'

Muro, Roxana V., Esq

Law Offices of Roxana V. Muro
51 O W. 6th Street., Suite 420
Los Angeles, CA 90014
U.S. Department of Jnstice
Executive Ofice fr Imigration Review
Board ofl111111igratio11 Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Fals Church, Virginia 20530
OHS/ICE Office of Chief Counsel LOS
606 S. Olive Street, 8th Floor
Los Angeles, CA 90014
Name: E -L , C A ... A 485
Date of this notice: 7/3/2014
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Pauley, Roger
Sincerely,
0G CW
Donna Carr
Chief Clerk
williame
Userteam: Docket
Cite as: C-A-E-L-, AXX XXX 485 (BIA July 3, 2014)
For more unpublished BIA decisions, visit www.irac.net/unpublished
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U.S. Department of Justice
Executive Ofice fr Immigration Review
Decision of the Board oflmigration Appeals
Falls Church, Virginia 20530
File: 485 - Los Angeles, CA Date:
In re: C A E -L a.k.a.
1 REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: R
.
oxana V. Muro, Esquire
CHARGE:
JUL - 3 2014
Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. 1l 82(a)(6)(A)(i)] -
Present without being admitted or paroled
APPLICATION: Cancellation of removal
The respondent, a native and citizen of Guatemala, appeals fom the Immigration Judge's
decision dated May 29, 2013, denying his application fr cancellation of removal. See section
240A(b) of the Immigration and Nationality Act, 8 U.S.C. 1229b(b). The record will be
remanded.
The respondent concedes that he is removable from the United States by virtue of his
unlawfl presence, and thus the only issue on appeal is whether he is eligible to apply for
cancellation of removal. Section 240A(b )(! )(C) of the Act requires that an applicant for
cancellation of removal demonstrate that he has not been convicted of an offense under sections
212(a)(2) or 237(a)(2) of the Act, 8 U.S.C. 1182(a)(2), 1227(a)(2). According to the
Immigration Judge, the respondent did not carry his burden of proof under section 240A(b)(l )(C)
because he sustained a 1998 conviction fr violating Cal. Penal Code 261.5( d), an offense that
may constitute a crime involving moral turpitude ("CIMT") under section 237(a)(2) of the Act
(I.J. at 3-9). On appeal, the respondent challenges the Immigration Judge's detetmination that he
was convicted of a CIMT.
To determine whether an offense qualifes as a CIMT, we employ a "categorical approach."
Olivas-Motta v. Holder, 716 F.3d 1199, 1204 (9th Cir. 2013).1 Under that approach, an offense
is a categorical CIMT if the minimum conduct that has a realistic probability of being prosecuted
under the statute of conviction corresponds to the generic meaning of the CIMT concept.
See, e.g., Gonzalez-Cervantes v. Holder, 709 F.3d 1265, 1266 (9th Cir. 2013); Nunez v. Holder,
594 F.3d 1124, 1129 (9th Cir. 2010).
At the time of the respondent's conviction in 1998, Cal. Penal Code 261.5(d) stated:
Any person over the age of 21 years who engages in an act of unlawfl sexual intercourse
with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony,
1 Whether the respondent was convicted of a CIMT is a question of law that we review de novo.
8 C.F.R. 1003.l(d)(3)(ii).
Cite as: C-A-E-L-, AXX XXX 485 (BIA July 3, 2014)
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and shall be punished by imprisonment in a county jail not exceeding one year, or by
imprisonment in the state prison fr two, three, or four years.
I is undisputed that the ofense defned by Cal. Penal Code 261.5( d) is not a categorical
CIMT because it "does not require a perpetrator to have engaged in intentional sexual conduct
with someone he or she knew or should have known to be a child"; as such, there is a realistic
probability that it could be applied to conduct that does not involve moral turpitude.
Matter of Alaro, 25 I&N Dec. 417, 424 (BIA 2011 ); see. also Quintero-Salazar v. Keisler,
506 F.3d 688, 692-93 (9th Cir. 2007) (concluding that an offense is not a categorical CIMT
because it criminalizes certain conduct that the court deemed malum prohibitum, such as
consensual intercourse between a college sophomore and high school junior). As Cal. Penal
Code 261.5( d) encompasses both turpitudinous and non-turpitudinous conduct, this Board and
the Ninth Circuit have treated it as a "divisible" statute vis-a-vis the CIMT concept, authorizing
Immigration Judges to consult aliens' conviction records under the "modified categorical
approach" to determine whether the particular alien befre the court knew or should have known
that the victim was a child. Here, the Immigration Judge conducted such a modifed categorical
inquiry and found that the record was inconclusive as to this question such that the respondent
failed to carry his burden of proving statutory eligibility fr cancellation of removal (I.J. at 6-8).
See Young v. Holder, 697 F.3d 976, 988-89 (9th Cir. 2012).
However, during the pendency of this appeal, the Supreme Court held that the modified
categorical approach operates narrowly, and applies only if: (1) the statute of conviction is
divisible in the sense that it lists multiple discrete offenses as enumerated alteratives or defines
a single offense by reference to disjunctive sets of "elements,"
2
more than one combination of
which could support a conviction, and (2) some (but not all) of those listed ofenses or
combinations of disjunctive elements are a categorical match to the relevant generic standard.
Descamps v. United States, 133 S. Ct. 2276, 2281, 2283 (2013). Thus, afer Descamps 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 fderal standard; according to
the Descamps Court, such crimes are "overbroad" but not "divisible." Id. at 2285-86, 2290-92;
see also Aguilar-Turcios v. Holder, 740 F.3d 1294, 1301-02 (9th Cir. 2014) (applying the
approach to divisibility announced in Descamps in the immigration context).
Because the respondent has shown that his conviction is not for a categorical CIMT, the
remaining issue is whether Cal. Penal Code 261.5(d) is a "divisible" statute such that the
Immigration Judge would be permitted to conduct a "modified categorical" inquiry. Cal. Penal
Code 261.5(d) contains the following elements: (1) sexual intercourse with another person;
(2) the defendant was at least 21 years of age at the time of intercourse; and (3) the other person
was under the age of 16 years at the time of intercourse. Palayo-Garcia v. Holder,
589 F.3d 1010, 1014 (9th Cir. 2009). I does not include a scienter requirement. Id Like the
criminal statute at issue in Descamps, Cal. Penal Code 261.5(d) defnes "Unlawfl Sexual
2
By "elements," we understand the Descamps Court to mean those facts about a crime which
must be proved to a jury beyond a reasonable doubt and about which the jury must agree by
whatever margin is required to convict
.
in the relevant jurisdiction. Id. at 2288 (citing
Richardson v. United States, 526 U.S. 813, 817 (1999)).
2
Cite as: C-A-E-L-, AXX XXX 485 (BIA July 3, 2014)
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' '
Intercourse" more broadly than the corresponding generic offense because it does not require
that the perpetrator knew or should have known that that the victim was a child.3 Because the
statute is missing an element of the generic crime, our inquiry ends here; we do not undertake a
modified categorical analysis. Descamps v. United States, supra, at 2283, 2292 (holding that the
modified categorical approach does not apply to statutes that contain an '"indivisible' set of
elements sweeping more broadly than the corresponding generic offense," meaning that "the
statute of conviction has an overbroad or missing element"). "Because of the mismatch in
elements, a person convicted under [Cal. Penal Code 261.5(d)] is never convicted of the
generic crime." Id. at 2292.
As the offense defned by Cal. Penal Code 261.5(d) is neither a categorical CIMT nor
divisible vis-a-vis the CIMT concept, the respondent's conviction under that statute does not
necessarily render him ineligible fr cancellation of removal under section 240A(b )(1)(C).4
Accordingly, the record will be remanded for frther consideration of the respondent's
application for relief. We express no present opinion as to whether the respondent is otherwise
eligible for, or deserving of, cancellation of removal. Such matters are fr the Immigration Judge
to decide in the first instance. The fllowing order shall be issued.
ORER: The record is remanded to the Immigration Judge fr ftther proceedings consistent
with the foregoing opinion and for the entry of a new decision.
FOR TE BOARD -
3 A defndant charged with statutory rape under this section may present evidence of a good fith
belief that the victim was over the age of consent. See People v. Herarndez, 61 Cal. 2d
529 (1964). However, the availability of a limited mistake-of-age defnse is "not equivalent to
the requirement that the govermnent prove that the defendant had the requisite state of mind."
Palayo-Garcia v. Holder, supra, at 1015.
4 We note that the respondent has argued that his conviction under Cal. Penal Code 261.5(d) is
also not an aggravated flony under section 101(a)(43)(A) of the Act, 8 U.S.C. l 101(a)(43)(A),
which would bar him from relief. See Pelayo-Garcia v. Holder, supra, at 1014 (noting that a
defendant could be convicted under this statute even if the government failed to prove beyond a
reasonable doubt that the defendant "knowingly" engaged in a sexual act). Because the
Immigration Judge did not reach this question, we will remand for the parties to have the
opportunity to address this question in the first instance, as well a whether the respondent's
conviction under Cal. Penal Code 243(e)(l ) affects his eligibility forrelief.
3
Cite as: C-A-E-L-, AXX XXX 485 (BIA July 3, 2014)
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