Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017) - Burglary of a Dwelling in CIMT Context

• Introduction: Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017)
• Facts and Procedural History: 27 I&N Dec. at 82-83
• Board's Analysis and Conclusions
  • Categorical Approach, Definition of CIMT, and Arguments: 27 I&N Dec. at 83-84
  • Relevant Statutes: 27 I&N Dec. at 84-85
  • Divisibility of the Statute and Modified Categorical Approach: 27 I&N Dec. at 85-86
  • Determination that Respondent's Conviction Was a Categorical CIMT: 27 I&N Dec. at 86-88
• Conclusion

Introduction: Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017)

On August 18, 2017, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017) [PDF version]. In Matter of J-G-D-F-, the Board was tasked with determining whether “burglary of a dwelling” in violation of section 164.225 of the Oregon Revised Statutes is a crime involving moral turpitude (CIMT). The Board had previously held that burglary of a dwelling where a victim was present at the time of the burglary was a categorical CIMT. The specific issue in the instant case was that the statute at issue did not require that the dwelling in question have been occupied at the time of the burglary. The Board held that the statute nevertheless categorically defined a CIMT because it required that the dwelling be at least intermittently occupied. In this article, we will examine the facts and procedural history of the case, the Board's analysis and conclusion, and what the new precedent will mean going forward. The case also concerned the respondent's attempt to have an untimely filed application for asylum considered. Please see our separate article on that aspect of the decision [see article].

Factual and Procedural History: 27 I&N Dec. at 82-83

The respondent, a native and citizen of Mexico, entered the United States without inspection at an unknown time and place.

The respondent was twice convicted of burglary in the first degree in violation of section 162.225 of the Oregon Revised Statutes. His first conviction was on April 9, 1999 and his second conviction was on March 19, 2002.

The Department of Homeland Security (DHS) initiated removal proceedings against the respondent. It charged him with removability under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (INA), based on his two convictions, as an alien who had been convicted of a CIMT. He was also charged as removable under section 212(a)(6)(A)(i) as an alien present in the United States without being admitted or paroled.

In removal proceedings, the respondent conceded inadmissibility under section 212(a)(6)(A)(i), but he denied that he was inadmissible as an alien convicted of a CIMT under section 212(a)(2)(A)(i)(I). In 2016, the Immigration Judge determined that the respondent was removable because he was an alien convicted of a CIMT. In a subsequent decision, the Immigration Judge denied the respondent's applications for cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture. The respondent appealed from the decision to the BIA.

Board's Analysis and Conclusions

The Board addressed two distinct issues: First, whether the respondent's convictions were CIMTs and, second, whether the Immigration Judge erred in rejecting the respondent's applications for relief. The Board would ultimately affirm the Immigration Judge's decision and dismiss the respondent's appeal. This article will only discuss the Board's consideration of the CIMT issue. To read about the Board's consideration of the respondent's applications for relief, please see our companion article on Matter of J-G-D-F- [see article].

Categorical Approach, Definition of CIMT, and Arguments: 27 I&N Dec. at 83-84

The Board began by stating that it would apply the “categorical approach” to determining whether the respondent's convictions were CIMTs. Under the categorical approach, the Board would compare the statutory elements of the crimes of convictions — meaning those facts required to be proven in order to sustain a conviction — with the elements of the generic definition of a CIMT. Please see our article on a series of Board and Supreme Court of the United States decisions dealing with the categorical approach to learn more [see article]. Citing to Matter of Silva-Trevino, 26 I&N Dec. 826, 831 (BIA 2016) [see article], the Board explained that it would focus on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction and determine whether a conviction for that conduct would be a CIMT.

The Board noted that the INA does not specifically define a CIMT. However, citing to Escobar v. Lynch, 846 F.3d 1019, 1024 (9th Cir. 2017) [PDF version], and Matter of Silva Trevino, 26 I&N Dec. at 834 [see section], the Board explained that a CIMT is generally a crime that “(1) is vile, base, or depraved and (2) violates accepted moral standards.”

The respondent lodged two challenges regarding the Immigration Judge's determination that he had been convicted of a CIMT.

The Board dismissed out of hand the respondent's assertion that the phrase “crime involving moral turpitude” is unconstitutionally vague. It noted, citing to its recent decision in Matter of Calcano de Millan, 26 I&N Dec. 904, 911 (BIA 2017) [see article], that it generally does not entertain constitutional challenges to provisions of the INA. In any event„ the Board cited to the Supreme Court decision in Jordan v. De George, 341 U.S. 223, 229-32 (1951) [PDF version], wherein the Supreme Court held that the phrase “crime involving moral turpitude” is “sufficiently definite to withstand constitutional scrutiny” (quote from the Board).

The Board's analysis focused on the respondent's second argument that his convictions were not categorically CIMTs. The respondent claimed that section 164.225 of the Oregon Revised Statutes is broader than the generic definition of a CIMT in section 212(a)(2)(A)(i)(I) of the INA. In short, the respondent argued that the minimum conduct that had a realistic probability of being prosecuted under the Oregon provision would not be a CIMT. Specifically, the respondent took the position that the Oregon statute does not necessarily involve “reprehensible conduct or a culpable mental state” because it did not require that a defendant unlawfully enter a dwelling or intend to commit a CIMT at the time he or she entered the building.

Conversely, the DHS argued that the Oregon statute categorically defined a CIMT. The DHS's position was that any conviction under the statute necessarily involves burglary of a dwelling with the intent to commit a crime in the dwelling.

Relevant Statutes: 27 I&N Dec. at 84-85

The Board excerpted the pertinent portions of the Oregon statute. First, the Board quoted from the relevant part of section 164.225 of the Oregon Revised Statutes (emphasis added by the Board):

1. A person commits the crime of burglary in the first degree if the person violates ORS 164.215 and the building is a dwelling, or if in effecting entry or while in a building or in immediate flight therefrom the person:
   • a. Is armed with a burglar's tool as defined in ORS 164.235 or a deadly weapon or;
   • b. Causes or attempts to cause physical injury to any person; or
   • c. Uses or threatens to use a dangerous weapon.

Next, the Board excerpted section 164.215, which is referenced in section 164.225(1) (emphasis added by the Board):

a person commits the crime of burglary in the second degree if the person enters or remains unlawfully in a building with intent to commit a crime therein.

The Board then cited to section 164.205(2), which defines the term “dwelling” (emphasis added by the Board):

a building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a person is actually present.

Citing to United States v. Mayer, 162 F.Supp.3d 1080, 1089 (D. Or. 2016), the Board explained that an individual commits first degree burglary under section 164.225 of the Oregon Revised Statutes by either:

1. “[E]ntering or remaining unlawfully in a building that is a dwelling with the intent to commit a crime; or
2. “[U]nlawfully entering or remaining in a building, while carrying a burglar's took or deadly weapon, causing or attempting to cause injury to any person, or using or threatening to use a dangerous weapon.

Divisibility of the Statute and Modified Categorical Approach: 27 I&N Dec. at 85-86

The Board explained that it did not need to determine whether both prongs of the statute were CIMTs. The reason for this was that the statute was divisible with regard to whether the offense involved entering or unlawfully remaining in a dwelling or whether it involved a building other than a dwelling. To this effect, the Board cited to the Oregon Uniform Criminal Jury Instructions 1901. Furthermore, the Supreme Court held in Mathis v. United States, 136 S.Ct. 2243, 2249 (2016) [see article], that a statute is divisible if “it list[s] elements in the alternative, and thereby define[s] multiple crimes.”

The respondent had argued that the statute was indivisible and thus that his conviction was only a CIMT if both prongs categorically defined a CIMT. In so doing, the respondent cited to the Ninth Circuit decision in United States v. Cisneros, 826 F.3d 1190 (9th Cir. 2016) [PDF version]. In Cisneros, the Ninth Circuit held that section 164.225 does not categorically define “burglary” under Federal law because the statute does not limit “burglary” to buildings or structures. To this effect, the Ninth Circuit cited to Mathis, which concerned the generic definition of burglary in a similar context. The Ninth Circuit's decision relied on the fact that it found the statute to be indivisible with regard to the type of “building” burglarized. However, the Board did not find this decision to be controlling on whether the statute was a CIMT. The Board explained that whether the statute was divisible with regard to the type of “building” burglarized was relevant to whether the statute categorically defined generic burglary. However, in the CIMT context, the Board took the position that the operative question was whether burglarizing a “dwelling” as defined in Oregon law fell categorically within the generic definition of a CIMT.

Because the Board determined that the statute of conviction was divisible, it found that the Immigration Judge was correct in employing the modified categorical approach. Under this approach, an adjudicator is permitted to look at the record of conviction to the extent necessary to determine which prong of the divisible statute the respondent was convicted under. The Board concurred with the Immigration Judge's conclusion that both of the respondent's convictions fell under the first prong of the statute which criminalizes unlawfully entering or remaining a building that is a dwelling to commit a crime.

Determination that Respondent's Conviction Was a Categorical CIMT: 27 I&N Dec. at 86-88

Next, the Board moved to determine whether the respondent's convictions in violation of the first prong of section 164.225 of the Oregon Revised Statutes were categorical CIMTs. For the following reasons, the Board concluded that they were.

The Board began with a discussion of the first case in which it examines whether burglary is a CIMT. In the Matter of M-, 2 I&N Dec. 721, 722 (BIA, A.G. 1946), the Board considered whether the burglary provision of the New York Penal Law — which provided that whoever, “[w]ith intent to commit a crime therein, breaks and enters a building, or any part of a building[ or … [b]eing in any building, commits a crime therein and breaks out of the same, is guilty of burglary in the third degree” — was a CIMT. In Matter of M-, the Board held that the statute was not a CIMT in a decision that was affirmed by the Attorney General. The Board and the Attorney General took the position that, while intent to commit a larceny was most likely present in most violations of the New York statute in question, it was not a necessary element of the statute. In its decision, the Board noted that the statute covered offenses not involving moral turpitude, such as “a group of boys opening the unlocked door of an abandoned barn with the intention of playing cards in violation of one of the many New York wagering laws.” Id. at 723. The Board concluded by taking the position that, in determining whether a burglary offense is a CIMT, adjudicators must assess the “particular crime” accompanying the unlawful entry instead of the unlawful entry in and of itself.

The Board explained that in many unpublished decisions subsequent to Matter of M-, it has followed the rule that a burglary offense is only a CIMT if the crime accompanying the unlawful entry involves moral turpitude. Yet, in a published decision from 2009 titled the Matter of Louissaint, 24 I&N Dec. 754, 756 (BIA 2009) [PDF version], the Board made clear that Matter of M- did not involve burglary of a “dwelling.” In Matter of Louissaint, the Board held that burglary in violation of section 810.02(3)(a) of the Florida Statutes was a categorical CIMT because it involved the “conscious and overt act of unlawfully entering or remaining in any occupied dwelling with the intent to commit a crime is inherently 'reprehensible conduct' committed 'with some form of scienter.'” Id. at 758. Recently, the United States Court of Appeals for the Fourth Circuit reached the same result in distinguishing burglary of a dwelling from Matter of M- in Uribe v. Sessions, 855 F.3d 622, 626-27 & n.5 (4th Cir. 2017) [PDF version].

However, the instant case arose from within the jurisdiction of the United States Court of Appeals for the Ninth Circuit, not the Fourth. The Board noted that the Ninth Circuit has cited favorably in published decisions to the central holding in Matter of M- that unlawful entry in and of itself is not “base, vile[,] or depraved.” For example, see Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1019 (9th Cir. 2005) [PDF version]. However, the Board noted that Cuevas-Gaspar preceded Matter of Louissaint, and therefore the Board did not consider it binding on the Board's ability to distinguish burglary of a “dwelling” from the holding in Matter of M-.

Accordingly, the Board extended its holding in Matter of Louissaint to section 164.225 of the Oregon Revised Statutes. The Board noted that the statute at issue in the instant case was distinguishable from the Florida statute at issue in Matter of Louissaint in that the Oregon statute does not require that the victim be present in the dwelling at the time of the offense. However, the Oregon statute in the instant case does require that the dwelling be “regularly or intermittently … occupied.” In State v. Eaton, 602 P.2d 1159, 1160 (Or. Ct. App. 1979), an Oregon appellate court concluded that a structure is not regularly or intermittently occupied “[w]here an eight-week period of occupancy is followed by 44 weeks of vacancy, and where the burglary occurred months after the last occupant left.”

In Matter of Louissaint, 24 I&N Dec. at 758-59, the Board specified that burglary of a dwelling inherently involves turpitude because “[b]y breaking into a dwelling of another for an illicit purpose, the burglar tears away the resident's justifiable expectation of privacy and personal security and invites a violent defensive response from the resident.” While the Oregon statute in the instant case does not require that a victim be present at the time of the burglary, the Board reasoned that Oregon's “intermittently occupied” requirement — at a minimum — “raises the probability of a person's presence at the time of the offense and involves the same justifiable expectation of privacy and personal security as the Florida burglary offense we considered in Louissaint.” For these reasons, the Board held that the respondent's convictions were categorical CIMTs.

Conclusion

Matter of J-G-D-F- essentially extends the Board's precedent from Matter of Louissaint. Although Matter of M-, which held that unlawful entry does not inherently involve moral turpitude, remains good law, Louissaint distinguished cases involving dwellings. In Matter of J-G-D-F-, the Board makes clear that there need not be a victim present for a statute involving burglary of a dwelling to be a CIMT. However, the statute must require that the dwelling be at least intermittently occupied in order for it to fall under Matter of J-G-D-F. Accordingly, it is important to note that whether a specific statute is a CIMT will often come down to the specific language of the statute. While the Board held that the Oregon statute in question was a categorical CIMT, it is possible that a similar statute somewhere else may not.

It will be worth following this issue to see how various appellate courts handle it. For example, the Board noted that the Ninth Circuit, which has jurisdiction over the case, has not explicitly weighed in on Matter of Louissaint. Furthermore, as we noted in our article on Matter of Silva-Trevino III, the United States Court of Appeals for the Fifth Circuit employs an entirely different approach to analyzing statutes in the CIMT context than does its sister circuits and the Board (see e.g., Mercado v. Lynch, 823 F.3d 276, 279 (5th Cir. 2016) [PDF version]).

Please see our companion article for a discussion of how the Board handled the respondent's applications for relief from removal [see article].