Pedro Reyes-guillen, A076 703 814 (bia Dec. 5, 2014)

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U.S. Department of Justice Executive Office for Immigration Review Board ofImmigration Appeals Office of the Clerk 5107 leesburg Pike, Suite 2000 Falls Church, Virginia 20530 OHS/ICE Office of Chief Counsel - EAZ Pope & Associates 320 E. McDowell Road, Ste. 220 Phoenix, AZ 85004 P.O. Box 25158 Phoenix, AZ 85002 Name: REYES-GUILLEN, PEDRO A 076-703-814 Immigrant & Refugee Appellate Center | www.irac.net Wiesinger, Benjamin Todd Date of this notice: 12/5 /2014 Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely, [)Crt.ltL ct1/VU Donna Carr Chief Clerk Enclosure Panel Members: Malphrus, Garry D. Mullane, Hugh G. Pauley. Roger Userteam: Docket For more unpublished BIA decisions, visit www.irac.net/unpublished Cite as: Pedro Reyes-Guillen, A076 703 814 (BIA Dec. 5, 2014) :; . U.S. Department of Justice Executive Office for Immigration Review Board ofImmigration Appeals Q[fice of the Clerk 5107 leesburg Pike, Suite 2000 Falls Church, Virginia 20530 REYES-GUILLEN, PEDRO A076-703-814 ICE, 1705 EAST HANNA ROAD ELOY, AZ 85131 Name: REYES-GUILLEN, PEDRO A 076-703-814 Date of this notice: 12/5/2014 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 filed with and received by the appropriate court of appeals within 30 days of the date of the decision. Sincerely, Dowu..., CaJVU Donna Carr Chief Clerk Enclosure Panel Members: Malphrus, Garry D. Mullane, Hugh G. Pauley, Roger Userteam: Cite as: Pedro Reyes-Guillen, A076 703 814 (BIA Dec. 5, 2014) Immigrant & Refugee Appellate Center | www.irac.net OHS/ICE Office of Chief Counsel - EAZ P.O. Box 25158 Phoenix, AZ 85002 U.S. Department of Justice Decision of the Board of Immigration Appeals Executive Office for Immigration Review Falls Chiirch, Virginia 20530 Fil�: A076 703 814 - Eloy, AZ In Date: DEC - 5 2014 re: PEDRO REYES-GUILLEN APPEAL ON BEHALF OF RESPONDENT: Benjamin Todd Wiesinger, Esquire CHARGE: Notice: Sec. Sec. APPLICATION: 237(a)(2)(A)(i), l&N Act [8 U.S.C. § 1227(a)(2)(A)(i)] Convicted of crime involving moral turpitude 237(a)(2)(A)(ii), l&N Act [8 U.S.C. § 1227(a)(2){A)(ii)] Convicted of two or more crimes involving moral turpitude Termination The respondent appeals an Immigration Judge's May 29, 2014, decision denying his motion to terminate these removal proceedings. The record will be remanded. The respondent challenges the Immigration Judge's determination that his convictions under Ariz. Rev. Stat. § 28-1383(A)(l), which prohibits any person from "driving" or exercising "actual physical control" over a motor vehicle while under the influence of intoxicating liquor or drugs if the person knows that his driver license or privilege to drive is suspended, canceled, revoked, refused or restricted for driving under the influence, are for crimes involving moral turpitude. He contends that the Department of Homeland Security ("DHS") has not satisfied its burden of proving that he is removable as charged pursuant to sections 237(a)(2)(A)(i) and (ii) of the Act, 8 U.S.C. §§ 1227(a)(2)(A)(i) and (ii), and the proceedings should be terminated. The United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this matter arises, concluded that Ariz. Rev. Stat. § 28-1383(A)(l) encompasses some conduct that is morally turpitudinous and other conduct that is not. The Ninth Circuit has treated the statute as "divisible," authorizing Immigration Judges to consult aliens' conviction records under the "modified categorical approach" to determine whether the particular alien before the court was convicted of "driving," which is turpitudinous conduct, rather than merely exercising "actual physical control," which does not involve moral turpitude. Marmolejo-Campos v. Holder, 558 F.3d 903, 914-17 (9th Cir. 2009) (en bane). The Immigration Judge conducted such a modified categorical inquiry here and found that the respondent was convicted of "driving" while intoxicated (l.J. at 2-5). The Immigration Judge rejected the respondent's argument that Descamps v. United States, 133 S. Ct. 2276 (2013), mandated a different result. In Descamps, the Supreme Court articulated a conception of Cite as: Pedro Reyes-Guillen, A076 703 814 (BIA Dec. 5, 2014) Immigrant & Refugee Appellate Center | www.irac.net IN REMOVAL PROCEEDINGS , · A076 703 814 The Ninth Circuit has determined that the categorical approach applies in removal cases involving CIMT convictions, see Olivas-Motta v. Holder, 716 F.3d 1199 (9th Cir. 2013), and has also concluded that the approach to divisibility announced in Descamps applies in the immigration context. See Aguilar-Turcios v. Holder, 740 F.3d 1294, 1301-02 (9th Cir. 2014). Accordingly, the present task is to decide whether Ariz. Rev. Stat. § 28-1383(A)(l) remains "divisible" for CIMT purposes within the meaning of Descamps. See United States v. De La Torre-Jimenez, _ F.3d _, 2014 WL 5786715 (9th Cir. November 7, 2014); Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014). Thus, we will remand the record to the Immigration Judge for further proceedings - including the lodging of substituted removal charges, if appropriate -- and for the entry of such further orders as the Immigration Judge deems proper. Accordingly, the following order will be entered. ORDER: The record is remanded for further proceedings consistent with the foregoing opinion and for the entry of a new decision. FOR THE BOARD 2 Cite as: Pedro Reyes-Guillen, A076 703 814 (BIA Dec. 5, 2014) Immigrant & Refugee Appellate Center | www.irac.net "divisibility" that appears substantially narrower than that embodied in Marmolejo-Campos. The Descamps Court held that a criminal statute is divisible, so as to warrant a modified categorical inquiry, only if: ( 1) it lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of "elements," more than one combination of which could support a conviction; and (2) at least one (but not all) of those listed offenses or combinations of disjunctive elements is a categorical match to the relevant generic standard. Id. at 2281, 2283. In other words, the modified categorical approach does not apply merely because the elements of a crime can sometimes be proved by reference to conduct that fits the generic federal standard; under Descamps, such crimes are merely "overbroad," they are not "divisible." Id. at 2285-86, 2290-92. UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT ELOY, ARIZONA In the Matter of ) ) ) PEDRO REYES-GUILLEN ) RESPONDENT CHARGES: IN REMOVAL PROCEEDINGS Section 237(a)(2)(A}(i) of the Immigration and Nationality Act convicted of a crime involving moral turpitude committed within five years after admission for which a sentence of one year or longer may be imposed. Section 237(a)(2)(A)(ii) of the Immigration and Nationality Act - at any time after admission having been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. APPLICATION: Motion to terminate. ON BEHALF OF RESPONDENT: BENJAMIN T. WIESINGER, Esquire ON BEHALF OF OHS: DANIEL CRIMMONS, Assistant Chief Counsel ORAL DECISION AND ORDERS OF THE IMMIGRATION JUDGE The respondent is a male native and citizen of Mexico. The United States Department of Homeland Security brought these removal proceedings against the respondent under the Immigration and Nationality Act. Proceedings commenced with a 1 Immigrant & Refugee Appellate Center | www.irac.net May 29, 2014 File: A076-703-814 filiAg of a Notice to Appear dated January 29, 2014, against the respondent. See Exhibit 1. At a Master Calendar hearing, respondent, through counsel, admitted the first the factual allegations and the two charges of removability. The case was set by this Court for a contested hearing and both parties submitted documentary evidence contained in the Court's Record of Proceedings marked and admitted from Exhibit 2 through 10. First, the Department of Homeland Security submitted documents pertaining to the alleged factual allegations contained in Exhibits 2 through 8. On May 6, 2014, respondent, through counsel, filed a motion to terminate with this Court in which he argued that he was not removable as charged as his convictions are not crimes involving moral turpitude based upon the Supreme Court decision of Descamps v. United States, 133 S. Ct. 2276 (2013). See Exhibit 9. On May 9, 2014, the Government filed its opposition to respondent's motion to terminate as contained in Exhibit 10. A hearing was scheduled for April 29, 2014, during which the Court ruled on the denied factual allegations and the two charges of removability as referenced above. The documentary evidence submitted by the Government contained in Exhibits 4 through 8 established the denied factual allegations 4, 5, 6 and 7 and, therefore, the Court sustained those allegations. Factual allegation no. 8 was stricken as a legal conclusion. As it relates to the charges of removability, the Court has reviewed the documentary evidence submitted by both parties regarding the charges of removability . and the records do reflect that the respondent was convicted on three separate occasions in the Maricopa County Superior Court for aggravated driving under the A076-703-814 2 May 29, 2014 Immigrant & Refugee Appellate Center | www.irac.net three factual allegations as contained in the Notice to Appear, denying the remainder of influence, a class 4 felony in violation of Arizona Revised Statute Section 28-1383(a)(1)1 et cetera. For the March 181 2005 conviction1 respondent was sentenced to three years imprisonment and that offense was committed on September 25, 2004. For the March respondent was sentenced to four years imprisonment and given ten years probation. Lastly, for the July 31, 2008, conviction, respondent was sentenced to four years imprisonment. See Exhibits 4 through 6. The basis or the essence of respondent's motion to terminate is that under the statute for which he was convicted, as under revised statute Section 28-1381(a)(1), respondent argues that that statute is not "divisible" statute as described in Descamps, which is a United States Supreme Court case, and, therefore, that that case overrules the case of Marmolejo-Campos v. Holder, 558 F.3d 903, 912 (9th Cir. 2009). In Marmolejo-Campos, the Ninth Circuit recognized that a conviction under this section of the Arizona Statute is not categorically a crime involving moral turpitude and this Court is not making any ruling to the contrary. In making its determination, the Ninth Circuit Court of Appeals stated that a conviction under Arizona Revised Statute Section 28-1383(a)(1) only involves moral turpitude if the person had actually been driving at the time of the arrest and if they actually knew that their license had been suspended or revoked at the time of their arrest. The respondent in this case contends that that section of the Arizona Revised Statute, which states that it is unlawful for a person to drive or be in actual physical control of a vehicle, is indivisible because driving and being in actual physical control are alternative means of committing the offense rather than alternative elements. Therefore, the respondent has argued that the modified categorical approach analysis as required by Marmolejo-Campos is barred or prevented by the Descamps because A076-703-814 3 May 29, 2014 Immigrant & Refugee Appellate Center | www.irac.net 18, 2005 conviction! for which that offense was committed on December 30, 2004, the Arizona DUI statute is indivisible. As adequately pointed out in the Government's brief, this very same point of a distinction between alternative means versus alternative elements was addressed by states: "and if the dissent's real point is that distinguishing between 'alternative elements' and 'alternative means' is difficult, we can see no real-world reason to worry. Whatever a statute lists, whether elements or means, the documents approved in the Taylor and Shepard cases, that is indictment, jury instructions, plea colloquy, and plea agreements, would reflect the crime's elements. So a Court need not parse state law in the way the dissent suggests. When a state law is drafted in the alternative, the Court merely resorts to the approved documents and compares the elements revealed there to those of the generic offense." In the case at bar, utilizing the documents approved in both the Taylor and Shepard cases, specially the record of conviction, which not only includes the sentencing documents but also the transcripts of proceedings as contained in the record marked and admitted as Exhibits 7 and 8, those documents clearly reveal that the respondent was driving and not merely in actual physical control of his vehicle for all three offenses. Based upon the Court's review of the documentary evidence as submitted in this case, not only does the Court find that the factual allegations have been established and, therefore, sustains the allegations, the Court finds that the respondent has been convicted of crimes involving moral turpitude. Based upon the specific dates listed in the factual basis as to the date of commission of the offenses, the Court finds that that the crimes involving moral turpitude DUl's did not arise out of a single scheme of criminal misconduct. And, therefore, the charge under 237(a)(2)(A)(ii) is established A076-703-814 4 May 29, 2014 Immigrant & Refugee Appellate Center | www.irac.net the Supreme Court. In the majority decision of the Descamps case, that decision and, therefore, sustained. In addition, a review of the documentary evidence, specifically Exhibit No. 2, established that the respondent's status was adjusted to that of a lawful permanent status for the respondent. With a 2001 lawful entry or admission date for the respondent and the commission of the December 30, 2004, offense, which resulted in the March 18, 2005, conviction, this Court finds that the respondent's DUI which was committed on September 25, 2004, and the second one which was committed on the December 30, 2004, were committed within five years after his admission, which was September 12, 2001. As these offenses were class 4 felony offenses, the respondent could have received, and he did receive, a sentence of one year or longer in this case. As such, the Court finds that the respondent has been convicted of a crime involving moral turpitude that was committed within five years after his admission for which a sentence of one year or longer maybe imposed. As such, the charge under Section 237(a)(2)(A)(i) is also sustained. Respondent designated Mexico as the country of removal expressing no fear of return cognizable under the Act or the Convention against Torture. Respondent, through counsel, stated that there is no citizenship claim to be addressed in this case. Based upon the recency of respondent's lawful permanent resident status and the commission of these offenses shortly thereafter, he is not eligible for cancellation of removal under Section 240A(a). He is also ineligible for readjustment of status. There being no other form of relief that this respondent is eligible to seek, the following orders are entered: A076-703-814 5 May 29, 2014 Immigrant & Refugee Appellate Center | www.irac.net resident September 12, 2001, and there is no indication of any prior lawful entry or .___.· ORDERS IT IS HEREBY ORDERED that the motion to terminate is denied. IT IS HEREBY ORDERED that both charges of removability are sustained. States to Mexico. LINDA I. SPENCER-WALTERS Immigration Judge A076-703-814 6 May 29, 2014 Immigrant & Refugee Appellate Center | www.irac.net IT IS HEREBY ORDERED that the respondent be removed from the United CERTIFICATE PAGE I hereby certify that the attached proceeding before JUDGE LINDA I. SPENCERWALTERS, in the matter of: A076-703-814 ELOY, ARIZONA was held as herein appears, and that this is the original transcript thereof for the file of the Executive Office for Immigration Review. 4(!(11L71i- r7£ � ANTOINETTE T. KEANE (Transcriber) FREE STATE REPORTING, lnc.-2 JULY 29, 2014 (Completion Date) Immigrant & Refugee Appellate Center | www.irac.net PEDRO REYES-GUILLEN