Non-Precedent Decision of the Administrative Appeals Office

MATTER OF M-D-M-0- DATE: AUG. 10,2016

APPEAL OF INDIANAPOLIS, INDIANA FIELD OFFICE DECISION

APPLICATION: FORM I-601, APPLICATION FOR WAIVER OF GROUNDS OF INADMISSIBILITY

The Applicant, a native and citizen of Mexico, seeks a waiver of the ground of inadmissibility for a involving moral turpitude. See Immigration and Nationality Act (the Act) section 212(h), 8 U.S.C. § 1182(h). A foreign national seeking to be admitted to the United States as an immigrant or to adjust status to lawful permanent residence must be admissible or receive a waiver of inadmissibility. U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary waiver if refusal of admission would result in extreme hardship to a qualifying relative or qualifying relatives.

The Field Office Director, Indianapolis Field Office, denied the application. The Director concluded that the Applicant did not establish extreme hardship to her qualifying relatives.

The matter is now before us on appeal. In the appeal, the Applicant submits additional evidence and states that she has established extreme hardship to her U.S. citizen children.

Upon de novo review, we will withdraw the decision of the Director and remand for further proceedings consistent with this decision, as the Applicant is not inadmissible for a crime involving moral turpitude and does not require a waiver of inadmissibility.

I. LAW

The Applicant is seeking to adjust status to lawful permanent resident and has been found inadmissible for a crime involving moral turpitude, criminal . Section 212(a)(2)(A) of the Act, 8 U.S.C. § 1182(a)(2)(A), provides that any foreign national convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime is inadmissible.

Individuals found inadmissible under section 212(a)(2)(A) of the Act may seek a waiver of inadmissibility under section 212(h) of the Act, 8 U.S.C. § 1182(h). Section 212(h) of the Act provides for a discretionary waiver if denial of admission would result in extreme hardship to a United States citizen or lawful permanent resident spouse, parent, son, or daughter (Section 212(h)(l )(B)). Matter ofM-D-M-0-

II. ANALYSIS

As stated above, the Applicant was found inadmissible under section 212(a)(2)(A) of the Act for a crime involving moral turpitude. The record indicates that the Applicant pled guilty to in violation of Indiana Code § 35-43-4-3, a Class A , in 2011 and was sentenced to 12 months in jail suspended, 12 months non-reporting probation, and a fine of $170.

At the time of the Applicant's conviction,§ 35-43-4-3 ofthe Indiana Code provided in relevant part that:

Conversion; unauthorized control of a motor vehicle

Sec. 3. (a) A person who knowingly or intentionally exerts unauthorized control over of another person commits criminal conversion, a Class A misdemeanor.

The Act does not define the term "crime involving moral turpitude." However, the Board of Immigration Appeals provided the following general definition in Matter ofPerez-Contreras:

[M]oral turpitude is a nebulous concept, which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one's fellow man or society in general. ...

In determining whether a crime involves moral turpitude, we consider whether the act is accompanied by a vicious motive or corrupt mind ....

20 I&N Dec. 615, 617-18 (BIA 1992) (citations omitted). "[N]either the seriousness ofthe offense nor the severity of the sentence imposed is determinative of whether a crime involves moral turpitude." Matter ofSerna, 20 I&N Dec. 579,581 (BIA 1992).

In assessing whether a conviction is a crime involving moral turpitude, we must first "determine what law, or portion of law, was violated." Matter of Esfandiary, 16 I&N Dec. 659, 660 (BIA 1979). We engage in a categorical inquiry, considering the "inherent nature of the crime as defined by statute and interpreted by the courts," not the underlying facts of the criminal offense. Matter of Short, 20 I&N Dec. 136, 137 (BIA 1989); see also Matter oflouissaint, 24 I&N Dec. 754,757 (BIA 2009) (citing Taylor v. United States, 495 U.S. 575, 599-600 (1990)). This categorical inquiry focuses on whether moral turpitude necessarily inheres in the minimal conduct for which there is a realistic probability of prosecution under the statute. See Short, supra; Louissaint, supra: Moncrieffe v. Holder, 133 S.Ct. 1678, 1684-1685 (2013); Gonzales v. Duenas-Alvarez, 127 S.Ct. 815, 822 (2007).

Generally, the crime of or , whether grand or petty, involves moral turpitude. Matter of Scarpulla, 15 I&N Dec. 139, 140-41 (BIA 1974). To constitute a crime involving moral turpitude, however, a theft offense must require the intent to permanently take another person's property. See

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Matter of Grazley, 14 I&N Dec. 330 (BIA 1973) ("Ordinarily, a conviction for theft is considered to involve moral turpitude only when a permanent taking is intended."). A plain reading of Indiana Code § 35-43-4-3 does not indicate whether the statute can be violated of by temporarily or permanently exerting unauthorized control over property of another person. The U.S. Court of Appeals for the Seventh Circuit, however, analyzing this statute, indicated that "even a temporary deprivation of property is sufficient" to obtain a conviction under Indiana Code§ 35-43-4-3. Smeigh v. Johns Manville, Inc., 643 F.3d 554, 564 (7th Cir. 2013) (citation omitted). As the minimum conduct needed for a conviction under Indiana Code § 35-43-4-3 does not involve moral turpitude, we cannot find that a violation oflndiana Code § 35-43-4-3 is categorically a crime involving moral turpitude.

Where a criminal statute does not contain a single, indivisible set of elements, but rather encompasses multiple distinct criminal offenses, "some ... which involve moral turpitude and some which do not," we engage in a modified categorical inquiry. Short, supra, at 137-138. A statute is divisible only if it lists "potential offense elements in the altem.ative, render[ing] opaque which element played a part in the defendant's conviction." Descamps v. United States, 133 S. Ct. 2276, 2283 (2013). Indiana Code § 35-43-4-3(a) is not divisible; thus our inquiry stops at the categorical inquiry. The Applicant's conviction under Indiana Code § 35-43-4-3 is not a crime involving moral turpitude.

III. CONCLUSION

The Applicant has the burden of proving admissibility. See section 291 of the Act, 8 U.S.C. § 1361. Here, the record establishes that the Applicant is not inadmissible under section 212(a)(2)(A)(i)(I) of the Act, because she was not convicted of a crime involving moral turpitude. The waiver application is not necessary.

ORDER: The decision of the Director, Indianapolis Field Office, is withdrawn. The matter is remanded to the Director, Indianapolis Field Office, for further proceedings consistent with the foregoing opinion.

Cite as Matter ofM-D-M-0-, ID# 17119 (AAO Aug. 10, 2016)

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