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MATTER OF J-S-

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAR. 31 , 2016

APPLICATION: FORM I-821, APPLICATION FOR TEMPORARY PROTECTED STATUS

The Applicant, a native and citizen of Honduras, seeks review of the decision withdrawing the Applicant's temporary protected status (TPS). See Immigration and Nationality Act (the Act) § 244, 8 U.S.C. § 1254a. Temporary protected status provides lawful status and protection from removal for foreign nationals, of specifically designated countries, who register during designated periods, satisfy country-specific continuous residence and physical presence requirements, are admissible to the United States, are not firmly resettled in another country, and are not subject to certain criminal- and security­related bars.

The Director, Vermont Service Center, withdrew the Applicant's TPS. The Director concluded that the Applicant had been convicted of a felony in the United States.

The matter is now before us on appeal. On appeal, the Applicant provides a statement explaining the circumstances that led to his arrest. The Applicant asserts that he never pled guilty to and does not have a felony conviction for grand theft in the third degree, and that the pre-trial intervention agreement contains erroneous statements as he never admitted to or paid restitution for the crime. The Applicant states that he is illiterate and therefore he could not and did not knowingly and intelligently waive his legal rights. The Applicant claims that he received ineffective assistance of counsel, and had he been aware of the immigration consequences he would not have entered into the pre-trial intervention agreement.

Upon de novo review, we will dismiss the appeal.

The Director may withdraw the status of an applicant granted TPS under section 244 of the Act at any time if it is determined that the applicant was not in fact eligible at the time such status was granted, or at any time thereafter becomes ineligible for such status. 8 C.F.R. § 244.14(a)(1).

I. CONVICTION FOR A MISDEMEANOR UNDER SECTION 244 OF THE ACT

We first find that the Applicant's for TPS purposes.

2002, arrest resulted in a conviction of a misdemeanor

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An alien shall not be eligible for TPS under this section if the Secretary of the Department of Homeland Security finds that the alien has been convicted of any felony or two or more misdemeanors committed in the United States. Section 244(c)(2)(B)(i) of the Act, 8 U.S.C. § 1254a(c)(2)(B) and 8 C.F.R. § 244.4(a).

"Felony" means a crime committed in the United States punishable by imprisonment for a term of more than one year, regardless of the term actually served, if any. There is an exception when the offense is defined by the state as a misdemeanor and the sentence actually imposed is one year or less, regardless of the term actually served. Under this exception, for purposes of 8 C.F .R. § 244 of the Act, the crime shall be treated as a misdemeanor. 8 C.F.R. § 244.1.

"Misdemeanor" means a crime committed in the United States, either (1) punishable by imprisonment for a term of one year or less, regardless of the term such alien actually served, if any, or (2) a crime treated as a misdemeanor under the term "felony" of this section. For purposes of this definition, any crime punishable by imprisonment for a maximum term of five days or less shall not be considered a misdemeanor. 8 C.F.R. § 244.1.

The record reflects that on 2002, the Applicant was arrested in Florida for retail theft, valued at less than $100. On theft, a violation of Florida Statute§ 812.014. the Applicant to pay court and other costs.

2003, the Applicant pled nolo contendere to petit Adjudication of guilt was withheld and a judge ordered

Pursuant to Florida Statute § 812.014(3)(a), theft of any property not specified in subsection (2) is petit theft of the second degree and a misdemeanor of the second degree, punishable as provided in § 775.082 or§ 775.083, and as provided in subsection (5), as applicable.

Florida law provides that the maximum penalty for a conviction of a misdemeanor of the second degree is imprisonment for a period of not more than 60 days in jail or a fine of not more than $500, or by both such fine and imprisonment. See Florida Statutes§§ 775.082(4) and 775.083(1).

The regulation at 8 C.F.R. § 244.1 defines a misdemeanor as a crime "punishable by imprisonment for ... one year or less, regardless of the term ... actually served." As such, a misdemeanor is defined under the regulation by the maximum imprisonment possible for the crime under Florida law. The Applicant has been convicted of an offense punishable by up to 60 days incarceration, which meets the definition of a misdemeanor for immigration purposes in 8 C.F.R. § 244.1. Therefore, we find the Applicant to have been convicted of a misdemeanor for TPS purposes due to his conviction under Florida Statute§ 812.014(3)(a) on 2003.

II. CRIME INVOLVING MORAL TURPITUDE ANALYSIS OF FLORIDA PETIT THEFT CONVICTION

Section 212(a)(2) of the Act states, in pertinent part:

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Criminal and related grounds. -

(A) Conviction of certain crimes.-

(i) In general. - Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or

(ii) Exception. - Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien was released from any confinement to a prison or correctional institution imposed for the crime) more than five years before the date of the application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of six months (regardless of the extent to which the sentence was ultimately executed).

The Board of Immigration Appeals (the Board) held in Matter of Perez-Contreras, 20 I&N Dec 615,617-18 (BIA 1992), that:

[M]oral turpitude is a nebulous concept, which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one's fellow man or society in general.. ..

In determining whether a crime involves moral turpitude, we consider whether the act is accompanied by a vicious motive or corrupt mind. Where knowing or intentional conduct is an element of an offense, we have found moral turpitude to be present.

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However, where the required mens rea may not be determined from the statute, moral turpitude does not inhere.

(Citations omitted.)

At the time ofthe Applicant's conviction, Florida Statute§ 812.014 provided, pertinent part:

(1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:

(a) Deprive the other person of a right to the property or a benefit from the property.

(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

For cases arising in the Eleventh Circuit, the determination of whether a conviction is a crime involving moral turpitude begins with a categorical inquiry that "depends upon the inherent nature of the offense, as defined in the relevant statute, rather than the circumstances surrounding a defendant's particular conduct." Itani v. Ashcroft, 298 F.3d 1213, 1215-16 (11th Cir. 2002); see also Vuksanovic v. US Att'y Gen., 439 F.3d 1308, 1311 (11th Cir. 2006) (citing Taylor v. United States, 495 U.S. 575, 600 (1990)); Sosa-Martinez v. US Att'y Gen., 420 F.3d 1338, 1342 (11th Cir. 2004).

However, where the statute under which an alien was convicted is '"divisible'-that is, it contains some offenses that are [crimes involving moral turpitude] and others that are not[,] ... the fact of conviction and the statutory language alone are insufficient to establish ... under which subpart [the alien] was convicted." Jaggernauth v. US Att'y Gen., 432 F.3d 1346, 1354-55 (11th Cir. 2005). A statute is divisible only if it lists "potential offense elements in the alternative, render[ing] opaque which element played a part in the defendant's conviction." Descamps v. United States, 133 S. Ct. 2276, 2283 (2013), see also Donawa v. US Att'y Gen., 735 F. 3d 1275, 1281 (11th Cir. 2013). "Barring guidance from the state courts interpreting a statute, [we] apply traditional tools of statutory interpretation to decide whether a statute sweeping broader than a generic offense is divisible and thus amenable to analysis under the modified categorical approach." United States v. Estrella, 758 F.3d 1239, 1245-46 (lith Cir. 2014). Although divisibility may often be ascertained from the language of the statute itself, a statute is only divisible where the jury would have to agree unanimously to convict on the basis of one alternative as opposed to the other. !d. at 1245-46 (citing Descamps, supra, at 2289-90).

If the statute is divisible, "the record of conviction - i.e., the charging document, plea, verdict, and sentence - may also be considered" under a modified categorical inquiry. Fajardo v. US Att 'y Gen., 659 F.3d 1303, 1305 (11th Cir. 2011) (citing Jaggernauth, supra, at 1354-55). The modified categorical approach is intended only as tool to apply the categorical inquiry to the relevant element

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from a statute with multiple alternatives, not to evaluate the facts that the judge or jury found. See Estrella, supra, at 1246 (citing Descamps, supra, at 2287).

The Board has determined that to constitute a crime involving moral turpitude, a theft offense must require the intent to permanently take another person's property. See 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."). As the minimum conduct needed for a conviction under Fla. Stat. § 812.014 does not involve moral turpitude, we cannot find that a violation of Fla. Stat. § 812.014 is categorically a crime involving moral turpitude. It is thus necessary to determine whether the statute is divisible into separate offenses with distinct mens rea, or whether intent to temporarily or permanently deprive/appropriate are merely alternative means of committing the offense. To do so, we turn to the Florida Supreme Court's Standard Jury Instructions for Criminal Cases. Specifically, to prove the crime of Theft, the jury instructions state, in pertinent part:

1. (Defendant) knowingly and unlawfully [obtained or used] [endeavored to obtain or to use] the (property alleged) of (victim).

2. [He] [She] did so with intent to, either temporarily or permanently,

a. [deprive (victim) of [his] [her] right to the property or any benefit from it.]

b. [appropriate the property of (victim) to [his] [her] own use or to the use of any person not entitled to it.]

Based on the Florida Supreme Court's Standard Jury Instructions, a jury in a case concerning an alleged violation of Florida Statute § 812.014 does not need to be unanimous regarding whether the defendant intended to either "temporarily or permanently" deprive or appropriate property. A jury could convict a defendant of Florida Statute § 812.014 without agreeing on whether the defendant had the intent to permanently deprive or appropriate property or, alternatively, temporarily deprive or appropriate property, so rather than describing two separate types of theft offenses, the statute describes different means to commit the one offense. While the language at issue - "with intent to, either temporarily or permanently,"- may be disjunctive, it does not render the statute divisible so as to warrant a modified categorical inquiry, and the use of the modified categorical approach is not permissible. As a modified categorical approach is unavailable because the statute is not divisible, we are unable to determine that the Applicant's theft conviction involved moral turpitude.

As the offense defined by Florida Statute § 812.014 is neither a categorical crime involving moral turpitude nor divisible as defined in Descamps, we find that the Applicant is not inadmissible under section 212(a)(2)(A)(i)(I) of the Act for his petty theft conviction.

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III. OTHER CRIMINAL ACTIVITY

The record also reflects:

• On 2004, the Applicant was cited by the police department in Florida for possession of unlawful fish in a county perserve. The Applicant was charged with a Class 5 ordinance violation, and ordered to pay a fine. This conviction does not meet the definition of a misdemeanor for immigration purposes as the maximum punishment for an ordinance violation in Florida is only a fine. Code of Ordinance,

Florida, chapter 1, § 1-8. • On 2008, the Applicant was arrested in Florida for battery. On

2008, the Florida state attorney's office declined to prosecute the Applicant on this matter.

• On 2011, the Applicant was arrested in Florida for driving with a suspended, revoked, or cancelled license with knowledge, a violation of Florida Statute 322.34(2). On 2011 , the charge was amended to violating Florida Statute 322.34(1), a traffic infraction, and the Applicant pled nolo contendere to the charge. Adjudication of guilt was withheld and the Applicant was ordered to pay fines and court costs.

• On 2011, the Applicant was arrested in . Florida for grand theft of the third degree, a violation of Florida Statute 812.014(2)(c)(l). On 2012, in the Circuit/County Court of the of the State of Florida in and for

, a pre-trial intervention agreement for 12 months entered into by the Applicant on 2011 , was approved, and the Applicant was ordered to pay court costs. The

Applicant successfully completed the pre-trial intervention program and on 2013, the charge was dismissed.

• An incident report from the police department in New York, for an arrest on 2012, for operating a motor vehicle while registration suspended/revoked, a violation of New York Vehicle and Traffic Law (VTL) § 512, and operation while license or privilege is suspended or revoked; aggravated unlicensed operation, a violation ofNewYork VTL § 511-1A.

Regarding the grand theft anest on 20 11 , the Director determined the Applicant had been convicted of a felony because the court documents indicated that the Applicant had accepted responsibility for the grand theft charge against him, and that the court had sufficient facts to find the Applicant guilty.

The term 'conviction' means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. Section 101(a)(48)(A) of the Act, 8 U.S .C. § 110l(a)(48)(A).

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Under the Florida pretrial diversion program, there is no requirement for a defendant to enter a plea or to admit any facts sufficient to warrant a finding of guilty. See Florida Statute 948.08. Pursuant to Florida Statute 948.08(5), at the end of the intervention period, the administrator shall recommend: (a) That the case revert to normal channels for prosecution in instances in which the offender's participation in the program has been unsatisfactory; (b) That the offender is in need of further supervision; or (c) That dismissal of charges without prejudice shall be entered in instances in which prosecution is not deemed necessary. The state attorney shall make the final determination as to whether the prosecution shall continue.

A conviction does not exist, for immigration purposes, where the alien never entered a plea to the charges against him, and the alien's criminal charges were dismissed without prejudice following his successful completion of a pretrial intervention program. Matter of Grullon, 20 I&N Dec. 12, 14-15 (BIA 1989). In order for the admission of a crime or acts constituting the essential elements of a crime to be properly used as a basis for ineligibility, three conditions must be met: 1) the admitted acts must constitute the essential elements of a crime in the jurisdiction in which they occurred; 2) the respondent must have been provided with the definition and essential elements of the crime, in understandable terms, prior to making the admission; and 3) the admission must have been voluntary. Matter of K-, 7 I&N Dec. 594, 597 (BIA 1957); see also Matter of G-M-, 7 I&N Dec. 40, 70 (BIA 1955).

In the instant case, with respect to the grand theft charge, the court record does not indicate that a plea of guilt or nolo contendere was entered by the Applicant before the court, nor does the record reflect that the Applicant admitted facts sufficient to warrant a finding of guilt. The Applicant has submitted certified court documents establishing that the intervention program was completed and the grand theft charge was subsequently dismissed. Therefore, the Applicant cannot be considered to have a conviction within the meaning of section 101(a)(48)(A) ofthe Act for the 2011 grand theft arrest. Furthermore, as the grand theft charge did not result in a conviction, it also cannot qualify as a felony for TPS purposes under 8 C.F.R. § 244.1. As the Applicant has not been convicted of the grand theft offense, we need not address his arguments relating to the constitutionality of his proceedings. Accordingly, the Director's decision to withdraw TPS on this ground will be withdrawn.

IV. CONCLUSION

The record as it stands reflects that the Applicant has one misdemeanor conviction for petty theft. However, the Applicant remains ineligible for TPS because he did not provide information necessary for the adjudication of his application. 8 C.F.R. § 244.9(a). Specifically, on August 9, 2013, the Applicant was requested to submit the final disposition of every charge against him. The Applicant has not submitted the requested court disposition relating to his arrest on 2012, for violating New York VTL §§ 511-lA and 512.,

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In application proceedings, it is the Applicant's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter of J-S-, ID# 15492 (AAO Mar. 31, 2016)