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U.S.

Department of Justice
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I

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5/07 Leesburg Pike, Suite 2000


Falls Church, Virg1ma 22041

Immigrant & Refugee Appellate Center, LLC | www.irac.net


Pabon Figueroa, Evelyn J OHS/ICE Office of Chief Counsel - KRO
CPLS,PA 18201 SW 12th Street,
201 East Pine Street Miami, FL 33194
Suite 445
Orlando, FL 32801

Name: DE CAUL,WAYNE ANGUS A 026-518-861

Date of this notice: 10/6/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Greer, Anne J.
Mullane, Hugh G.
Grant, Edward R.

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Userteam: Docket

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Cite as: W-A-D-C-, AXXX XXX 861 (BIA Oct. 6, 2017)


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I lJ.S. Department of Justice Decision of the Board of Immigration Appeals


Executive Office for Immigration Review

falls C bpl'ch, Virginia 22041

File: A026 518 861 - Miami, FL Date: OCT -


6 21117
In re: Wayne Angus DE CAUL

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IN BOND PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Evelyn J. Pabon Figueroa, Esquire

ON BEHALF OF OHS: Michael A. Mansfield


Assistant Chief Counsel

APPLICATION: Change in custody status

The respondent appeals from a custody order dated April 20, 2017, denying his request for a
change in custody status. The Department of Homeland Security opposes the appeal. The appeal
will be sustained and the record will be remanded.

We review findings of fact determined by an Immigration Judge, including credibility findings,


under a "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i) (2017). We review questions of
law, discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges
de novo. 8 C.F.R. 1003.l(d)(3)(ii).

The sole issue raised on appeal is whether the respondent's conviction under section 16-8-7 of
the Georgia Code, theft by receiving stolen property, is a crime involving moral turpitude (CIMT).

GA. CODE ANN. 16-8-7 is defined, in relevant part, as:

A person commits the offense of theft by receiving stolen property when he receives,
disposes of, or retains stolen property which he knows or should know was stolen unless
the property is received, disposed of, or retained with intent to restore it to the owner.
"Receiving" means acquiring possession or control or lending on the security of the
property.

On appeal, the respondent generally argues that because a person may violate the statute
without actual knowledge that the property is stolen, it does not meet the necessary mens rea to
qualify as a CIMT (Respondent's Br. at 9-12). We agree.

The Board recently determined that an essential element of an aggravated felony receipt of
stolen property offense, pursuant to section 101(a)(43)(G) of the Immigration and Nationality Act,
8 U.S.C. 1101(a)(43)(G), is that an offender must receive property with the "knowledge or
belief' that it has been stolen. Matter of Deang, 27 I&N Dec. 57 (BIA 2017). We explained that
"[w]e cannot infer that a violator who received property with a "reason to believe" that the property
was stolen (or a similar mens rea) intended to deprive the true owner of the rights and benefits of

ownership." Matter ofDeang, 27 l&N Dec. at 59. Because "a necessary element of both generic
theft and receipt of stolen property offenses is an intent to deprive the owner of the rights or
Cite as: W-A-D-C-, AXXX XXX 861 (BIA Oct. 6, 2017)
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A026 518 861

benefits of the property taken or received, a receipt of stolen property offense committed with a
mens rea of "reason to believe" (or a similar mental state) cannot fall within the generic definition
of an aggravated felony receipt of stolen property offense." Id.

The Supreme Court of Georgia has examined the elements of theft by receiving stolen property
and explained that "[p]roof that appellant knew or should have known the [property] was stolen is

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an essential element of the crime, and knowledge sufficient to establish guilt may be inferred from
possession of recently-stolen property coupled with circumstances which would excite suspicion
in the mind of an ordinary prudent person." Thornton v. State, 741 S.E.2d 641, 643 (Ga 2013).
The court has further explained that at issue is whether the offender "knew or should have known
the [property] was stolen when he received and used it. Knowledge that property is stolen may be
inferred from circumstances . . . ." Stacey v. State, 741 S.E.2d 881, 884 (Ga. 2013); see also
Doughtie v.. State, 773 S.E.2d 263, 265 (Ga 2015). The Georgia Court of Appeals has previously
explained that "[k]nowledge that the goods are stolen is an essential element of the crime. This
guilty knowledge may be inferred from circumstances . . . . Unexplained possession of recently
stolen goods can be used in conjunction with other evidence to infer guilty knowledge."
Pruiett v. State, 283 S.E.2d 625, 626 (Ga Ct. App. 1981).
Upon review of the above case law, we are unable to conclude that the offense of theft by
receiving stolen property in Georgia requires knowledge that the property was stolen. Although
the Georgia Court of Appeals has stated that knowledge that the goods are stolen is an essential
element of the crime, this knowledge has been explained as "guilty knowledge" that "would excite
suspicion" in an "ordinary prudent" person. Id Further, our case law has found that receipt of
stolen property is a CIMT where knowledge that the property is stolen is an element of the offense.
As noted above, we have recently held that we cannot conclude that an individual "who received
property with a "reason to believe" that the property was stolen (or a similar mens rea) intended to
deprive the true owner of the rights and benefits of ownership." Matter ofDeang, 21 l&N Dec. at
59. Moreover, the parties have not presented us with authority that the offense is divisible as to
the issue of knowledge and the abovementioned case law does not support such a contention.

In light of the foregoing, the record does not establish that the respondent has been convicted
of a CIMT due to his conviction for theft by receiving stolen property. Accordingly, the following
orders will be entered.

ORDER: The appeal is sustained.

FURTHER ORDER: The record is re ed for the Immigration Judge to conduct further
proceedings and for the entry of a new decision istent with this order.

Board Member Hugh G. Mullane diss

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Cite as: W-A-D-C-, AXXX XXX 861 (BIA Oct. 6, 2017)
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UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
MIAMI, FLORIDA
KROME SERVICE PROCESSING CENTER

Immigrant & Refugee Appellate Center, LLC | www.irac.net


File No.: A026-518-861 Date: ---- /--"7_"_.
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In the Matter of
)
De Caul, Wayne Angus ) IN CUSTODY PROCEEDINGS
)
Respondent )

ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE DEPARTMENT:

Pro Se Michael Mansfield, Esq.


Assistant Chief Counsel, ICE
Miami, Florida 33194

BOND MEMORANDUM

The Respondent is a native and citizen of Grenada. A Notice to Appear ("NTA") dated
March 9, 2017, was personally served on the Respondent and filed with the Immigration Court
on March 10, 2017, thereby placing the Respondent in Removal Proceedings. The NTA alleges
that on October 17, 1985, the Respondent was accorded the status of Lawful Permanent Resident
(LPR). It further alleges that on or about November 20, 2009, Respondent was convicted in the
Superior Cowt of Spalding County, Georgia, for the offense of theft by receiving stolen property
(firearm), in violation of the Official Code of Georgia Annotated (O.C.G.A.) section 16-8-7, case
number 09R-414. For this offense the Respondent was sentenced to five (5) years of probation,
and ordered pay restitution, fines and fees. The NTA further alleges that on or about March 1,
2011, Respondent arrived at the Miami International Airport, Miami, Florida, and applied for
admission as a returning LPR. Lastly, it alleges that on or about March 29, 2011, Respondent
violated the terms and or conditions of his probation imposed in case number 09R-414, and his
probation was revoked and he was sentenced to twelve (12) months in the Spalding County Jail.

The Department of Homeland Security ("Department" or "OHS") has charged the


Respondent with being removable from the United States pursuant to section 212(a)(2)(A)(i)(I)
of the Act; to wit: as an alien who has been convicted of, or who admits having committed, or
who admits committing acts which constitute the essential elements of a crime involving moral
turpitude (CIMT) (other than a purely political offense) or an attempt or conspiracy to commit
such a crime.

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The Respondent requested a bond hearing. The Court conducted the bond hearing on
April 20, 2017. Following consideration of the evidence and the representations of Respondent
and OHS, the Court found it lacked jurisdiction to address bond because the Respondent is
considered to be an "arriving alien" as defined in 8 C.F.R. 1001.l(q) [an applicant for
admission coming or attempting to come into the United States at a port-of-entry]; See generally

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Matter o/Oseiwusu, 22 I&N Dec. 19, 20 (BIA 1998).

Because the Respondent is a LPR, the Department has the burden of proving that he falls
under the definition of"arriving alien" under section 101(a)(13) of the Act. Under section
10l(a)(l3)(C)(v) of the Act, "[a]n alien lawfully admitted for permanent residence in the United
States shall not be regarded as seeking an admission into the United States for purposes of the
immigration laws unless the alien has committed an offense identified in section 212(a)(2),
unless since such offense the alien has been granted relief under section 212(h) or 240A(a)."

The offense that the Respondent was convicted of occurred prior to his departure from
the United States. The offense of "theft by receiving stolen property" under 0.C.G.A. section 16-
8-7 is categorically a CIMT. A person commits this offense "when he receives, disposes of, or
retains stolen property which he knows or should know was stolen unless the property is
received, disposed of, or retained with intent t restore it to the owner." This statute requires either
subjective or objective knowledge that the property was stolen. Knowledge in a theft by
receiving case may be inferred from circumstances in the case. See State v. Bradbury, 306 S.E.2d
346 (Ga. Ct. App. 1983); United States v. Minieri, 303 F.2d 550, 554 (2d Cir. 1962). The Court
finds that objective knowledge that property has been stolen is sufficient to qualify as a crime
involving moral turpitude.

Because the Respondent falls under section 10l(a)(13(C)(v) of the Act, the Court must
find that he is an arriving alien and therefore this Court does not have the authority to address his .
request for bond.

IT IS HEREBY ORDERED that Respondent's request for a change in custody status be


denied and the Respondent detained without bond.

A
Immigration Judge