U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Lahoud, Raymond OHS LIT.Nork Co. Prison/YOR
Baurkot & Baurkot 3400 Concord Road
205 S 7th Street York, PA 17402
Post Office Box 801
Easton, PA 18044

Name: BENKA COKER, AMOS ZEITH A 056-082-534

Date of this notice: 4/28/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Mullane, Hugh G.
Greer, Anne J.
Pauley, Roger

-.: ;? : ..
. . .

Userteam: Docket

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Cite as: Amos Zeith Benka Coker, A056 082 534 (BIA April 28, 2017)
 U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 leesburg Pike, Suite 2000

Falls Church, Virgm1a 22041

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BENKA COKER, AMOS ZEITH OHS LIT.Nork Co. PrisonNOR
A056-082-534 3400 Concord Road
PIKE COUNTY York, PA 17402
175 PIKE COUNTY BLVD
LORDS VALLEY, PA 18428

Name: BENKA COKER, AMOS ZEITH A 056-082-534

Date of this notice: 4/28/2017

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,

%
Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Mullane, Hugh G.
Greer, Anne J.
Pauley, Roger

Userteam:

Cite as: Amos Zeith Benka Coker, A056 082 534 (BIA April 28, 2017)
 I

' U.S. Department of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A056 082 534 - York, PA Date:

In re: AMOS ZEITH BENKA COKER APR 2 8 2017

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Raymond Lahoud, Esquire

ON BEHALF OF OHS: Mary Ellen Withrow

Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(B)(i), l&N Act [8 U.S.C.

1227(a)(2)(B)(i)] -
Convicted of controlled substance violation (sustained)

APPLICATION: Cancellation of removal for certain permanent residents

In a decision dated November 21, 2016, incorporating by reference an October 12, 2016,
decision, an Immigration Judge ordered the respondent removed because he was ineligible for
cancellation of removal for certain permanent residents under section 240A(a) of the
Immigration and Nationality Act, for committing a crime involving moral turpitude (CIMT); this
CIMT terminated the period of continuous physical presence prior to the necessary 7 years.
See sections 240A(a)(2), (d)( l ) of the Act. The respondent appeals and the Department of
Homeland Security opposes the a peal. The respondent's appeal will be sustained and record
p
remanded for further proceedings.

The respondent is a native and citizen of Sierra Leone and a lawful permanent resident of the
United States since September 2002 (l.J. Nov. 2016 at 1; Exh. 1). In April 2009, the respondent
committed the crime of identity theft, in violation of 18 Pennsylvania Consolidated Statutes
section 4120(a) (hereinafter "section 4120(a)") (l.J. Nov. 2016 at 2; Exhs. 1, 2). The
Immigration Judge found that this crime was a CIMT (l.J. Oct. 2016 at 2-3). We review that
legal issue de novo. See 8 C.F.R. 1003.l(d)(3)(ii).

The phrase "crime involving moral turpitude" describes a class of offenses involving
reprehensible conduct committed with a culpable mental state. Matter of Silva-Trevino,
26 l&N Dec. 826, 834 (BIA 2016). "[C]rimes in which fraud was an ingredient have always
been regarded as involving moral turpitude." Jordan v. De George, 341 U.S. 223, 232 (1951).
However, a statute need not require a specific intent to defraud. Rather, "where fraud is so

1 The respondent's motion to accept a late-filed brief is granted.

Cite as: Amos Zeith Benka Coker, A056 082 534 (BIA April 28, 2017)
 A05.6 082 534

inextricably woven into the statute as to clearly be an ingredient of the crime, it necessarily
involves moral turpitude." Matter ofFlores, 17 I&N Dec. 225, 228 (BIA 1980).

To determine whether the respondent's conviction constitutes a crime involving moral

turpitude, we employ the categorical approach which requires that we look to the "elements" of
the offense rather than the facts underlying the respondent's particular prosecution.

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Matter of Chairez, 26 I&N Dec. 819, 821 (BIA 2016). An element is one that must be found by
a jury beyond a reasonable doubt to sustain a conviction. Mathis v. United States,
136 S. Ct. 2243, 2248 (2016). "When a statute of conviction lists elements in the alternative,
some of which fit the federal definition and some of which do not, a court is permitted 'to
consult a limited class of documents . . . to determine which alternative formed the basis of the
defendant's prior conviction."' Rojas v. Att'y Gen. of U.S., 728 F.3d 203, 215 (3d Cir. 2013)
(quoting Descamps v. United States, 133 S. Ct. 2276, 2281 (2013)). This modified categorical
approach is only necessary where the statute is divisible.

The respondent was convicted under section 4120(a) which states:

A person commits the offense of identity theft of another person if he possesses or

uses, through any means, identifying information of another person without the
consent of that other person to further any unlawful purpose.2

We observe that section 4120(a) may result in different sentence classifications depending on
the value obtained. We thus conclude that the statute is divisible only as to this element.
Consulting the record of conviction, it is apparent that the respondent was convicted of a
misdemeanor in the first degree, which required finding the following:

[A]n offense under subsection (a) falls within the following classifications
depending on the value of any property or services obtained by means of the
identifying information:

(i) if the total value involved is less than $2,000, the offense is a misdemeanor of
the first degree

18 Pa. C.S. 4120(c); Exh. 2. The Immigration Judge found that the phrase, ''to further any
unlawful purpose" supplied the requisite "evil intent" for a CIMT (I.J. Oct. 2016 at 2-3). The
Immigration Judge concluded that the commission of this CIMT ended the respondent's physical
presence, and thus he could not establish the necessary 7 years for cancellation of removal
(I.J. Oct. 2016 at 2-3; I.J. Nov. 2016 at 2).

The United States Court of Appeals for the Third Circuit has not spoken on whether section
4120(a) is categorically a CIMT. Pennsylvania state courts have said little about the phrase ''to
further any unlawful purpose." Thus, we are persuaded by interpretations of these phrases by
other circuit courts.

2 18 Pa. C.S. 4120(t) defines "identifying information" and "document."

2
Cite as: Amos Zeith Benka Coker, A056 082 534 (BIA April 28, 2017)
'
A056 082 534

In Yeremin v. Holder, 738 F.3d 708 (6th Cir. 2013), the court held that
18 U.S.. 1028(a)(3), which prohibited "knowingly possessing with intent to use unlawfully or
transfer unlawfully five or more identification documents" was a CIMT because the statute had
been interpreted to require an intent to use the documents. Id. at 715. This "intent to use" was
the "deceptive conduct" required for a CIMT. Id. at 717. The court distinguished
Matter ofSerna, 20 l&N Dec. 579 (BIA 1992), because the statute in that case did not require an

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intent to use the document unlawfully. Id. at 716. For the Sixth Circuit, the "intent to use"
requirement was key in concluding the conviction was for a CIMT.

The United States Court of Appeals for the Tenth Circuit has similarly held that some CIMTs
are "offenses that do not explicitly involve fraud but that are deemed CIMTs because they
involve deception and a specific intent to harm or obtain a benefit at the government's or
another person's expense." Flores-Molina v. Sessions, 850 F.3d 1150 (10th Cir. 2017)
(emphasis added). In examining Denver Municipal Code section 38-40, the court held it was not
a CIMT because there was no requirement that the false identification be provided "with the
intent to mislead" "or to otherwise cause any harm or obtain any benefit." Id. at 1164.

Perhaps most instructive is Linares-Gonzalez v. Lynch, 823 F.3d 508 (9th Cir. 2016), which
examined California Penal Code section 530.5(a) for unauthorized use of personal identifying
information. That statute stated that a "person who willfully obtains personal identifying
information . . . of another person, and uses that information for any unlawful purpose . . .
without the consent of that person, is guilty of a public offense . . . ." Id. at 514. This statute
required the use of the information for "any unlawful purpose" which the court found overbroad
for CIMT purposes. The court first observed that the statute was not a specific intent crime.
Id. at 515. The court held that "the lack of any requirement that the defendant intend to harm the
victim or that actual loss occur, and the fact that the statute does not protect a special class of
victims, shows a realistic probability that [the statute] could be applied to non-turpitudinous
conduct." Id. 518 (emphasis added).

The statute at issue in Linares-Gonzalez v. Lynch, supra, contained elements similar to those
present in section 4120(a). Here, we observe that section 4120(a) is not a specific intent crime,
and it is thus distinguishable from Matter ofJurado-Delgado, 24 I&N Dec. 29 (BIA 2006). In
Matter of Jurado-Delgado, supra, the statute was a specific intent crime. We specified that the
"controlling factor" was that the perpetrator have an "intent to mislead." Id. at 34-35;
see also Fl.ores-Molina v. Sessions, supra, at 1163 (observing that Matter of Jurado-Delgado,
supra, contained "the explicit element of intent"). No such intent requirement is present in
section 4120(a).

Both Linares-Gonzalez v. Lynch, supra, at 518, and Fl.ores-Molina v. Sessions, supra, at

1168, clarify that, without specific intent, the statute is only a CIMT if there is an intent to obtain
a benefit of value. The Immigration Judge found that ''to further an unlawful purpose" satisfied
this requirement (l.J. Oct. 2016 at 3). While we acknowledge this reasoning, we disagree.

The respondent was convicted of a first degree misdemeanor, requiring evidence that the
total value of property or services obtained was less than $2,000. 18 Pa C.S. 4120(c). There
is no minimum; thus, the plain language of the statute includes property of minimal value. Thus
the statute becomes most similar to the one analyzed in Linares-Gonzalez v. Lynch, supra.

3
Cite as: Amos Zeith Benka Coker, A056 082 534 (BIA April 28, 2017)
A056 082 534

Moreover, in Linares-Gonzalez v. Lynch, supra, at 518, the court provided an example where
an unlawful purpose would have no monetary value. Linares-Gonzalez v. Lynch, supra,
discussed a case where a defendant had, without consent, obtained access to an ex-girlfriend's
social media account and posted photos and statements with an "intent to annoy." Id. This
action and intent, the court pointed out, did not require an intent to obtain anything of value, or to

defraud. The elements of section 4120(a) could be met by similar conduct. Without an intent to

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obtain something of more than minimal (or any) value present in the statute, and without a
requirement of specific intent to defraud or deceive, we cannot say that section 4120(a) is
categorically a CIMT.

Accordingly, the following orders shall be entered.

ORDER: The appeal is sustained, and the Immigration Judge's October 12, 2016 and
November 21, 2016, orders are vacated.

FURTHER ORDER: The record is remanded for further proceedings consistent with this
decision and for the entry of a new decision.

FORBOARI>'

4
Cite as: Amos Zeith Benka Coker, A056 082 534 (BIA April 28, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
YORK, PENNSYLVANIA

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File: A056-08-534 November 1. 016

In the Matter of

)
AMOS ZEITH BENKA COKER ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGE: 237(a)(2)(B)(i).

APPLICATION:

ON BEHALF OF RESPONDENT: RAYMOND G. LAHOUD, Esquire

ON BEHALF OF OHS: MARY ELLEN WITHROW, Esquire

ORAL DECISION OF THE IMMIGRATION JUDGE

Respondent is a 28-year-old single male alien, native and citizen of Sierra Leone.

He was admitted to the United States on September 2, 2002 as an immigrant F-25. He

was 13 years old at the time.

On November 25, 2015, he was personally served a Notice to Appear, Form

1-862, placing him into removal proceedings. At prior proceedings through counsel, the

respondent essentially conceded the allegations 1 through 6, conceded the ground of

removability under the 1-602.

1
 Respondent applied for the relief of cancellation of removal for permanent

residents pursuant to INA Section 240A(a). On October 7, 2016, the Court received

from the Government a "OHS Motion to Pretermit Cancellation Application." Therein,

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the Gevernment informs the resf;)endent was arrested fer identity theft, aleehel by a
minor, conspiracy, possession with intent to deliver controlled substance and false ID

to a police officer. He was convicted of identity theft on June 22, 2009 under 18

Pennsylvania Consolidated Statute, Section 4120.

The respondent argues that his identity theft conviction is not a crime involving

moral turpitude. The Government was of a different opinion and so is this Court. In a

"ruling on grounds of removal" on October 12, 2016, this Court issued a written ruling

finding that the respondent's Pennsylvania conviction for identity theft did, in fact,

constitute a crime involving moral turpitude.

Because of the timing oi the arrest for the offense, the Court found the

respondent's period of continuous residence terminated on April 15, 2009. That was the

date he committed the identity theft. Thus, the Court found the respondent did not meet

the seven years of continuous residence in the United States and, therefore, was not

prima fascie eligible for discretionary relief.

The respondent has asked the Court to withdraw his 1-589. The Court has

signed a proposed order the respondent has submitted in this regard. And the Court

would note that actually no 1-589 was actually filed, so there is really nothing to

withdraw: Bt1t the eet1rt signed the emer as respendent desired the eet1rt te de: that he

supplied. The Court has come onto the record without respondent's or counsel's

presence just to formalize the removal order.

Accordingly, based upon the foregoing, the Court hereby incorporates the written

ruling on the grounds of removal. The Court served upon the parties and filed into the

A056-082-534 2 November 21, 2016

record on October 12, 2016, incorporating it here within this order.

ORDER

Respondent is hereby ordered removed from the United States to Sierra Leone.

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WOP/ease see the next page for electronic

signature
WALTER A. DURLING
Immigration Judge

A056-082-534 3 November 21, 2016

 ..

//s/1

Immigration Judge WALTER A. DURLING

durlingw on January 31, 2017 at 12:58 PM GMT

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A056-082-534 4 November 21, 2016