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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 leesburg Pike, Suite 2000


Falls Church, Virginia 2204/

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DeWandler, Evan OHS/ICE Office of Chief Counsel - ATL
DeWandler Law 180 Ted Turner Dr., SW, Ste 332
100 N Lake Dr. #31 Atlanta, GA 30303
Orchard Park, NY 14127

Name: VINCENT, STEFAN ABHISHEK A 208-357-277

Date of this notice: 4/14/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure
Panel Members:
Pauley, Roger
Mullane, Hugh G.
Malphrus, Garry D.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index

Cite as: Stefan Abhishek Vincent, A208 357 277 (BIA April 14, 2017)
U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office of the Clerk

5/07 Leesburg Pike. Suite 2000


Falls Church, Virginia 22041

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VINCENT, STEFAN ABHISHEK DHS/ICE Office of Chief Counsel - ATL
A208-357-277 180 Ted Turner Dr., SW, Ste 332
C/O IRWIN CTY DETENTION CTR Atlanta, GA 30303
132 COTTON DRIVE
OCILLA, GA 31774

Name: VINCENT, STEFAN ABHISHEK A 208-357-277

Date of this notice: 4/14/2017

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.

Sincerely,

l!rft
U
J"- vur-L
1L o

Cynthia L. Crosby
Acting Chief Clerk

Enclosure
Panel Members:
Pauley, Roger
Mullane, Hugh G.
Malphrus, Garry D.

Userteam:

Cite as: Stefan Abhishek Vincent, A208 357 277 (BIA April 14, 2017)
t I

U.S. Department of Justice Decision of the Board of Immigration Appeals


Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A208 357 277 - Atlanta, GA Date:


APR 1 4 2017
In re: STEFAN ABHISHEK VINCENT

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Evan De Wandler, Esquire

CHARGE:

Notice: Sec. 237(a)(2)(A)(i), I&N Act [8 U.S.C. 1227(a)(2)(A)(i)] -


Convicted of crime involving moral turpitude

Lodged: Sec. 237(a)(l)(B), l&N Act [8 U.S.C. 1227(a)(l)(B)] -


In the United States in violation of law

Sec. 237(a)(2)(A)(iii), l&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -


Convicted of aggravated felony [not sustained]

APPLICATION: Removal; voluntary departure

On October 31, 2016, an Immigration Judge found the respondent to be removable under
sections 237(a)(l)(B) and 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C.
1227(a)(l)(B), (a)(2)(A)(i). In a separate decision issued the same day, the Immigration
Judge denied the respondent's request for pre-conclusion voluntary departure under section
240B(a) of the Act, 8 U.S.C. 1229c(a), as a matter of discretion. 1 The respondent, a native and
citizen of India, now appeals. The appeal will be sustained, and the record will be remanded.

We review an Immigration Judge's findings of fact, including findings regarding witness


credibility and what is likely to happen to the respondent, under a "clearly erroneous" standard.
8 C.F.R. 1003.l(d)(3)(i); see also Zhu v. United States Att'y Gen., 703 F.3d 1303 (11th Cir.
2013); Matter of Z-Z-O-, 26 l&N Dec. 586 (BIA 2015). We review all other issues, including
issues of law, judgment or discretion, under a de novo standard. 8 C.F.R. 1003 .1(d)(3)(ii).

The criminal judgement document in the record reflects that on March 29, 2014, the
respondent was convicted of burglary of a structure pursuant to FLA. STAT. 810.02(1) and (4)
(Exh. 2). Those statutory provisions in relevant part are as follows:

1
For clarity purposes, we will refer to the Immigration Judge's removability decision as "1.J.l"
and his voluntary departure decision as "I.J.2."

Cite as: Stefan Abhishek Vincent, A208 357 277 (BIA April 14, 2017)
A208 357 277

(l)(b) For offenses committed after July 1, 2001, "burglary" means:


1. Entering a dwelling, a structure, or a conveyance with the intent to commit
an offense therein, unless the premises are at the time open to the public or the
defendant is licensed or invited to enter; or
2. Notwithstanding a licensed or invited entry, remaining in a dwelling,

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structure, or conveyance:
a. Surreptitiously, with the intent to commit an offense therein;
b. After permission to remain therein has been withdrawn, with the
intent to commit an offense therein; or
c. To commit or attempt to commit a forcible felony . . .
(4) Burglary is a felony of the third degree . . . if, in the course of committing the
offense, the offender does not make an assault or battery and is not and does not
become armed with a dangerous weapon or explosive, and the offender enters or
remains in a
(a) Structure, as there is not another person in the structure at the time the
offender enters or remains . . .

FLA. STAT. 810.02(1), (4). "Structure" means a building of any kind, either temporary or
permanent, which has a roof over it, together with the curtilage thereof. FLA. STAT.
810.011(1).

The respondent challenges the Immigration Judge's conclusion that the burglary offense
constitutes a crime involving moral turpitude (Respondent's Br. at 6-12). The statutory phrase
"crime involving moral turpitude" ("CIMT") is broadly descriptive of a class of offenses
involving reprehensible conduct committed with a culpable mental state. See Matter of Silva
Trevino ("Silva-Trevino Ill'), 26 l&N Dec. 826, 834 (BIA 2016). 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." Id. at 833 (citation
omitted).

To determine whether the respondent's offense constitutes a CIMT, we use the "categorical
approach," which requires a focus on the minimum conduct that has a realistic probability of
being prosecuted under the statute of conviction rather than on the actual conduct that led to the
respondent's particular conviction. Id. at 831-33; see also Walker v. United States Att'y Gen.,
783 F.3d 1226, 1229 (11th Cir. 2015); Fajardo v. United States Att'y Gen., 659 F.3d 1303, 1305
(11th Cir. 2011). If the statute of conviction is not categorically a CIMT, the next step is to
determine whether the statute is divisible such that the modified categorical approach may be
applied. See Matter of Silva-Trevino III, supra, at 833; see also Matter of Chairez, 26 l&N
Dec. 819, 822 (2016).

The Immigration Judge appears to have concluded that the statute is not categorically a
CIMT because he stated that some of the elements of the general burglary provision in
subsection (1)(b) of the statute match the generic definition of burglary and some do not (I.J.1 at
9). He then proceeded to determine whether the statute is divisible. The respondent does not
take issue with this conclusion; in fact he agrees with the Immigration Judge that the statute is

2
Cite as: Stefan Abhishek Vincent, A208 357 277 (BIA April 14, 2017)
A208 357 277

divisible and the trier of fact can consider the record of conviction (I.J.1 at 4; Respondent's Br. at
9).

The respondent's argument is that even if the statute is divisible, none of its provisions
constitutes a CIMT because the generic definition of burglary set forth in Taylor v. United States,
495 U.S. 575, 598 (1990), 2 only includes an unlawful or unprivileged entry in a building or

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structure, but FLA. STAT. 810.02 defines "dwelling" and "structure" to include the curtilage
(Respondent's Br. at 9). He also argues that the generic definition does not include entries into
conveyances, whereas the Florida burglary statute punishes entries into conveyances, such as
cars or boats (Respondent's Br. at 9). Thus, the respondent contends that burglary under Florida
law is not categorically a CIMT.

Our cases addressing burglary as a CIMT, however, have not focused on whether the statute
of conviction categorically fits the "generic" definition of burglary as defined by Taylor
v. United States, supra. 3 Specifically, we have not categorically excluded burglaries from CIMT
treatment based on the nature of the place burglarized or whether the perpetrator unlawfully
entered or remained in an area or its curtilage. See, e. g. , Matter of Gutnick, 13 l&N Dec. 412
(BIA 1969) (holding that an alien convicted of multiple vehicular burglaries in Arizona was
deportable as an alien convicted of two or more CIMTs not arising from a single scheme of
criminal misconduct). Thus, we do not accept the respondent's premise that the CIMT
determination turns on the nature of the structure or area burglarized.

The respondent correctly states, however, that the Board historically has focused on the
crime the offender intended to commit (i.e., the "target offense") after entering or unlawfully
remaining in a building, structure, or conveyance; if the target offense was a CIMT, then so too
was the burglary, regardless of whether the burglar successfully consummated the target offense
(Respondent's Br. at 11-12). See Matter ofM-, 2 I&N Dec. 721, 723 (BIA; A.G. 1946).

The respondent's offense of conviction under section 810.02(1) and (4) criminalizes entering
a structure with the intent to commit an offense therein, but the statutory text does not specify the
underlying offense. Thus, because intent to commit an underlying offense involving moral
turpitude is not required for a conviction under the statute, a burglary of a structure under Florida

2
The Supreme Court in Taylor v. United States, supra, stated that '.'the generic, contemporary
meaning of burglary contains at least the following elements: an unlawful or unprivileged entry
into, or remaining in, a building or other structure, with intent to commit a crime." Id. at 598.
3
Whether a state burglary offense corresponds to "generic" burglary is relevant in cases arising
under the "burglary offense" aggravated felony category set forth at section 10l(a)(43)(G) of the
Act, 8 U.S.C. 1101 (a)(43)(G). See e.g., Matter of Perez, 22 I&N Dec. 1325 (BIA 2000)
(holding that vehicular burglary under Texas law is not a "burglary offense" under section
101(a)(43)(G)). Inasmuch as the Immigration Judge did not sustain the aggravated felony charge
lodged against the respondent, there is no aggravated felony issue presented in this case (I.J.1 at
5; I.J.2 at 2).

3
Cite as: Stefan Abhishek Vincent, A208 357 277 (BIA April 14, 2017)
A208 357 277

law is not categorically a CIMT. See Matter ofM-, supra. But see Matter ofLouissaint, 24 I&N
Dec. 754, 756 (BIA 2009) (distinguishing the burglary of a building conviction in Matter of
M- from a conviction for burglary of an occupied dwelling under FLA. STAT. 810.02(3)(a)).
It is thus necessary to determine whether the statute is divisible into separate offenses with
distinct mens rea.

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The modified categorical approach may be applied only if a statute is found to be divisible,
i.e., when it lists a number of alternative elements that effectively create several different crimes,
some of which involve moral turpitude and some of which do not. See Matter of Silva-Trevino
III, supra, at 833. See also Matter of Chairez, supra, at 819-20 (clarifying that the understanding
of statutory "divisibility" embodied in Descamps v. United States applies in immigration
proceedings nationwide to the same extent that it applies in criminal sentencing proceedings);
Donawa v. United States Att'y Gen, 735 F.3d 1275, 1281 (11th Cir. 2013) (citing Descamps
v. United States, 133 S.Ct. 2276, 2285 (2013)). The Eleventh Circuit noted that the Descamps
decision requires determination of whether a statute is "divisible" or "indivisible" based on
whether it requires proof of alternative elements. If a statute lists multiple alternative elements
and creates several different crimes, then the statute is divisible. United States v. Lockett,
810 F.3d 1262, 1269 (11th Cir. 2016).

We conclude that FLA. STAT. 810.02(1) is not divisible. Rather, the statute is overbroad
because it prohibits entering or remaining in a dwelling, a structure, or a conveyance with intent
to commit an unspecified offense but the statute does not list separate offenses with distinct mens
rea, only some of which involve moral turpitude. Inasmuch as we cannot use the modified
categorical approach in this case, we are unable to consider the record of conviction to determine
whether the target offense the respondent intended to commit upon entering the structure was a
CIMT. See Matter ofM-, supra.

Thus, we will reverse the Immigration Judge's determination that the respondent is
removable under section 237(a)(2)(A)(i) of the Act. We conclude that a remand is warranted to
provide the respondent an opportunity to apply for any relief for which he currently may be
eligible.4

Accordingly, the following orders will be entered.

ORDER: The appeal is sustained.

FURTHER ORDER: The record is remanded for further proceedings consistent with this
opinion and for the entry of a new decision.

&r=FtJ
4
The respondent did not appeal the Immigration Judge's discretionary denial of pre-conclusion
voluntary departure (I.J.2 at 3-4). Hence, the respondent has waived any appeal of that issue.

Cite as: Stefan Abhishek Vincent, A208 357 277 (BIA April 14, 2017)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ATLANTA, GEORGIA

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File: A208-357-277 October 31, 2016

In the Matter of

)
STEFAN ABHISHEK VINCENT ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGES: Violation of Section 237(a)(2)(A)(i) which is sustained, a violation of


Section 237(a)(1)(8) which is sustained, and a violation of Section
237(a)(2){A)(iii) which is not sustained

APPLICATIONS: Pre-conclusion voluntary departure

ON BEHALF OF RESPONDENT: EVAN DEWANDLER

ON BEHALF OF OHS: JOY LAMPLEY

ORAL DECISION OF THE IMMIGRATION JUDGE


The respondent is a single male, native and citizen of India, who was

issued a Notice to Appear on August 3, 2016. The respondent is detained at the Irwin

County Detention Facility and has appeared for all proceedings by video to the court in

Atlanta. The respondent previously appeared with his attorney of record and

acknowledged proper receipt and service of the NTA, which was marked and admitted

as Exhibit 1. The respondent initially admitted allegations 1 and 2, denied allegations 3,

4, and 5, and denied the ground of removability. Later, the Government filed an 1-261
which was marked and admitted as Exhibit 1-A. The Government added allegations 6

and 7 and it added two additional charges. To the new allegations, the respondent

admitted allegation number 6, denied allegation number 7, and denied removability

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under the two new grounds, that being 237(a)(1)(8) and 237(a)(2)(A)(iii).

The Court also received into the record as Exhibit 2 the conviction

documents from the state of Florida.

The Court set a briefing schedule on the contested removability. The

Court also received into evidence Exhibit 3, a copy of an incident report from the state

of Florida concerning the respondent's December 12, 2014 arrest there on burglary

charges.

The respondent's attorney filed a brief, outlining why he believed the

respondent was not removable from the United States as charged. Despite having

been ordered to file a brief, the Government failed to do so.

The Court then found allegations 3, 4, 5, and 7 to be true for the reasons

stated on the record on October 17 of 2016.

As to the grounds of removability, the Court issued a six page written

decision going through each of the three grounds of removability. For the reasons

contained in that decision, which is dated October 31, 2016, the Court found the

respondent removable from the United States under Section 237(a)(2)(A)(i) and

237(a)(1)(8). The Court found that the Government did not meet its burden of

establishing by clear and convincing evidence that the respondent was removable from

the United States as charged under Section 237(a)(2)(A)(iii) for the reasons stated in

that decision. The Court designated India as the country of removal.

As to relief, counsel for the respondent merely requests pre-conclusion

voluntary departure. In support of their request, the respondent's counsel stated that

A208-357-277 2 October 31, 2016


,

the respondent had been released on probation following his arrest and conviction for

burglary in Florida and that he was desirous of going to Maryland and adjudicating the

current charges that he has pending in Maryland. Counsel indicated that his client had

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not missed any court dates and had attended all of his probation appointments for his

charges in Florida, and therefore was deserving of voluntary departure.

The Government of the United States objects to the grant of voluntary

departure, pointing to the respondent's recent conviction for burglary in Florida and also

to the fact that after being released from Florida the respondent then travelled to

Maryland and got into new charges.

Considering the factors outlined by the Board of Immigration Appeals in

Matter of Gamboa, 1 4 l&N Dec. 244 (BIA 1 972), the Board has indicated that in

deciding discretionary grants for voluntary departure, the Court should consider the

underlying circumstances of the grounds of removal, additional violations of Immigration

law, the existence, seriousness, and recency of any criminal record, and other evidence

of bad character or undesirability.

Considering the limited positive factors outlined by the respondent's

counsel, that being that he has not violated his probation and a state court Judge saw it

appropriate to release him on bond, and that he wants to conclude his criminal case in

Maryland, versus the frankly shocking facts of this respondent's criminal behavior, the

Court declines to exercise its discretion to grant voluntary departure.

The evidence in this case for the Florida charges would show that, and the

Court would note that these are disputed versions of facts, the respondent previously

testified in prior proceedings as to his version of the facts, which is somewhat different

than the Government's and the police version. However, the respondent pied to this

offense in Florida. In summary, the Court believes that the most objective version of the

A208-357-277 3 October 31 , 201 6


facts is that the respondent attended a party at a woman's apartment at a college in

Florida. It would appear that he surreptitiously obtained a secondary or spare key that

was hidden in this woman's apartment, came back about two days later and used that

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key to gain entry into her apartment during the nighttime. He then let himself into the

apartment and was hiding underneath this college student's bed. She awoke in the

middle of the night to use the restroom and was observant and noticed the respondent's

foot sticking out from underneath her bed, and calmly called the police where they found

the respondent hiding in this woman's apartment underneath the bed.

After being released from Florida and resolving his criminal case there, he

then travelled to Maryland, where he went into a retail store and used a video phone to

surreptitiously take photographs of women in a changing room in a retail store without

the knowledge or consent of the victims.

The Board has previously told us in Matter of Thomas that the Court may

consider in exercising discretionary analysis criminal charges which are pending and

have not yet resulted in a disposition. So the Court acknowledges that the respondent

has not been convicted of the charges in Maryland ; those are pending. However,

according to Matter of Thomas I can consider them.

This is frankly shocking and scary conduct by this respondent which

caused the Court to previously deny him bond, and is absolutely inconsistent with the

exercise of favorable discretion to reward this respondent by granting him the privilege

of voluntarily departing the United States. And therefore the Court will decline to do so.

The respondent, havtnfJ identified no other relief.

ORDER

IT IS HEREBY ORDERED that the respondent be removed from the

United States to the nation of India on the charges set forth on the Notice to Appear.

A208-357-277 4 October 31 , 2016


The respondent will be advised of his appeal rights separately on the

record.

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Please see the next page for electronic
signature
MICHAEL P. BAIRD
Immigration Judge

A208-357-277 5 October 31 , 201 6


'
r .

/Is//
Immigrat ion Judge MICHAEL P . BAI RD
bairdm on January 3 , 2 0 17 at 7 : 4 3 PM GMT

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A208-357-277 6 October 31 , 201 6