U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 leesburg Pike. Su/le 2000

Falls Church, Virginia 22041

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Wong, Margaret W OHS/ICE Office of Chief Counsel - ATL
Margaret W. Wong 180 Ted Turner Dr., SW, Ste 332
3150 Chester Avenue Atlanta, GA 30303
Cleveland, OH 44114

Name: C ,H J A 16

Date of this notice: 11/20/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Cole, Patricia A.
Liebowitz, Ellen C
Malphrus, Garry D.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: H-J-C-, AXXX XXX 416 (BIA Nov. 20, 2017)
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U.S. Department of Justice Decision of the Board of Immigration Appeals

�·!ecutive Office for Immigration Review

Falls Church, Virginia 22041

File: 416 - Atlanta, GA Date:

NO'l 2 0 1017
In re: H J C

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Margaret W. Wong, Esquire

ON BEHALF OF OHS: Philip A. Barr

Assistant Chief Counsel

APPLICATION: Cancellation of removal under section 240A(b) of the Act

In a final administrative order dated October 23, 2014, this Board dismissed the respondent's
appeal from the Immigration Judge's February 14, 2013, decision denying her request for a
continuance and application for cancellation of removal under section 240A(b)(l ) of the
Immigration and Nationality Act, 8 U.S.C. § 1229b(b)( l ) (2012). This case is now before the
Board pursuant to an October 19, 2015, order of the United States Court of Appeals for the
Eleventh Circuit, which granted the Government's unopposed motion to remand. The Government
sought remand for the Board to consider the impact of Descamps v. United States, 133 S. Ct. 2276
(2013), in determining whether the respondent's convictions rendered her ineligible for
cancellation of removal. Both parties submitted briefs on remand. The respondent's appeal will
be sustained, and the record will be remanded.

We review findings of fact for clear error, including any credibility findings. See 8 C.F.R.
§ 1003.1(d)(3)(i) (2017); see also Matter ofJ-Y-C-, 24 I&N Dec. 260 (BIA 2007); Matter ofS-H-,
23 I&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all other
issues de novo. See 8 C.F.R.§ 1003. l (d)(3)(ii).

In his February 14, 2013, decision, the Immigration Judge concluded that the respondent was
statutorily ineligible for cancellation of removal because her convictions for theft by shoplifting in
violation of Georgia Code Ann.§ 16-8-14 were crimes involving moral turpitude (U at 2; Exh. 5,
Tab K). See sections 240A(b)( l )(C), 212(a)(2)(A)(i)(I) of the Act, 8 U.S.C. §§ 1229b(b)(l )(C),
l 182(a)(2)(A)(i)(I). Upon further consideration, and in light of recent precedent, we disagree.

As an initial matter, the respondent submits evidence on remand reflecting that the Georgia
State Board of Pardons and Paroles granted her a pardon for her two convictions pursuant to
Ga. Code Ann. § 16-8-14 (Resp. Br., Tab A). She asserts that this pardon eliminates her
convictions as they relate to her eligibility for cancellations of removal (Resp. Br. at 20-21).
However, her pardon does not reinstate her right to receive, possess, or transport in commerce a
firearm, and thus, her pardon was not full and did not waive her conviction (Resp. Br., Tab A).
Castillo v. US. Att'y Gen., 756 F.3d 1268, 1275 (11th Cir. 2014); see also 8 C.F.R.
§ 1003. l (d)(3)(iv) (allowing the Board to take judicial notice of the contents of official
documents).

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In Matter ofSilva-Trevino Ill, 26 I&N Dec. 826 (BIA 2016), we concluded that the categorical
and modified categorical approaches provide the proper framework for determining whether a
conviction is for a crime involving moral turpitude. Id at 830-31. We further held that, unless
controlling case law of the governing Federal court of appeals (here the United States Court of
Appeals for the Eleventh Circuit) expressly dictates otherwise, the realistic probability test, which

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focuses on the minimum conduct that has a realistic probability of being prosecuted under the
statute of conviction, should be applied in determining whether an offense is a categorical crime
involving moral turpitude. See id. at 831-33; see also Walker v. U.S. Att'y Gen., 783 F.3d 1226,
1229 (11th Cir. 2015) (adopting the categorical approach, but not expressly addressing the realistic
probability test).

The respondent's statute of conviction, section 16-8-14 of the Official Georgia Code, provides
as follows:

(a) A person commits the offense of theft by shoplifting when such person alone or
in concert with another person, with the intent of appropriating merchandise to his
or her own use without paying for the same or to deprive the owner of possession
thereof or of the value thereof, in whole or in part, does any of the following:

(1) Conceals or takes possession of the goods or merchandise of any store or retail
establishment;

(2) Alters the price tag or other price marking on goods or merchandise of any store
or retail establishment;

(3) Transfers the goods or merchandise of any store or retail establishment from
one container to another;

(4) Interchanges the label or price tag from one item of merchandise with a label or
price tag for another item of merchandise; or

(5) Wrongfully causes the amount paid to be less than the merchant's stated price
for the merchandise.

The Official Georgia Code in turn defines "deprive" as "[t]o withhold property of another
permanently or temporarily" or "[t]o dispose of the property so as to make it unlikely that the
owner will recover it." Ga. Code Ann. § 16-8-1(1) .

We recently revisited our determination, in Matter of Grazley, 14 I&N Dec. 330, 333
(BIA 1973), that "a conviction for theft is considered to involve moral turpitude only when a
permanent taking is intended," not a temporary taking. See Matter of Diaz-Lizarraga, 26 I&N
Dec. 847 (BIA 2016). In so doing, we concluded that a theft offense is a crime involving moral
turpitude if it involves a taking or exercise of control over another's property without consent and
with an intent to deprive the owner of his property either permanently or under circumstances
where the owner's property rights are substantially eroded. Id

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Here, the Georgia statute does not include as a required element that the "theft" occur under
circumstances where the owner's property rights are permanently or substantially eroded. See Ga.
Code Ann.§§ 16-8-14, 16-8-1(1); see also Matter of Diaz-Lizarraga, 26 I&N Dec. at 852 & n.8.
Thus, the offense of theft by shoplifting is categorically broader than a generic crime involving
moral turpitude. 1

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As the statute of conviction includes some crimes that involve moral turpitude and some that
do not, the respondent's convictions pursuant to Ga. Code Ann.§ 16-8-14 convictions are not for
an offense under section 212(a)(2)(A)(i)(I) of the Act unless the statute is "divisible," such that the
modified categorical approach can be applied. See Descamps v. United States, 133 S. Ct. at 2282.
In removal proceedings, we evaluate the divisibility of criminal statutes by employing the
standards set forth in Mathis v. United States, 136 S. Ct. 2243 (2016), in which the Supreme Court
further explained the "divisibility" analysis in Descamps. See Matter ofChairez, 26 I&N Dec. 819
(BIA 2016).

Under Mathis, the divisibility of a statute depends on whether the statutory alternatives are
discrete "elements" as opposed to "means" of committing an offense. Mathis v. United States,
136 S. Ct. at 2256. The elements of a crime are those "constituent parts" of a crime's legal
definition-the things that the "prosecution must prove to sustain a conviction." Id at 2248; see
also United States v. Estrella, 758 F.3d 1239, 1246 (11th Cir. 2014) ("[W]e should ask ourselves
the following question when confronted with a statute that purports to list elements in the
alternative: If a defendant charged with violating the statute went to trial, would jurors typically
be required to agree that their decision to conviction is based on one of the alternative elements?").
Thus, the divisibility of Ga. Code Ann. § 16-8-14 depends upon whether the taking being
temporary or permanent is an "element" of the offense or merely a "brute fact" about which the
jury can disagree while still rendering a guilty verdict. See Mathis v. United States, 136 S. Ct. at
2248, 2256. We, however, found no authority, supporting the conclusion that temporary or
permanent takings are alternative elements of theft by shoplifting about which Georgia jurors must
agree in order to convict.

For the foregoing reasons, we conclude that the respondent's conviction under Ga. Code Ann.
§ 16-8-4 is not a categorically a crime involving moral turpitude. We also conclude that the statute
is not divisible, and thus, the modified categorical approach does not apply. As the respondent has
not been convicted of an offense under sections 212(a)(2) or 237(a)(2) of the Act, section
240A(b)(1)(C) of the Act does not bar her from being statutorily eligible for cancellation of
removal. We will therefore sustain the respondent's appeal and remand the record for further

1 The Department of Homeland Security ("OHS") argues on remand that there is no realistic
probability that a person would be convicted under the Georgia theft by shoplifting statute for a
temporary taking of property (OHS Br. at 3-6). Inasmuch as the OHS relies on our decision in
Matter ofJurado, 24 I&N Dec. 29 (BIA 2006), in which we held that there is an assumption that
retail theft involves a permanent taking, this "assumption" has been called into serious doubt given
the current application of the categorical approach. Mfltter ofDiaz-Lizarraga, 26 I&N Dec. at 854
n.11.

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proceedings. We express no opinion as to whether the respondent is otherwise eligible for, or

deserving of, such relief.

Accordingly, the following order will be entered.

ORDER: The appeal is sustained, and the record is remanded for further proceedings

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consistent with the foregoing opinion and for entry of a new decision.

Cite as: H-J-C-, AXXX XXX 416 (BIA Nov. 20, 2017)