Weber, Matthew B.

Matthew B. Weber, Attorney

2828 Coral Way, Suite 410
Miami, FL 33145
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofice of the Clerk
5107 l.eesbur Pike. Suile 1000
Fulls Church. Virginia !0530
OHS/ICE Ofice of Chief Counsel - MIA
333 South Miami Ave., Suite 200
Miami, FL 33130
Name: SANCHEZ FAJARDO, CAMILO E gg A 077-675-707
Date of this notice: 6127/2014
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Liebowitz, Ellen C
Mullane, Hugh G.
Malphrus, Garry D.
Sincerely,
Dc c t
Donna Carr
Chief Clerk
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Camilo Ernesto Sanchez Fajardo, A077 675 707 (BIA June 27, 2014)
U.S. Deparent of Justice
Executive Ofce fr Imigation Review
Decision of the Board of Imigation Appeals
Falls Church, Virginia 20530
File: A077 675 707 - Miai, FL
In re: CAMILO ERESTO SANCHEZ FAJARDO
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Matthew B. Weber, Esquire
ON BEHALF OF OHS:
CHARGE:
Candice Kasperson
Assistant Chief Counsel
JUN 2 7 2Q14
Notice: Sec. 212(a)(2)(A)(i)(I), I&N Act [
8 U.S.C. 1182(a)(2)(A)(i)(I)
] -
Crime involving moral titude
APPLICATION: Terination
The respondent, a native and citizen of Cuba, appeals fom the Immigation Judge's
October 24, 2012, decision fnding him removable fom the United States as a alien convicted
of a crime involving moral tuitude. Section 212(a)(2)(A)(i)(I) of te Immigation ad
Nationality Act (Act), 8 U.S.C. 1182(a)(2)(A)(i)(I). The United States Court of Appeals fr
the Eleventh Circuit remaded this case to the Board to deterine wheter te respondent's false
imprisonment conviction qualifes as a crme involving moral turpitude.
Fajardo v. US. Aty Gen., 659 F.3d 1303 (11th Cir. 2011). The Board subsequently gnted te
paies' joint moton to remad the record to the Immigation Judge. See July 18, 2012, Boad
Decision. The instt appeal fom the Immigation Judge's decision on remad will be sustained
and the removal proceedings will be terminated.
We review fr clear eror the fndings of fct, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.l (d)(3)(i). We review de novo all other
issues, including whether the parties have met the relevant burden of proof ad issues of
discretion. 8 C.F.R. 1003.l (d)(3)(ii).
In 2002, the respondent pied guilty to false imprisonment in violation of Fla. Stat. 787.02(1)
(l.J. at 1-2, 6; Exh. 3). The Immigration Judge deterined that the conviction was not
categorically fr a crime involving moral turitude because the Florida statute covers acts that do
not employ a substantial aount of physical frce or that restain the victim only momentarily
(l.J. at 3-4). Neiter pay challenges this determination; instead, the issue on appeal is wheter
the Immigation Judge properly employed the modifed categorical approach in fnding that the
conviction qualifed as a crime involving moral turpitude (Resp't Br. at 5; OHS Br. at 4-5).
The Immigation Judge did not properly employ the modifed categorical approach. In
applying the modifed categorical approach, an Immigation Judge may consider te contents of
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Cite as: Camilo Ernesto Sanchez Fajardo, A077 675 707 (BIA June 27, 2014)
A077 675 707
police reports as pa of the record of conviction only if they were specifcally incorporated into
the guilty plea or were admitted by the alien during the criminal proceedings. Mater of Milian,
25 l&N Dec. 197 (BIA 2010) (highlighting that the plea fr contained the handwritten
statement "stip to police report as factual basis," and the respondent initialed the statement). The
conviction record here does not adequately support a fnding that the police report was the
fctual basis fr the respondent's plea (l.J. at 6). Accordingly, the police report should not have
been considered. See Mater of R-S-H-, 23 l&N Dec. 629, 637 (BIA 2003). We will therefre
sustain the resondent's appeal and terminate removal proceedings.
ORDER: Te respondent's appeal is sustained and the removal proceedings ae terinated.
FOR THE BOA
Board Member Hugh G. Mullane dissents witout opinion.
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Cite as: Camilo Ernesto Sanchez Fajardo, A077 675 707 (BIA June 27, 2014)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFCE FOR IMIGRTION REVEW
IMIGRATION COURT
MIAMI, FLORA
I THE MTTER OF:
)
)
SANCHEZ FAJARDO, Camlo Eresto
)
A# 077-675-707
)
)
RSPONDENT
)

)
ON BEHALF OF RESPONDENT
Matthew B. Webe, Esq.
Law Ofce of Mattew B. Weber
2828 Coral Way, Suite 410
Miai, Florda 33145
IN REMOVAL PROCEEDINGS
ON BEHALF OF DHS
Candice Kasperson
Assistant Chief Counsel
Depaent of Homeland Securty
333 South Miami Avenue, Suite 200
Miai, Florida 33130
DECISION OF THE IIGRTION COURT
I. Procedural Background
This removal proceeding is befre the Iigation Court fllowing a remand fom the
United States Court of Appeals fr the Eleventh Circuit to detennine wheter Respondent
Camilo Sanchez Fajardo's conviction fr flse imprisonment pursuant to Fla. Stat. 787.02(1)
(2002) is a conviction of a crime involving moral turitude (CIMT) under section
212(a)(2)(A)(i)(I) of the Immigation and Nationality Act (INA).
1
See Fajardo v. U.S. Att'y
Gen., 659 F.3d 1303, 131 1 ( l l th Cir. 2011). On Augst 6, 2012, this Court isse a briefng
schedule requesting the parties to address this issue. Te Court now resolves the contested
charge of admissibility.
II.
Discussion
IA 212(a)(2)(A)(i)(I) provides, in pe1tinent par, that an alien convicted of a crme
1 Becue the paie ar familiar wth the facts and procedual histor, the Cout does not rtate them here except
as neessar to expla this decision.
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involving mora trpitde is inadmissible. "[T]o quaif as a crme involving moral tuitude fr
puroses of the Act, a crme must involve bot rerehensible conduct ad some degee of
scienter, whethe speifc intent, deliberatenes, willflness, or recklessnes." Matte of Silva-
Trevino, 24 I&N Dec. 687, 689 n.l (A.G. 2008). To deteine whethe a particular crime is a
crme involving moral titude, te Court must frst engage in a "categorical" iquiry and look
to "the inherent nature of the ofense, as defined in the relevant statte, rather than the
cicumstaces sur ounding a defndant's paticular conduct." Fajardo, 659 F.3d at 1305. If the
statutory definition of a cme ecompasses some conduct that categorcally would be gounds
fr removal as well as other conduct that would not, then, under te modifed categorcal
approach, the record of conviction may also be considered. Jag auth v. U.S. Att'y. Gen., 432
F.3d 1346, 1355 (1 lth Cir. 2005). In the Eleventh Circuit an adjudicator's CIT analysis is
limited to te categorical and modife categorical approaches; as such, the Court may not look
beyond the record of conviction. Fajardo, 659 F .3 d at 1310-11 (rejecting the third-step approach
outlined in Silva-Trevino, 24 I&N Dec. at 699). Under the modifed categorical approach, the
Court may exaine only the record of conviction, which includes the charging document,
infration, plea verdict or judgent, and sentence, but generally does not include the police
reort. Jagmauth, 432 F.3d at 1354-55.
On June 19, 2002, Respondent was convicted of flse imprisonment in violation of
Florda Statute 787.02. This section provides that:
( l)(a) Te term "false imprisonment" means frcibly, by threat, or secretly
confning, abducting, imprisoning, or restraining another person without lawfl
authority and against her or his will.
(2) A person who commits the ofense of flse imprisonent is guilty of a flony
of the thrd degee, punishable as provided in 775.082, 775.083, or 775.084.
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Fla. Stat. 787.02.
In order to "establish the cme of false imprisonmet, te state is reuired to prove to
elements beyond a reasonable doubt: (l) the defndat frcibly, secretly, or by thret, confned,
aducted, imprisoned or restained the victim against his or he will; and (2) te defedat had
no lawfl authorty to do so." Seavey v. State, 57 So.3d 978, 980 (Fla. Dist. C. App. 2011).
"Te essence of flse imprisonment is the act of deriving the victim of peonal liberty or
feeom of moveent fr any leng of time." Proko v. State, 566 So.2d 918, 920 (Fla. Dist. Ct.
App. 1990) (ephasis added).
Tere are no published Board of Immigation Appeals (BIA) or Elevent Circuit
decisions addressing whete a conviction under Fla. Stat. 787 .02 constitute a cime involving
moral titude. Neveeles, a review of the state appellate case law addressing this statute
suggets that false imprisonment is not categoricly a crime involving moral turitde. Florida
appellate cuts have interpreted 787 .02 to encompass several distinct crmes, some of which
would not qualif as a crime involving moral turitude because they include acts that do not
eploy substantial physical frce or that restain a victim only momentarily. See Proko, 566
So.2d at 920 (noting that "the Florida statute [fr flse imprsonent] does not require that the
frce or the retraint be substantial" and fnding a violation where the victim was ''brefy
deprive of her ability to leave" because defendant gabbe onto te victim's a and she had to
pull away); see also Connor v. State, 19 So.3d 1117, 1124-25 (Fla. Dist. Ct. App. 2009)
{concluding that false imprisonment "may be completed by the simple momentary gasp of
aother person.").
Similaly, in addressing whether flse imprisorent under Florida law is a crime of
violence, the Eleventh Circuit has held that the statute encompasse some cme which do not
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qualif a crmes of violence. United State v. Rosales, 676 F.3d 1017, 1022 (llth Cir. 2012).
Te Rosales court noted that where te statute ceates criminal liaility fr "secetly' detaining
another peon, it is possible to commit the ofense without employing any physic frce. Id.
The Fifh Circuit, addressing te same question, in Kerr v. Holder, held tat
[t]he Florida flse imprisorent ofense is not categorically a 'cme of violence'
under [18 U.S.C. 16(b)] because, in addition to frcible imprisonments, the
statute also punishes 'confnement' of a child without te consent of hs or her
legal guardian, even if the child acuiesce or consents in fct to te confnement.
352 Fed.Appx. 958, 963 (5t Cir. 2009). This Cou fnds tat a conviction unde the statte fr
false imprisonment encompasses conduct that is not reprehensible. Because there is a realistic
probability that te statute coves acts which do not involve moral tritde Repondent's
conviction is not categorically a crime involving moral turitude ad the Court will t to the
modifed categorcal approach.
The modifed categorical approach allows the adjudicator to consider the record of
conviction in making a detennination. The record of conviction may include "the tes of the
charging docment, the ters of a plea ageement or colloquy between judge and defndant in
which the fctual basis fr te plea was confrmed by the defndant, or to some comparable
judicial record of this infrmation." Shepard v. Unite States, 544 U.S. 13, 26 (2005). I this
case OHS provided the fllowing documents as the record of conviction: te infraion,
judgent and sentece, and the police report. See Exh. 2. The portion of te infration relating
to the charge of flse imprisonment and the judgment and sentence restate the language of the
statute of conviction and do not specify whether the respondent was convicted fr an act tat is a
cime involving mora) turitude.
Nonally, the record of conviction does not include police reorts. Jaggmauth, 432
F.3d at 1355. However, the record of conviction may be supplemente by other noraUy
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exclude docets where the defendat has assente to an explicit factal fnding by the ta
judge, Shepard, 544 U.S. at 16, 125 S. Ct. at 1257, or where the police report is "incorrate by
refence as at leat par of the factual basis fr the gilty plea." Matter of Milia-Dubon, 25
l&N Dec. 197, 202. It is not necessary "fr the respondent to acknowledge the truth of evey
statemet in the police report or fr the judge in the crinal case to have specifcally reviewed
or referenced the reor during the plea proceeding." Id.
Here, DHS ases that this Court may consider the police rort in this case because it
was inctorate into the record by refrece in the plea proceeding and colloquy. Respondent
contends tat the transcript of the plea proceeings ad clloquy are inadmissible as newly
intoduce evidence and outside the explicit instructions of the Eleventh Circuit on remand. This
court disagees. "Documentary evidence in deortation proceeding nee not compor wt stict
judicial rles of evidece; rather, in order to be admissible, such evidence need only be probative
and its use fndaentally fair, so as not to deprive an alien of due process of law." Matter of
Grijalva, 19 I&N Dec. 713 (BIA 1988) (citing Matter ofVelasguez, 19 I&N Dec. 377, 380 (BIA
1996)); see also 8 C.F.R. 1240.7(a), 1240.46(c)(providing that a Immigation Judge 11may
receive i evidence any oral or written statement that is material and relevant to any issue in the
case previously made by the respondent or any other person during any investigation,
examinaton, heng, or tral."). This cu fnds that the plea proceeding tascript is
admissible evidence and may be considered. Additionally, the remand instuctions of the
Eleventh Circuit do not preclude this Court fom examining evidence where this cur is now
chaged with deterining in the frst instace whether Respondent's conviction is fr a cme
involving moral turpitude.
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The plea tascpt references the police ror a the factual bais fr respondent's ple
in the fllowing exchange:
COURT:
RESP'T:
COURT:
RESP'T:
COURT:
RESP'T:
COURT:
AIY:
COURT:
AIY:
Are you giving [speife rgt] up at tis time in orde to enter
tis plea?
Yes.
Pleading guilty to thee charges because you did in fct
commit the ofense of flse imprisonment, batter?
Some of them.
Te other thing - the other three I talked about.
Yes.
Okay. I have read the police report. Mr. Surowiec, ae you
standing in fr Mr. Viera?
Ye+
I a satisfed if need be the State would be able to prove
the prima fcie case. Will you stipulate to a fctual basis
fr purposes of the plea and waive [the Presentence
Ivetigation]?
Ye.
See Dep't of Homeland Security Statement of Position, Tab A. Tis colloquy refects that
Respondent's counsel stipulated to te police report a the factual bais fr his gilty plea ad
accordingly, this cout may look to the contents of the police repor to detenine whether the
porion of the false imprisorent statute under which the respondent pled gilty wa fr
turitudinous conduct.
According to the police repott the respondent
was waiting fr his [wife) in the bushes .... As victim arved at her home,
unlocked the door ad entered the home with their 3 year old son, [Repondent]
frce his way into the home, pushing the victim against the wall and te closing
the door behind te. Once inside the home, the [repondent] began to take his
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.
clothes of (shirt and shoes) and te pushed the victm to the bedroom, whee he
told the victim, "I'm going to choke you to death now", "Once you're ded, no
one is going to fnd you." He then, afer sng te victm in the area of her
shoulde, gaspe her throat with both hands and violently choke the victim.
See Id. at Tab B. Additionally the police reort states that when police a ved te victm had
"redness i the aea of her neck and throat." Id. The intentional tasmission of threats is
evidence of a vicious motve or a corpt mind, deonstrating the required scienter. Se Mate
of Ajai, 22 I&N Dec. 949, 952 (BIA 1999) ("Among the tests to detennine if a cme involves
moral titde is whether the act is accompanied by a "vicious motive or a corpt mind."). A
fiend of te victim called 911 afer heaing the victim sc fr help. Te police were
dispatched ad when the Respondent opened the door, he told them "everyting is o.k. here."
Se Ex. 2. It was not until the police heard the victim screaming and they saw her r out of a
back room that they reaize the seriousness of the Repondent's cme. Resondent also
demonstate rerehensible conduct when he frcibly entere the victim's home, choke her,
held he down, ad threatened to ki11 her, all in font of their 3-year-old child. Therefre, the
Court fnds that Repondent's conviction fr false imprisonment in violation of Florida Statte
787 .02 is a crime involving moral turpitde.
A review of the record compels the Court to make a deterination that Respondent is not
eligible fr any frms of relief. Respondet is not eligible fr LPR Cacellation of Reoval.
Respondet was admitted as a lawfl penanent resident on Febrary 4, 2002, with a roll-back
date of Febrary 4, 2000. The crme fr which Respondent was convicted wa committed on
Mach I, 2002. The commission of the crme stops Respondent's continuous physical preence
in the Unite States and make him statutorly ineligble fr cancellation. See IA
240A(d)( l).
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9
.
Reondet is not eligble fr a 212(h) waiver of the CIT gound of inadmissibility
where Respondent C8 ot demonstrate contnuous preence. DHS seed Repndet with the
Notce to Apear on December 6, 2005. Hec, Respondent did not lawflly reide in the
United State fr a peod of seven years prior to the initiation of proceedings. See INA
212(h).
As far as Asylum, Withholding of Removal, or CAT, the posture of the case is that
Respondent has never applied fr these fns of relief ad teefre the Cout deems those
fns ofreliefto have been wai ved.
Accordingly, the fllowing order shall be entere:
IT IS HREBY ORERD that the charge of inadmissibility uder IA
212(a)(2)(A)(i)(I) be SUSTAIED.
IT IS FURTHER ORDERED that RespondenCs Motion to Teniate be DENIED.
IT IS FURTHER ORDERED that Respondent be REMOVED to his native cout of
CUBA pursuant to the charges contained in the Notice to Appear.
DATED this a day of October, 2012.
CC: Assistant Chief Counsel
Respondent's Counsel
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