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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, 8 U.S.C. § 1227(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, 26 I&N Dec. 99, 100 (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, 24 I&N Dec. 754, 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,

24 I&N Dec. at 757 (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186

(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, 670 F.3d 1085, 1088 (9th Cir. 2012) (citation

omitted); see also Olivas-Motta v. Holder, 746 F.3d 907, 916 (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,

24 I&N Dec. at 757; see also Gonzales v. Duenas-Alvarez, 549 U.S. at 193;

1 We review the findings of fact made by the Immigration Judge to determine if they

were clearly erroneous. 8 C.F.R. § 1003.1(d)(3)(i) (2014). We review de novo all other

issues, including whether the parties have met the relevant burden of proof. 8 C.F.R.

§ 1003.1(d)(3)(ii).
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Rohit v. Holder, 670 F.3d at 1088−89; Matter of Cortez Medina, 26 I&N

Dec. 79, 82 (BIA 2013).

The respondent was convicted of maliciously defacing the property

of another with graffiti or other inscribed material. Cal. Penal Code

§ 594(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. Cal. Penal Code § 186.22(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.,

125 Cal. Rptr. 3d 337, 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, 24 I&N Dec. 424, 426 (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.”

Cal. Penal Code § 186.22(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,

69 F.3d 999, 1000−01 (9th Cir. 1995). “The malice requirement of

California Penal Code section 594 establishes a general ‘readiness to do

evil.’” Id. at 1001 (quoting People v. Campbell, 28 Cal. Rptr. 2d 716, 721

(Cal. Ct. App. 1994)). See generally Castrijon-Garcia v. Holder, 704 F.3d

1205, 1213 (9th Cir. 2013) (“Crimes of moral turpitude generally involve

some ‘evil intent.’”); Matter of Flores, 17 I&N Dec. 225, 227 (BIA 1980)

(“An evil or malicious intent is said to be the essence of moral turpitude.”);

Matter of M-, 3 I&N Dec. 272 (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, 290

P.3d 1143, 1148 (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, 244 P.3d 1062, 1068 (Cal. 2010))

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

527 U.S. 41, 99 (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.31988 Cal. Legis. Serv. 1242 (West);

see also Cal. Penal Code § 186.20−.27 (West 2014); People v. Vy, 19 Cal.

Rptr. 3d 402, 411 (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, 118 Cal. Rptr. 2d 380, 385 (Cal. Ct.

App. 2002) (quoting Cal. Penal Code § 186.21). 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,

290 P.3d at 1146 (quoting Cal. Penal Code § 186.21); see also People

v. Albillar, 244 P.3d at 1072 (“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., Ariz. Rev. Stat. Ann. § 13-2321 (2007); La. Rev. Stat. Ann.

§ 15:1403 (1990); Minn. Stat. Ann. § 609.229 (West 1991); Miss. Code Ann. § 97-44-3

(West 1996); Mo. Ann. Stat. § 578.423 (West 1993); Nev. Rev. Stat. Ann. § 193.168

(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.” Cal. Penal Code

§ 186.22(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, 96 Cal. Rptr. 3d 459, 466 (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, 244 P.3d at 1071 (quoting People

v. Gardeley, 927 P.2d 713, 724 (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, 5 Cal. Rptr. 3d 615, 633 (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., 1 Cal. Rptr. 2d 348, 354 (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, 165 Cal. Rptr. 3d 687, 713 (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., 34 Cal. Rptr. 2d 864, 867 (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, 549 U.S.

at 193. 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 8 C.F.R. §§ 1003.30, 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.