U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5107 leesburg Pike. Suite 2000
Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - EAZ

P .0. Box 25158
Phoenix, AZ 85002

Name: CARLOS-SOLIS, ANSELMO

A 092-904-043

Date of this notice: 6/16/2016

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

DCWtL CtUvtJ
Donna Carr
Chief Clerk
Enclosure
Panel Members:

Guendelsberger, John

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Anselmo Carlos-Solis, A092 904 043 (BIA June 16, 2016)

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St John, Laura McClure

Florence Immigrant and Refugee Rights
Project
PO Box 654
Florence, AZ 85132

, U.S. Department of Justice

Executiv!! Office for Immigration Review

Decision of the Board of Im.migration Appeals

Falls Church, Virginia 22041

File: A092 904 043 - Eloy, AZ

Date:

In re: ANSELMO CARLOS-SOLIS

JUN 1 6 2016

APPEAL
ON BEHALF OF RESPONDENT: Laura M. St. John, Esquire
ON BEHALF OF DHS: Ryan Goldstein
Assistant Chief Counsel
CHARGE:
Notice: Sec.

237(a)(2)(A)(ii) of the Act [8 U.S.C. 1227(a)(2)(A)(ii)]

Crime involving moral turpitude

APPLICATION: Termination

The Department of Homeland Security (DHS) has appealed from the Immigration Judge's
February 9, 2016, decision terminating proceedings against the respondent, a native and citizen
of Mexico. The respondent has filed a brief in opposition to the appeal. The DHS's appeal will
be dismissed.
We review Immigration Judges' findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. I003.l(d)(3)(i),
(ii).
In the instant case, the DHS has the burden of proving the respondent's removability under
section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(ii), as
an alien convicted of two or more crimes involving moral turpitude. 8 C.F.R. 1240.8(a). We
agree with the Immigration Judge that the DHS has failed to meet this burden, and we adopt and
affirm the Immigration Judge's decision to terminate the respondent's removal proceedings.
The Immigration Judge concluded that the respondent's convictions under Arizona Revised
Statute (A.R.S.) 13-1805 for Shoplifting cannot be found to involve moral turpitude because a
conviction under that statute does not require a "specific intent to deprive the victim of his
property permanently." Castillo-Cruz v. Holder, 581 F.3d 1154 (9th Cir. 2009); see Matter of
Grazley, 14 l&N Dec. 330, 333 (BIA 1973); Matter of R-, 2 I&N Dec. 819, 828 (BIA 1947).
Prevailing Board and circuit court case law, Arizona law, and the record evidence support the
Immigration Judge's determination.

Cite as: Anselmo Carlos-Solis, A092 904 043 (BIA June 16, 2016)

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IN REMOVAL PROCEEDINGS

. A092 904 043

ORDER: The DHS's appeal is dismissed.

The OHS argues the Immigration Judge failed to apply the "realistic probability" test (DHS's
Brief at 15). See Matter of Ferreira, 26 l&N Dec. 415 (BIA 2014). The Immigration Judge
cited to State v. Morse to illustrate that proving the intent to permanently deprive is not a
requirement to obtain a conviction under Arizona theft statutes. In State v. Morse, the defendant
argued that the State had not proven that he "specifically intended to prevent the rightful owner
from again possessing the property [a motorcycle]"; the Supreme Court of Arizona held the
"intent to permanently deprive" was not an element necessary to achieve a conviction and
affirmed judgment against Morse. Id at 1145-46. Therefore, the DHS's argument regarding
applicability of the realistic probability test is unavailing (DHS at 15).

2
Cite as: Anselmo Carlos-Solis, A092 904 043 (BIA June 16, 2016)

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The DHS's arguments on appeal fail to address the Immigration Judge's determination that
the respondent's shoplifting conviction does not categorically involve moral turpitude because
Arizona law has defined the element "deprive" to include a temporary taking. (I.J. at 6). See
A.R.S. I3-180l(A)(4) (''to withhold the property interest of another either permanently or . . .
with the intent to restore it only upon payment of any reward. . . "); State v. Yarbrough,
638 P.2d 737, 739 (Ariz. App. 1981) (finding that an intent to permanently deprive the victim of
his property is no longer an element of Arizona theft, having been eliminated as an element in
1978); State v. Morse, 617 P.2d 1141 1146 (Ariz. 1980) (noting the consolidation of Arizona's
prior multiple theft offenses abolished Arizona's previous requirement in theft offenses that there
be an intent to permanently deprive an owner of his or her property).1 Consequently, the DHS's
reliance on Matter of Jurado-Delgado, 24 I&N Dec. 29 (BIA 2006) is misplaced as that case
addressed a Pennsylvania shoplifting statute and concluded that a permanent talcing could be
presumed from the elements; in contrast, the permanent nature of takings may not be presumed
in Arizona theft statutes (DHS's Brief at 12-15; I. J. at 6). We note that the DHS does not
address, and thus has not challenged, the Immigration Judge's determination that the modified
categorical approach is not applicable here (I.J. at 9). We have considered the DHS's arguments
on appeal, and we cannot conclude that we are provided with an adequate basis to disturb the
Immigration Judge's decision to terminate proceedings. In view of the foregoing, the following
order shall be entered.

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1705 EAST HANNA ROAD, SUITE 366
ELOY, ARIZONA 85131
)
)
CARLOS-SOLIS, Anselmo
)
)
RESPONDENT
)
----------)

CHARGES:

IN REMOVAL PROCEEDINGS
FILE NO.:

A092-904-043

DATE:

February 9, 2016

INA 237(a)(2)(A)(ii): an alien who at any time after admission, has been
convicted of two crimes involving moral turpitude not arising out of a
single scheme of criminal misconduct.
TERMINATION OF PROCEEDINGS

ON BEHALF OF THE RESPONDENT:

Anselmo Carlos-Solis, Pro Se
Eloy Immigration Detention Center
1705 East Hanna Road
Eloy, Arizona 85131

ON BEHALF OF THE DEPARTMENT

Assistant Chief Counsel
Department of Homeland Security
1705 East Hanna Road
Eloy, Arizona 85131

DECISION AND ORDER OF THE IMMIGRATION COURT

I.

PROCEDURAL IDSTORY

The above-named respondent is a male, native and citizen of Mexico. (Exh. 1, Form 1862.) Removal proceedings were commenced in the instant case on November 17, 2015 when
the Department of Homeland Security ("DHS" or "the Department") filed a Notice to Appear
("NTA") against the above-named respondent. (/d.) 1 .In the NTA, the Department alleged the
following:
1.
2.
3.

[The respondent is] not a citizen or national of the United States;

[He is] a native of Mexico and a citizen of Mexico;
[He] was admitted into the United States at Los Angeles, California, on
April I 0, 1992 as a Lawful Permanent Resident (W26),

The filing of the NTA commenced proceedings and vested jurisdiction with this Court. 8 C.F.R. 1003.14(a).
The respondent conceded proper service of the NTA. In removal proceedings, the NTA shall be served in person on
the alien or, if personal service is not practicable, through service by mail to the alien or the alien's counsel of
record. INA 239; 8 C.F.R. 1003.13. Based upon the respondent's admissions, and the certificate of service
contained in the NTA, the Court finds that the NTA was properly served.

\ I

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IN THE MATTER OF:

CARLOS-SOLIS
A0,92-904-043
4.

(Exh. 1, Form 1-862.)

Based on these allegations, the respondent was charged as subject to removal under
section 237(a)(2)(A)(ii) of the Immigration and Nationality Act ("INA" or "the Act") for having
been convicted of two crimes involving moral turpitude at any time after admission not arising
out of a single scheme of criminal misconduct. (Id.)
On January 5, 2016, an initial master calendar hearing was held in the respondent's case,
wherein, the respondent admitted factual allegations (1) through (5) and the charge of
removability. (Hr'g (Jan. 5, 2016); Exh. 1, Form I-862.) The Immigration Judge continued to
hearing and requested briefs regarding removability to be submitted by January 27, 2016. (Hr'g
(Jan. 5, 2016).) A contested hearing was scheduled to February 17, 2016. 2 On January 22, 2016,
the Department submitted a statement of position.
II. Evidentiary Record

In reviewing the applicant's applications for relief, the Court has carefully considered the
entire record of proceeding, even if not specifically referenced herein, which includes exhibits
one through three, containing the parties' motions, briefs, and arguments as submitted to the
Court and as contained in the Court's file.
III. Alienage

..

'

I.

!:

As a preliminary matter, the Court finds that alienage has been established by clear and
convincing evidence. In a removal proceeding, the Department bears the burden of establishing
by clear and convincing evidence all facts supporting removability. Chau v. INS, 247 F.3d 1026,
1029 n.5 (9th Cir. 2001) (citing Murphy v. INS, 54 F.3d 605, 609-10 (9th Cir. 1995)). Evidence
of foreign birth gives rise to a rebuttable presumption of alienage, shifting the burden to the
alleged citizen to prove citizenship. Id.; see also Matter of Hines, 24 l&N Dec. 544, 546 (BIA
2008), overruled in part by Matter of Cross, 26 I&N Dec. 485 (BIA 2015); Corona-Palomera v.
INS, 661 F.2d 814, 818 (9th Cir. 1981); Matter of Leyva, 16 I&N Dec. 118, 119 (BIA 1977).
2 The Immigration Judge advised the parties that a written decision may be issued before the hearing date.

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5.

[He was], on December 15, 2014, convicted in the Glendale City Court,
Maricopa County, [ofJ Shoplifting, class 1 misdemeanor, in violation of
A.RS. 13-1805(A)(l ), committed on November 4, 2014, for which you were
sentenced to (12) twelve months' unsupervised probation, and (1) one day
jail.
[He was], on June 2, 2015, convicted in the Phoenix Municipal Court,
Maricopa County, [ofj Shoplifting, a class 1 misdemeanor, in violation of
A. R.S. 13-1805(A), committed on June 1, 2015, for which [he was]
sentenced to (l)one day jail.

CARLOS-SOLIS
A092-904-043
Upon production of substantial credible evidence in support of his or her citizenship claim, the
presumption of alienage is rebutted. Id. Then, the Department bears the ultimate burden of
proving the respondent is removable by clear and convincing evidence. Id.

IV. Termination of Proceedings

A. Overview

The Department has the burden to prove by clear and convincing evidence that the
respondent is removable as charged. No decision on deportability shall be valid unless it is based
upon reasonable, substantial, and probative evidence. See INA 240(c)(3)(A).
The respondent admitted allegations one through five, and the charge of removability,
contained in the NTA, alleging that the respondent committed two separate instances of
shoplifting on November 4, .2014 and June 1, 2015. The Court finds that, even if properly
alleged, the Department has not established by clear and convincing evidence the charge of
removal under INA237(a)(2)(A)(ii) for conviction of two crimes involving moral turpitude not
arising out of a single scheme of conduct.
B. Removability

The Court has carefully considered the parties' arguments. As noted, the Department has
the burden to prove by clear and convincing evidence that the respondent is removable as
charged. 8 C.F.R. 1240.S(a). No decision on deportability shall be valid unless it is based
upon reasonable, substantial, and probative evidence. INA 240(c)(3)(A).
The respondent admitted factual allegations (1), (2), (3), (4), and (5), as well as the
charge of removability. (Hr'g (Jan. 5, 2016.) Exhibit 2 corroborates the respondent's admission
that he was convicted of Shoplifting in violation of A.R.S.13-l 805(A)(l) on December 15,
2014, and thereby the Court sustains factual allegation (4). (Exh. 2, City of Glendale Conviction
Records.) Exhibit 3 corroborates the respondent's admission that he was convicted of
Shoplifting in violation of A.R.S. 13-1805 on June 2, 2015, and thereby the Court sustains
factual allegation (5). (Exh. 3, City of Phoenix Conviction Records.) The Court, however,
found there was an issue of law regarding whether shoplifting is a crime involving moral
turpitude and therefore schedule a contested hearing. (See Pagayon v. Holder, 675 F. 3d 1182
(9th Cir. 2011); see also Pere;-Mejia v. Holder, 663 F.3d 403 at 414 (9th Cir. 2011); see also 8
CFR 1240.10(c) (stating that if Immigration Judge believes an issue of law exists, he does not
have to accept the admission of removability and can direct a hearing).) Upon the entirety of the
evidentiary record and the following analysis, the Court will not sustain the charges of

an

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At the master calendar hearing, the respondent admitted allegations one through five of
the NTA -alleging that the respondent is not a United States citizen; the respondent is a native
and citizen of Mexico; and the respondent entered the United States as a lawful permanent
resident on April 10, 1992. (Hr'g (Jan. 5, 2016); Exh. 1.) Based upon respondent's admissions,
the Court finds that DHS has established the respondent's alienage by clear and convincing
evidence.

CARLOS-SOLIS
AQ92-904-043

removability and finds that the DHS has not met its burden of proving by clear and convincing
evidence that the respondent is removable as charged. 8 C.F.R. 1240.S(a).
1. INA 237(a)(2)(A)(ii): Two or More Crimes Involving Moral Turpitude

2. Statement of Law

The Act does not define the term "crime involving moral turpitude," but "courts and the
[Board] have generally defined [it] as comprising crimes that are inherently base, vile, or
depraved, and contrary to the accepted rules of morality and the duties owed between persons or
to society in general." Castrijon-Garcia v. Holder, 704 F.3d 1205, 1212 (9th Cir. 2013) (citation
and footnote omitted). "Such crimes are of two types: those involving fraud and those involving
grave acts of baseness or depravity." Id. Additionally, "[a] finding of moral turpitude . . .
requires that a perpetrator have committed the reprehensible act with some form of scienter ...."
Pannu v. Holder, 639 F.3d 1225, 1228 (9th Cir. 2011) (emphasis added) (citation omitted); see
also Matter ofSilva-Trevino, 24 l&N Dec 687 (A.G. 2008).
To determine whether a conviction qualifies as a crime involving moral turpitude under
the Act this Court applies the catgorical and modified categorical approaches set forth in Taylor
v. United States, 495 U.S. S75JJ.??O}, and Shepard v. United States, 544 U.S. 13, 19-21 (2005).
Under the categorical approach, the Court must first compare the language and elements of the
statute to a federal generic definition of the crime to determine whether conduct proscribed by
the statute is broader than the generic federal definition. Rohit v. Holder, 670 F.3d 1085, 1088
(9th Cir. 2012); Matter of Ortega-Lopez, 26 I&N Dec. 99, 100 (BIA 2013). In making this
comparison, the Immigration Judge can only consider the statutory definition of the crime of
which the individual was convicted, and not the actual underlying facts, conduct, or
circumstances surrounding that crime. Hernandez-Cruz v. Holder, 651 F.3d 1094, 1100-01 (9th
Cir. 2011). If all of the elements of the statute fall within the federal generic definition, then the
crime categorically qualifies as a predicate offense. Descamps v. United States, 133 S. Ct. 2279
(2013). In evaluating whether an alien's previous conviction is categorically removable,
furthermore, an Immigration Judge's "focus on the minimum conduct criminalized by the state
statute is not an invitation to apply 'legal imagination' to the state offense; there must be 'a
realistic probability, not a theoretical possibility, that the State would apply its statute to conduct
that falls outside the generic definition of a crime."' Moncrieffe v. Holder, 133 S. Ct. 1678,
1684-85 (2013) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).
When the statute of conviction "lists multiple, alternative elements . .. .with [at least]
one statutory phrase corresponding to the generic crime and another not" an Immigration Judge

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The Department charged the respondent as removable from the United States pursuant to
section 237(a)(2)(A)(ii) of the Act, "as amended, in that, at any time after admission, you have
been convicted of two crimes-involving moral turpitude not arising out of a single scheme of
criminal misconduct." (Exh. 1.) Specifically, the DHS alleges that the respondent's convictions
of shoplifting in violation of A.R.S. 13-1805 are each crimes involving moral turpitude. The
Court disagrees.

CARLOS-SOLIS
A0,92-904-043
"may look to the [conviction] documents to determine which of the statutory offenses (generic or
non-generic) formed the basis of the [alien's] conviction." Descamps, 133 S. Ct. at 2285.

3. Analysis- Shoplifting, A.R.S. 13-1805

Following a categorical and modified categorical approach, the Court finds that the
Department has not met its burden to prove by clear and convincing evidence that the
respondent's convictions for shoplifting are crimes involving moral turpitude.
The OHS relies on the BIA's ruling in Jurado-Delgado that it is proper to look at the
circumstances surrounding the theft to determine that there was a permanent intent to deprive, to
find that A.R.S. 13-1805 is a crime involving moral turpitude. (DHS Opp'n to Mot. to
Terminate at 3.) However, Jurado-Delgado, and the cases it cites to in support of looking at the
circumstances of a theft offense, all predate the Supreme Court's decision in Descamps which
clearly holds that it is only permissible to look further than the conviction statute to additional
judicial documents if the statute is divisible. Descamps, 133 S. Ct. at 2282; see also In Re
Jurado-Delgado, 24 I&N Dec. 29, at 33. As the following analysis demonstrates, A.RS. 131805 is an indivisible statute and therefore the Court cannot reach the facts surrounding the
conviction.
The respondent's convictions for shoplifting, in violation of A.R.S. 13-1805,
misdemeanor offenses for which he was sentenced to twelve months' probation and one day in
jail the first time, and one day in jail the second time. (Exh. 3, City of Phoenix Conviction
Records; Exh. 2, City of Glendale Conviction Records.) Under A.RS. 13-1805 a person is
guilty of misdemeanor shoplifting if:
while in an establishment in which merchandise is displayed for sale, the person
knowingly obtains such goods of another with the intent to deprive that person of
such goods by: removing any of the goods from the immediate display or from
any other place within the establishment without paying the purchase price.
Ariz. Rev. Stat. Ann. 13-1805.

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Theft offenses generally co.nstitute crimes involving moral turpitude. See Flores Juarez
v. Mukasey, 530 F.3d 1020, 1022 (9th Cir. 2008). Where a crime of theft involves the intention
to permanently deprive the owner of his property, it will qualify as a crime involving moral
turpitude. See In Re Jurado-Delgado, 24 I&N Dec. 29, 33 (BIA 2006); Matter of V-Z-S-, 22
I&N Dec. 1338, 1346 n. 12 (BIA 2000); see also Castillo-Cruz v. Holder, 581 F.3d 1154, 1159
(9th Cir. 2009). However, the BIA has held in numerous cases that a theft offense is not
categorically a crime involving moral turpitude if it includes a taking with only a temporary
intent to deprive. (Alamanza-Arenas v. Lynch, 2015 WL 9462976, *3 (9th Cir. Dec. 28, 2015)
citing Castillo-Cruz, 581 F.3d at 1 159.)

CARLOS-SOLIS
AQ92-904-043
Furthermore, for Arizona theft offenses, A.R.S. 13-1801 et seq. , which includes
shoplifting, ''deprive" means a permanent or temporary taking. A.R.S. 13-1801(4).
Specifically, the statute defines "deprive" as follows:

Id. (emphasis added). As the Arizona statute includes both permanent and temporary
deprivation, thus punishing a broader range of intent than required for a theft crime involving
moral turpitude, it does not appear to categorically qualify as a crime involving moral turpitude.
(See Almanza-Arenas, 2015 WL 9462976 at *3 (finding a California theft statute overbroad
because it criminalized depriving an owner of his vehicle either temporarily or permanently.)
Firstly, the statute, by its language, does not exclusively require the intent to permanently
deprive a person of his or her property which is required for theft crimes to be considered crimes
involving moral turpitude. See Castillo-Cruz v. Holder, 581 F.3d at 1159 ("The BIA has held in
a number of cases that a theft offense is not categorically a crime of moral turpitude if the statute
of conviction is broad enough to criminalize a taking with intent to deprive the owner of his
property only temporarily."); see also Matter ofGrazley 14 I&N Dec. 330, 333 (BIA 1973)
("Ordinarily, a conviction for theft is considered to involve moral turpitude only when a
permanent taking is intended."). In general, where an offender takes merchandise for sale with
intent to deprive, knowing such goods belong to another, "the nature of the offense is such that it
is reasonable to assume that the taking is with the intention of retaining the merchandise
permanently." See In Re Jurado-Delgado, 24 I&N Dec. at 36. See also Marmolejo-Campos v.
Holder, 558 F.3d 903, n.16 (9th Cir. 2009); Matter of V-Z-S-, 22 I&N Dec. 1338, 1350 (BIA
2000). However here, intent to permanently deprive may not be presumed, as Arizona theft
offenses generally do not require that an offender act with the intention to deprive an owner of
property permanently. See State v. Morse, 617 P.2d 1141, 1146 (Ariz. l 980)(noting the
consolidation of Arizona's prior multiple theft offenses abolished Arizona's previous
requirement in theft offenses that there be an intent to permanently deprive an owner of his or
her property); State v. Yarbrough, 638 P.2d 737, 739 (Ariz. App. 1981) (finding that an intent to
"permanently" deprive the victim of his property, previously an element of the definition of
"theft" under A.R.S. 13-661, was eliminated in 1978 and is no longer an element of Arizona
theft.). For instance, A.R.S. 13-1805(A)(l ), may be applied to the offense of ''joyriding,"
which has been held not to be morally turpitudinous. Matter of D, l l&N. Dec. 143, 145 (BIA
1941) (finding that driving an amomobile without the consent of the owner in violation of
section 503 of the California Vehicle Code is not a crime involving moral turpitude).
In Almanza-Arenas, once the Ninth Circuit determined that the California statute at issue
was overbroad and indivisible, it found that the theft statute was categorically not a crime
involving moral turpitude without delving into the issue of realistic probability of prosecution.
(Almanza-Arenas, 2015 WL 9462976 at *8.) Regardless, while there does not appear to be a
published case on point, there is a realistic probability that Arizona would apply the statute to
6

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to withhold the property interest of another either permanently or for so long a

time period that a substantial portion of its economic value or usefulness or
enjoyment is lost, to withhold with the intent to restore it only on payment of any
reward or other compensation or to transfer or dispose of it so that it is unlikely to
be recovered.

CARLOS-SOLIS
A092-904-043
conduct that does not include permanent taking. In United States v. Grisel, the Ninth Circuit
held that if:

U.S. v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007).

In Grisel, the generic definition at issue was that of burglary which limited burglary to buildings
or structures. (Id at 848.) The Oregon statute, on the other hand, expanded the definition of
burglary to include "any booth, vehicle, boat, aircraft or other structure adapted for overnight
accommodation of persons or for carrying on business therein." (Id at 850.) Because the state
statute punished conduct that was not punished by the general definition of burglary, the state
statute was held to be textually overbroad and not a categorial burglary. (Id at 851.) In a later
case, United States v. Burgos-Ortega, the Ninth Circuit held that when a state statute does not
explicitly punish conduct beyond the reach of the generic offense, then Grisel does not apply.
(U.S. v. Burgos-Ortega, 777 F.3d 1047, 1055 (9th Cir. 2015).) In Burgos-Ortega, the court held
that a state statute which did not expressly include an exception for the offense of administering
in its definition of "distribution," was not overbroad on its face respective to the federal offense
which did explicitly include such an exception. (Id ) The case at hand, however, is more similar
to Grisel as the definition of deprivation in the Arizona shoplifting statute expressly includes
temporary deprivation, which is excluded from the federal offense. Under Grisel, because
A.R.S. 13-1805 is overbroad on its face, no legal imagination is necessary to find a realistic
probability that conduct beyond th .generic offense will be punished. Therefore, because A.R.S.
13-1805 is overbroad, as it criminalizes theft conduct that lacks an intent to permanently
deprive, and because there is a realistic possibility that such conduct would be convicted under
the statute, A.R.S. 13-1805 is not categorically a crime involving moral turpitude.
In order to continue to the modified categorical analysis, it must first be determined
whether A.R.S. 13-1805 is divisible. If the statute of conviction is overbroad, the Court
determines whether the overbroad element (or elements) is divisible. Medina-Lara, 771 F.3d at
1112; Rendon v. Holder, 764 F.3d 1077, 1083 (9th Cir. 2014). In Descamps, the Supreme Court
held that the modified categorical approach is not applicable to statues with a single, indivisible,
set of elements finding that California's burglary statute was categorically not burglary because
it punished conduct beyond that of the federal burglary statute by not requiring unlawful entry ..
Descamps v. United States, 133 S. Ct. at 2279-2281. To determine divisibility, the offending
element(s) must be listed disjunctively and must be an alternative element and not an alternative
means. Rendon, 764 F .3d at 1084-85. This distinction between alternative elements and
alternative means hinges on whether the jury must find the relevant element(s) unanimously and
beyond a reasonable doubt. Id at 1085. If the jury does not need to make the finding, then the
relevant elements are merely alternative means and the inquiry ends. Id. If, however, the jury is
required to make this finding unanimously and beyond a reasonable doubt, then the statute is
divisible as alternative elements and the Court proceeds to the third step. Id The court in
Rendon, stated that jury instructions "will make clear" whether a jury must find an element
7

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a state statute explicitly defines a crime more broadly than the generic definition,
no 'legal imagination' . . . is required to hold that a realistic probability exists that
the state will apply its statute to conduct that falls outside the generic definition of
the crime, The state statutes greater breadth is evident from its text.

CARLOS-SOLIS
A092-904-043
unanimously and beyond a reasonable doubt." Rendon, 764 F.3d at 1085; see Almanza-Arenas,
2015 WL 9462976 at *4-6 (where the court deterpiined that if the trier of fact need not agree
about whether deprivation was temporary or permanent, the statute was indivisible, and where
the court looked at jury instructions to decide whether such unanimous agreement was required.)

Moreover,7.4 of the Trial Handbook for Arizona Lawyers, citing to the same Derendal
test, states that shoplifting by removal in violation of A.R.S. 13-1805(A)(l) has been held to be
a jury-eligible offense. Ariz. Prac., Trial Handbook For Ariz. Lawyers 7:4. Additionally, in
State v. Twine, the Court of Appeals for Arizona found jury instructions for a charge under
A.R.S.13-1805 given by the trial court judge proper, further indicating that such a charge is
entitled to a jury trial. State v. Twine, No. l CA-CR 11-0110, 2011 WL 4502542 at *3 (Ariz. Ct.
App. Sept. 29, 2011).
Based on jury instructions and sentencing guidelines A.R.S.13-1805 is not divisible.
The Arizona State Bar recommended jury instruction for shoplifting reads as follows:
The crime of shoplifting reqi_res proof that the defendant:
.

,, . , . .

1. was in an establishment in which merchandise was displayed for sale; and

2. while in such establishment, knowingly obtained goods of another with the intent to
deprive the other person of such goods by,
[removing any of the goods from the immediate display or from any other place
within the establishment without paying the purchase price.]
[ charging the purchase price of the goods to a fictitious person or any person without
that person's authority.]
[paying less than the purchase price of the goods by some trick or artifice such as
altering, removing, substituting or otherwise disfiguring any label, price or marking.]
[transferring the goods from one container to another container.]
[concealment.]

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As a primary issue, the Court finds that a jury trial is appropriate for a misdemeanor
charge under A.R.S.13-1805. The Supreme Court of Arizona established a two-prong test in
Derendal v. Griffith to determine whether a defendant had a right to a trial by jury. Derendal v.
Griffith, 209 Ariz. 416, 425 (Ariz. 2005). The first prong of the Derendal test states that a
defendant has a right to a jury trial if the statutory offense of which they are charged had "a
common law antecedet that guaranteed a right to trial by jury at the time of Arizona statehood."
Id. If the offense did not have such an antecedent at common law the court should then move on
to the second prong which looks :at :the seriousness of the offense in question. Id. In Bosworth
v. Anagnost, the Court of Appeals held that those accused of shoplifting, before it was codified
into statute, were entitled to jury trials. Bosworth v. Anagnost, 234 Ariz. 453, 455-456 (Ariz. Ct.
App. 2014). Therefore, as misdemeanor shoplifting has a common law antecedent that
guaranteed a jury trial, a defendant charged with a misdemeanor under A.R.S.13-1805 is
guaranteed a jury trial. Id

CARLOS-SOLIS
A092-904-043
(bold emphasis added) RAJI (Criminal) STCI 18.05.01 (3rd ed.). Furthermore, the
Arizona State Bar recommenc;ld.jury instruction for the term "deprive" is:

RAJI (Criminal) STCI 1 8.01(4) (3rd ed.) The different conduct which are included in the
definition of "deprive" are not listed in brackets in the jury instruction, which indicates that the
jury does not have to determine unanimously the means used by the defendant constituting
"deprive."3 As the jury instructions indicate that the different subparts are alternative means and
not elements, the statute again is not divisible and the Court cannot turn to the modified
categorical approach.
Furthermore, A.R.S. l 3- I 805(B) states that an individual is presumed to have the
culpable mental state pursuant to A..R.S. I3-1 805(A) if that individual "knowingly conceals on
himself or another person unpurchased merchandise of any mercantile establishment while
within the mercantile establishment or uses an artifice, instrument, container, device or other
article to facilitate the shoplifting." Ariz. Rev. Stat. Ann. 1 3-1805(8). The statute does not
require finding a specific mental state, which further supports the contention that the jury need
not make a finding as to culpable mental state and that, therefore, the statute is indivisible and
the modified categorical approach cannot be applied.
The possible sentences for a conviction under A.R.S. 1 3-1805 further supports that the
different meanings of deprive are merely alternative means rather than alternative elements. The
possible criminal designations, and thus sentences, for convictions of A.R.S. 13-1805 depend
on the value of the item stolen, not whether there was intent to permanently or temporarily
deprive the true owner of the item. A.R.S. 1 3- 1 805 (H) (2009). The intent of the perpetrator is
not sufficiently significant to play a role in determining the sentence for the conviction,
indicating that permanent or temporary deprivation is not an element that the jury must
unanimously decide up<;>n, but rather, an alternative means of committing shoplifting. When
alternative means are at issue, rather than alternative elements, a statute is considered indivisible,
and thus the modified categorical approach cannot be applied. Therefore, the Court finds that
A.R.S. 13 1 805 is categorically not a crime involving moral turpitude as it is not divisible and
the modified categorical approach inay never be applied. (See Descamps v. United States
(holding that the modified categorical approach should not be applied to a conviction for
burglary under the California state statute because the statute was indivisible and overbroad).)
3

Compare to the jury instructions for Shoplifting which include bracketed elements and the instruction,
"Use the bracketed language as appropriate to the facts." RAJI (Criminal) STCI 1 8.05.01 Use Note (3rd
ed.).

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"deprive" means to:

1 . withhold the property interest of another permanently; or
2. withhold the property interest of another for so long a time period that a substantial
portion of its economic value or usefulness or enjoyment is lost; or
3. withhold the property interest of another with the intent to . restore it only upon
payment of any reward or other compensation; or
4. transfer or dispose of the property interest of another so that it is unlikely to be
recovered.

CARLOS-SOLIS
A092-904-043
Accordingly, the Court finds that the Department has not met its burden to prove by clear
and convincing evidence that the respondent's convictions under A.R.S. 13- 1 805 are crimes
involving moral turpitude.
Conclusion

As the Court finds that the Department failed prove that the respondent has been
convicted of two crimes involving moral turpitude, the Court does not sustain the charge of
removability pursuant to INA 237(a)(2)(A)(ii).
V.

Conclusion

Based upon the record of proceeding, the Court sustains factual allegations (1) through
(5), but does not sustain the removability charge that the respondent has been convicted of two or
more crimes involving moral turpitude.
For the foregoing reasons, the Court concludes that the Department has not met its
burden of proving by clear and convincing evidence that the respondent has been convicted of a
removable offense. Therefore the Court does not sustain the charges of removability.
Accordingly, the Court terminates removal proceedings in this matter.
The Court will enter the fol.lowing order:
ORDER:

. .

IT IS ORDERED THAT respondent's motion to terminate the removal

be GRANTED.
IT IS FURTHER ORDERED THAT respondent's hearing date of
February 1 7 2016 be VACATED.

CERTIFICATE OF SERVICE

AS SERVED BY: MAIL (M)

PERSONAL SER
P
ALIEN c/o Custodial Officer ( ) ALIEN'
.
Y COURT STAFF : _____..___,__;;..____,,_'-=:..-.;:.=--::p,,:a..-=
DATE:
Attachments: ( ) EOIR-33 ( ) EQIR-28 (

10

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4.