intention of destroying it or
selling it to a third party. In either case, the offender intends to permanently deprive the rightful
owner of the property's value.

3
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(A) to bring about a transfer or purported transfer of title to or other

nonpossessory interest in property, whether to the actor or another; or

A205 659 456

Despite the foregoing statutory language and case authority, the Immigration Judge discerned
a "realistic probability" that Texas would apply section 31.03 to conduct not involving moral
turpitude-specifically, "to a non-permanent taking" (I.J. at 5). In support of that determination,
the Immigration Judge cited to the Texas Court of Appeals' 2003 decision in Winkley v. State,
123 S.W.3d 707 (Tex. Ct. App. 2003). We have reviewed Winkley, however, and we find
nothing in it to suggest that Texas would prosecute a taking as "theft" where the accused
intended only "a non-permanent tak.ing." The appellant in Winkley was convicted of theft after a
bench trial but argued on appeal that the evidence presented at trial was insufficient to establish
that she had the requisite intent to deprive the victim of his property. Id. at 712-13. The
appellant claimed during trial that she had merely "borrowed" the victim's property and had no
intention of keeping it, but the Court of Criminal Appeals upheld the conviction on the ground
that a rational trier of fact was entitled to infer, based on the totality of the evidence and
testimony presented at trial, that the defendant actually intended to deprive the victim of the
major portion of the property's value. Id. at 713. The Winkley court did not suggest-much less
hold-that the appellant could have been convicted of theft even if the totality of the evidence
had reflected her intention to accomplish only a temporary taking.
In view of the foregoing, we hold that the offense defined by TEX. PENAL CODE 31.03 is
categorically a CIMT; thus, we will vacate the Immigration Judge's decision to the contrary. We
now tum to the separate question whether the respondent's two theft offenses arose out of a
"single scheme of criminal misconduct."
To determine whether the respondent's two theft crimes arose out of a "single scheme of
criminal misconduct," we conduct a "circumstance-specific" inquiry in which all pertinent
evidence may be considered. See Matter of Islam, 25 l&N Dec. 637, 641-42 (BIA 2011). There
is no dispute that the respondent's conviction was for two separate counts of theft, with each
count representing a distinct offense involving different victims-on May 4, 2015, he shoplifted
clothing items from two separate retail stores within a single shopping mall (I.J. at 6). According
to the Immigration Judge, these two offenses did not support the respondent's removal under
section 237(a)(2)(A)(ii) of the Act, however, because they were part a "single criminal episode"
for which he "served one sentence" (I.J. at 6). Further, the Immigration Judge found that the
respondent "did not have an opportunity to dissociate himself from his scheme of criminal
misconduct before committing the second offense" (I.J. at 6). We disagree.
Interpreting the phrase "single scheme of criminal misconduct," we have held that "when an
alien has performed an act, which, in and of itself, constitutes a complete, individual, and distinct
4
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conviction may not lawfully be entered absent proof beyond a reasonable doubt that the accused
intended to permanently deprive the victim of the value of his property. See, e.g., Taylor
v. State, 450 S.W.3d 528, 535 (Tex. Crim. App. 2014); Smith v. State, 146 S.W. 547, 548
(Tex. Crim. App. 19 12); Loza v. State, 1 Tex. App. 488, 491 (Tex. Ct. App. 1877). Crucially, a
defendant who takes the property of another temporarily and with the intention of returning it
undamaged to the owner cannot be convicted of theft in Texas. See, e.g., Flores v. State,
888 S.W.2d 187, 191 (Tex. Ct. App. 1994); Enright v. State, 513 S.W.2d 581, 584 (Tex. Crim.
App. 1974); Weeks v. State, 25 S.W.2d 855, 856 (Tex. Crim. App. 1930).

.'

'

A205 659 456

Applying this test, we conclude that the respondent's two theft crimes did not arise out of a
single scheme of criminal misconduct. Although the respondent may well have had an "overall
plan" in mind when he entered the shopping mall, his two offenses involved different victims
and the theft of different items; the crimes neither "flowed from" nor constituted "natural
consequences" of one another. Further, given the fact that the offenses were committed in two
different stores, we reject the Immigration Judge's conclusion that the respondent had no
opportunity to reflect upon his behavior before committing the second offense. The fact that the
crimes were committed on the same day and within a single shopping mall is not sufficient to
establish that they were part of a "single scheme." Further, the record reflects that the
respondent was sentenced to two separate terms of 20 days in jail for his crimes; while the court
ordered that these sentences be served concurrently, the Immigration Judge was thus incorrect in
his determination that the respondent "served one sentence" for both crimes. But in any event,
section 237(a)(2)(A)(ii) of the Act applies by its terms "regardless of whether the convictions
were in a single trial." Thus, even if the respondent had "served one [consolidated] sentence" for
his two crimes, he would remain deportable as charged.
In conclusion, we agree with the DHS that the respondent is removable as charged.
Accordingly, we will reinstate the removal proceedings, sustain the section 237(a)(2)(A)(ii)
charge, and remand the record for a determination as to whether any relief or protection from
removal is available to the respondent. The following orders will be issued.
ORDER: The appeal is sustained, the Immigration Judge's decision is vacated, and the
removal proceedings are reinstated.
FURTHER ORDER: The charge of removability under section 237(a)(2)(A)(ii) of the Act is
sustained and the record is remanded for further proceedings consistent with the foregoing
opinion.

5
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crime [involving moral turpitude], he is deportable [under section 237(a)(2)(A)(ii) of the Act]
when he again commits such an act, even though one may closely follow the other, be similar in
character, and even be part of an overall plan of criminal misconduct." Matter of Islam, supra,
at 639 (quoting Matter of Adetiba, 20 I&N Dec. 506, 509 (BIA 1992) (citations omitted)). The
single scheme exception only "refers to acts, which although separate crimes in and of
themselves, were performed in furtherance of a single criminal episode, such as where one crime
constitutes a lesser offense of another or where two crimes flow from and are the natural
consequence of a single act of criminal misconduct." Id.

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
SOUTHE TEXAS DETENTION COMPLEX
PEARSALL, TEXAS

LOPEZ-GUERRA, JOSE
RESPONDENT
IN REMOVAL PROCEEDINGS

)
)
)
)
)
)
)

Case Number: A205-659-456

CHARGES:

Section 237(a)(2)(A)(ii) of the Immigration and Nationality Act as

amended (Act), in that any time after admission, you have been
convicted of two crimes involving moral turpitude not arising out
of a single scheme of criminal misconduct.

APPLICATION:

Motion to Terminate Removal Proceedings.

ON BEHALF OF THE RESPONDENT

Elizabeth A. Caballero, Esq.
1802 NE Loop 410, Suite 300
San Antonio, Texas 78217

ON BEHALF OF THE GOVERNMENT

Todd Keller, Esq.
U.S. Immigration & Customs Enforcement
Office of the Chief Counsel
8940 Fourwinds Drive, 5th Floor
San Antonio, TX 78239

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. PROCEDURAL HISTORY
The respondent is a nineteen-year-old male who is a native and citizen of Honduras. See
Exh. 1; see also Exh. 3 at 1. He entered the United States without inspection at or near Laredo,
TX, on or about September 23, 2012. See Exh. 1. On December 17, 2014, the respondent
adjusted status to that of a lawful permanent resident (LPR) under section 245 of the Act. See id.
On May 14, 2015, the respondent pleaded no contest in the g District Court at Bexar
County, Texas, to two offenses of Theft of Property $50-$500, a Class B misdemeanor, in
violation of Texas Penal Code (TPC) section 31.03(e)(2)(AI). See Exh. #1; see also Exh. 2, Tab
A. Both offenses occurred on May 4, 2015. See Exh. 2, Tabs A-B. As a result, the respondent
received a sentence of 20 days confinement in the county jail, court costs, and a fine of $250 for
both offenses. See id.
th

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IN THE MATTER OF

th

At the master calendar hearing on September 1 4, 20 1 5, the respondent, through counsel,

filed a Motion to Terminate removal proceedings. See Exh. 3. In the Motion, the respondent
concedes that he was convicted of two offenses for theft, but argues that these offenses do not
render him removable as charged under Section 237(a)(2)(A)(ii) of the Act. See id. at 2, 3 . The
respondent denies that the two offenses qualify as CIMTs, and even if they did, the offenses did
arise out of a single scheme of criminal misconduct. See id. The DHS did not file a response to
the respondent's motion. The respondent is currently detained.
The Court has considered all of the evidence in the record and the arguments of both
parties, even if not specifically discussed in this decision. The matters before the Court at this
time are whether the respondent was convicted of two CIMTs, or if he was convicted of two such
offenses, whether they arose from a single scheme of criminal misconduct.
A.

Documentary Evidence
The following documents were submitted into evidence in the respondent's case:
Ex. # 1

Notice to Appear, Form 1-862

Ex. #2

DHS Notice of Filing (June 1 7, 20 1 5):

Tab A: Bexar County Court No. 8 Conviction Record for Offense of Theft
of Property (NTA Allegation 5)
Tab B: Bexar County Court No. 8 Conviction Record for Offense of Theft
of Property (NTA Allegation 6)
Tab C : Certificate of Service

Ex. #3

Respondent's Brief in Support of Motion to Terminate Proceedings

(September 1 4, 20 1 5)
II. RELEVANT LAW

A.

Removability

In removal proceedings, the DHS has the burden of establishing by clear and convincing
evidence that, in the case of an alien who has been admitted to the United States, the alien is
deportable. See 240(c)(3)(A) of the Act; see also 8 C.F.R. 1 240.8(a). No decision on
deportability shall be valid unless it is based upon reasonable, substantial, and probative
2

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On June 1 0, 20 1 5, the Department of Homeland Security (OHS) personally served the

respondent with a Notice to Appear (NTA), charging him as removable pursuant to section
237(a)(2)(A)(ii) of the Act, as an alien who at any time after admission, is convicted of two
crimes involving moral turpitude (CIMT) not arising out of a single scheme of criminal
misconduct. See Exh. 1 . Consequently, on June 1 7, 20 1 5, OHS filed the respondent's record of
convictions from the g District Court in Bexar County, Texas, with the Pearsall Immigration
Court (Court). See Exh. 2. The respondent was placed in removal proceedings and a master
calendar hearing was held on September 1 4, 20 1 5 .

evidence. See 240(c)(3)(A) of the Act. "Clear and convincing evidence" has been defined as
"that degree of proof though not necessarily conclusive, which will produce in the mind of the
court a firm belief or conviction, or as that degree of proof which is more than a preponderance
but less than beyond a reasonable doubt." See Matter of Patel, 19 l&N Dec. 774, 783 (BIA
1988) (quoting Matter of Carrubba, 11 l&N Dec. 914, 917 (BIA 1966)).
Crimes Involving Moral Turpitude

An alien is removable if he is convicted of two or more CIMTs, not arising out of a single
scheme of criminal misconduct, regardless of whether confined therefor and regardless of
whether the convictions were in a single trial. See 237(a)(2)(A)(ii) of the Act. The term
'moral turpitude" generally refers to conduct that is inherently base, vile, or depraved, and
contrary to the accepted rules of morality and the duties owed between persons, or the duties
owed to society in general. See Matter of Sejas, 24 l&N Dec. 236, 237 (BIA 2007); see also
Matter of Olquin, 23 I&N Dec. 896 (BIA 2006).
Whether a particular statute meets the definition of a CIMT is approached in two ways.
See Esparza-Rodriguez v. Holder, 699 F.3d 821, 825 (5th Cir. 2012). The first approach, known
as the categorical approach, assesses whether 'the minimum reading of the statute necessarily
reaches only offenses involving moral turpitude." Id. (quoting Amouzadeh v. Winfrey, 467 F.3d
451 , 454-55 (5th Cir. 2006)). If the minimum reading of the statute necessarily reaches only
offenses involving moral turpitude, then the inquiry into whether the offense is a CIMT is
complete. See Esparza-Rodriguez, 699 F.3d at 825 .
If, however, the statute has multiple subsections or an element phrased in the
disjunctive, such that some violations of the statute would involve moral turpitude and others
would not, then the modified categorical approach is applied. See id. Under the modified
categorical approach, the Court examines the record of conviction to determine under which
subsection the alien was convicted and which elements formed the basis for the conviction. Id.
After identifying the elements of the particular crime of conviction, the Court inquires whether
those elements, considered as a whole, constitute a CIMT. Id. As such, when a statute is not
divisible, a court cannot employ the modified categorical approach. Matter of Chairez, 26 l&N
Dec. 349, 353 (BIA 2014) (finding that a court generally may employ the modified categorical
approach to analyze a statute when "(1) it 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" (citing Descamps v. United Stales, 133 S. Ct. 2276, 2285 (2013))).
The Board has previously considered whether a conviction renders an alien removable
using the categorical approach and modified categorical approach. Matter of Strydom, 25 I&N
Dec. 507, 509 (BIA 20 1 1). Under the categorical approach, if the statute of conviction has the
same elements as the section of the Act under which the alien is charged, removability is
established. See Descamps v. United States, 133 S. Ct. 2276, 2283 (2013). Removability would
also be established if the statute of conviction defined the crime more narrowly than the Act
because anyone convicted of the underlying crime would necessarily have violated the Act. See
3

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8.

id. An element, for purposes of applying the modified categorical approach, is a fact about the
crime which "[t]he Sixth Amendment contemplates that a jury--not a sentencing court--will
find[ . . . ]unanimously and beyond a reasonable doubt." Matter of Chairez, 26 I&N Dec. at 353
(quoting Descamps, 1 33 S. Ct. at 2288) (citations omitted).

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C. Texas Penal Code section 3 1.03

In Texas, theft is criminalized under Section 31.03 of the TPC, which states that a
defendant is guilty of theft if he "unlawfully appropriates property with intent to deprive the
owner of property." TPC 3 1 .03(a). A theft conviction is considered a CIMT when it involves
intent to permanently deprive another of his or her property. See, e.g. , Matter of Grazley, 1 4
I&N Dec. 330 (BIA 1 973) ("Ordinarily, a conviction fo r theft is considered to involve moral
turpitude only when a permanent taking is intended."). Under the statute's definition section,
"deprive" means,
(A)
(B)
(C)

to withhold property from the owner permanently or for so extended a

period of time that a major portion of the value or enjoyment of the
property is lost to the owner
to restore property only upon payment of reward or other compensation;
or
to dispose of property in a manner that makes recovery of the property by
the owner unlikely.

TPC 3 1 .0 I (2). The statute further describes theft as a Class B misdemeanor where the value of
the property is between $50 and $500. See TPC 3 I .03(e)(2)(A)(i).
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
For reasons explained, infra, the Court finds that the DHS has not proven by clear and
convincing evidence that the respondent is removable under Section 237(a)(2)(A)(ii) of the Act,
because the DHS has not demonstrated by clear and convincing evidence that the respondent
committed two CIMTs arising from a single scheme of criminal misconduct.
A.

Theft as a CIMT

The Court is not convinced that the Texas offenses for which the respondent was charged
and convicted constitute CIMTs under binding precedent. The respondent pleaded nolo
contendere to two theft offenses for property valued between $50 and $500, in violation of TPC
Section 3 1 .03(a). 1 See Exh. 1 ; see also Exh. 2, Tabs A, B. The Court finds that TPC Section
1

The Court notes that the NTA charges the respondent as removable due to violations of TPC 3 l .03(e)(2)(AI),
constituting CIMTs. See Exh '. I . This section of the TPC states,
(e) [ . . . ] an offense under this section (3 1 .03] is;
(2) a Class B misdemeanor if:
(A) the value of the property stolen is:
(i) $50 or more but less than $500[.]
4

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31.03(a) is not a divisible statute, and under the categorical approach, offenses in violation of this
section of the TPC cannot constitute CIMTs.

Turning to the criminal statute at issue, under TPC Section 31.03, the respondent need
only have "intent to deprive" in order to be convicted of a theft offense. TPC 31.03(a). This
"'intent to deprive," as described in the statute, includes no alternative or "disjunctive sets of
elements." See, supra, Matter of Chairez, 26 I&N Dec. at 353. Consequently, the element at
issue for this offense is solely the intent to deprive." The Court notes that the TPC' s definitions
of "deprive" include scenarios where the defendant may or may not have intended to
permanently deprive the owner of his or her property. See TPC 31.01(2). However, these
definitions are not elements of the offense; in fact, ensuring that the nature of deprivation meets
one of the definitions enumerated by the statute is not required for a conviction under the statute.
See Young v. Stale, 573 S.W.2d 817, 819 (Tex. Crim. App. 1978) (holding that the definition of
deprive did not need to be included in jury instructions). "Intent to deprive" is itself an
indivisible element of theft in Texas, and the categorical approach must be utilized.
Under the statute, there is a realistic probability that a defendant would be convicted
under the theft statute for a non-permanent taking and, therefore, not categorically a CIMT. See,
e.g. , Matter of Grazley, 14 I&N Dec. 330 (BIA 1973) ("Ordinarily, a conviction for theft is
considered to involve moral turpitude only when a permanent taking is intended."). The statute
does not require a permanent intent to deprive, and its definitions include both permanent and
temporary means of deprivation. See TPC 31.01(2); see also TPC 3 l .03(a). In fact, Texas
has previously applied its statute to a non-permanent taking. See Gonzales v. Duenas-Alvarez,
549 U.S. 183, 191 (2007); see also Winkley v. State, 123 S.W.3d 707, 711 (Tex. App. 2003).
Furthermore, even if the statute is divisible, the record does not suggest this was a permanent
taking. Nothing in the record suggests the respondent was conviction under a definition of
"deprive" that would constitute a CIMT.
It is important to note that in a 2006 interim decision, the Board bypassed the question of
whether a taking was permanent or temporary, and held that, in determining whether there is an
intention to permanently deprive, it is 'appropriate to consider the nature and circumstances
surrounding a theft offense." In Re Jurado-Delgado, I. & N. Dec. 29, 33 (BIA 2006) (citing
Matter of Grazley, 14 l&N Dec. 330, 333 (BIA 1973); A1atter ofS-, 5 I&N Dec. 552, 555 (BIA
TPC 3 1 .03(e)(2)(A)(i). However, the offense of theft is described under TPC section 3 l .03(a), as observed by the
Court, supra, in section II(C).
5

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In making this finding, the Court looks to guidance from the Board of Immigration
Appeals (Board or BIA), which states that the Court may not employ the modified categorical
approach when the statute in question is indivisible. See, supra, Matter of Chairez, 26 I&N Dec.
at 353. Under the categorical approach, the Court looks to the statute of conviction and
determines "whether there is a ' realistic probability' that the State or Federal criminal statute
pursuant to which the alien was convicted would be applied to reach conduct that does not
involve moral turpitude[.]" Silva-Trevino v. Holder, 742 F.3d 197, 200 (5th Cir. 2014) (citing
Matter ofSilva-Trevino, 24 I&N Dec. 687, 704 (AG 2008)). It follows that if the relevant statute
has been applied to conduct that did not involve moral turpitude, then the offense cannot be a
CIMT under the categorical approach. See Silva- Trevino, 24 l&N at 698-99 n.2.

B.

Single Scheme of Criminal Misconduct

Even if the respondent's offenses constituted CIMTs, the Court finds that the two
offenses arose from a single scheme of criminal misconduct. The 5 th Circuit found that,
when an alien performs an act that in and of itself constitutes a complete,
individual, and distinct crime, he is deportable when he again commits such
an act, even though one may closely follow the other, be similar m
character, and even be part of an overall plan of criminal misconduct.
Okoro v. I.NS. , 1 25 F.3d 920, 926 (5th Cir. 1 997). Applying this standard, the 5th Circuit
determined that in a two-day period between offenses, a respondent has time to "dissociate
himself from his enterprise and reflect on what he [has] done." This opportunity marks the two
distinct acts, not arising from a single scheme. See Okoro, 1 25 F.3d at 927. In fact, a 'single
scheme" refers to,

acts, which although separate crimes in and of themselves, \Vere performed

in furtherance of a single criminal episode, such as where one crime
constitutes a lesser offense of another or where two crimes flow from and
are the natural consequence of a single act of criminal misconduct.
See lvfatter ofAdetiba, 20 I&N Dec. 506, 5 1 1 (BIA 1 992). The respondent distances the facts of
his case to those in Matter of Adetiba, where the Court found that the respondent' s use of two
separate credit cards marked a disassociation between the two acts of theft and, therefore, did not
arise from a single scheme of criminal misconduct. See Exh. 3 at 6-7; see also lvfatter of
Adetiba, 20 l&N Dec. at 5 1 2.

In the instant case, the Court finds that the respondent did not have an opportunity to
dissociate himself from hi s scheme of criminal ri1isconduct before committing the second
offense. The respondent committed the offenses on the same day and at two locations within the
same shopping mall. See Exh. 2, Tab A at 4, Tab B at I O; see also Exh. 3 at 1 , 7. The
respondent's crimes were carried out "in furtherance of a single criminal episode" to shoplift
merchandise at a specific shopping mall. See Matier ofAdetiba at 5 1 1 . Furthermore, despite the
two separate counts of theft, the respondent served one sentence. See Exh. 2, Tabs A-B.

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1 953); Matter of M-, 2 I&N Dec. 686, 688 (C.O., BIA 1 953); 1\1atter of F-, 2 l&N Dec. 5 1 7, 520
(C.O., BIA 1 946); A1atter of G-, 2 I&N Dec. 235, 238 (BIA 1 945)). The Board also noted that
similar offenses involving theft of goods from a retail establishment are CIMTs. In Re Jurado
Delgado, I. & N. Dec. 29, 33 (citing Matter of Neely and Whylie, 1 1 l&N Dec. 864 (BIA 1 966);
Matter of P-, 4 I&N Dec. 252 (Acting A.G., BIA 1 95 1 ); Matter of W-, 2 I&N Dec. 795 (C.O.,
BIA 1 947)). This decision, however, was based on a Pennsylvania statute which was arguably
divisible; the statute lists multiple discrete offenses as enumerated alternative elements, including
permanent and temporary takings. See In Re Jurado-Delgado at 34. The Board had no
opportunity to consider an indivisible theft statute in Jurado-Delgado, where the nature of
deprivation is not an element of the offense.

Based on these facts, the Court cannot find that the OHS has met its burden of proving by
clear and convincing evidence that the respondent committed two CIMTs, not arising from a
single scheme of criminal misconduct .
Accordingly, after careful consideration, the Collow'ing order i s hereby entered :

IT IS H EREBY ORDERED that the instant removal proceedings against the respondent
be TERMINATED without prejudice.

kw:/:/: , 20 1 5

Date: f(l.1u

United States Immigration Judge

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