Professional Documents
Culture Documents
Department of Justice
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Adkins-Blanch, Charles K.
Mann, Ana
. .._;
'
'
':; f .
Userteam: Docket
Cite as: Humberto Aristides Machado Brindis, A078 968 678 (BIA Oct. 3, 2017)
,.
,. l[.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
OCT -3 2017
In re: Humberto Aristides MACHADO BRINDIS
APPEAL
APPLICATION: Termination
The respondent is a native and citizen of Cuba and a lawful permanent resident of the United
States. He appeals from the Immigration Judge's decision dated November 12, 2014, finding him
removable from the United States pW'Suant to section 212(a)(2)(A)(i)(I) of the Immigration and
Nationality Act, 8 U.S.C. 1182(a)(2)(A)(i)(I), and denying his application for a waiver of
inadmissibility under section 212(h) of the Act, 8 U.S.C. 1182(h). The appeal will be sustained.
We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. 1003. l(d)(3)(i). We review
all other issues, including issues of law, discretion, or judgment, under a de novo standard.
8 C.F.R. 1003.1(d)(3)(ii).
The respondent was, on April 30, 2009, convicted for Dealing in Stolen Property in violation
of Florida Statute 812.019(1), which states that any person who traffics in, or endeavors to traffic
in, property that he or she knows or should know was stolen shall be guilty of a felony of the second
degree (emphasis added). On appeal, the respondent argues that his conviction lacks the requisite
intent to constitute a crime involving moral turpitude, and he is therefore not removable from the
United States pursuant to the section 212(a)(2)(A)(i)(I) of the Act.
A crime involving moral turpitude refers to "an act of baseness, vileness, or depravity in the
private social duties which a man owes to his fellow man, or to society in general, contrary to the
accepted and customary rule of right and duty between man and man." See Cano v. U.S. Att'y
Gen., 709 F.3d 1052, 1053 (11th Cir. 2014) (per curiam) (quoting United States v. Gloria, 494 F.2d
477, 481 (5th Cir. 1974)) (internal quotation marks omitted). It does not include offenses where
intentional or reckless conduct is excluded from the statutory definition of the crime. See Matter
ofPerez-Contreras, 20 l&N Dec. 615 (BIA 1992). See also Matter ofDiaz, 26 l&N Dec. 847 (BIA
2016).
The United States Court of Appeals for the Eleventh Circuit, in whose jurisdiction this case
arises, applies the traditional categorical and modified categorical approaches, as established by
Taylor v. United States, 495 U.S. 575 (1990), to determine whether a conviction meets this
definition. See Fajardo v. U.S. Att'y Gen., 659 F.3d 1303, 1305 (11th Cir. 2011). The first step
of this analysis requires that we determine whether the elements of the respondent's statute of
conviction "are the same as, or narrower than, those of the generic" definition of a crime involving
Cite as: Humberto Aristides Machado Brindis, A078 968 678 (BIA Oct. 3, 2017)
A078 968 678
moral turpitude. See Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). If some, but not
all, of the conduct encompassed by the statute falls within the generic definition, and the statute
punishes the generic and non-generic conduct in a "divisible" manner, we may proceed to the
modified categorical approach to determine which of the statute's alternative elements formed the
basis of the conviction. See Descamps v. United States, 133 S. Ct. at 2281.
Similarly, under Florida Statute 812.019(1), a conviction could occur for trafficking in
property that a person "should know'' is stolen. The phrase "should know'' appears to be
synonymous with the phrase "reason to believe," which is discussed above, and is the equivalent
of criminal negligence which is not sufficient for a finding of moral turpitude. See Partyka v. Atty
General ofthe U.S., 417 F.3d 408, 414 (3d Cir. 2005). Based on our analysis in Matter ofDeang,
the respondent's conviction is not categorically a crime involving moral turpitude.
In addition, even if we assume that Florida Statutes 812.019(1) is divisible with respect to
the intent to deprive requirement, we conclude that the Department of Homeland Security ("DHS")
has not established under the modified categorical approach that the respondent was convicted for
knowingly trafficking in stolen property. The record of conviction and criminal information do
not indicate whether the respondent was convicted for knowing or merely should have known that
the property that he had trafficked was stolen property (Exh. 3). In light of the foregoing, the OHS
has not established that the respondent's conviction under Florida law is for a crime involving
moral turpitude. The charge of removability under section 212(a)(2)(A)(i)(I) of the Act of the Act
is therefore not sustained. As there are no other charges pending against the respondent at this
time, the removal proceedings will be terminated.
ORDER: The appeal is sustained, the Immigration Judge's decision is vacated, and the
removal proceedings are terminated.
Cite as: Humberto Aristides Machado Brindis, A078 968 678 (BIA Oct. 3, 2017)
)
HUMBERTO ARISTEDES MACHADO BRINDIS, ) IN REMOVAL PROCEEDINGS
)
RESPONDENT ) Transcript of Hearing
The respondent is a 40-year-old male native and citizen of Cuba who was
admitted the allegations and conceded the charge on the NTA. We had a discussion
today before -- or when we went on the record. The court agrees with Mr. Bassey that
offenses of this grand theft of a motor vehicle is not a crime involving moral turpitude,
but the court finds that dealing in stolen property in violation of Florida statute 812.0191
is a crime involving moral turpitude. The issue before the court now concerns the
application for relief from removal. An immigration judge may weigh the ground of
establishes that a) he is the spouse, parent, son, or daughter of a United States citizen
extreme hardship to that qualifying relative. Extreme hardship is not a definable term of
fixed content. It is dependent on the facts and circumstances particular to each case.
judge to balance the adverse factors, evidence in the alien's undesirability with a
positive consideration as presented on his or her behalf. Matter of Mendez 21 l&N Dec
4 and the respondent's testimony and testimony from his girlfriend, Iliana Borroto. Mr.
Machado testified that he's 40 years old. He's married, currently married, to a lady
who's from Venezuela. Unfortunately a few months after they were married she left him
for another man and the last communication respondent had with this lady is an internet
communication about a year ago, so he has no idea where this lady is. For all he
In any event, the respondent came to the United States in August 2002
and became a lawful permanent resident retroactive to August 2003. He worked until
about 2009 when for three years he was unemployed except for doing odd jobs. He
was employed up to two days ago when some problem arose with his current
supervisors. They apparently didn't want to pay him money he was due so he quit that
job. In addition, it appears that the respondent is in arrears in back taxes to the Internal
The respondent testified that here in the United States he has a father
who is a lawful permanent resident, a brother who's a citizen, and a sister who lives in
cousins here in the United States. The respondent testified that his father spends some
Panama. We learned on cross that his father owns several properties and a trucking
The respondent testified that he's been arrested here in the United States
one time and that was on or about 2009. The best I could understand the testimony is
that the respondent worked for Dollar Rent A Car. He would take a car from Dollar Rent
A Car and either take that car home, take the spare tire out of the car, take the car back
to Dollar Rent A Car, or he would deliver -- or he would drive the car, the Dollar Rent A
Car, to his privately owned vehicle, unload the spare into that and then keep the spare.
So, in any event the respondent did this apparently some three times and that offense
came to light and he was convicted of stealing a car, two counts of stealing cars and
Mr. Machado testified that he lives with Iliana Borroto and he's lived with
her -- they've known each other for some four and a half years and he has lived with her
the last four years and helps her with her household expenses. Ms. Borroto said that
not only that, she described him as someone who doesn't smoke or drink or do drugs.
She's never had to call the police. He's very calm. He's never been violent toward her
and looks out for her physically, or financially and emotionally and takes care of her, Ms.
The most relevant issue here is the extreme hardship that his qualifying
relative would suffer. The respondent has to show in this case that his lawful
permanent resident father would suffer the requisite -- would suffer extreme hardship if
he, the respondent, were ordered removed to Cuba. Mr. Machado testified that his
his father is "so-so." They don't get along very well and apparently since Mr. Machado
name. The respondent, the court notes, though, does suffer apparently from diabetes.
There's no documents in the file that corroborate this, but apparently the respondent
himself suffers from diabetes and he found this out two years ago and has to take
On cross, Mr. Jacobs brought out that the respondent does not contribute
financially to his father. The court notes that the respondent does have ties to Cuba.
His mother -- the respondent has left the United States many times to see his mother in
Cuba who, unfortunately, is suffering from cancer, and to see his grandmother, the lady
who raised him, essentially raised him, his life. She's now 99 years old and she is
U.S. citizen. She's currently receiving disability and this stems from -- some $720 a
month. This stems from her affliction that was diagnosed in 1995 of Hodgkin's
lymphoma. She suffered -- that cancer is now in remission, but apparently she suffered
some side effects from the treatment of that cancer, problems involving her thyroid and
caused her to have her spleen and gallbladder removed and a hysterectomy. Ms.
Borroto doesn't drive. She relies on Mr. Machado to do that for her to get her to her
required medical appointments. He does provide some financial support and performs
chores around the home. They've discussed marriage, according to Ms. Borroto, the
respondent and Ms. Borroto, but the stumbling block is that the respondent is married.
He doesn't know where his wife is, but assuming he can find her and divorce her, Ms.
process. First the respondent has to show extreme hardship to a qualifying relative and
on the facts of this case the respondent is unfortunately unable to show that his lawful
permanent resident father would suffer the requisite extreme hardship. His father
company. He travels back and forth from the United States to Panama. There is some
testimony that the relationship is estranged at best. So, looking at the totality of the
circumstances here and the evidence, the court finds that the respondent has not
shown that his father would suffer the requisite extreme hardship if Mr. Machado were
whether one, she can show an extreme hardship and two, the respondent is deserving
of a waiver in the exercise of discretion. So both of those issues the court will not
address today. All I'm doing on the case today is showing -- is saying that one, the
respondent has been convicted of a crime involving moral turpitude and under INA
Section 212!.hlH he's failed to show that his lawful permanent resident father -- there's
just a.Q.aucity-(f_ndiscernible] OQf evidence here. I mean, there's very -- we don't even
have evidence that he has a father, one, who is a lawful permanent resident, two, and
that Humberto Machado is that man's child. I mean, there's no birth certificates.
There's no LPR card from the father. We have nothing other than the respondent's
testimony. So, even assuming that all his testimony is true, the respondent is not even
So, for those reasons I find that unfortunately the respondent is not eligible
for INA Section 212.(h)J=I- waiver. The court will [indiscernible] following orders
hereby denied. It is further ordered that the respondent be removed to Cuba on the
signature
KEVIN CHAPMAN
Immigration Judge