U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5/07 leesb11rg Pike, Suite 2000 Falls C/111rclr. Virginia 220./ I

Tyler, Noah, ESQ. Lance Wells General Counsel P .0. Box 4572 Mesa, AZ 85211

OHS/ICE Office of Chief Counsel - EAZ P.O. Box 25158 Phoenix, AZ 85002

Immigrant & Refugee Appellate Center | www.irac.net

Name: CASTILLO, BERNABE ROMAN

A 205-587-621

Date of this notice: 6/19/2013

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

DOYl.rtL c11/VL)
Donna Carr Chief Clerk

Enclosure Panel Members: Holmes, David B.

Lulseges Userteam: Docket

Cite as: Bernabe Roman Castillo, A205 587 621 (BIA June 19, 2013)

U.S. Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 leesburg Pike, Suite 2000 Falls Church, Virginia 220.//

CASTILLO, BERNABE ROMAN A205-587-621 ICE, 1705 E. HANNA RD. ELOY, AZ 85131

OHS/ICE Office of Chief Counsel - EAZ P.O. Box 25158 Phoenix, AZ 85002

Immigrant & Refugee Appellate Center | www.irac.net

Name: CASTILLO, BERNABE ROMAN

A 205-587-621

Date of this notice: 6/19/2013

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. 1292.5(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,

DorvtL ca.AA)
Donna Carr Chief Clerk

Enclosure Panel Members: Holmes, David B.

Lulseges Userteam: Docket

Cite as: Bernabe Roman Castillo, A205 587 621 (BIA June 19, 2013)

U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File: A205 587 621

Eloy, AZ

Date:

JUN 19 2013

In re: BERNABE ROMAN CASTILLO a.k.a. Roman Castillo Bernabe IN REMOVAL PROCEEDINGS APPEAL AND MOTION ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Noah Tyler, Esquire Brett A. Day Assistant Chief Counsel

Immigrant & Refugee Appellate Center | www.irac.net

An appeal from the Immigration Judge's decision in this case is currently pending before the Board of Immigration Appeals ("Board"). exercise of prosecutorial discretion. administratively closed. If either party to this case wishes to reinstate the proceedings, a written request to reinstate the proceedings may be made to the Board. The Board will take no further action in the case unless a request is received from one of the parties. The request must be submitted directly to the Clerk's Office, without fee, but with certification of service on the opposing party. Accordingly, the following order will be entered. ORDER: The proceedings before the Board of Immigration Appeals administratively closed.
m

The parties have now filed a joint motion to

administratively close these proceedings based upon the Department of Homeland Security's The motion will be granted, and the proceedings

this case are

FOR THE BOARD

Cite as: Bernabe Roman Castillo, A205 587 621 (BIA June 19, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT ELOY, ARIZONA

File: A205-587-621 In the Matter of

March 25, 2013

Immigrant & Refugee Appellate Center | www.irac.net

BERNABE ROMAN CASTILLO RESPONDENT

) ) ) )

IN REMOVAL PROCEEDINGS

CHARGES:

Section 212{a){6){A){i) and Section 212{a){2){A){i){I) of the Immigration and Nationality Act.

APPLICATIONS:

None.

ON BEHALF OF RESPONDENT: JOHN SHAW, Attorney at Law ON BEHALF OF OHS: BRETT DAY, Assistant Chief Counsel

ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE On February 7, 2013, the Department of Homeland Security filed a Notice to Appear against the above named respondent. The filing of this charging document commenced proceedings and, thus, the jurisdiction of this Court. 8 C.F.R. Section 1003.14{a). The Notice to Appear has been admitted into evidence as Exhibit No. 1. SERVICE OF THE NOTICE TO APPEAR In removal proceedings, the Notice to Appear shall be served in person on the alien or, if personal service is not practicable, through service by mail for the alien or the

alien's counsel of record. See Section 239 of the Immigration and Nationality Act and 8 C.F.R. Section 1003.13. Respondent has conceded proper service of the Notice to Appear. Based upon the respondent's admissions and the certificate of service contained in the Notice to Appear, the Court finds that the Notice to Appear has been properly served. TEN DAY PERIOD The respondent was afforded ten days following service of the Notice to Appear prior to appearing before the Immigration Judge. PLEADINGS The respondent admitted allegations number 1, 2, 3 and 4 as contained in the Notice to Appear. See Exhibit No. 1. Respondent denied allegation number 5 as contained in the Notice to Appear. See Exhibit No. 1. Respondent conceded the charge of removability under Section 212(a)(6){A)(i) of the Immigration and Nationality Act, but denied the charge of removability under Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act. BURDEN OF PROOF ON REMOVAL CHARGE The Department of Homeland Security must prove by clear and convincing evidence that the respondent is an alien. Once the alienage has been established, the respondent must prove by clear and convincing evidence that he is lawfully present in the United States pursuant to a prior admission. See Section 240{c)(2)(B) of the Immigration and Nationality Act and 8 C.F.R. Section 1240.B(c). To meet this requirement, the alien must generally prove the time, place, date and manner of his entry into the United States. EVIDENTIARY RECORD Exhibit No. 1, Notice to Appear; Exhibit No. 2, request to review a case file;

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A205-587-621

March 25, 2013

Exhibit 3, conviction documents, case number CR2012-151103-01OST; Exhibit 4, Department of Homeland Security brief on removability; Exhibit 5, respondent's memorandum why his conviction is not a CIMT, including tabs A through E; Exhibit 6, conviction documents submitted by the Government; Exhibit 7, a motion to extend time for submitting memorandum from respondent; Exhibit 8, request for a response to that request. ANALYSIS AND FINDINGS The Court, based upon respondent's admissions and concessions, thus, sustained the charge of removability under Section 212(a)(6)(A)(i) of the I mmigration and Nationality Act. The Court has reviewed Exhibit No. 3. Based upon that Court's review of that document, the Court does find allegation number 5 to be true in that the respondent was convicted in the Superior Court of Arizona, Maricopa County, on January 30, 2013, for the offense, count 10, amended, criminal impersonation, a Class VI felony in violation of Arizona Revised Statute Section 13-2006, for which respondent was sentenced to 9 0 days incarceration i n the Maricopa County jail and one year probation with adult probation. Therefore, the issue is whether this allegation supports the charge of removability for a crime involving moral turpitude. Section 212(a)(2)(A)(i)(I) of the Act provides, in relevant part, that an alien convicted of or who admits having committed or who admits committing acts which constitute essential elements of a crime involving moral turpitude other than a purely political offense or an attempt or a conspiracy to commit such a crime is inadmissible. An Immigration Judge applies the three part framework initiated by the Attorney General in Matter of Silva-Trevino in determining whether the conviction involves moral

Immigrant & Refugee Appellate Center | www.irac.net

A205-587-621

March 25, 2013

turpitude. Matter of Silva-Trevino, 24 l&N Dec. 687 (A.G. 2008). First, under the categorical approach, the Court must look first to the statute of conviction rather than to the specific facts of the alien's crime. Gonzales v. DuenasAlverez, 549 U.S. 183, 186 (2007}; Taylor v. United States, 49 5 U.S. 575, 599 through 600 (1990); Matter of Silva-Trevino, 24 l&N Dec. at 688. To categorically involve moral turpitude, a conviction under the statute, the conviction must require both reprehensible conduct and a degree of scienter, whether it be specific in intent, deliberateness, willfulness or recklessness. Matter of Silva-Trevino, 24 l&N Dec. at 706. See also Saavedra-Figueroa v. Holder, 625 F.3d 621, 626 (9th Cir. 2010). In evaluating whether an alien's previous conviction categorically involves moral turpitude, furthermore, an Immigration Judge must determine whether there is a realistic probability, not a theoretical possibility, that the state or federal crimin al statute pursuant to which the alien was convicted would be applied to reach conduct n ot involving moral turpitude. Matter of Silva-Trevino, 24 l&N Dec. at 689, 90. Second, if the issue cannot be resolved under the categorical approach, a modified categorical approach should be undertaken, which requires an inspection of specific documents comprising the alien's record of con viction, such as the in dictment, the judgment, a conviction, jury instructions, a signed guilty plea or a plea transcript, to discern the nature of the underlying conviction. Matter of Guevara Alfaro, 25 l&N Dec. at 421, Matter of Silva-Trevino, 24 l&N Dec. at 690, 698, 99. Third, when the record of conviction is inconclusive, Judges may, to the extent they deem it necessary and appropriate, consider evidence beyond a formal record of conviction. Matter of Silva-Trevino, 24 l&N Dec. at 689, 9 0. A crime in volving fraudulent conduct qualifies as a crime involving moral turpitude if intent to defraud is either explicit in the statutory definition of the crime or

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A205-587-621

March 25, 2013

implicit in the nature of the crime. Blanco v. Mukasey, 518 F.3d 714 (9th Cir. 2008)(citing Goldstein v. INS, 8 F.3d 645 (9th Cir. 1993). Even if intent to defraud is not explicit in the statutory definition, a crime, nevertheless, may involve moral turpitude if such intent is implicit in the nature of the crime. Tiiani v. Holder, 628 F.3d 1071 (9th Cir. 2010). An intent to defraud is implicit in the nature of the crime when the individual makes false statements in order to procure something of value, either monetary or non monetary. Moreover, the object of the value procured via fraud need not be tangible. See Tiiani, 628 F.3d at 1076. Here, the Court notes that the respondent's charge is under Arizona Revised Statute Section 13-2006. The Court notes that this is a divisible statute. That is, under Section 81 and 82, it involves an intent to defraud, while under 83, it does not. The Court has reviewed Exhibit No. 3, which reflects respondent was convicted under ARS Section 13-2006(a)(1). ARS Section 13-2006(a)(1 ) provides as follows: a person commits criminal impersonation by assuming a false identity with the intent to defraud another. In addition, under this subdivision, respondent was convicted of a Class VI felony. As noted above, this statute provides that there is an intent to defraud and, as such, this Court would categorically find that it is a crime involving moral turpitude. The Court acknowledges the Ninth Circuit's holding in Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000). The crime of using a false Social Security number in violation of 42 United States Code Section 408(d)(2), re-codified at 42 United States Code Section 408(a)(7)(D) in making a false attestation with that number in violation of 18 United States Code Section 1546(Board of Immigration Appeals)(3), are not crimes involving moral turpitude, which involved conduct similar to the punishment under this Arizona statute. However, that case involved unique legislative enactments and addressed a discreet set of circumstances and, as such, this Court finds that the

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A205-587-621

March 25, 2013

application as contained in Beltran-Tirado did not govern this case at bar of the Arizona statute as it was unique just to those specific facts as Beltran-Tirado and a special exemption. In addition, as this is a Class VI felony, this Court would find that the petty crime exception would not apply. See Matter of Leal, citation omitted. Respondent has not requested any other forms of relief. Therefore, this Court has no other alternative but to issue an order for respondent's removal for a subsequent deportation from the United States to his home country of Mexico.

Immigrant & Refugee Appellate Center | www.irac.net

JAMES DEVITTO Immigration Judge

A205-587-621

March 25, 2013

CERTIFICATE PAGE I hereby certify that the attached proceeding before JUDGE JAMES DEVITTO, in the matter of: BERNABE ROMAN CASTILLO A205-587-621 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.

Immigrant & Refugee Appellate Center | www.irac.net

c!T.
RONALD T. BRI NO (Transcriber) FREE STATE REPORTI NG, l nc.-2 MAY 14, 2013 (Completion Date)