U .S.

Department
.

o:( -Tt1stice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 20530

Antonini, Carolina, Esq. The Antonini Law Firm P.O. Box 89097 Atlanta, GA 30312

OHS/ICE Office of Chief Counsel -ATL 180 Spring Street, Suite 332 Atlanta, GA 30303

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Name: REYES, ARMANDO PARRA

A 091-156-708

Date of this notice: 11/27/2013

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

OoYVUL CtVvV
Donna Carr Chief Clerk

Enclosure
Panel Members: Pauley, Roger Wendtland, Linda S. Cole, Patricia A.

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Armando Parra Reyes, A091 156 708 (BIA Nov. 27, 2013)

U.S. Department of Justice Executive Office for Iuunigration Review

Falls Churcli, Virginia 20530

Decision of the Board ofluunigration Appeals

File:

A091 156 708 -Atlanta, GA

Date:

NOV 2 7 2013

In re: ARMANDO PARRA REYES IN REMOVAL PROCEEDINGS CERTIFICATION ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Carolina Antonini, Esquire

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Randall W. Duncan Assistant Chief Counsel

CHARGE: Notice: Sec. 212(a)(2)(A)(i)(I), I&N Act [8 U.S.C. l 182(a)(2)(A)(i)(I)] Crime involving moral turpitude

APPLICATION: Termination of proceedings; cancellation of removal under section 240A(a)

By a decision dated October 31, 2012, an Immigration Judge found the respondent to be 1 removable from the United States and certified the case back to this Board. Accordingly, we have jurisdiction pursuant to 8 C.F.R. 1003.l (c). The parties were notified of the certification and have been given an opportunity to submit additional briefs.

See 8 C.F.R. 1003.7. The

respondent's appeal will be sustained and the proceedings terminated. On appeal, the respondent principally contests his removability, arguing that he is not inadmissible as an alien who has been convicted of a crime involving moral turpitude ("CIMT").

See Respondent's Brief. Inasmuch as the respondent's removability is premised on onlr one charge, this Board must terminate these proceedings if that charge cannot be sustained. See
1

This case was last before this Board on June 18, 2012, when we remanded the matter to the

Immigration Court for further consideration of the respondent's removability. The Immigration Judge's earlier decision, dated February 29, 2012, found the respondent to be removable and denied his application for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. 1229b(a). To avoid confusion in our decision, all citations to "I.J." shall refer to the Immigration Judge's opinion dated October 31, 2012. Immigration Judge's initial decision are shown as "LJ. Dec. (Feb. 29, 2012)."
2

References to the

Given his status as a lawful permanent resident ("LPR") of the United States, the respondent

cannot be regarded as an applicant for admission to this country unless the DHS establishes, by clear and convincing evidence, the applicability of one of the six exceptions to the general rule for LPRs, set forth at section 10l (a)(l 3)(C) of the Act, 8 U.S.C. 1101(a)(13)(C).

See Matter of

Rivens, 25 I&N Dec. 623, 624-27 (BIA 2011).

Cite as: Armando Parra Reyes, A091 156 708 (BIA Nov. 27, 2013)

A091 156 708

Exh. 1; Exh. 7.

Therefore, we begin by considering whether there is sufficient evidence to

establish that the respondent has been convicted of a CIMT. When deciding whether an alien has been convicted of a CIMT, the United States Court of Appeals for the Eleventh Circuit ("Eleventh Circuit") applies a categorical analysis of the 3 elements of the applicable criminal statute. See Cano v. US. Att'y Gen., 709 F.3d 1052, 1053 (11th Cir. 2013); facts.

see also Fajardo v. US. Att'y Gen., 659 F.3d 1303, 1310 (11th Cir. 2011).

This approach directs us to look to the statutory language of the crime rather than the underlying sustain a conviction meets the standard of a CIMT. 4

See id.

In doing so, we must analyze whether the least culpable conduct necessary to

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See id. at n.3.

If the statute is divisible, then we may engage in a modified categorical inquiry that allows us to examine certain conviction-related docun1ents. See Fajardo v. US. Att'y Gen., supra, at 1305; Keungne v. US. Att'y Gen., 561F.3d 1281, 1284 (11th Cir. 2009); see also M oncrieffe v. H older, 133 S. Ct. 1678, 1684-85 (2013); G onzales v. Duenas-Alvarez, 127 S. Ct. 815, 822 (2007) (noting there must be a "realistic probability, not a theoretical possibility" that the applicable state would apply its statute to conduct that falls outside the generic definition); see generally Descamps v. United States, 133 S. Ct. 2276 (2013) (concluding a court cannot apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements). However, counts that charge separate offenses, even if they are simultaneously charged, may not be combined and considered collectively to determine whether one or the other constitutes a CIMT. See Fajardo v. US. Att'y Gen., supra, at 1305-06. Moreover, neither the Immigration Judge, nor this Board may examine any evidence outside the conviction record to resolve the inquiry.

See id.

In this case, the respondent's removability is premised on three separate convictions, each of which the In1migration Judge fonnd to be a CIMT (I.J. at 4-9). See also Exh. l; Exh. 7. We shall address each conviction in turn. We will first consider the re ondent's conviction for solicitation of sodomy in violation of Georgia Code section 16-6-15(a).

See Exh. 3C.

The Immigration Judge found this misdemeanor conviction to be a categorical CIMT because it took place in 1999, after the Georgia Supreme Court struck dovm the state's sodomy statute insofar as it applied to private, non-commercial acts between consenting adults (I.J. at 6-7). See P owell v. State, 510 S.E.2d 18 (Ga. 1998). More particularly, the Immigration Judge concluded

3 4

This case arises in the Eleventh Circuit's jurisdiction. The Eleventh Circuit has held that a CIMT involves "[a]n act of baseness, vileness, or depravity

in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man."

Itani

v. Ashcroft, 298 F.3d 1213, 1215 (11th Cir. 2002); see also Cano v. US. Att'y Gen., supra.
5 Georgia Code section l 6-6-l 5(a) reads as follows: "A person commits the offense ofs olicitation orm or submit to an act of sodomy. Except as of sodomy when he s olicits another to perf

provided in subsection (b) of this Code section, a person convicted of solicitation of sodomy shall be punished as for a misdemeanor." GA. CODE ANN. 16-6-JS(a) (emphasis added).
2

Cite as: Armando Parra Reyes, A091 156 708 (BIA Nov. 27, 2013)

A091 156 708

that given the timing of the respondent's conviction, there was no "realistic probability" that Georgia Code section 16-6-15(a) could have been applied to conduct that would not qualify as a CIMT. While we understand why the Immigration Judge reached this conclusion, we disagree with him for the following reasons. Although

P owell did decriminalize private, non-commercial acts of sodomy between

consenting adults, the opinion did not strike down Georgia's solicitation of sodomy statute. The court stated as much in 2000, when it decided Howard v. State, 527 S.E.2d 194, 195-96 (Ga. 2000). Moreover, even the Howard decision did not explicitly overturn Christensen v. State, 468 S.E.2d 188 (Ga. 1996), a case in which the Georgia Supreme Court upheld a conviction for violating Georgia Code section 16-6-IS(a) despite the fact that the defendant's request did not include the offer of money or any other item of value, and the defendant did not ask that the conduct take place in public or even in a location that would have been exposed to public view.

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See H oward v. State, supra, at 196 (finding that the conviction could be affirmed "under the facts
of this case" and declining to address, more broadly, whether the application of Georgia's

s olicitation of sodomy statute would violate an individual's right to privacy and/or free speech).
Thus, we conclude that there was still a "realistic probability" in 1999 that the respondent's conviction could have been premised on conduct that would not qualify as a CIMT.
-

modified categorical approach.6 As such, the respondent cannot be found inadmissible because of his violation of Georgia Code section 16-6-lS(a).

Moreover, inasmuch as the statute is overbroad, there is no cause for us to tum to the Hence, we now consider whether the

respondent's conviction for violating Georgia Code section 16-8-2 qualifies as a CIMT given that the offense does not require the intent to permanently deprive the owner of the use or benefit 7 of the applicable property. See Exh. 2; see also Bd. Dec. (June 18, 2012). While the Immigration Judge agreed that a permanent taking was not an element of Georgia Code section 16-8-2, he nevertheless found the offense to be divisible (LJ. at 5). He then concluded that the respondent was convicted under the "prong" requiring the intent to

permanently deprive the owner of the use or benefit of the applicable property (LJ. at 5). Inasmuch as a permanent taking is not an element of the crime, we conclude that Georgia Code section 16-8-2 also constitutes an overbroad statute. See, e.g., Thornton v. State, 689 S.E.2d 361, 367-68 (Ga. Ct. App. 2009) ("Regardless of whether an individual intends to take another's
6

Even

if it were permissible for us to apply the modified categorical approach, there is nothing

in the record to indicate that the respondent's conviction is for a CIMT. For instance, while the record contains the respondent's charging document, the accusation states only that "did solicit [an individual] to perform an act of sodomy" (Exh. 2). 7 Georgia Code section 16-8-2 reads as follows: "A person commits the offense of theft by taking

when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with

the intention ofdepriving him ofthe property, regardless of the manner

(Emphasis added). The term "deprive" then

in which the property is taken or appropriated."

means, "without justification: (A) [t]o withhold property of another permanently GA. CODE ANN. 16-8-1(1) (emphasis added).

or temporarily;

or (B) [t]o dispose of the property so as to make it unlikely that the owner will recover it."

Cite as: Armando Parra Reyes, A091 156 708 (BIA Nov. 27, 2013)

A091 156 708

property and withhold it permanently, his intent to take it for his own temporary use without the owner's authorization evinces an intent to commit a theft."). And, once again, there is no basis for us to apply the modified categorical approach. Therefore, the respondent cannot be found inadmissible as a result of his theft conviction either. With regard to the respondent's misdemeanor conviction for public indecency in violation of Georgia Code section 16-6-8(a)(3), here too we conclude that the statute is overbroad. because there is a realistic probability that it could be applied to conduct that does not involve moral turpitude (I.J. at 2-3). 8 See Exh. 8. For instance, in Clark v. State, 313 S.E.2d 748, 750 (Ga. Ct. App. 1984), a defendant was convicted of violating Georgia Code section 16-6-8(a)(3) after a police officer testified that he saw the defendant urinating on the ground in a public shopping center parking lot. Significantly, the court concluded that there was sufficient evidence of partial nudity to support a conviction despite the officer's concession that he never actually

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saw the defendant's sexual organs.9

See id.

Additionally, although a defendant must "intentionally" expose his sexual organs to be convicted of violating Georgia Code section 16-6-8(a)(3), the statute does not necessitate that the defendant possess a lewd or lascivious intent while acting. (Ga. Ct. App. 1970);
v.

Byous

see also Watkins v. State, 514 S.E.2d 244, 245 (Ga. Ct. App. 1999) (citing State, supra, for the proposition that "[t]he exposure must be intentional of course and not merely inadvertent or accidental."); see generally Matter of C ortes Medina, 26 I&N Dec. 79,

See Byous

v.

State, 175 S.E.2d 106

82-83 (BIA 2013) (holding that a conviction for indecent exposure cannot qualify as a CIMT unless the applicable statute requires a lewd or lascivious intent). As such, Georgia Code section 16-6-8(a)(3) is far more analogous to the crimes discussed in Matter ofP-, 2 I&N Dec. 117, 121

Matter of Mueller, 11 I&N Dec. 268 (BIA 1965), than it is to the offense addressed in Matter of C ortes Medina, supra. See generally Minor v. State, 501 S.E.2d 576, 577
(BIA 1944), and (Ga. Ct. App. 1998) (noting that Georgia Code section 16-6-8(a)(3) does not require that anyone be embarrassed, offended or otherwise outraged by the defendant's conduct"). In view of the foregoing, we conclude that the Immigration Judge also erred in finding Georgia Code section 10 16-6-8(a)(3) to be a categorical CIMT (I.J. at 8).

According to Georgia Code section 16-6-8(a)(3): "A person commits the offense of public

indecency when he or she performs any of the following acts in a public place . . . [a] lewd

appearance in a state of partial or c omplete nudity." GA. CODE ANN. 16-6-8(a)(3) (emphasis
added).
9

To the extent Georgia Code section 16-6-8(a)(3) appears to be divisible, we conclude that the

record does not adequately establish that the respondent's conviction involved turpitudinous conduct because it merely tracked the language of the statute. respondent "did unlawfully appear in a public place in a lewd
10

See Exh. 8 (charging that the state ofpartial or complete nudity,

to wit; the parking lot of the Cobb County Public Library. . .") (emphasis added). Notably, even if Georgia Code section 16-6-8(a)(3) was not generally distinguishable from

the offense discussed offense exception."

Matter of C ortes Medina, supra, termination would still be appropriate in See generally section 212(a)(2)(A)(ii) of the Act (providing that (cont'd ... )
4

this particular matter because the respondent's conviction otherwise qualifies for the "petty

Cite as: Armando Parra Reyes, A091 156 708 (BIA Nov. 27, 2013)

A091 156 708

II

Accordingly, the following orders will be entered.

ORDER: The respondent's appeal is sustained and removal proceedings are terminated. FURTHER ORDER: The Immigration Judge's decisions dated October 31, 2012, and February 29, 2012, are hereby vacated.

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section 212(a)(2)(A)(i)(I) of the Act will not apply to an alien convicted of a single CIMT if the maximum possible penalty for the crime does not exceed one year's imprisonment and the alien was not actually sentenced to more than 6 months' imprisonment). In reaching this conclusion, we take administrative notice of the fact that the respondent was sentenced to only 4 months' imprisonment for his violation of Georgia Code section 16-6-8(a)(3).

See Exh. 8; see generally

8 C. F.R. 1003.l (d)(3)(iv) (permitting this Board to take administrative notice of commonly known facts, such the contents of official records). We further note that the maximum penalty possible for a misdemeanor violation of Georgia Code section 16-6-8(a)(3) is incarceration for one year.
II

16-6-8(b), 17-10-3. See GA. CODE ANN.

Given our disposition of the matter, we need not address the respondent's application for

cancellation of removal under section 240A(a) of the Act.

See I.J. Dec. (Feb. 29, 2012).

Cite as: Armando Parra Reyes, A091 156 708 (BIA Nov. 27, 2013)