Cite as 24 I&N Dec. 754 (BIA 2009) Interim Decision #3635
Matter of Leroinex LOUISSAINT, Respondent
File A072 033 702 – Miami, Florida
Decided March 18, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

(1) The categorical approach for determining if a particular crime involves moral turpitude
set forth in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), requires the
traditional categorical analysis, which was used by the United States Supreme Court in
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), and includes an inquiry into whether
there is a “realistic probability” that the statute under which the alien was convicted
would be applied to reach conduct that does not involve moral turpitude.
(2) A conviction for burglary of an occupied dwelling in violation of section 810.02(3)(a)
of the Florida Statutes is categorically a conviction for a crime involving moral turpitude.
Matter of M-, 2 I&N Dec. 721 (BIA; A.G. 1946), distinguished.
FOR RESPONDENT: Joann M. Hennessey, Esquire, Miami, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Steven R. Parrish, Assistant
Chief Counsel
BEFORE: Board Panel: COLE and HESS, Board Members. Concurring Opinion:
PAULEY, Board Member.
COLE, Board Member:
In a decision dated April 21, 2008, an Immigration Judge found that the
respondent is not inadmissible under section 212(a)(2)(A)(i)(I) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2006), as an
alien convicted of a crime involving moral turpitude, and terminated the
removal proceedings. The Department of Homeland Security (“DHS”) has
appealed from that decision. The appeal will be sustained, the proceedings
will be reinstated, and the record will be remanded to the Immigration Judge.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Haiti who was granted lawful
permanent resident status on or about January 8, 2001. The record reflects that
on August 27, 2001, he committed the offense of burglary in Florida. On
754

Cite as 24 I&N Dec. 754 (BIA 2009) Interim Decision #3635
August 16, 2002, the respondent was convicted of second degree burglary of
an occupied dwelling in violation of section 810.02(3)(a) of the Florida
Statutes, for which he was sentenced to 2 years’ probation.
On September 3, 2007, the respondent was detained at the Miami
International Airport upon returning to the United States. The DHS initiated
removal proceedings against the respondent, charging that he is inadmissible
on the basis of his burglary conviction. The Immigration Judge concluded that
the respondent’s conviction was not for a crime involving moral turpitude and
therefore would not render him inadmissible under section 212(a)(2)(A)(i)(I)
of the Act. The proceedings were accordingly terminated.1
II. ISSUE
The only issue on appeal is whether the Immigration Judge erred in
concluding that the respondent’s conviction for the offense of burglary of an
occupied building in violation of section 810.02(3)(a) of the Florida Statutes
was not a conviction for a crime involving moral turpitude.
III. ANALYSIS
The relevant Florida statutes relating to the crime of burglary of a dwelling
provide, in pertinent part, as follows:
(1)(b) For offenses committed after July 1, 2001, “burglary” means:
1. Entering a dwelling, a structure, or a conveyance with the intent to commit an
offense therein, unless the premises are at the time open to the public or the defendant
is licensed or invited to enter . . . .
. . . .
(3) Burglary is a felony of the second degree . . . if, in the course of committing the
offense, the offender does not make an assault or battery and is not and does not
become armed with a dangerous weapon or explosive, and the offender enters or
remains in a:
(a) Dwelling, and there is another person in the dwelling at the time the offender
enters or remains . . . .
Fla. Stat. §§ 810.02(1)(b), (3)(a) (2001).
The Immigration Judge relied on Matter of M-, 2 I&N Dec. 721 (BIA, A.G.
1946), in concluding that the determinative factor in deciding whether the
1 The DHS also alleged that the respondent is inadmissible under section 212(a)(2)(A)(i)(I)
of the Act on account of his December 11, 2001, conviction for resisting an officer with
violence to his or her person in violation of section 843.01 of the Florida Statutes. Although
the Immigration Judge determined that this offense was not a crime involving moral
turpitude, the DHS did not contest that finding on appeal.
755

Cite as 24 I&N Dec. 754 (BIA 2009) Interim Decision #3635
respondent’s offense was a crime involving moral turpitude was whether the
crime he intended to commit after breaking into a residence involved moral
turpitude. In Matter of M-, we held that third degree burglary in violation of
section 404 of the New York Penal Law2
was not a crime involving moral
turpitude. We indicated that we did not consider such an offense to be
inherently immoral, base, vile, or depraved, because a person could be
convicted under that statute for simply pushing ajar the unlocked door of an
unused structure and putting one’s foot across the threshold. Id. at 723. Thus,
we determined that it is only the particular crime that accompanies or precedes
the act of breaking out that has any significance in determining whether third
degree burglary under New York law involves moral turpitude. Because the
record of conviction in the case before us did not indicate the particular
offense that accompanied the breaking and entering, the Immigration Judge
found that it did not demonstrate whether the respondent’s underlying offense
involved moral turpitude. He therefore concluded that the DHS failed to
sustain its burden of establishing that the respondent is inadmissible under
section 212(a)(2)(A)(i)(I) of the Act.
Although our decision in Matter of M-, supra, indicates that third degree
burglary of a building under New York law is not itself a crime involving
turpitude, we also noted in that case that the offense differed in several
material respects from common law burglary, which is defined as the breaking
and entering of the dwelling house of another in the nighttime with intent to
commit a felony. In addition, we specifically noted that we were not
determining whether first or second degree burglary involved moral turpitude.
We therefore find that our holding in Matter of M-, which involved a third
degree burglary offense, is distinguishable because the offense at issue here is
second degree burglary under section 810.02(3)(a) of the Florida Statutes,
which involves the burglary of an occupied dwelling.
Additionally, during the pendency of this appeal, the Attorney General
issued a comprehensive decision clarifying the concept of moral turpitude and
articulating a methodology for determining whether a particular offense is a
crime involving moral turpitude. Matter of Silva-Trevino, 24 I&N Dec. 687
(A.G. 2008). According to the Attorney General, a crime involving moral
2 Section 404 of the New York Penal Law provided as follows:
A person who:
1. With intent to commit a crime therein, breaks and enters a building, or a room,
or any part of a building; or,
2. Being in any building, commits a crime therein and breaks out of the same, is
guilty of burglary in the third degree.
756
Cite as 24 I&N Dec. 754 (BIA 2009) Interim Decision #3635
turpitude involves reprehensible conduct committed with some degree of
scienter, either specific intent, deliberateness, willfulness, or recklessness. Id.
at 706 & n.5.
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. See Gonzales v. Duenas-Alvarez, 549 U.S. 183,
186 (2007) (citing Taylor v. United States, 495 U.S. 575, 599-600 (1990), as
stating that in determining whether a particular conviction is for a certain type
of offense, a court should normally look “not to the facts of the particular prior
case,” but rather to the statute defining the crime of conviction). In Matter of
Silva-Trevino, supra, the Attorney General found that the “categorical inquiry”
also requires an examination of the law of the convicting jurisdiction to
determine whether there is a “‘realistic probability,’” as opposed to a
“‘theoretical possibility,’” that the statute under which the alien was convicted
would be applied to reach conduct that does not involve moral turpitude. Id.
at 698 (quoting Gonzales v. Duenas-Alvarez, supra, at 193). This requires
asking whether, at the time of the alien’s removal proceedings, any actual (as
opposed to hypothetical) case exists in which the relevant criminal statute was
applied to conduct that did not involve moral turpitude. If the statute has not
been so applied in any actual case, the Immigration Judge, in applying the
“realistic probability” method, may reasonably conclude that all convictions
under the statute may categorically be treated as ones involving moral
turpitude.
Should the language of the criminal statute encompass both conduct that
involves moral turpitude and conduct that does not, however, and there is a
case in which the relevant criminal statute has been applied to the latter
category of conduct, the Immigration Judge cannot categorically treat all
convictions under that statute as convictions for crimes that involve moral
turpitude. Matter of Silva-Trevino, supra, at 697. Should such an inquiry
reveal that there is, in fact, a realistic probability that the statute would reach
offenses that are not turpitudinous, we must then engage in a “modified
categorical inquiry” in which we examine the record of conviction, including
documents such as the indictment, the judgment of conviction, jury
instructions, a signed guilty plea, and the plea transcript, in order to determine
whether the particular conviction in question was for a morally turpitudinous
offense. Id. at 698-99. Finally, if consideration of the conviction record does
not reveal whether the alien’s particular offense involved moral turpitude, we
may then consider any other admissible evidence bearing on that question. Id.
at 699-704. Applying the foregoing methodology to the facts of this case, we
conclude that the respondent has been convicted of a crime involving moral
turpitude.
757
Cite as 24 I&N Dec. 754 (BIA 2009) Interim Decision #3635
As we noted previously, the respondent was convicted of the offense of
burglary of an occupied building in violation of section 810.02(3)(a) of the
Florida Statutes. By judicial construction, burglary, as defined at section
810.02(1)(b) of the Florida Statutes, has been interpreted by the Florida courts
to require three essential elements: “‘(1) knowing entry into a dwelling,
(2) knowledge that such entry is without permission, and (3) criminal intent to
commit an offense within the dwelling.’” M.E.R. v. State, 993 So.2d 1145,
1146 (Fla. Dist. Ct. App. 2008) (emphasis added) (quoting R.J.K. v. State, 928
So.2d 499, 502 (Fla. Dist. Ct. App. 2006)); see also D.R. v. State, 734 So.2d
455, 457 (Fla. Dist. Ct. App. 1999); T.S.J. v. State, 439 So.2d 966, 967 (Fla.
Dist. Ct. App. 1983).3 By specifically excusing entry into properties open to
the public and licensed or invited entries onto property under the definition of
burglary, section 810.02(1)(b) necessarily incorporates unlawful entry as an
element of the offense. See Fla. Stat. § 810.015(3) (2004) (stating that consent
is an affirmative defense to burglary and nullifying Delgado v. State, 776
So.2d 233 (Fla. 2000)); Miller v. State, 733 So.2d 955, 957 (Fla.1998) (“[I]f
a defendant can establish that the premises were open to the public, then this
is a complete defense.”); Robertson v. State, 699 So.2d 1343, 1346 (Fla. 1997)
(noting that consent is an affirmative defense to a charge of burglary); see also
P.D.T. v. State, 996 So.2d 919, 919 (Fla. Dist. Ct. App. 2008) (finding that to
establish the crime of burglary of a dwelling in Florida, the State must prove
that the defendant either (1) entered a dwelling without permission and with
the intent to commit an offense therein or (2) following an invited entry,
remained in the dwelling surreptitiously, or after permission to remain had
been withdrawn, with the intent to commit an offense therein). A conviction
under section 810.02(3)(a) requires, as an additional material element, proof
that the burglary took place in a dwelling occupied by another person at the
time the offender entered or remained.
We conclude that the conscious and overt act of unlawfully entering or
remaining in an occupied dwelling with the intent to commit a crime is
inherently “reprehensible conduct” committed “with some form of scienter,”
as required by Matter of Silva-Trevino, supra, at 706 & n.5. By breaking into
a dwelling of another for an illicit purpose, the burglar tears away the
resident’s justifiable expectation of privacy and personal security and invites
3 Although it is not dispositive, we find it instructive that the elements of the Florida statute
prohibiting burglary of a dwelling correspond to the generic definition of burglary adopted
by the United States Supreme Court in Taylor v. United States, supra, at 599 (defining
“burglary” as “any crime, regardless of its exact definition or label, having the basic
elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with
intent to commit a crime”). See also United States v. Bennett, 472 F.3d 825, 832 (11th Cir.
2006) (adopting the Taylor definition of generic burglary).
758
Cite as 24 I&N Dec. 754 (BIA 2009) Interim Decision #3635
a violent defensive response from the resident. As the United States Supreme
Court has found, “The main risk of burglary arises not from the simple
physical act of wrongfully entering onto another’s property, but rather from the
possibility of a face-to-face confrontation between the burglar and a third
party—whether an occupant, a police officer, or a bystander—who comes to
investigate.” James v. United States, 550 U.S. 192, 127 S. Ct. 1586, 1594
(2007) (construing attempted burglary, as defined by Florida Statutes
sections 810.02(1) and 777.04(1), as a “violent felony” under a residual
provision of the Armed Career Criminal Act, 18 U.S.C. § 924(e)). Moreover,
the United States Court of Appeals for the Eleventh Circuit, in whose
jurisdiction this proceeding arises, has recognized the peculiar dangers
inherent in residential burglaries such as the one involved in this case. See
United States v. Davis, 881 F.2d 973, 976 (11th Cir. 1989) (“‘No one has
doubted for decades that residential burglary is a “violent” offense, because
of the potential mayhem if burglar encounters resident.’” (quoting
United States v. Pinto, 875 F.2d 143, 144 (7th Cir. 1989), in concluding that
burglary of a dwelling under section 810.02(3) constitutes a crime of violence
for purposes of the United States Sentencing Guidelines)).
Our examination of the statutory elements of residential burglary under
Florida law persuades us that there is no “realistic probability” that section
810.02(3)(a), which involves the unlawful entry into an occupied dwelling,
would be applied to reach conduct that does not involve moral turpitude, and
that the offense, as defined by its statutory elements, is one in which moral
turpitude necessarily inheres.4
We therefore reject the Immigration Judge’s
decision, which was based on Matter of M-, supra, and issued before the
Attorney General’s opinion in Matter of Silva-Trevino, supra, that a residential
burglary derives its morally turpitudinous nature solely from the culpability
inherent in the crime that accompanies or precedes the act of breaking and
entering a building. We find, to the contrary, that moral turpitude is inherent
in the act of burglary of an occupied dwelling itself, and that the respondent’s
unlawful entry into the dwelling of another with the intent to commit
any crime therein is a crime involving moral turpitude.
4 As an alien charged with inadmissibility under section 212(a)(2)(A)(i)(I) of the Act, the
respondent bears the burden of showing that the criminal statute under which he was
convicted has been applied to conduct that did not involve moral turpitude. See Matter of
Silva-Trevino, supra, at 703-04 n.4 (applying the realistic probability approach). We are
unaware of any existing (as opposed to hypothetical) Florida case where section 810.02(3)(a)
has been applied to conduct that is not turpitudinous. The respondent may file a timely
motion to reopen if he has evidence of such a case.
759

Cite as 24 I&N Dec. 754 (BIA 2009) Interim Decision #3635
IV. CONCLUSION

Based on intervening law, we conclude that the Immigration Judge erred in
finding that the offense of burglary of an occupied building in violation of
section 810.02(3)(a) of the Florida Statutes is not a crime involving moral
turpitude under the immigration laws. We therefore find that the respondent
is inadmissible under section 212(a)(2)(A)(i)(I) of the Act. Accordingly, the
DHS’s appeal will be sustained, the removal proceedings will be reinstated,
and the record will be remanded to the Immigration Judge for consideration of
any relief from removal for which the respondent may be eligible.
ORDER: The appeal of the Department of Homeland Security is sustained,
the decision of the Immigration Judge is vacated, and the removal proceedings
against the respondent 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.
CONCURRING OPINION: Roger A. Pauley, Board Member
I respectfully concur. I agree with the majority that Matter of
Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), altered the framework under
which the Board of Immigration Appeals and the Immigration Judges are
directed henceforth to make decisions as to whether certain crimes involve
moral turpitude. I also agree with the majority that the instant offense is a
categorical crime involving moral turpitude.
In the event Matter of Silva-Trevino, supra, fails to find acceptance in the
courts of appeals, I write to indicate that, even under the law as it existed prior
to Silva-Trevino, I would find this offense to be turpitudinous. The home is an
area of utmost privacy, uniquely protected under our law. E.g., Payton v. New
York, 445 U.S. 573 (1980) (requiring a warrant for arrest of a homeowner in
his home). A breach of that zone through an unlawful entry or remaining,
with intent to commit a crime, is so far removed from societal norms as to
constitute a turpitudinous offense no matter what the intended crime. For
like reason, I disagree with the decision of the United States Court of
Appeals for the Ninth Circuit in Cuevas-Gaspar v. Gonzales, 430 F.3d 1013
(9th Cir. 2005), which found that a home burglary was not a categorical crime
involving moral turpitude. See id. at 1030-31 (Fernandez, J., dissenting)
(stating that “the intrusion into someone’s home with the intent to commit a
crime therein is a categorically depraved act”). As does the majority, I regard
Matter of M-, 2 I&N Dec. 721 (BIA, A.G. 1946), which was approved by the
760
Cite as 24 I&N Dec. 754 (BIA 2009) Interim Decision #3635
Attorney General, id. at 730, and on which the Immigration Judge relied, as
distinguishable because it did not involve burglary of a dwelling.
But to the extent that Matter of M-, supra, may stand as a barrier to such
a conclusion, I would urge the Attorney General at a minimum to modify that
decision to exclude therefrom burglaries of the home. Moreover, the broader
rationale of Matter of M-, under which a burglary becomes a crime involving
moral turpitude only if the crime intended is such, should be discarded. That
mode of analysis completely discounts the trespassory element in any burglary
(i.e., an unlawful entry or remaining within premises). While trespass alone
may not be turpitudinous, that does not mean the violation of privacy (and
sometimes incidental destruction of property) inherent in trespass should be
totally disregarded in making a crime involving moral turpitude calculus. For
example, while drug possession or use may not involve moral turpitude,
breaking into another’s car or shed in order to avoid detection while illegally
using drugs may well be. Accordingly, I would abandon the rationale
undergirding Matter of M- even if Matter of Silva-Trevino had not intervened.
761