Motion for Bond Reduction Argument: Theft of Service Conviction is Not a Crime Involving Moral Turpitude

Two convictions charged under Crime Involving Moral Turpitude (CIMT) not arising out of the same scheme of misconduct, regardless of whether confined and regardless of whether convictions were in a single trial,  is a mandatory no immigration bond.  Crime involving moral turpitude has been defined as an act or omission that is so far contrary to the moral laws, so base or vile as to be contrary to the acceptedand customary rule of right and duty between people. Neither the seriousness of  the offense nor the severity of the sentence imposed is determinative of whether a crime involves moral turpitude. It is more a question of evil intent or corrupt mind. It is morally reprehensible and intrinsically wrong. 

My client was charged with 2 CIMTS.  He needed an attorney who would argue that one of his two theft conviction does not fall under the category of CIMT; therefore, he qualifying for an Immigration bond.    His 2 prior attorneys and 3 others attorneys, with whom he consulted, did not feel that the argument was valid.    I, on the other hand, listened to what he had to say, researched,  and championed his cause.  All I needed was to be able to convince the Judge that one of the two theft convictions was not a CIMT.  One of the convictions, theft of service via writing a bad check, was a conviction I felt strongly lacked the element of CIMT, because writing a check after service was rendered lacked the intent to defraud.  From the looks of it, I argued the motion successfully  in court, because the government attorneys did not have a response to my motion on the day of hearing and has not filed an answer even when the Judge gave them time to file a response. 

Note that I did not represent this client in his criminal cases.  The Theft conviction of a rental car should have been plead to as Unauthorize Use of a Motor Vehicle with a less than one year punishment.  UUMV lacks the intent to defraud element.  When a defendant is not a US citizen, his criminal case should be handled with extreme care, because an incorrect plea  has the possibility of sending the client through deportation process.  I suggest that anyone who is not a US citizen dealing with a criminal charge should retain a criminal attorney experienced in immigration practice or should consult with an immigration attorney. 



The following Motion is a synopsis of what I presented to the Judge:

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            Comes now Catherine H. del Valle, counsel of record for the above referenced Respondent, ___________________________, and pursuant to 8 C.F.R sec. 1003.19 requests that a bond redetermination hearing in this matter be set as soon as possible.  A Motion for Bond Redetermination/Reconsideration is appropriate because certain evidence was not properly considered on ______________ bond hearing.  Therefore, Immigration Judge incorrectly applied the law in reaching a no bond decision.  In support of this motion, Respondent states through counsel as follows:

            1.         The Respondent, ___________________________, has been married to his US citizen wife for 18 years.  He has 6 US citizen children.   The Respondent’s son has filed an I-130 on his behalf on June 20, 2011.  (See Exhibit 1)

            2.         U.S. Immigration and Customs Enforcement (ICE) has alleged in the Notice to Appear, dated __________________, that ___________________________ was admitted, but removable because on ____________________, he was convicted in the Harris County Court at Law No. _________ for the offense of THEFT between $20 to $200 – CHECK, in violation of the Texas Penal Code.  In addition, on _________________, he was convicted in the Harris County _______th District Court for the offense of THEFT between $20,000 less than $100,000 in violation of the Texas Penal Code.  The two crimes were considered two crimes involving moral turpitude  (CIMT) not arising out of a single scheme of criminal misconduct.  (See Exhibit 2).

            3.         On _____________________, a bond hearing was held and no bond was set due to the finding of mandatory detention.

            4.         Respondent is currently being held at the Corrections Corporation of American Detention Facility in Houston, Texas, and the case is still pending.  Thus, this court has jurisdiction.

            5.         The Respondent should have been released on his own recognizance or a bond set because the two convictions of theft do not constitute CIMT for the purpose of removal. 

            6.         The Respondent’s ___________________ conviction of THEFT between $20 to $200 – CHECK is NOT a CIMT.  This theft charge was for theft of service. The Charging Instrument, specifically the Misdemeanor Information, specifies that the theft is for COMPUTER SERVICES, provided by _________________. (See Exhibit 3)

            7.         An “intent to defraud, as a test for the existence of moral turpitude, requires the convicted person to have intended to take someone’s property unlawfully.” In the Matter of Colbourne, 13 I&N. Dec. 319 (BIA 1969).  Precedent cases in Texas have shown the importance of establishing whether a check is tendered either to secure or pay for service that has been rendered by complainant. Johnson vs. State of Texas, 2005 Tex. App. LEXIS 10335 (Dec. 13, 2005).  In Gibson vs. State of Texas, it was found that the defendant’s conduct of issuing and passing a check could not have affected the judgment of the complaining witness in the delivery of the services allegedly stolen, because the check was not issued and passed until after performance of the service had been completed; thus, the alleged conduct could not be deception.  623 S.W. 2nd 324, 1980 Tex. Crim. App. LEXIS 1414 (Oct. 22, 1980).  In the Matter of Sloane, the Attorney General held that the conduct which is to be put to test is not that comprised of the elements needed for conviction, but that which the alien actually engaged in.  12 I&N Dec. 840, 854 (A.G. 1968; BIA 1966).                   

            8.         Respondent urges that for payment to be tendered for computer service, performance of the service has to have been rendered. (i.e., time of labor and applicable computer parts were accounted for in an invoice) prior to payment being tendered.  Thus, there was no intent to defraud on this conviction; therefore, the __________________ conviction of THEFT between $20 to $200 – CHECK is NOT a CIMT. 

            9.         In addition, the August 2, 2010 offense of THEFT between $20,000 less than $100,000 is NOT a CIMT.  In the Matter of Grazely, it was found that “ordinarily, a conviction for theft is considered to involve moral turpitude only when a permanent taking is intended.”  14 I&N. Dec. 330, 333 (BIA 1973).  Thus, in determining whether an intention to permanently deprive the owner of his property, it is appropriate to consider the nature and circumstances surrounding a theft offense.  Id.  The Complaint states that “the Defendant rented a ____________________ … from the Thrifty Car Rental…”  (See Exhibit 4).  The Conditions of Community Supervision item 12.5 states, “Pay _________________  in Restitution…”  (See Exhibit 5).  The Respondent urges that it is safe to conclude that the restitution amount is for rental fee of the vehicle.  Thus, establishing that Respondent did not unlawfully appropriate the vehicle. 

            10.       ___________________________ has significant ties to the Houston and Texas community in which he lives.  He has worked in Houston for several years .  Aside from the charges at issue, he has no other criminal history of any kind.  His most important community ties are to his wife, children and grandchildren, who has now been without a husband, father and grandfather for over three months.

            11.       ___________________________ has no intention of fleeing from immigration authorities if he is released from detention prior to the resolution of removal proceedings.  All of his ties are to his home in Houston.  He has no history of flight.  He wants to only return home to be with his wife, children and grandson. 

            12.       Respondent has a relief available in the form of adjustment, cancellation of removal, waiver and voluntary departure.

            13.       Upon release, Respondent will reside at _________________________, Houston, TX ______.

            14.       Respondent respectfully requests that he is released under personal recognizance.  In the alternative, his bond be set at $1,500.00.

            Wherefore premises considered, Respondent moves that the Honorable Court grant this Motion for a Bond Redetermination/Reconsideration  hearing before an Immigration Judge at the earliest available date and set a bond in a reasonable amount.  Respectfully submitted, this the ______th day of _____________________.


Respectfully Submitted,


Law Office of Catherine H. Del Valle
7322 Southwest Freeway, Suite 1100
Houston, Texas 77074
Tel: (713) 821‑3004
Fax: (832) 251‑0901


Attorney for ___________________________



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