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Lorenzo Martinez-Delgado, A074 103 780 (BIA Mar. 11, 2014)

Lorenzo Martinez-Delgado, A074 103 780 (BIA Mar. 11, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) terminated proceedings upon finding third degree sexual assault under Wis. Stat. 939.2 not to be an aggravated felony involving sexual abuse of a minor under the modified categorical approach. The Board concluded that although the statute is divisible, the respondent pleaded no contest, nothing in the record of conviction indicated the factual basis for the offense, and the victim's age was not an element of the crime of which the respondent was convicted. The Board also dismissed the charge of removability under INA 237(a)(2)(A)(i) (commission of crime involving moral turpitude within five years of admission) because the offense was committed before the respondent’s adjustment of status. The decision was written by Member Roger Pauley and joined by Member Garry Malphrus and Member John Guendelsberger.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) terminated proceedings upon finding third degree sexual assault under Wis. Stat. 939.2 not to be an aggravated felony involving sexual abuse of a minor under the modified categorical approach. The Board concluded that although the statute is divisible, the respondent pleaded no contest, nothing in the record of conviction indicated the factual basis for the offense, and the victim's age was not an element of the crime of which the respondent was convicted. The Board also dismissed the charge of removability under INA 237(a)(2)(A)(i) (commission of crime involving moral turpitude within five years of admission) because the offense was committed before the respondent’s adjustment of status. The decision was written by Member Roger Pauley and joined by Member Garry Malphrus and Member John Guendelsberger.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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

Board ofImmigration Appeals Office of the Clerk
5107 Leesburg Pike, S11ite 2000
Falls Church, Virginia 20530

Ten Broeck, Jr., James C., Esquire Chicago Immigration Advocates 20 South Clark St., Ste. 2120 Chicago, IL 60603

OHS/ICE Office of Chief Counsel 525 West Van Buren Street Chicago, IL 60607

CHI

Immigrant & Refugee Appellate Center | www.irac.net

Name: MARTINEZ DELGADO, LORENZO

A 074-103-780

Date of this notice: 3/11/2014

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

DorutL ct1/VL)
Donna Carr Chief Clerk

Enclosure Panel Members: Malphrus, Garry D. Guendelsberger, John Pauley, Roger

lucasd Userteam: Docket

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

Cite as: Lorenzo Martinez-Delgado, A074 103 780 (BIA Mar. 11, 2014)

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lT.S. D�partment of Justice Executive Office for Immigration Review Falls Church, Virginia 20530
File: A074 103 780 - Chicago, IL

Decision of the Board of Immigration Appeals

Date:

MAR 11 2014

In re: LORENZO MARTINEZ-DELGADO

IN REMOVAL PROCEEDINGS
APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: James C. Ten Broeck, Jr., Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Daniel Rah A ssistant Chief Counsel

CHARGE: Notice: Sec. 237(a)(2)(A)( iii), I&N Act [8 U.S.C. § 1227(a)(2XA)(iii)] Convicted of aggravated felony as defined in section IOI(a)(43)(A), I&N A ct [8 U.S.C. § l 10l(a)(43)(A)] 237(a)(2)(A)(i), I&N Act [8 U.S.C. § 1227(a)(2)(A)(i)] Convicted of crime involving moral turpitude

Sec.

APPLICATION: Termination The respondent appeals the Immigration Judge's August 19, 2013, decision ordering him removed from the United States. We will sustain the appeal. This appeal presents questions of law, which the Board reviews under a de novo standard of review. 8 C.F.R. § 1003. l(d)(3)(ii) . This matter was last before the Board on May 21, 2013, when we sustained the Department of Homeland Security's appeal of a termination order, and held that the respondent is removable for having been convicted of an aggravated felony. We remanded the record to allow the respondent to pursue any claims for relief from removal. On remand, the respondent did not file any application for relief. Subsequent to our remand, the Supreme Court issued Descamps v. United States, 133 S.Ct. 2276 (2013), restricting use of the modified categorical approach to statutes with explicitly divisible criminal elements. The Wisconsin statute under which the respondent was convicted is divisible in the strict sense required by Descamps. As we described in our prior decision, Wis. Stat. § 940.225(3) (1998) requires lack of consent by the victim, and the statutory definition of lack of consent is divisible. Wis. Stat. § 939.22(48) (1998) provides, '"Without consent' means no consent in fact or that consent is given for one of the following reasons . . . " including being underage. Thus, our use of the modified categorical approach to determine the elements of the respondent's crime is appropriate. The record of conviction, including the Amended Information, indicates the respondent was charged with the offense involving lack of consent based on the victim being under 16 years of

Cite as: Lorenzo Martinez-Delgado, A074 103 780 (BIA Mar. 11, 2014)

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'A074 I 03 780

age. However, the respondent did not plead guilty as charged; rather, he pleaded no contest and was found guilty by the court (Exh. 2). Nothing in the record indicates what facts the court found to provide a factual basis for the offense. The record does not contain any document that indicates which type of lack of consent was found to be an element of the respondent's offense. Specifically, nothing in the record establishes that the victim's age is an element of the crime of which the respondent was convicted. Thus, under the modified categorical approach, the record of conviction is insufficient to establish that the offense of which the respondent was convicted involved a minor. Accordingly, the DHS has not met its burden of proving the respondent has been convicted of sexual abuse of a minor. The respondent committed his crime between December 1993 and February 1994 (Exh 2). His only admission to the United States was his adjustment of status in 1998. Section 237(a)(2)(A)(i)(I) of the Act renders removable one who has been convicted of a crime involving moral turpitude committed within 5 years after admission. Because the respondent's criminal conduct preceded his adjustment of status, the conviction does not render him removable under section 237(a)(2)(A)(i) of the Act. See Matter ofShanu, 23 I&N Dec. 754 (BIA 2005).
.

Immigrant & Refugee Appellate Center | www.irac.net

Accordingly, we will sustain the respondent's appeal and will terminate these removal proceedings. ORDER: The appeal is sustained, and these removal proceedings are terminated.

FOR THE BOARD

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Cite as: Lorenzo Martinez-Delgado, A074 103 780 (BIA Mar. 11, 2014)

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT CHICAGO,ILLINOIS

Immigrant & Refugee Appellate Center | www.irac.net

File: A074-103-780 In the Matter of

August 19,2013

LORENZO MARTINEZ DELGADO RESPONDENT

) ) ) )

IN REMOVAL PROCEEDINGS

CHARGES:

237(a)(2)(A)(iii) and 237(a)(2)(A)(i) of the Immigration and Nationality Act.

APPLICATIONS: None.

ON BEHALF OF RESPONDENT: CARLA I. ESPINOZA,ESQUIRE 20 South Clark Street,Suite 2120 Chicago,IL 60603 ON BEHALF OF DHS: DANIEL RAH,ESQUIRE

ORAL DECISION OF THE IMMIGRATION JUDGE Respondent is an adult male,native and citizen of Mexico, who was issued a Notice to Appear on August 25, 2010. The respondent moved to terminate proceedings, and this Court granted the motion. The Government appealed to the Board of Immigration Appeals and the appeal was sustained. The reasons for the ruling are set forth in the Board's decision dated May 21, 2013. The matter was then remanded to this Court, and the respondent filed a motion

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to advance Master Calendar Hearing and enter a final order. And in said motion, the respondent states at paragraph 6, respondent does not wish to assert any other forms of relief. Respondent will rest on the arguments set forth on his motion to terminate proceedings. This Court is bound to follow the ruling of the Board of Immigration Appeals. And since the respondent asserts no new argument or no new evidence, the Court finds that the Board's decision controls this case. The respondent is subject to removal. There is no application for relief. There is no apparent relief available to the respondent. I will therefore enter an order for the respondent's removal from the United States to Mexico on the charges contained in his Notice to Appear. ORDER IT IS HEREBY ORDERED that the respondent be removed from the United States to Mexico on the charges contained in his Notice to Appear.

Immigrant & Refugee Appellate Center | www.irac.net

Please see the next page for electronic signature PHILIP L. DIMARZIO Immigration Judge

A074-103-780

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August19, 2013

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Immigration Judge PHILIP L. DIMARZIO

dimarzip on October 15,

2013 at 5:29 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A074-103-780

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August 19, 2013

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