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U.S.

Department of Justice

Executive Office for Immigration Review


Board ofImmigration Appeals
Office ofthe Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 2204/

OHS/ICE Office of Chief Counsel - HON


595 Ala Moana Boulevard
Honolulu, HI 96813-4999

Name:NUEZCA,JONATHANJEMENEZ

A 087-714-293
Date of this notice: 10/31/2016

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

bon.JtL C!aAAJ
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: Jonathan Jemenez Nuezca, A087 714 293 (BIA Oct. 31, 2016)

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Ferrer, RamonJulian
Law Office of RamonJ. Ferrer
135 S. Wakea Ave., Suite 204
Kahului, HI 96732

,..\
I

. U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A087 714 293 -Honolulu, HI

Date:

In re: JONATHAN JEMENEZ NUEZCA

OCT 3 1 2016

APPEAL
ON BEHALF OF RESPONDENT: Ramon J. Ferrer, Esquire
ON BEHALF OF OHS:

Meghan T. Funk
Assistant Chief Counsel

CHARGE:
Notice:

Sec:

237(a)(2)(A)(i), I&N Act [8 U.S.C. 1227(a)(2)(A)(i)] Convicted of crime involving moral turpitude

Sec.

237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony

APPLICATION: Continuance
The respondent, a native and citizen of the Philippines who was previously admitted to the
United States as a lawful permanent resident, appeals the decision of the Immigration Judge,
dated June 21, 2016, ordering his removal from this country. The Department of Homeland
Security ("OHS") is opposed to the appeal. The appeal will be sustained and the record will be
remanded.
We review Immigration Judges' findings of fact for clear error. 8 C.F.R. 1003.l(d)(3)(i).
We review questions of law, discretion, and judgment, and all other issues in appeals de novo.
8 C.F.R. 1003. l(d)(3)(ii).
The OHS charges that the respondent is subject to removal from the United States as his
conviction for sexual assault in the third degree in violation of HAW. REV. STAT. 707-732(l)(b)
constitutes a conviction for a crime involving moral turpitude and a sexual abuse of a minor
aggravated felony (I.J. at 1-5; Exhs. 1, 2). See sections 237(a)(2)(A)(i), (iii) of the Immigration
and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(i), (iii); see also section 10l(a)(43)(A) of the
Act, 8 U.S.C. 1101(a)(43)(A). A person commits the offense of sexual assault in the third
degree if "[t]he person knowingly subjects to sexual contact another person who is less than
fourteen years old or causes such a person to have sexual contact with the person." HAW. REv.
STAT. 707-732(1)(b). Under Hawaii law, "'[s]exual contact' means any touching, other than
acts of 'sexual penetration,' of the sexual or other intimate parts of another, or of the sexual or
other intimate parts of the actor by another, whether directly or through the clothing or other
material intended to cover the sexual or other intimate parts." HAW. REv. STAT. 707-700.
Cite as: Jonathan Jemenez Nuezca, A087 714 293 (BIA Oct. 31, 2016)

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IN REMOVAL PROCEEDINGS

A087 714 293

Given that Hawaii's definition of "sexual contact" includes offenses which were committed
"through the clothing," the respondent has also not been convicted of a categorical sexual abuse
of a minor aggravated felony (I.J. at 4-5). See United States v. Martinez, 786 F.3d 1227, 1232
(9th Cir. 2015) (holding that, under Washington state law, child molestation in the third degree
did not categorically constitute a conviction for "sexual abuse of a minor" because it criminalizes
touching over clothing as opposed to the generic offense's requirement of skin-to-skin contact);
United States v. Castro, 607 F.3d 566 (9th Cir. 2010) (holding that a California statute
prohibiting lewd and lascivious acts on a child was categorically broader than the generic
definition for sexual abuse of a minor because lewd touching can occur through a victim's
clothing and can involve any part of the victim's body). Even assuming, arguendo, that the jury
was required to convict the respondent of a specific act of sexual assault, the conviction
documents do not establish that he was convicted of a crime of sexual abuse of a minor. See
State v. Arceo, 928 P.2d 843, 869 (Haw. 1996) (holding that, where different sexual acts were
alleged in a single criminal count, the jury must unanimously agree on the same acts in reaching
a guilty verdict). While Count 1 of the Indictment, to which the respondent pied guilty, alleged
that that he touched his victim's breast with his hand, the charge did not specifically allege that
he "directly," as opposed to "through the clothing or other material," touched his victim. HAw.
REV. STAT. 707-700.
For the reasons set forth above, we hold that the OHS has not established that the
respondent's conviction constitutes either a conviction for sexual abuse of a minor or a crime
involving moral turpitude. Neither the categorical nor modified categorical approach can be
effectively applied to sustain either of the two charges of removability. Accordingly, we will
sustain the respondent's appeal and vacate the Immigration Judge's decision to sustain the
charges of removability.
Given that our decision in this matter rests upon intervening Board precedent, i.e., the most
recent decision in Matter of Silva-Trevino, we conclude that it is appropriate to remand the
record to the Immigration Judge for further proceedings. In particular, the OHS should be
provided a renewed opportunity to lodge additional charges of removability. See 8 C.F.R.
1240.10(e). If the respondent is found to be subject to additional charges of removability, he
should be permitted to renew his request for a continuance or apply for relief from removal.

2
Cite as: Jonathan Jemenez Nuezca, A087 714 293 (BIA Oct. 31, 2016)

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With respect to the issue of whether the respondent has been convicted of a crime involving
moral turpitude, HAW. REV. STAT. 707-732(1)(b) has been described as a "strict liability
offense." State v. Jones, 29 P.3d 351, 372 (Haw. 2001). The Hawaii legislature expressly
deleted knowledge of the child's age as an element of sexual assault offenses in which the child's
age is an attendant circumstance. State v. Buch, 926 P.2d 599, 611 (Haw. 1996). Since the
statute does not require a perpetrator to have engaged in intentional sexual contact with someone
he or she knew or should have known to be a child, there is a realistic probability it could be
applied to conduct that does not involve moral turpitude. Matter of Guevara Alfaro, 25 l&N
Dec. 417, 424 (BIA 2011); Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016) (holding that
an offense involving sexual misconduct with a child is a crime of moral turpitude only where the
statute requires proof the offender knew or should have known the victim was a child).

A087 714 293


For the reasons set forth above, the following order is entered.
ORDER: The respondent's appeal is sustained, the Immigration Judge's decision to sustain
the charges of removability is vacated, and the record is remanded to the Immigration Court for
further proceedings consistent with the foregoing opinion and the entry of a new decision.

'

3
Cite as: Jonathan Jemenez Nuezca, A087 714 293 (BIA Oct. 31, 2016)

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FOR THE BOARD

'

,.

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
300 ALA MOANA BLVD., RM 8-112
HONOLULU, HI 96850

IN THE MATTER OF
NUEZCA, JONATHAN JEMENEZ

FILE A 087-714-293

DATE: Jun 21, 2016

UNABLE TO FORWARD - NO ADDRESS PROVIDED


ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO:
BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF 'I'HE DECISION OF THE IMMIGRATION JUDGE AS THE RESUL'f
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY -ACT, 8 U.S.C.
SECTION 1252B(c)(3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c)(6),
8 U.S.C. SECTION 1229a{c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
300 ALA MOANA BLVD., RM 8-112
HONOLULU, HI 96850

-OTHER:

At/tubri Diderot' e PM11;y,Jck/r- cJJeil r;;/z,/,6.

IMMIGRATION COURT
CC: LATEY, CHANDANI, ASSISTANT CHIEF COUNSEL, OHS
595 ALA MOANA BLVD.
HONOLULU, HI, 96813

FF

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Law Office of Ramon J. Ferrer


Ferrer, Ramon Julian
135 S. Wakea Ave. Suite 204
Kahului, HI 96732

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
300 Ala Moana Boulevard, Room 8-112
Honolulu, Hawaii '96850

In the Matter of:


Jonathan Jemenez NUEZCA
Respondent

) Date: June 21, 2016


)
)
)
) IN REMOVAL PROCEEDINGS
) HND
)
)

CHARGES:

INA section 237(a)(2)(A)(i)- crime involving. moral turpitude


INA section 237(a)(2)(A)(iii)- sexual abuse of a minor

APPLICATION:

Motion to Terminate and Motion to Continue

ON BEHALF OF RESPONDENT:
Ramon J. Ferrer, Esq.
Law Office of Ramon J. Ferrer
135 S. Wakea Ave. Suite 204
Kahului, HI 96732

ON BEHALF OF THE DHS:


Meghan Funk, Assistant Chief Counsel
Office of Chief Counsel
595 Ala Moana Blvd.
Honolulu, HI 96813

WRITTEN DECISION AND ORDER OF THE IMMIGRATION JUDGE


I.

Procedural History

Jonathan Jemenez NUEZCA ("Respondent") is a 37-year-old, married, citizen and native


of the Philippines. Exhs. 1, 2. The Department of Homeland Security ("DHS") alleges that
Respondent was admitted to the United States at Honolulu, Hawaii on March 1, 2010 as a Kl
non-immigrant, then adjusted to CFl conditional permanent resident on September 21, 2010, and
thereafter had the conditional status removed to an IFI permanent resident on April 11, 2013.
Exh. 1. The DHS further alleges that on October 20, 2015, Respondent was convicted in the
State of Hawaii, Circuit Court of the Second Circuit for the offense of Sexual Assault in the
Third Degree (Case: 15-1-0285(2)) committed on or about May 1, 2010 through May 31, 2010
in violation of Hawaii Revised Statutes ("HRS") section 707-732(1)(b). Exhs. 1, 2, pp. 4-31.
On May 9, 2016 the OHS served Respondent a Form 1-862, Notice to Appear ("NTA''),
in person, charging Respondent as removable under sections 237(a)(2)(A)(i) and
237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"). Proceedings commenced upon

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DETAINED
A087 714 293
File No.:

the filing of the NTA on May 11, 2016 with the Honolulu Immigration Court. 8 C.F.R.
1003.14(a) (2013). Respondent is currently detained at the Honolulu Federal Detention Center
("FDC").

II.

Law and Analysis

As an alien who was lawfully admitted to the United States, the DHS has the burden of
establishing by clear and convincing evidence that Respondent is deportable as charged. INA
240(c)(3)(A); 8 C.F.R. 1240.8(a).
A.

Motion to Terminate
1.

Crime Involving Moral Turpitude

To be deportable under section 237(a)(2)(A)(i), Respondent must be (1) convicted of a


CIMT, (2) committed within five years after his date of admission, (3) for which a sentence of
one year or longer may be imposed.
To begin, Respondent was admitted to the United States on March I, 2010. Exh. 1. The
Indictment established that Respondent committed the offense of Sexual Assault in the Third
Degree during or about the period of May 1, 2010, through May 31, 2010, therefore,
Respondent's commission of the offense falls within five years of his admission to the United
States. Exh. 2, p. 4. Further, Sexual Assault in the Third Degree is a Class C felony, for which
the term of imprisonment is five years, but not less than one year. HRS 706-660. As such,
Respondent committed the offense within five years after his date of admission to the United
States and the term of imprisonment for this crime is not less than one year as required under
237(a)(2)(A)(i). Therefore the only issue that remains is whether Sexual Assault in the Third
Degree is a CIMT.
To determine whether Sexual Assault in the Third Degree under HRS section 707732(l)(b) is a CIMT, the Court applies the categorical and modified categorical approaches
established in Taylor v. United States. 495 U.S. 575 (1990); see Castrijon-Garcia v. Holder, 704
F.3d 1205, 1212 (9th Cir. 2013). Under the categorical approach, the Court examines the state

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On June 7, 2016, Respondent appeared with counsel for a second mastercalendar hearing.
He was linked in via Video Teleconferencing equipment from the FDC. The hearing was
conducted using an Ilokano interpreter since Respondent said he only spoke a little English.
Respondent admitted to factual allegations I through and including 7, but contested both charges
of rernovability. Respondent filed a Submission of Rule40 [sic] Petition to Set Aside Judgment
alleging that he was not properly advised by his prior counsel in his criminal case that if he pied
no contest he would be subject to removal. Exh. 3. Further, Respondent alleged that he "has a
very good chance of having this judgment set aside." Exh. 3, p. 2. The Court allowed
Respondent time to file a Motion to Terminate with the Court, which he timely filed on June 14,
2016. On June 17, 2016, the DHS filed a Response to Respondent's Motion to Terminate
opposing the motion. Exhs. 4, 5. Respondent's individual hearing was set to June 21, 2016.

statute of conviction, here HRS section 707-732(1)(b), and compares the elements of the crime to
the elements of a CIMT. See Castrijon-Garcia, 704 F.3d at 1208. If the full range of conduct
proscribed under the state statute of conviction is encompassed within the definition of a CIMT,
a conviction under HRS section 707-732( l)(b) categorically constitutes a CIMT. Latter-Singh v.
Holder, 668 F.3d 1156, 1159 (9th Cir. 2012).

[A]ny touching, other than acts of 'sexual penetration', of the sexual or other
intimate parts of a person not married to the actor, or of the sexual or other
intimate parts of the actor by the person, whether directly or through the
clothing or other material intended to cover the sexual or other intimate parts.
HRS 707-700.
The INA does not define the term "crime involving moral turpitude", but it generally
refers to crimes that are 'inherently base, vile, or depraved, and contrary to the accepted rules of
morality and the duties owed between persons or to society in general." Castrijon-Garcia v.
Holder, 704 F.3d 1205, 1212 (9th Cir. 2013); accord Matter of Solon, 24 I&N Dec. 239, 240
(BIA 2007). The Ninth Circuit has divided CIMTs into two types: crimes that involve fraud or
crimes that involve base, vile, or depraved conduct that shocks the public conscience. Leal v.
Holder, 77 1 F.3d 11 40, 1146 (9th Cir. 2014) (quoting Nunez v. Holder, 594 F.3d 1 1 24, 11 31 (9th
Cir. 2010)). The non-fraudulent type of CIMTs requires an assessment of both the state of mind
and the level of harm required to complete the offense. Matter of Solon, 24 I&N Dec. 239, 242
(BIA 2007); see also Matter of Medina, 26 I&N Dec. 79, 82 (BIA 20 1 3) ("Under long-standing
case law, an offense must have two essential elements to constitute a crime involving moral
turpitude: a culpable mental state and reprehensible conduct."); accord Fernandez-Ruiz v.
Gonzales, 468 F.3d 11 59, 1165 (9th Cir. 2006) (holding that "spousal abuse is an act of baseness
or depravity contrary to accepted moral standards, and willfulness is one of its elements. . .. it is
the combination of the base or depraved act and the willfulness of the action that makes the
crime one of moral turpitude"). In the context of sexual offenses, the Ninth Circuit has held
conduct that involves either the actual infliction of harm or a protected class of victim or a
combination of the two to be morally turpitudinous. Nunez v. Holder, 594 F.3d 1124, 1132 (9th
Cir. 2010).
Here, HRS section 707-732 requires a culpable mental state of "knowingly" and
reprehensible conduct of sexual contact with a person less than fourteen years of age. 1 It is well
1

HRS section 702-206 provides the fol lowing definition for the mental state of "knowingly":
(a) A person acts knowingly with respect to his conduct when he is aware that his conduct is of that nature.
(b) A person acts knowingly with respect to attendant circumstances when he is aware that such circumstances exist.
(c) A person acts knowingly with respect to a result of his conduct when he is aware that it is practicaJiy certain that
his conduct will cause such a result.
HRS 702-206.

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Sexual Assault in the Third Degree under HRS section 707-732(1)(b) contains the
following three elements: (1) the defendant knowingly (2) caused sexual contact (3) with a
person less than fourteen years of age. State v. Buch, 83 Haw. 308, 313, 926 P.2d 599, 604 (Haw.
1996); HRS 707-732. Sexual contact is defined as:

11 .

Sexual Abuse of a Minor

Any alien who is convicted of an aggravated felony at any time after admission is
deportable under the INA. INA 237(a)(2)(A)(iii). As relevant to this case, "murder, rape,
sexual abuse of a minor" constitutes an aggravated felony under the definitions provided in
INA section 10l (a)(43). INA 10 l (a)(43)(A).
To determine whether a conviction is an "aggravated felony," the Court applies the
categorical approach, as discussed above, and compares the elements of the crime to the generic
federal definition of the crime enumerated under INA section 10 l (a)(43). Descamps, 133 S.Ct. at
2283 . If the full range of conduct proscribed under the statute of conviction is encompassed
within the generic federal definition, the statute of conviction is a categorical aggravated felony.
Latter-Singh v. Holder, 668 F.3d 1156, 1159 (9th Cir. 2012).
To reiterate, Sexual Assault in the Third Degree under HRS section 732(1)(b) contains
the following three elements: ( 1 ) the defendant ' knowingly (2) caused sexual contact (3) with a
person less than fourteen years of age. Buch, 83 Haw. at 313 ; HRS 707-732. The Court must
compare the elements under HRS section 732( 1 )(b) to the federal generic definition of "sexual
abuse of a minor" as provided under United States v. Medina- Villa. Respondent's argument that
the Hawaii statute is not a categorical match to the federal generic offense is misplaced because
he compares the Hawaii statute to the incorrect definition provided under 1 8 U.S.C. section
2243 .
In Medina-Villa, the Ninth Circuit held that a crime that is not a statutory rape crime may
qualify as "sexual abuse of a minor" under the federal generic offense if it has the following
three elements: "( 1) the conduct prohibited by the criminal statute is sexual, (2) the statute
protects a minor, and (3) the statute requires abuse." 567 F .3d 507, 513 (9th Cir.2009); Pelayo
Garcia v. Holder, 589 F .3d 1 0 1 0, 1 014 ((9th Cir. 2009). Here, HRS section 732(1)(b) involves
sexual conduct under the ordinary, contemporary, and common meaning of the words that
Congress used. United States v. Castro, 607 F.3d 566, 568 (9th Cir. 2010) (citing to Medina-

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established that sexual conduct toward a child is base, vile, or depraved conduct that shocks the
public conscience. Leal, 771 F.3d at 1146; see United States v. Baron-Medina, 187 F.3d 1144,
114 7 (9th Cir. 1999) (holding the use of young children as objects of sexual gratification is
corrupt, improper, and contrary to good order); Matter ofImber, 16 l&N Dec. 256 (BIA 1 977)
(holding that petitioner's violation of Israeli criminal law prohibiting engaging in sexual
misconduct with a person of less than sixteen years of age was a CIMT); Schoeps v. Carmichael,
177 F.2d 391, 394 (9th Cir. 1 949) ajf'd Nunez v. Holder, 594 F.3d at 1132 (holding lewd and
lascivious conduct toward a child as involving moral turpitude); see also Mehboob v. Attorney
General, 549 F.3d 272 (3d Cir. 2008) (holding that indecent contact with a minor less than
sixteen years of age with a person four years of age or older was a CIMT despite there was no
mens rea element). But see Quintero-Salazar v. Keisler, 506 F.3d 688, 692-95 (9th Cir. 2007)
(holding that violation of a California statute prohibiting perpetrators of twenty-one years of age
or older from engaging in intercourse with a minor under sixteen years of age is not categorically
a CIMT). The Court finds that the conviction in CR No: 15-1-0285 is a CIMT and the section
237(a)(2)(A(i) charge is sustained.

Accordingly, the Court finds that HRS section 732{l )(b) is a categorical aggravated
felony under INA section 10 I(a)(43)(A) as it meets all the elements of "sexual abuse of a minor"
as identified in Medina- Villa. See also Matter of Rodriguez-Rodriguez, 22 l&N Dec. 991, 996
(BIA 1999) (explaining "Congress' intent to remove aliens who are sexually abusive toward
children and to bar them from any relief'). Therefore the Court finds that Sexual Assault in the
Third Degree is an aggravated felony for which Respondent is removable under INA section
237(a)(2)(A)(iii).
1

B.

Motion to Continue

An Immigration Judge may grant a continuance for "good cause." 8 C.F.R. 1003 .29.
Here, Respondent requests a continuation in the alternative to termination to allow for his
Petition to Set Aside Judgment to be adjudicated. Respt's Motion, p. 6. However, Respondent's
conviction is final for immigration purposes. "The availability of post-conviction motions or
other forms of collateral attack does not affect the finality of the conviction for immigration
purposes, unless and until the conviction has been overturned pursuant to such a motion." Matter
of Ponce De Leon-Ruiz, 21 I&N Dec. 154, 157 (BIA 1996); see also Matter ofAdetiba, 20 l&N
Dec. 506, 508 (BIA 1992) ("[T]he possibility of a decision on any post-conviction motion that
has been filed does not affect our finding that the respondent is deportable. "). As such, the Court
finds that the possibility of post-conviction relief does not establish good cause to continue the
case.
The Court finds that Respondent has not established good cause for a continuance.
Respondent is not statutorily eligible for Cancellation of Removal for Certain Permanent
Residents due to his aggravated felony conviction. See INA 240A{a)(3). There is no other
application before the Court. He designated the Philippines as his country of removal and does
not appear to fear torture.

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Villa, 567 F.3d at 513 ). In State v. Kalani, the Hawaii Supreme Court held that "sexual parts"
refer to the sex organs while "intimate parts" refer to parts of the body typically associated with
sexual relations. 108 Haw. 279, 284, 118 P.3d 1222, 1227 (2005). There is no ambiguity that
touching the sex organs or parts of the body associated with sexual relations falls under the
ordinary, contemporary and common meaning of the word "sexual." HRS 732{l ){b); see also
State v. Richie, 88 Haw. 19, 3 1, 960 P.2d 1227, 1239 (1998), as amended (Aug. 3, 1998)
(holding that the definition of sexual contact is "crystal clear" in that it "gives the person of
ordinary intelligence a reasonable opportunity to know what conduct is prohibited"); accord
Rohit v. Holder, 670 F.3d 1085, 1090 (9th Cir. 2012) (holding public exposure, statutory rape,
and solicitation of prostitution as involving sexual conduct). Furthermore, sexual conduct
involving younger children under the age of fourteen is per se abusive. Castro, 607 F.3d at 568;
see United States v. Valencia-Barragan, 608 F.3d 1103, 1107 (9th Cir. 2010) (holding that the
statute of conviction contains the final element, abuse, because it applies to sexual conduct with
children younger than fourteen years, and therefore prohibits conduct that is per se abusive). As
HRS section 732(l)(b) necessarily involves conduct with a child less than fourteen years of age,
it is per se abusive. Buch, 83 Haw. at 313; HRS 707-732.

C
Accordingly, the following order is entered:
ORDER
IT IS HEREBY ORDERED that Respondent's Motion to Terminate is DENIED.

IT IS FURTHER ORDERED that Respondent be removed from the United States to the
Philippines based on both charges contained in the Notice to Appear.

BEAMER

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IT IS FURTHER ORDERED that Respondent's Motion to Continue is DENIED.

C
Alien No.: A087-714-293

Alien Name: NUEZCA, Jonathan Jemenez

LIMITATIONS ON DISCRETIONARY RELIEF FOR FAILURE TO APPEAR

**the term "exceptional circumstances" refers to circumstances such as serious illness of the alien
or death of an immediate relative of the alien, but not including less compelling circumstances.
A. THE FORMS OF RELIEF FROM REMOVAL FOR WHICH YOU WILL BECOME INELIGIBLE ARE:
1 ) Voluntary departure as provided for in section 2408 of the Immigration and Nationality Act;
2 ) Cancellation of removal as provided for in section 240A of the Immigration and Nationality Act; and
3 ) Adjustment of status or change of status as provided for in Section 245, 248 or 249 of the Immigration
and Nationality Act.
This written notice was provided to the alien in English. Oral notice of the contents of this notice must
be given to the alien in his/her native language, or in a language he/she understands by the Immigration Judge.

6 /,..,/, G
Date:
Immigration Judge: ..;;;.t!)
.....;'11!3
..-:c..--------,,----- or Court Clerk : _______________
CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY : MAIL (M) PERSONAL SERVICE (E}
TO: [ ] ALIEN
[ ] ALIEN c/o Custodia) Officer
[-:?1 Alien's A TT/REP
[oij OHS
------
STAFF
COURT
BY:
DATE :
f:?l::z. 1 /1 6
--1'--1-b<I Other
[ ] Legilrserv ices List
[ ] EOIR-28
Attachments: ( ] foIR-33

.L J?

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You have been scheduled for a removal hearing, at the time and place set forth on the attached
sheet. Failure to appear for this hearing other than because of exceptional circumstances beyond
your control** will result in your being found ineligible for certain forms of relief under the Immigration
and Nationality Act (see Section A. below) for a period of ten ( 1 0) years after the date of entry of the
final order of removal.
( ) 2. You have been scheduled for an asylum hearing, at the time and place set forth on the attached
notice. Failure to appear for this hearing other than because of exceptional circumstances beyond
your control** will result in your being found ineligible for certain forms of relief under the Immigration
and Nationality Act (see Section A. below) for a period of ten ( 1 0) years from the date of your scheduled
hearing.
( ) 3. You have been granted voluntary departure from the United State pursuant to section 2408 of
the Immigration and Nationality Act, and remaining in the United States beyond the authorized
date will result in your being ineligible for certain forms of relief under the Immigration and Nationality
Act (see Section A. below) for ten ( 1 0) years from the date of the scheduled departure.
Your voluntary departure bond, if any, will also be breached. Additionally, if you fail to voluntarily
depart the United States within the time period specified, you shall be subject to a civil penalty
of not less than $ 1 000 and not more than $5000.
An order of removal has been entered against you. If you fail to appear pursuant to a final order
of removal at the time and place ordered by the DHS, other than because of exceptional
circumstances beyond your control** you will not be eligible for certain forms of relief under
the Immigration and Nationality Act (see Section A. below) for ten ( 1 0) years after the date
you are scheduled to appear.
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