U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Chief Clerk

5107 Leesburg Pike, Suite 2000 Falls Clr11rclr, Virginia 20530

Ben Winograd, Esq. IMMIGRANT & REFUGEE APPELLATE CTR 3602 Forest Drive

OHS/ICE Office of Chief Counsel - ORL 3535 Lawton Rd., Ste. 100 Orlando, FL 32803

Immigrant & Refugee Appellate Center | www.irac.net

Alexandria, VA 22302

Name: CLASE, JUAN CARLOS

A 043-986-617

Date of this Notice: 4/25/2014

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

Sincerely,

Donna Carr Chief Clerk

Enclosure Panel Members:

Greer, Anne J. Malphrus, Garry D. Pauley, Roger A.

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Juan Carlos Clase, A043 986 617 (BIA Apr. 25, 2014)

U.S. Department of Justice

Executive Office for Immigration Review FallsChurch, Virginia 20530

Decision of the Board of Immigration Appeals

File:

A043 986 617 - Orlando, FL

Date:

APR 2 5 2014

In re: JUAN CARLOS CLASE IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT:

ON BEHALF OF DHS:

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Ben Winograd, Esquire

Jennifer Page-Lozano Assistant Chief Counsel

CHARGE: Notice: Sec. 212(a)(2)(A)(i)(I), I&N Act [8 U.S.C. ll82(a)(2)( A)(i)(I)] Crime involving moral turpitude

APPLICATION: Termination; waiver of inadmissibility

This case was previously before us on October 31, 2013. At that time, we determined that the Immigration Judge's June 3, 2013, decision, in which the Immigration Judge sustained the charge of inadmissibility, pretermitted the respondent's application for a waiver of inadmissibility, and ordered his removal to the Dominican Republic, contained insufficient factual findings and legal analysis for our appellate review. We therefore remanded the record of proceeding for renewed consideration of those issues and the entry of a new decision. We specifically instructed the Immigration Judge to provide a more complete analysis of the respondent's January 4, 2000, conviction for attempted gang assault in the second degree in violation of New York Penal Law 110.00/120.06. The respondent argued that the conviction is not for a turpitudinous crime and, even if turpitudinous, the conviction comes under the youthful offender exception to the ground of inadmissibility for crimes involving moral turpitude. We also indicated that the Immigration Judge should (if necessary) reassess whether this conviction disqualifies the respondent for a waiver of inadmissibility under section 2l2(h) of the Immigration and Nationality Act, 8 U.S.C. 1l82(h), as a crime of violence aggravated felony.

See section 10 l(a)(43)(F) of the Act, 8 U.S.C. 1101(a)(43)(F).

Finally, we directed the Immigration Judge to administratively return the record of proceeding to us after rendering a new decision for renewed appellate briefing and resolution of the respondent's appeal. The Immigration Judge rendered a new decision and administratively returned the case to us on December 12, 2013. The Immigration Judge determined that the Department of Homeland Security ("DHS") has established by clear and convincing evidence that the conviction for attempted gang assault in the second degree categorically constitutes a crime involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act. The Immigration Judge further determined that the DHS has established that the youthful offender exception does not apply (l.J. at 2-9

Cite as: Juan Carlos Clase, A043 986 617 (BIA Apr. 25, 2014)

A043 986 617

(Dec. 12, 2013)). The Immigration Judge also determined that the respondent did not meet his burden of establishing by a preponderance of the evidence that the January 4, 2000, conviction for attempted gang assault in the sec ond degree is not a disqualifying crime of violence aggravated felony (I.J. at 9-11 (Dec. 12, 2013)). In his February 19, 2014, brief, the respondent renews his arguments for terminating the removal proceedings or, in the alternative, remanding the case to permit him to apply for a waiver of inadmissibility under section 212(h) of the Act. sustained, and the proceedings will be terminated. The respondent's substantive statute of conviction provides: A person is guilty of gang assault in the second degree when, with intent to cause physical injury to another person and when aided by two or more other persons actually present, he causes serious physical injury to such person or to a third person. N.Y.P.L. 120.06 (2000). Under New York law, "[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime." N.Y.P.L. 110.00. As the respondent has pointed out in his appeal brief, the New York state appellate courts only allow a defendant charged with a violation of New York Penal Law 120.06 to plead guilty to attempted gang assault in the second degree in violation of New York Penal Law 110.00/120.06. See In re Cisely G., 918 N:.Y.S.2d 23, 25-26 (N.Y. App. Div. 2011) (citing People v. Foster, 278 N.Y.S.2d 603 (N.Y. 1967)); see also Knapik v. Ashcroft, 384 F.3d 84, 91 (3d Cir. 2004). It is impermissible under New York law to indict or charge a defendant with the crime of attempted gang assault in the second degree and to submit such a charge to a jury subject to the ''beyond a reasonable doubt" standard of proof; New York courts have held that attempted gang assault in the second degree is a "legally impossible crime"
See Jn re Stephanie R., 196 Misc.2d 659,661, 766 N.Y.S.2d 313, 315 (N.Y. Fam. Ct. 2003)

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The respondent's appeal will be

("The imposition of criminal liability for the unintended result of intentional conduct i.s the very essence of a strict liability crime (N.Y.P.L. 15.10) and there cannot be an attempt to cause an unintended result." (footnotes and citations omitted)). Apart from certain statutory rape offenses, see Matter of Dingena, 11 I&N Dec. 723 (BIA 1966), we have never recognized a "strict liability crime" as a crime involving moral turpitude. Accordingly, the respondent has shown that, first, New York Penal Law 120.06 is actually applied in conjunction with New York Penal Law 110.00 to conduct that does not involve moral turpitude and, second, that his own conviction for attempted gang assault in the second degree does not involve moral turpitude. 1 The following order will be entered.
1

Assuming without deciding that a conviction for gang assault in the second degree would

involve moral turpitude (1.J. at 6), this case is distinguishable from Matter of Vo, 25 I&N Dec. 426 (BIA 2011), in which we held that a conviction for an attempt offense is a conviction for crime involving moral turpitude if the underlying substantive offense is a crime involving moral turpitude. Our decision in Matter of Vo, supra, was premised on the prevailing principle (Continued . . . . )

Cite as: Juan Carlos Clase, A043 986 617 (BIA Apr. 25, 2014)

A043 986 617

ORDER: The respondent's appeal is sustained, and the removal proceedings are terminated.

it
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of criminal law that "[a]n attempt involves the specific intent to commit the substantive crime[.]" v. INS, 420 F.3d 82, 90 (2d Cir. 2005) (recognizing that N.Y.P.L. 110.00 "has been characterized as a specific intent standard" (citing People v. Campbell, 535 N.Y.S.2d 580, 581-82 (N.Y. 1988))). However, in In re Cisely G., supra, the New York Supreme Court, Appellate Division, relying upon In re Stephanie R., supra, recognized that attempted gang assault in the second degree "is a legally impossible crime for trial purposes[.]" Hence, attempted gang assault in the second degree is not a crime of which the respondent could have been convicted beyond a reasonable doubt by a unanimous jury. See Descamps v. United States, 133 S.Ct. 2276, 2288 (2013).
Id. at 428; see also Gill

3
Cite as: Juan Carlos Clase, A043 986 617 (BIA Apr. 25, 2014)