U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Qffice of the Clerk
5107 Leesburg Pike. Suile 2000
Falls Church. I 'irgmw 20530

OHS LIT.Nork Co. PrisonNOR

3400 Concord Road
York, PA 17402

Name: MAKWANA, RAJENDRASINH B...

A 088-143-880

Date of this notice: 11/26/2014

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DO>vtL caAh)
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Cole, Patricia A.
Malphrus, Garry D.
Liebowitz, Ellen C

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Rajendrasinh Babubhai Makwana, A088 143 880 (BIA Nov. 26, 2014)

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Griffin, Thomas M., Esq.

Surin & Griffin, P .C.
325 Chestnut Street, Suite 1305
Philadelphia, PA 19106

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk
5 /07 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS LIT.Nork Co. P risonNOR

3400 Concord Road
York, PA 17402

YORK, PA 17402

Name: MAKWANA, RAJENDRASINH 8 ...

A 088-143-880

Date of this notice: 11/26/2014

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy.

Your attorney or representative has been served with this

decision pursuant to 8 C.F.R. 1292.S(a).

If the attached decision orders that you be

removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be ti led with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

Dcn.JtL Ca.;vv
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Cole, Patricia A.
Malphrus, Garry D.
Liebowitz, Ellen C

Userteam:

Cite as: Rajendrasinh Babubhai Makwana, A088 143 880 (BIA Nov. 26, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

MAKWANA, RAJENDRASINH BABUBHAI

52886-037/A088-143-880
YORK COUNTY PRISON
3400 CONCORD ROAD

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

Date:

File: A088 143 880 - York, PA

NOV 282014

In re: RAJENDRASINH BABUBHAI MAKWANA

IN REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT:
ON BEHALF OF OHS:

Thomas M. Griffin, Esquire

Ira L. Mazer
Senior Attorney

CHARGE:
Notice: Sec.

237(a)(l)(B), l&N Act [8 U.s.c. 1227(a)(l)(B)] In the United States in violation of law

Sec.

237(a)(l)(C)(i}, I&N Act [8 U.S.C. 1227(a)(l)(C)(i)] Nonimmigrant - violated conditions of status

Sec.

237(a)(2)(A)(i), l&N Act [8 U.S.C. 1227(a)( 2)(A)(i)] Convicted of crime involving moral turpitude

APPLICATION: Remand

This matter was last before the Board on August 9, 2012, when we held the respondent to be
removable as charged. The United States Court of Appeals for the Third Circuit vacated the
portion of our decision holding that the respondent is removable under section 237(a)(2)(A)(i) of
the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(i), and remanded the record to
the Board to reassess whether the respondent is so removable. We will sustain the appeal with
respect to removability under section 237(a)(2)(A)(i) of the Act, and will deny the motion to
remand.
The respondent is a native and citizen of India. On December 17, 2010, he was convicted of
one count of computer intrusion resulting in loss of $5,000 or more, in violation of 18 U.S.C.
1030(a)(5)(A)(i), (B)(i) (2008). He was sentenced to a term of imprisonment of 41 months.
The Third Circuit has asked the Board to determine whether the respondent's conviction
is categorically for a crime involving moral turpitude.
One commits the crime of computer intrusion under 18 U.S.C. 1030(a)(5)(A)(i) and (B)(i)
if one "knowingly causes the transmission of a program, information, code, or command, and as
a result of such conduct, intentionally causes damage without authorization, to a protected
computer" with a resulting loss of at least $5,000. We examine this statutory language to
Cite as: Rajendrasinh Babubhai Makwana, A088 143 880 (BIA Nov. 26, 2014)

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APPEAL AND MOTION

A088 143 880

determine whether the offense is one that involves moral turpitude. For the statute to
categorically describe a crime involving moral turpitude, the least culpable conduct punishable
under the statute must be morally turpitudinous. Partyka v. U.S. Atty Gen., 417 F.3d 408,
411 (3d Cir. 2005).
mental state
All conduct
The statute
requirement

In our prior decision, we employed the modified categorical approach to determine that the
respondent was convicted of intruding on such a computer. The Third Circuit, however, found
error in our use of the modified categorical approach in this manner. In light of the Third
Circuit's remand order, we conclude that under a strict categorical analysis the least culpable
conduct punishable under 18 U.S.C. 1030(a)(5)(A)(i) is not morally turpitudinous. We,
therefore, will sustain the appeal with respect to removability under section 237(a)(2)(A)(i) of
the Act.
Pursuant to our August 9, 2012, decision, the respondent remains removable under sections
237(a)(l)(B) and (C)(l) of the Act. He moves to remand the record to allow him to pursue
adjustment of status. The respondent believes he is the beneficiary of a valid, approved
employment-based visa petition filed by his former employer. However, the visa petition upon
which his claim for adjustment is based was revoked on February 5, 2009, because his employer
withdrew it after his arrest (Exh. 2 at Tabs C, D).
The respondent argues that he should be able to port that visa petition to his subsequent
employer under section 204G) of the Act, 8 U.S.C. 1154(j). See generally Matter of Neto,
25 l&N Dec. 169 (BIA 2010). However, he has not shown that he was hired by the subsequent
employer prior to the revocation of the visa petition. He asserts he was fired by the petitioning
employer in January 2009 after his arrest for computer intrusion (Motion to Remand at 3). He
was indicted on January 27, 2009 (Exh. 4). The visa petition of which he was the beneficiary
was revoked on February 5, 2009. He does not specify when he was hired by the next employer.
Having not asserted and shown that he was hired within the narrow time frame between his
termination by the petitioning employer and the revocation of the visa petition, he has not shown
that he would be able to port the visa petition even if it were otherwise portable under section
2040) of the Act. Thus, he has not shown he has a visa immediately available, and is not eligible
for adjustment of status. We will therefore deny the motion to remand.
ORDER: The appeal is sustained with respect to the charge of removability under section
237(a)(2)(A)(i) of the Immigration and Nationality Act, and the Immigration Judge's April I 0,
2012, holding that the respondent is removable under section 237(a)(2)(A)(i) of the Act is
vacated.
FURTHER ORDER: The appeal is dismissed in all other respects.

Cite as: Rajendrasinh Babubhai Makwana, A088 143 880 (BIA Nov. 26, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

"To involve moral turpitude, a crime requires two essential elements: a culpable
and reprehensible conduct." Matter of Ortega-Lopez, 26 l&N Dec. 99 (BIA 2013).
criminalized by 18 U.S.C. 1030(a)(5)(A)(i) is both intentional and malicious.
requires knowing conduct and a specific intent to cause damage, thus satisfying the
of a culpable mental state.

'..

A088 143 880

FURTHER ORDER: The respondent's motion to remand is denied.

Cite as: Rajendrasinh Babubhai Makwana, A088 143 880 (BIA Nov. 26, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

FOR THE BOARD