U.S.

Department of Justice

Executive Office for Immigration Review

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

DHS/ICE Office of Chief Counsel - PSD

566 Veterans Drive
Pearsall, TX 78601

Name: DAVILA-BARRERA, LUIS ALFRE...

A 074-583-018
Date of this notice: 11/23/2016

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

DOn,tL C!

t1/vL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Geller, Joan B

Userteam: Docket

For more unpublished BIA decisions, visit

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Rodriguez, Juan Carlos

De Mott, McChesney, Curtright,
& Armendariz, LLP
800 Dolorosa
Ste 100
San Antonio, TX 78207

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5/07 leesburg Pike. Suite 2000
Falls Church. Virginia 22041

OHS/ICE Office of Chief Counsel - PSD

566 Veterans Drive
Pearsall, TX 78601

Name: DAVILA-BARRERA, LUIS ALFRE ...

A 074-583-018
Date of this notice: 11/23/2016

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If. the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

DorutL c

(1/VL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Geller, Joan B

Userteam:

Cite as: Luis Alfredo Davila-Barrera, A074 583 018 (BIA Nov. 23, 2016)

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DAVILA-BARRERA, LUIS ALFREDO

A074-583-018
SOUTH TEXAS DETENTION COMPLEX
566 VETERANS DRIVE
PEARSALL, TX 78061

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

'

Falls Church, Virginia 22041

Date:

File: A074 583 018 - Pearsall, TX

In re: LUIS ALFREDO DAVILA-BARRERA

NOV 2 3 2816

APPEAL
ON BEHALF OF RESPONDENT: Juan Carlos Rodriguez, Esquire
ON BEHALF OF DHS:

Rebecca Hollaway
Assistant Chief Counsel

CHARGE:
Notice: Sec.
Sec.

237(a)(2)(A)(i), I&N Act [8 U.S.C. 1227(a)(2)(A)(i)] Convicted of crime involving moral turpitude
237(a)(2)(A)(ii), l&N Act [8 U.S.C. 1227(a)(2)(A)(ii)] Convicted of two or more crimes involving moral turpitude

APPLICATION: Termination
The Department of Homeland Security ("DHS") appeals from an Immigration Judge's
August 17, 2015, decision terminating removal proceedings against the respondent. The
respondent opposes the appeal. The appeal will be dismissed.
We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. I003.l(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. I003.1(d)(3)(ii).
The respondent, a native and citizen of Mexico, has been a lawful permanent resident of the
United States since March 29, 2002 (I.J. at 1; Exh. 1). On April 28, 2005, the respondent was
convicted of two counts of burglary of a vehicle in violation of TEX. PENAL CODE ("TPC")
30.04 (I.J. at 1-2; Exh. 2 at Tabs A, B). On April 3, 2008, the respondent was convicted of
theft of $50 to $500 in violation of TPC 31.03 (I.J. at 2; Exh. 2 at Tab C). Based on these
convictions, the DHS placed the respondent in removal proceedings and charged him as
removable from the United States as an alien convicted of a crime involving moral turpitude
("CIMT") committed within 5 years after admission for which a sentence of 1 year or longer
may be imposed, and as an alien who, at any time after admission, has been convicted of two
or more CIMTs not arising out of a single scheme of criminal misconduct (Exh. 1). See sections
237(a)(2)(A)(i), (ii) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(i), (ii).
The Immigration Judge dismissed the charges of removal and terminated removal proceedings.
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IN REMOVAL PROCEEDINGS

A074 583 018

To determine if the respondent's burglary offense is a CIMT, we employ a categorical

inquiry. See Matter of Silva-Trevino III, supra, at 831. In the United States Court of Appeals for
the Fifth Circuit, the jurisdiction in which this case arises, the categorical inquiry requires a focus
not on the specific facts underlying the respondent's particular violation of law, but rather on
whether "the minimum reading of the statute [of conviction] necessarily reaches only offenses
involving moral turpitude." Gomez-Perez v. Lynch, 829 F.3d 323, 327 (5th Cir. 2016) (citation
omitted); Mercado v. Lynch, 823 F.3d 276, 279-80 (5th Cir. 2016); see also Matter of Silva
Trevino III, supra, at 832 (explaining that the Fifth Circuit applies the "minimum reading"
approach to the categorical inquiry).
At all relevant times, the respondent's statute of conviction has provided, in relevant part,
"[a] person commits an offense if, without the effective consent of the owner, he breaks into
or enters a vehicle or any part of a vehicle with intent to commit any felony or theft." TPC
30.04(a). Because the minimum reading of TPC 30.04(a) punishes a defendant for breaking
and entering a vehicle with the intent to commit a non-turpitudinous felony, all parties agree that
the respondent's statute of conviction does not categorically qualify as a CIMT (I.J. at 3; OHS
Brief at 5). The parties disagree, however, about whether the Immigration Judge may apply the
modified categorical approach and consult the record of conviction to determine whether the
respondent intended to commit a turpitudinous or a non-turpitudinous offense after breaking and
entering the vehicle. We agree with the Immigration Judge that he may not.
The modified categorical approach may be applied only if the statute of conviction has a
divisible structure that sets out alternative elements of the offense, as opposed to alternative
means of committing the offense, and "at least one, but not all, of the listed offenses or
combinations of disjunctive elements is a categorical match to the relevant generic standard."
Matter ofSilva-Trevino Ill, supra, at 833; see also Gomez-Perez v. Lynch, supra, at 326-27. The
difference between whether something is an "element" as opposed to a "means" is determined by
whether it requires jury unanimity-"a jury has to agree on one of multiple elements that a
statute lists, whereas the jury need not agree on the same alternative means so long as all jurors
conclude that the defendant engaged in one of the possible means of committing a crime."
Gomez-Perez v. Lynch, supra, at 327 (citing Mathis v. United States, 136 S. Ct. 2243, 2248
(2016)).
We agree with the Immigration Judge that TPC 30.04(a) is not divisible, and thus the
modified categorical approach does not apply (I.J. at 3). Texas law has long held that burglary of
a vehicle in violation of TPC 30.04(a) has four elements: "(l) a person, (2) without the
2
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The _statutory phrase "crime involving moral turpitude" is broadly descriptive of a class
of offenses involving reprehensible conduct committed with a culpable mental state. See Matter
of Silva-Trevino ("Silva-Trevino Ill'), 26 I&N Dec. 826, 834 (BIA 2016). Conduct is
"reprehensible" in the pertinent snse if it is "inherently base, vile, or depraved, and contrary to
the accepted rules of morality and the duties owed between persons or to society in general." Id
at 833 (citation omitted). Traditionally, a burglary offense constitutes a CIMT if the crime the
defendant intended to commit after breaking and entering (i.e., the ''target offense") is
turpitudinous-if the target offense is a CIMT, then so too is the burglary. See Matter of M-,
2 I&N Dec. 721, 723 (BIA; A.G. 1946).

A074 583 018

In support of its position that TPC 30.04(a) is divisible, the OHS cites to Garcia v. Holder,
756 F.3d 839 (5th Cir. 2014) and Franco-Casasola v. Holder, 773 F.3d 33 (5th Cir. 2014), two
Fifth Circuit opinions that applied the modified categorical approach to determine if a predicate
offense qualified as an aggravated felony for immigration purposes (OHS Brief at 4-8). Both
decisions, however, predate Mathis v. United States, supra, wherein the Supreme Court clarified
an important point regarding statute divisibility and the applicability of the modified categorical
approach: "disjunctive statutory language does not render a criminal statute divisible unless each
statutory alternative defines an independent 'element' of the offense, as opposed to a mere 'brute
fact' describing various means or methods by which the offense can be committed." Matter of
Chairez ("Chairez Ill''), 26 I&N Dec. 819, 822, 822 n.5 (BIA 2016) (citing Mathis
v. United States, supra and noting that the Supreme Court has abrogated circuit law finding
criminal statutes "divisible" whenever they employ alternative or disjunctive statutory phrases).
In fact, the Fifth Circuit has since applied the Mathis v. United States, supra "elements-only
inquiry" in the CIMT context when determining whether a Texas statute is divisible and subject
to the modified categorical analysis. See Gomez-Perez v. Lynch, supra, at 327-28 (finding that
jury unanimity is not required for the mens rea for assault, and thus the three culpable mental
states are merely means of satisfying the intent element); see also Matter of Silva-Trevino 111,
supra, at 833 (applying the Mathis v. United States, supra divisibility analysis to CIMTs). As
explained above, under the elements-only inquiry adopted by the Fifth Circuit post-Mathis
v. United States, supra, TPC 30.04(a) is not divisible or subject to the modified categorical
approach. Thus, we find the cases relied upon by the DHS inapplicable to the instant case.
In light of the foregoing, we agree with the Immigration Judge's conclusion that the
respondent's conviction for burglary of a vehicle in violation of TPC 30.04(a) does not qualify
as a CIMT. Therefore, contrary to the DHS's arguments on appeal, the respondent is not subject
to removal under sections 237(a)(2)(A)(i), (ii) of the Act based on his burglary convictions. As
the respondent's theft offense in violation of TPC 31.03 was committed more than 5 years after
the respondent's admission as a lawful permanent resident, we find it unnecessary to reach the
3
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effectiv consent of the owner, (3) breaks into or enters a vehicle or any part of a vehicle, (4)
with the intent to commit any felony or theft." Washington v. State, 603 S.W.2d 859, 859
(Tex. Crim. App. 1980); see also Grant v. State, 647 S.W.2d 778, 780 (Tex. App. 1983). The
fourth element of burglary of a vehicle-with the intent to commit any felony or theft-lays out
separate means by which a defendant may commit the offense. See, e.g., Carlock v. State,
8 S.W.3d 717, 720-21 (Tex. App. 1999) (explaining that because burglary of a habitation allows
for the proof of intent to commit any felony, the exact felony the defendant committed is an
alternative means by which to commit the offense). Texas courts have explained that, ''where
there are several ways or means by which an offense may be committed set forth in the same
statute, and those ways or means are subject to the same punishment, they may be charged
conjunctively in one count." Garcia v. State, 537 S.W.2d 930, 932 (Tex. Crim. App. 1976).
Under such circumstances, " [a] llegation and proof of either of the two statutory means . . . will
suffice to support a conviction." Sidney v. State, 537 S.W.2d 679, 681 (Tex. Crim. App. 1978).
Because "allegation and proof'' of either the intent to commit theft or the intent to commit any
felony would support a conviction for burglary of a vehicle, jury unanimity is not required.
Thus, TPC 30.04(a) is not divisible so as to allow the application of the modified categorical
approach.

A074 583 018

issue of.whether that conviction qualifies as a CIMT. See INS v. Bagamasbad, 429 U.S. 24, 25
(1976) ("As a general rule courts and agencies are not required to make findings on issues the
decision of which is unnecessary to the results they reach."). The respondent is not removable as
charged, and accordingly the following order will be entered.

<::..:.:JFORTHE BOARD

4
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ORDER: The DHS's appeal is dismissed.

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
SOUTH TEXAS DETENTION COMPLEX
PEARSALL, TEXAS
)
)
)
)
)
)
)

DAVILA-BARRERA, Luis
RESPONDENT
In Removal Proceedings

Case No.: A074-583-018

Section 237(a)(2)(A)(i) of the Immigration and Nationality Act

(Act), as amended: Convicted of a crime involving moral turpitude
(CIMT) committed within five years after admission for which a
sentence of one year or longer may be imposed.

CHARGES:

Section 237(a)(2)(A)(ii) of the Act, as amended: At any time after

admission having been convicted of two crimes involving moral
turpitude (CIMTs) not arising out of a single scheme of criminal
misconduct.
APPLICATION:

Termination of Proceedings.

ON BEHALF OF THE RESPONDENT

ON BEHALF OF THE GOVERNMENT

Juan Carlos Rodriguez,Esq.

DMCA,LLP
800 Dolorosa, Suite 100
San Antonio, Texas 78207

Duty Attorney
U.S. Immigration & Customs Enforcement
Office of Chief Counsel
8940 Fourwinds Drive, 5th Floor
San Antonio, Texas 78239

WRITTEN DECISION OF THE IMMIGRATION JUDGE

I.

Procedural History

The Respondent is a male,native and citizen of Mexico who adjusted his status to that of
a lawful permanent resident on or about March 25, 2002. (See Exhibit 1 ). On or about April 28,
2005, the Respondent was convicted in County Court 2, San Marcos Texas for the offense of
Burglary of a Vehicle which was committed on or about March 25, 2005 in violation of Section

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In the Matter of

30.04 of the Texas Penal Code (TPC). On or about April 3,2008, the Respondent was convicted
in Coun_ty Court 2 San Marcos,Texas for the offense of Theft. (See Exhibit 2).

On July 22, 2015, the Respondent, through counsel, admitted factual allegations one
through four in the NTA, denied allegations five through eight and the two charges of
removability in the NTA as well as factual allegations seven through nine in the I-261. On the
same date counsel for the Respondent filed a motion to terminate. (See Exhibit 3). The Court
then reset the matter to make a ruling on removability.
On August 17, 2015, this Court ruled that the Respondent was not removable as charged
and terminated these proceedings without prejudice. Counsel for the Respondent waived his
right to appeal while DHS reserved their right appeal. DHS was given until September 16,20 1 5
to file their appeal.
Removal

II.
Issues:
1.

Whether the Respondent's convictions for Burglary of a Vehicle, render him removable
as charged under 237(a)(2)(A)(i) of the Act?

2.

Whether the Respondent's convictions for Burglary of a Vehicle and Theft, render him
removable as charged under 237(a)(2)(A)(ii) of the Act?

Discussion:
The documents in the record indicate the Respondent was convicted of two separate
"Burglary of a Vehicle" offenses on April 20, 2005. (See Exhibit 2, Tabs A, and B). Section
30.04(a) of the TPC states that a person commits the offense of Burglary of a Vehicle if,
"without the effective consent of the owner, he breaks into or enters a vehicle or any part of a
vehicle with intent to commit any felony or theft." TPC 30.04(a). The Respondent committed
the offenses on March 25, 2005, approximately three years after he was admitted to the United
States as a lawful permanent resident on March 2, 2002. (See Exhibit 2). The Respondent's
offenses were punishable individually by "confinement in a jail for a term not to exceed one
year." TPC 12.21(2). All other criteria being met, the Respondent's deportability under
237(a)(2)(A)(i) of the Act turns on whether "Burglary of a Vehicle" constitutes a CIMT.

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On or about June 11, 2015, the Department of Homeland Security (DHS) served the
Respondent with a Notice to Appear (NT A), charging him as removable pursuant to sections
237(a)(2)(A)(i) and 237(a)(2)(E)(ii) of the Act for having been convicted of a CIMT within five
years of admission and for which a sentence of one year or more could have been imposed as
well as at any time after admission having been convicted of two CIMTs not arising out of a
single scheme of criminal misconduct. (See Exhibit I). On June 16, 2015, DHS served
additional charges of Inadmissibility/Deportability Form I-261 on the Respondent. The I-261
clarified factual allegations five through eight in the NTA. (See Exhibit 1A).

The Board has also held that, in analyzing whether a burglary conviction constitutes a
CIMT, the determinative factor is whether the crime intended to be committed at the time of
entry,or prior to breaking in, involves moral turpitude. Matter ofM-, 2 I&N Dec. 72 1 , 723 (BIA
1946). Therefore, burglary of a vehicle is not categorically a CIMT. As previously stated,
burglary of a vehicle is not a divisible statute, thus a categorical analysis must be applied. See
Chairez, 353. Under the categorical approach, the elements of the statute forming the basis of
the Respondent's conviction are compared with the elements of the analogous generic CIMT.
See Descamps v. United States, 1 33 S. Ct. at 228 1 . The Respondent's conviction qualifies as a
CIMT only if the elements of his statute of conviction are the same as,or narrower than,those of
the generic offense. See id.
Regarding the separate means of mens rea of TPC 30.04(a), because a conviction for
burglary requires proof of any felony or theft, it is presumed that the offenses were committed
with the least culpable conduct. See Sarmientos v. Holder, 742 F.3d 624, 628. Therefore, there
is a realistic probability that the Respondent committed a non CIMT felony. A conviction for
burglary of a vehicle involves an intent to commit any felony-even a non-turpitudinous felony.
Thus,the Court finds that the Respondent's conviction for burglary of a vehicle is not a CIMT.
As just discussed, the Respondent's convictions for "Burglary of a Vehicle" do not
constitute CIMTs. Therefore,as the NTA alleges only one other conviction, the Respondent also
is not removable for having been convicted of two or more CIMTs under 237(a)(2)(A)(ii) of
the Act.

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The Court finds that burglary under TPC 30.04(a) is not a divisible statute and
therefore, the modified categorical approach may not be employed. Matter of Chairez, 26 I&N
Dec. 349, 353 (BIA 20 1 4) (finding that a court generally may employ the modified categorical
approach to analyze a statute when "(1 ) it lists multiple discrete offenses as enumerated
alternatives or defines a single offense by reference to disjunctive sets of 'elements,' more than
one combination of which could support a conviction; and (2) at least one, but not all, of those
listed offenses or combinations of disjunctive elements is a categorical match to the relevant
generic standard" (citing Descamps v. United States, 1 33 S. Ct. 2276, 2285 (20 1 3))). The Texas
Court of Criminal Appeals has held that "the elements of an offense under 30.04 are: ( 1 ) a
person [;] (2) without the effective consent of the owner [;] (3) breaks into or enters a vehicle or
any part of a vehicle [;] (4) with the intent to commit any felony or threat." Washington v. State,
603 S.W.2d 859 (Tex. Crim. App. 1980); see also Grant v. State, 647 S.W.2d 778, 780 (Tex.
App.-Austin 1983). Therefore, whether the person intended to commit a felony or theft are
alternate means of commission, not alternate elements. Under Texas law, "[w]here there are
several ways or means by which an offense may be committed set forth in the same statute and
those ways or means are subject to the same punishment they may be charged conjunctively in
one count." Garcia v. State, 537 S.W.2d 930, 932-933 (Tex. Crim. App. 1976) (citing 30
Tex.Jur.2d, Indictment and Information, Sec. 42, p. 610, and Watkins v. State, 223 S.W.2d 24
(1949)); see also Sidney v. State, 560 S.W.2d 679, 68 1 (Tex. Crim. App. 1 978). Under such
circumstances,a conviction may be sustained with proof of either means. Sidney, 560 S. W.2d at
68 1 . Therefore, burglary of a vehicle is not a divisible statute because jury unanimity is not
required as to whether the offense is committed with intent to commit any felony or theft.

The Respondent was convicted of "theft $50-$500 as charged in the information." (See
Exhibit 2, Tab A, at 1 0). In Texas, "theft" is criminalized under section 3 1 .03 of the TPC, which
states that a defendant is guilty of theft if he "unlawfully appropriates property with intent to
deprive the owner of property. "

Further, a theft conviction is for a CIMT when it involves intent to permanently deprive
another of his or her property. See, e.g. , Matter of Grazley, 1 4 I&N Dec. 330 (BIA 1 973)
("Ordinarily, a conviction for theft is considered to involve moral turpitude only when a
permanent taking is intended."). Texas' definitions of deprive, however, include scenarios where
the defendant may not have intended to permanently deprive the owner of his or her property.
There is a realistic probability that Texas would apply its statute to a non-permanent taking:
Winkley v. State, 1 23 S.W.3d 707, 7 1 1 (Tex. App. 2003). See Gonzales v. Duenas-Alvarez, 549
U.S. 1 83 , 1 9 1 (2007). Because there is a realistic probability that a defendant may be convicted
of "intent to deprive" in Texas when he did not have an intent to deprive an individual of
property permanently, the theft statute is categorically overbroad and not a CIMT.
Accordingly, and after careful consideration, the following order shall be entered:

ORDER
are

IT IS HEREBY ORDERED
hereby terminated without prejudice.

------

Dated : August 1 7, 20 1 5
United States Immigration Judge

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First, the statute is likely not divisible and, therefore, the modified categorical approach
may not be employed. Chairez, 26 l&N Dec. at 3 5 3 . Here, the pertinent "element" of the statute
is whether the Respondent had "intent to deprive." TPC 3 1 .03 (a). The term "deprive" is
defined in several different ways in section 3 1 .0 1 of the TPC-the definitions section-but the
nature of the deprivation (among the various options listed there) are means by which the offense
may be committed, not elements of the offense. "Intent to deprive" is itself an indivisible
element of theft in Texas. Young v. State, 573 S.W.2d 8 I 7, 8 1 9 (Tex. Crim. App. 1 978) (holding
that the definition of deprive did not need to be included in jury instructions).