U.S. Citizenship Non-Precedent Decision of the and Immigration Administrative Appeals Office Services

In Re: 12187098 Date: FEB. 09, 2021

Appeal of Miami, Florida (Kendall) Field Office Decision

Form 1-601, Application to Waive Inadmissibility Grounds

The Applicant seeks a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(h).

Any foreign national convicted of a crime involving moral turpitude is inadmissible. Section 212(a)(2)(A) of the Act. Foreign nationals found inadmissible under section 212(a)(2)(A) of the Act may seek a waiver of inadmissibility under section 212(h) of the Act, which 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) of the Act.

The Miami, Florida (Kendall) Field Office Director denied the waiver, concluding that the Applicant was inadmissible for being convicted of two crimes involving moral turpitude: theft and uttering a forged check. The Director then found the Applicant had not established extreme hardship to his only qualifying relative, his lawful permanent resident spouse, as a result of his continued inadmissibility.

On appeal , the Applicant contests the finding that his convictions are for crimes involving moral turpitude. He also asserts that his spouse will experience extreme hardship because of his continued inadmissibility, and he merits a favorable exercise of discretion. The Applicant submits additional criminal and hardship evidence in support.

A Criminal Inadmissibility

The Applicant has been found inadmissible under section 212(a)(2)(A) of the Act for having been convicted of a crime involving moral turpitude. The Director indicated that both the Applicant's conviction for theft in violation of section 812.014 of the Florida Statutes and his conviction for uttering a forged check in violation of section 831.09 of the Florida Statutes were crimes involving moral turpitude. The Applicant now contends that neither of these convictions are crimes involving moral turpitude which make him inadmissible under section 212(a)(2)(A) of the Act because they are neither categorical crimes involving moral turpitude nor are they divisible. As we will explain below, we agree with the Applicant regarding his theft conviction, but do not agree regarding his uttering a forged check conviction. To determine whether a conviction is a crime involving moral turpitude we begin with a categorical inquiry that "depends upon the inherent nature of the offense, as defined in the relevant statute, rather than the circumstances surrounding a defendant's particular conduct." Itani v. Ashcroft, 298 F.3d 1213, 1215-16 (11th Cir. 2002); see also Vuksanovic v. U.S. Att'y Gen., 439 F.3d 1308, 1311 (11th Cir. 2006) (citing Taylor v. United States, 495 U.S. 575, 600 (1990)); Sosa-Martinez v. U.S. Att'y Gen., 420 F.3d 1338, 1342 (11th Cir. 2004).

However, where the statute under which an alien was convicted is "'divisible' - that is, it contains some offenses that are [crimes involving moral turpitude] and others that are not[,] ... the fact of conviction and the statutory language alone are insufficient to establish ... under which subpart [the alien] was convicted." Jaggernauth v. U.S. Att'y Gen., 432 F.3d 1346, 1354-55 (11th Cir. 2005). A statute is divisible only if it lists "potential offense elements in the alternative, render[ing] opaque which element played a part in the defendant's conviction." Descamps v. United States, 133 S. Ct. 2276, 2283 (2013); see also Donawa v. U.S. Att'y Gen., 735 F.3d 1275, 1281 (11th Cir. 2013). "Barring guidance from the state courts interpreting a statute, [we] apply traditional tools of statutory interpretation to decide whether a statute sweeping broader than a generic offense is divisible and thus amenable to analysis under the modified categorical approach." United States v. Estrella, 758 F.3d 1239, 1245-46 (11th Cir. 2014). Although divisibility may often be ascertained from the language of the statute itself, a statute is divisible, i.e. contains elements rather than means, where the prosecutor would specifically charge one alternative as opposed to the other and the jury would agree unanimously to convict on the basis of that alternative. Id. (citing Descamps, 133 S. Ct. at 2289-90); see also U.S. v. Lockett, 810 F.3d 1262, 1268-69 (11th Cir. 2016).

If the statute is divisible, "the record of conviction - i.e., the charging document, plea, verdict, and sentence - may also be considered" under a modified categorical inquiry. Fajardo v. U.S. Att'y Gen., 659 F.3d 1303, 1305 (11th Cir. 2011) (citing Jaggernauth, 432 F.3d at 1354-55). The modified categorical approach is intended only as a tool to apply the categorical inquiry to the relevant element from a statute with multiple alternatives, not to evaluate the facts that the judge or jury found. Estrella, 758 F.3d at 1246 (citing Descamps, 133 S. Ct. at 2287).

At the time of the Applicant's convictions in 2016, section 812.014 of the Florida Statutes stated in relevant part that a person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently, appropriate the property to his or her own use. A violation of section 812.014 of the Florida Statutes involves both temporary and permanent takings, as the offense can be committed by knowingly obtaining or using the property of another with intent to, either temporarily or permanently, deprive an individual of his or her property or appropriate the property to his or her own use. The Board of Immigration Appeals has determined that a theft offense is a crime involving moral turpitude if it involves a taking or exercise of control over another person's property without consent and with an intent to deprive the owner of his or her property either permanently or under circumstances where the owner's property rights are substantially eroded. Matter of Diaz-Lizarraga, 26 l&N Dec. 847 (BIA 2016). As section 812.014 of the Florida Statutes does not differentiate between the theft being temporary or one that occurs under circumstances where the owner's property rights are substantially eroded (permanent), we cannot find that a violation of section 812.014 of the Florida Statutes is categorically a crime involving moral turpitude.

2 It is thus necessary to determine whether the statute is divisible into separate offenses. To do so, we turn to the Florida Supreme Court's Standard Jury Instructions for Criminal Cases. Specifically, to prove the crime of theft, the jury instructions in effect at the time of the Applicant's conviction stated, in pertinent part:

The State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) knowingly and unlawfully [obtained] [used] [endeavored to obtain] [endeavored to use] the (property alleged) of (victim).

2. [He] [She] did so with intent to, either temporarily or permanently,

[deprive (victim) of [his] [her] right to the property or any benefit from it.]

[appropriate the property of (victim) to [his] [her] own use or to the use of any person not entitled to it.]

Based on the Florida Supreme Court's Standard Jury Instructions, a jury in a case concerning an alleged violation of section 812.014 of the Florida Statutes does not need to be unanimous regarding whether the defendant intended to either temporarily or permanently deprive the owner of his or her property (nor does it even discuss the possibility that the intended deprivation can be such that the owner's rights are substantially eroded). As the modified categorical approach is unavailable, we are unable to determine that the Applicant's conviction for grand theft is a crime involving moral turpitude.

However, we do conclude that the Applicant's conviction under section 831.09 of the Florida Statutes is categorically a crime involving moral turpitude. At the time of the Applicant's conviction, section 831.09 of the Florida Statutes stated, in pertinent part:

Whoever utters or passes or tenders in payment as true, any such false, altered, forged, or counterfeit note, or any bank bill, check, draft, or promissory note, payable to the bearer thereof or to the order of any person, issued as foresaid, knowing the same to be false, altered, forged, or counterfeit, with intent to injure or defraud any person, commits a felony in the third degree ....

The Applicant indicates that this offense encompasses the indivisible elements of intent to defraud and intent to injure, but conduct committed with the intent to injure is not one of moral turpitude, so the crime is not categorically a crime involving moral turpitude. Again, we disagree. The 11th Circuit has held that uttering forged instruments in violation of section 831.02 of the Florida Statutes is categorically a crime involving moral turpitude. Walker v. U.S. Att'y Gen., 783 F.3d 1226, 1229 (11th Cir. 2015). Notably, section 831.02 of the Florida Statutes closely resembles section 831.09 of the Florida Statutes in that it prohibited knowingly uttering and publishing a false instrument "with the intent to injure or defraud any person." See§ 831.02 of the Florida Statutes. Despite these alternative intent-to-defraud and intent-to-injure elements, the 11th Circuit found that a conviction for uttering forged instruments is categorically a crime involving moral turpitude because a violation of the statute generally involves dishonesty and deceit. Walker v. U.S. Att'y Gen. at 1229.

3 Similarly, a conviction for uttering forged bills, checks, drafts, or notes in violation of section 831.09 of the Florida Statutes involves dishonesty and deceit because the perpetrator must utter or pass or tender a document knowing it to be false, altered, forged, or counterfeit. In other words, whether done with the intent to defraud or the intent to injure, a perpetrator must knowingly deceive in commission of the offense. 1 Thus, we find that a violation of section 831.09 of the Florida Statutes is categorically a crime involving moral turpitude, the Applicant is inadmissible under section 212(a)(2)(A)(i)(I) of the Act, 2 and he does require a waiver under section 212(h) of the Act.

B. Waiver

A determination of whether denial of admission will result in extreme hardship depends on the facts and circumstances of each case. Matter of Cervantes-Gonzalez, 22 l&N Dec. 560, 565 (BIA 1999) (citations omitted). We recognize that some degree of hardship to qualifying relatives is present in most cases; however, to be considered "extreme," the hardship must exceed that which is usual or expected. See Matter of Pilch, 21 l&N Dec. 627, 630-31 (BIA 1996) (finding that factors such as economic detriment, severing family and community ties, loss of current employment, and cultural readjustment were the "common result of deportation" and did not alone constitute extreme hardship). In determining whether extreme hardship exists, individual hardship factors that may not rise to the level of extreme must also be considered in the aggregate. Matter of lge, 20 l&N Dec. 880, 882 {BIA 1994) (citations omitted).

An applicant may show extreme hardship in two scenarios: 1) if the qualifying relative remains in the United States separated from the applicant, and 2) if the qualifying relative relocates overseas with the applicant. Demonstrating extreme hardship under both scenarios is not required if the applicant's evidence demonstrates that one of these scenarios would result from the denial of the waiver. The applicant may meet this burden by submitting a statement from the qualifying relative certifying under penalty of perjury that the qualifying relative would relocate with the applicant, or would remain in the United States, if the applicant is denied admission. 9 USCIS Policy Manual B.4(B), https://www.uscis.gov/policy-manual. In the present case, the Applicant has not specified whether his spouse would relocate with him to Cuba or remain in the United States. The Applicant must therefore establish that if he is denied admission, his spouse would experience extreme hardship both upon separation and relocation.

The Director found that the Applicant had not shown his spouse would experience extreme hardship as a result of relocating with him to Cuba because both the Applicant and his spouse were born in Cuba and lived there until 2015, when they entered the United States. The Director also indicated that the Applicant's other immediate family members, including the couple's two children (ages 20 and 11 years old) reside in Cuba. Finally, the Director explained that the immigration records also showed the Applicant's spouse frequently visited Cuba from 2015 to the present.

1 In addition, the Board of Immigration Appeals in Matter of Batten, 11 l&N Dec. 271 (BIA 1965) found the offense of willfully misapplying funds under 18 U.S.C. section 656, which also has as an element an intent to injure or defraud a bank, a crime involving moral turpitude. 2 The Applicant's crime does not qualify for what is commonly referred to as the petty offense exception under section 212(a)(2)(A)(ii) of the Act because the maximum penalty possible for a third degree felony in Florida exceeds imprisonment for one year.

4 On appeal, the Applicant explains that he and his wife fled Cuba for economic reasons, wanting a better life for their family in the United States. He describes further how his two children are awaiting their immigrant visa interviews to be able to reside in the United States with them and that the only reason his spouse frequently traveled to Cuba was because she needed to visit their children. Furthermore, the Applicant asserts that his spouse, who has been diagnosed with depression and anxiety (and a psychologist recommended seek counseling), will experience worsening mental health in Cuba, where there is inadequate access to health care. He also expresses concerns over human rights violations, economic conditions, and food rationing in Cuba. In support, he submits current news articles concerning the economic conditions caused by the coronavirus pandemic in Cuba, two articles regarding healthcare in Cuba (dated 2007 and 2016), a 2018 U.S. Department of State Country Report on Human Rights Practices in Cuba, and a 2011 World Health Organization report on mental health care in Cuba.

We affirm the Director's decision that the Applicant has not shown his spouse would experience extreme hardship upon relocation because the evidence submitted does not support his hardship assertions. The documentation, much of which is outdated, does not show that the Applicant's spouse would be unable to access counseling services for her depression and anxiety or that the family would experience significant difficulties in maintaining their quality of life. Moreover, their concerns about life in Cuba are contradicted by their decisions to leave their children in the country since 2015 and (in the case of the Applicant's spouse) to visit the country on numerous occasions. Thus, we find the Applicant has not overcome the hardship deficiencies in the record and has not shown that his spouse will experience extreme hardship as a result of relocation. Because, in the Applicant's case, he must show his spouse will experience extreme hardship both upon relocation and separation, and he has not established extreme hardship on relocation, we cannot say he has met his burden in showing his spouse will experience extreme hardship as a result of his continued inadmissibility. Similarly, because the Applicant has not shown extreme hardship, no purpose would be served in reviewing whether he merits a waiver as a matter of discretion.

The Applicant bears the burden of proof to establish eligibility for the requested benefit by a preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361. Here, he has not met that burden. Therefore, the waiver application will remain denied.

ORDER: The appeal is dismissed.

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