Interim Decision #2685 

MATTER OF ESFANDIARY 

In Deportation Proceedings 

A-18815373 

Decided by Board January 17, 1979 

(1) The first step in determining whether a crime involves moral turpitude is to determine 

from the record of conviction what law, or portion of law, was violated. 

(2) When a statute encompasses both violations which do and those that do not necessarily 

involve moral turpitude, the record of conviction (i.e., the charge, plea, verdict, and 

sentence) must be examined for a determination of whether the crime committed 

involves moral turpitude. 

(3) Where respondent's conviction of malicious trespass under Florida law required a 

finding of an intent. to commit petit larceny, a crime involving moral turpitude. the 

conviction is for a crime involving moral turpitude within the meaning of section 

241(a)(4) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(4). 

CHA IMES: 

Order. Act of 1952—Section 241(a)(4) [8 U.S.C. 1251(a)(4)]--Within five years after 

entry convicted of a crime involving moral turpitude, to wit: 

two counts of grand larceny 

Lodged: Act of 1952—Section 241(a)(4) [8 U.S.C. 1251(a)(4)J—At any time after entry 

convicted of two crimes involving moral turpitude, to wit: 

malicious trespass and grand larceny 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Fred F. Filsoof, Esquire Robert Lee Erwin 

1416 Gas Light Tower Trial Attorney 

235 Peachtree Street 

Atlanta, Georgia 30303 

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members 

The respondent has appealed from the decision of an immigration 

judge, dated April 19, 1978, finding him deportable as charged and 

ordering his deportation to Iran. The appeal will be dismissed. 

The respondent is a 27-year-old native and citizen of Iran who entered 

the United States as a nonimmigrant student in 1969. On October 6, 

1972, his status was adjusted to that of a lawful permanent resident of 

the United States. On November 19, 1975, an Order to Show Cause was 

issued, charging the respondent with deportability under section 

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241(a)(4) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(4), 

as an alien who, within five years after entry, had been convicted of a 

crime involving moral turpitude and had either been sentenced to confinement therefore or confined therefore in a prison or corrective institution for a year or more. This charge was based upon the respondent's conviction on June 23, 1975, of the crime of grand larceny for 

which he was sentenced to two years in the Florida State Prison. 

In a decision dated March 15, 1976, an immigration judge found the 

respondent deportable on the charge contained in the Order to Show 

Cause and ordered his deportation to Iran. The respondent appealed to 

this Board and, on appeal, submitted a copy of a Writ of Error Coram 

Nobis, entered by the Circuit Court of the Second Judicial Circuit for 

Leon County, Florida, on June 22, 1976, in which the respondent's 

original sentence of two years imprisonment was recalled by the Court 

and, in lieu thereof, the respondent was sentenced to a term of 358 days 

(Ex. R-1). In a decision dated August 13, 1976, we reopened the 

proceedings for consideration of this additional evidence. 

At a reopened hearing held on April 7, 1977, and February 15, 1978, 

the Immigration and Naturalization Service lodged an additional charge 

of deportability against the respondent under section 241(a)(4) of the 

Act as an alien who, at any time after entry, had been convicted of two 

crimes involving moral turpitude not arising out of a single scheme of 

criminal misconduct. This charge was based on the respondent's conviction of grand larceny on June 23, 1975, and his conviction on April 28, 

1975, of the crime of malicious trespass. The immigration judge found 

that both crimes involved moral turpitude, and held the lodged charge 

sustained in his decision of April 19, 1978. On appeal, the respondent 

argues that his conviction for malicious trespass is not a conviction of a 

crime involving moral turpitude within the meaning of section 241(a)(4) 

of the Act. 

In order to determine whether a crime involves moral turpitude, we 

must look to the nature of the crime itself. The first step in appraising 

the offense is to determine what law, or portion of law, was violated. 

United States ex rel. Teper v. Miller, 87 F. Supp. 285 (S.D.N.Y. 1949). 

This is extracted from the record of conviction. Zaffarano v. Corsi, 63 

1".2d 757 (2 Cir. 1922). The record in this case contains a certified copy of 

a judgment of conviction for malicious trespass. At the time of the 

respondent's conviction, malicious trespass was defined in section 

E21.18 of the Florida Statutes as follows: 

821.18 Other Trespasses 

. . . Every trespass upon the property of another, committed with a malicious and 

mischievous intent, the punishment of which is not specially provided for, shall be guiltY 

of a zniedonicanor of the cecond degree. . . 

On appeal, the respondent argues that we must read the statute at its 

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minimum, and thereby find that a conviction under section 821.18 does 

not involve moral turpitude. However, the respondent has misinterpreted the precedents in this area. Although we agree that the statute 

in question may encompass violations which do not necessarily involve 

moral turpitude, our inquiry does not end at that point. It is a wellestablished rule that we must then look to the record of conviction for a 

determination of whether the crime committed involves moral turpitude. In the present case malicious trespass requires ,specific intent. 

That intent is found by looking to the record of conviction. Bisaillon v . 

Hogan, 257 F.2d 435 (9 Cir. 1958) cert. denied 358 U.S. 872 (1958); 

Matter of N—, 8 I. & N. Dec. 466 (BIA 1959). The record of conviction 

includes the charge or indictment, the plea, the verdict, and the sentence. Glaros v. INS, 416 F.2d 441 (5 Cir. 1969); Matter of Lopez, 13 I. 

& N. Dec. 725 (BIA 1971). 

The respondent was charged, in an information dated October 14, 

1974, with entering without breaking a dwelling with intent to commit a 

misdemeanor, to wit: petit larceny. Petit larceny is a crime involving 

moral turpitude. Quilodran-Brau v. Holland, 132 F. Supp. 765 (RD. 

Penn. 1966), affd 232 F.2d 183 (3 Cir. 1956) 

The respondent's conviction of malicious trespass involves a malicious 

and mischievous intent. This intent is contained in the information, i.e., 

the intent to commit petit larceny, a crime involving moral turpitude. 

We find, therefore, that the respondent's conviction of malicious trespass is a conviction of a crime involving moral turpitude as that term is 

used in section 241(a)(4) of the Act. 

The record establishes the respondent's deportability by clear, convincing, and unequivocal evidence. We will, therefore, dismiss his 

appeal. 

ORDER: The appeal is dismissed. 

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