HERNANDEZ

Cite as 

 (BIA 2014)                                 Interim Decision #3812




               Matter of E. E. HERNANDEZ, Respondent
                            Decided September 12, 2014
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals


  Malicious vandalism in violation of section 594(a) of the California Penal Code with
a gang enhancement under section 186.22(d) of the California Penal Code, which
requires that the underlying offense be committed for the benefit of a criminal street gang
with the specific intent to promote criminal conduct by gang members, is categorically
a crime involving moral turpitude.

FOR RESPONDENT: Andrew L. Reback, Esquire, Los Angeles, California
FOR THE DEPARTMENT OF HOMELAND SECURITY:                           Jailuk Parrino, Senior
Attorney
BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members.
MALPHRUS, Board Member:


    In a decision dated April 18, 2012, an Immigration Judge terminated the
removal proceedings against the respondent without prejudice. The
Department of Homeland Security (“DHS”) has appealed from that
decision. The appeal will be sustained, the removal proceedings will be
reinstated, and the record will be remanded to the Immigration Judge.
    The respondent is a native and citizen of Mexico who adjusted his status
to that of a lawful permanent resident on April 26, 2008. In 2011, in the
Superior Court of California for the County of Los Angeles, he was
charged in count 1 of a felony complaint with committing vandalism
causing over $400 in damages in violation of section 594(a) of the
California Penal Code with a gang enhancement. On August 31, 2011, the
respondent pled no contest to count 1 and admitted the gang enhancement
allegation pursuant to section 186.22(d) of the California Penal Code,
which provides that the offense was “committed for the benefit of, at the
direction of, or in association with any criminal street gang, with the
specific intent to promote, further, or assist in any criminal conduct by gang
members.” Concluding that there was a factual basis for the plea, the
criminal court found the respondent guilty, suspended the imposition of his
sentence, and placed him on probation for 3 years with the condition that he
serve 364 days in jail.


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    On March 9, 2012, the DHS issued a notice to appear charging
the respondent with removability under section 237(a)(2)(A)(i) of the
Immigration and Nationality Act, 

(a)(2)(A)(i) (2012), as an
alien convicted of a crime involving moral turpitude. The respondent
contested the charge, and the Immigration Judge granted his motion to
terminate the proceedings, concluding that the DHS did not meet its burden
to show by clear and convincing evidence that the respondent’s offense was
a crime involving moral turpitude. On appeal, the DHS asserts that the
Immigration Judge erred in determining that the respondent was not
removable under section 237(a)(2)(A)(i) of the Act. We agree.1
    We have interpreted “moral turpitude” as generally referring to conduct
that 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.”
Matter of Ortega-Lopez, 

 (BIA 2013) (citation and
internal quotation mark omitted). For a crime to involve moral turpitude,
there must be two essential elements, namely, reprehensible conduct and a
culpable mental state. Id.; Matter of Louissaint, 

, 756−57
(BIA 2009) (stating that a “crime involving moral turpitude involves
reprehensible conduct committed with some degree of scienter, either
specific intent, deliberateness, willfulness, or recklessness”).
    “In considering whether a particular offense constitutes a crime
involving moral turpitude, we must first engage in the traditional
categorical analysis of the elements of the statute.” Matter of Louissaint,

 (citing Gonzales v. Duenas-Alvarez, 

(2007)). Under this approach, “we compare the statute of conviction to the
generic definition of moral turpitude. If the statute bans only actions that
involve moral turpitude, then it is categorically a crime involving moral
turpitude.” Rohit v. Holder, 

 (9th Cir. 2012) (citation
omitted); see also Olivas-Motta v. Holder, 

 (9th Cir.
2013) (limiting an Immigration Judge “to the record of conviction in
determining whether an alien has been ‘convicted of’ a [crime involving
moral turpitude]”). For a crime not to be a categorical crime involving
moral turpitude, there must be a “realistic probability,” as opposed to
a “theoretical possibility,” that the statute of conviction would be applied to
reach conduct that does not involve moral turpitude. Matter of Louissaint,

; see also Gonzales v. Duenas-Alvarez, 

;


1
   We review the findings of fact made by the Immigration Judge to determine if they
were clearly erroneous. 

(d)(3)(i) (2014). We review de novo all other
issues, including whether the parties have met the relevant burden of proof. 

(d)(3)(ii).


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Rohit v. Holder, 670 F.3d at 1088−89; Matter of Cortez Medina, 

 (BIA 2013).
    The respondent was convicted of maliciously defacing the property
of another with graffiti or other inscribed material. 

(a) (West 2011). Further, pursuant to the gang enhancement, the
respondent admitted that he committed this crime for the benefit of
a criminal street gang with the specific intent to promote criminal conduct
by gang members. 

(d) (West 2011). Under
California law, a gang enhancement can be imposed only if each element of
the enhancement is proven to a jury beyond a reasonable doubt or admitted
by the defendant in connection with a plea agreement. See In re Daniel C.,

, 342−43 (Cal. Ct. App. 2011). Accordingly,
a California conviction involving the application of this enhancement is
considered a conviction for the enhanced offense under the immigration
laws. See Matter of Martinez-Zapata, 

 (BIA 2007).
    In analyzing whether the respondent was convicted of a crime involving
moral turpitude, the Immigration Judge erred by separately analyzing
whether malicious vandalism under section 594(a) of the California Penal
Code and a violation of section 186.22(d) involve moral turpitude. For
purposes of determining whether the respondent has been convicted of
a crime involving moral turpitude, we look to the respondent’s “offense of
conviction,” which is not just malicious vandalism but, rather, malicious
vandalism that was committed “for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct by gang members.”

(d).
    A malicious act of vandalism under California law involves “damage or
destruction to the property of another which can be remedied only at
a direct cost to the property owner” and “planning, execution and
a malicious intent on the part of the offender.” United States v. Martinez,

, 1000−01 (9th Cir. 1995). “The malice requirement of
California Penal Code section 594 establishes a general ‘readiness to do
evil.’” 

 at 1001 (quoting People v. Campbell, 

(Cal. Ct. App. 1994)). See generally Castrijon-Garcia v. Holder, 

 (9th Cir. 2013) (“Crimes of moral turpitude generally involve
some ‘evil intent.’”); Matter of Flores, 

 (BIA 1980)
(“An evil or malicious intent is said to be the essence of moral turpitude.”);
Matter of M-, 

 (BIA 1948) (finding malicious destruction of
property to be a crime involving moral turpitude where malicious intent
was required by statute). When malicious vandalism is committed for
the benefit of a criminal street gang with the specific intent to promote


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criminal conduct by gang members, moral turpitude is categorically
intrinsic to the offense.2
    Criminal gangs pose a serious danger to public safety and have a taxing
burden on society and our moral culture. See People v. Rodriguez, 

 (Cal. 2012) (“Crimes committed by gang members . . .
pose dangers to the public and difficulties for law enforcement not
generally present when a crime is committed by someone with no gang
affiliation.” (quoting People v. Albillar, 

 (Cal. 2010))
(internal quotation marks omitted)); see also City of Chicago v. Morales,

 (1999) (Thomas, J., dissenting) (“Gangs fill the daily lives
of many of our poorest and most vulnerable citizens with a terror that [is
not given] sufficient consideration, often relegating them to the status of
prisoners in their own homes.”).
    In 1988, the California Legislature enacted the Street Terrorism
Enforcement and Prevention Act (“STEP Act”) in an attempt to eradicate
criminal activity by street gangs. 3 

 (West);
see also 

.20−.27 (West 2014); People v. Vy, 

 (Cal. Ct. App. 2004). The Legislature “found that gangs
and gang-related activities constituted a ‘clear and present danger to public
order and safety.’” People v. Arroyas, 

 (Cal. Ct.
App. 2002) (quoting 

). By creating the gang
enhancement, the STEP Act focused “upon ‘patterns of criminal gang
activity and upon the organized nature of street gangs, which together, are
the chief source of terror created by street gangs.’” People v. Rodriguez,

 (quoting 

); see also People
v. Albillar, 

 (“Committing a crime with fellow gang
members . . . enables the participants to rely on intimidation, which is ‘one
of [the gang’s] mainstream daily objectives in furthering their gang
interest.’” (alteration in original) (citation omitted)).
    That being said, section 186.22(d) is a targeted enhancement for
criminal activity with significant limitations on its reach. The underlying
offense must be committed for the benefit of a “criminal street gang,”
which is defined as any ongoing organization, association, or group of three
or more persons that has a common name or identifying sign or symbol and

2
   We need not reach the question whether the offense of malicious vandalism under
California law categorically involves moral turpitude without a gang enhancement.
3
   Following passage of the STEP Act, other States enacted similar legislation to combat
gang conduct. See, e.g., 

 (2007); La. Rev. Stat. Ann.
§ 15:1403 (1990); 

 (West 1991); 

(West 1996); 

 (West 1993); 

(West 1991).


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that, as one of its primary activities, commits one or more of the specified
crimes defining a “pattern of criminal gang activity.” 

(f). These crimes, enumerated in section 186.22(e), include violent
crimes and theft, firearms, and drug offenses, as well as the respondent’s
offense of felony vandalism under section 594(a) of the California Penal
Code.
    Furthermore, the gang enhancement requires more than a general intent
to commit a crime. People v. Ramon, 

 (Cal. Ct.
App. 2009). The California Legislature required that the underlying crime
be committed with the specific intent to promote, further, or assist the
criminal conduct of a street gang to make it “clear that a criminal offense is
subject to increased punishment under the STEP Act only if the crime is
‘gang related,’” given that not all crimes committed by gang members are
related to a gang. People v. Albillar, 

 (quoting People
v. Gardeley, 

 (Cal. 1996)) (internal quotation marks
omitted). It is only when a defendant’s intentional acts are “combined with
his knowledge that those acts would assist crimes by fellow gang members”
that there is sufficient evidence of the requisite specific intent to support
a gang enhancement. People v. Morales, 

 (Cal. Ct.
App. 2003). Thus, to be convicted of felony vandalism with a gang
enhancement, the offender must have been found beyond a reasonable
doubt to have had a malicious or evil intent in committing vandalism for
the benefit of a criminal street gang and to have done so with the specific
intent to promote criminal activity by gang members.
    It is noteworthy that the gang enhancement does not criminalize gang
membership itself. In re Alberto R., 

 (Cal. Ct. App.
1991) (“Section 186.22 does not prohibit membership; it prohibits the
promotion, furtherance or assistance in any felonious criminal conduct by
members.” (citation and internal quotation mark omitted)). The statute
does not encompass conduct engaged in by a lone individual for his own
purposes or unintended conduct that incidentally may have some benefit
to a gang. See People v. Rios, 

 (Cal. Ct. App.
2013). It addresses the threat that criminal gang activity poses to public
safety and public order in a targeted manner by requiring that the offender
have committed a specified offense with the specific intent to advance
criminal gang conduct.
    The crime of vandalism is a well-recognized way of advancing gang
activity. The legislative history regarding a 1993 amendment to the
offense of malicious vandalism under section 594(a) of the California Penal
Code discussed the public opposition to graffiti and the high cost of
removing it, also noting that “the blight caused by graffiti ‘affects all
communities’ and causes ‘[t]urf wars’ and gang violence, which can lead

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to murder.” In re Rudy L., 

 (Cal. Ct. App. 1994)
(alteration in original) (citation omitted).
    We conclude that it is inherently reprehensible to maliciously deface,
damage, or destroy property for the benefit of a criminal street gang with
the specific intent to promote criminal conduct by gang members in
violation of sections 594(a) and 186.22(d) of the California Penal Code.
See Matter of Louissaint, 24 I&N Dec. at 756−57. There has been no
showing that there is a realistic probability that an individual would be
prosecuted under these statutes for conduct that does not rise to the level of
moral turpitude. Id. at 757; see also Gonzales v. Duenas-Alvarez, 

. Consequently, the respondent’s conviction for malicious vandalism
in conjunction with the section 186.22(d) gang enhancement is for a crime
involving moral turpitude.
    The respondent is removable under section 237(a)(2)(A)(i) of the Act.
The Immigration Judge therefore erred in terminating the proceedings.
Accordingly, the DHS’s appeal will be sustained and the record will be
remanded to give the respondent an opportunity to apply for relief from
removal. On remand, the parties should be permitted to make additional
arguments and to present any relevant evidence, including the evidence that
was submitted with the DHS’s motion to remand to submit additional
charges. See 

, 1240.10(e) (2014).
    ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the
removal proceedings are reinstated.
    FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.




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