You are on page 1of 17

U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 Leesburg Pike, Suite 2000


Falls Church, Virginia 22041

Immigrant & Refugee Appellate Center, LLC | www.irac.net


Sanchez, Damien W. OHS/ICE Office of Chief Counsel - DET
Law Office of Richard Kessler PC 333 Mt. Elliott St., Rm. 204
4145 Kalamazoo SE Detroit, Ml 48207
Grand Rapids, Ml 49508

Name: M , W P A -160

Date of this notice: 7/18/2017

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

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Malphrus, Garry D.
Liebowitz, Ellen C
Mullane, Hugh G.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/

Cite as: W-P-M-, AXXX XXX 160 (BIA July 18, 2017)
,. .

U.S. Department of Justice Decision of the Board of Immigration Appeals


Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 160-Detroit, MI Date:


JUL 18 2017
In re: W P M

Immigrant & Refugee Appellate Center, LLC | www.irac.net


IN REMOVAL PRO CEEDING S

APPEAL

ON BEHALF O F RESPONDENT: Damien W. Sanchez, Esquire

ON BEHALF OF DH S: Jonathan Goulding


Assistant Chief Counsel

CHARGE:

Notice: Sec. 212(a)(2)(A)(i)(I}, l&N Act (8 U.S. C. l182(a)(2)(A)(i)(I)] -


Crime involving moral turpitude

APPLI CATION: Termination of proceedings; waiver of inadmissibility under section 212(c) of


the Act; cancellation of removal under section 240A(a) of the Act

The respondent, a native and citizen of Jamaica and lawful permanent resident of the United
States, appeals the Immigration Judge's February 9, 2015, decision denying his application for a
waiver of inadmissibility under former section 212(c) of the Immigration and Nationality Act,
8 U.S.C. l 182(c) (1995), and deeming abandoned his application for cancellation of removal
under section 240A(a) of the Act, 8 U.S.C. 1229b(a) (2016) (l.J. at 2-3 & n.3). The Department
of Homeland Security ("DH S") opposes the appeal. The appeal will be dismissed in part and the
record remanded to the Immigration Judge for further proceedings.

We review findings of fact, including determinations of credibility, made by the Immigration


Judge under the "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i) (2017). We review all
other issues, including issues of law, discretion, or judgment, under a de novo standard. 8 C.F.R.
1003.l (d)(3)(ii).

The notice to appear ("NTA") charges the respondent with removability under
section 212(a)(2)(A)(i)(I) of the Act, 8 U.S.C. l182(a)(2)(A)(i)(I}, as an arriving alien, following
his arrival at a border port of entry (Exh. 1). See section 101(a)(l3)( C)(v) of the Act, 8 U. S.C.
l 101(a)(13)( C)(v) (specifying that an LPR may not be regarded as seeking admission to the
United States ''unless the alien . . has committed an offense identified in section 212(a)(2)").
.

The respondent was convicted of assault with intent to commit criminal sexual conduct
involving sexual penetration in violation of Mich. Comp. Laws 750.520g(l) (hereafter
"section 750.520g( l )") in 1992, and of misdemeanor aggravated assault in violation of Mich.
Comp Laws 750.81a (hereafter "section 750.8la"), in 1997 (U at l; Tr. at 3, 5-6; Exh. 1). The
Immigration Judge concluded that both of these convictions were for crimes involving moral
turpitude (" CIMTs") (U at 6-10; Tr. at 7). The respondent does not contest that his 1992 conviction
is a CIMT, but argues that his 1997 conviction is not (Respondent's Br. at 2, 4, 7-11).
Cite as: W-P-M-, AXXX XXX 160 (BIA July 18, 2017)
' .

160

I. REMOVABILITY UNDER SECTION 212(a)(2)(A)(i)(I)

A lawful permanent resident returning from travel abroad is entitled to a rebuttable


presumption that he is not an applicant for admission. See section 10l(a)(l3)(C) of the Act;
Matter of Rivens, 25 I&N Dec. 623, 624-25 (BIA 2011). To overcome this presumption in the
present case, the OHS bears the burden of proving by clear and convincing evidence that the

Immigrant & Refugee Appellate Center, LLC | www.irac.net


respondent has committed an offense identified in section 212(a)(2) of the Act (Exh. 1). See
Matter of Rivens, 25 l&N Dec. at 625-26; section 10l(a)(l3)(C)(v) of the Act. Specifically, the
OHS asserts the respondent was convicted of a CIMT (Exh. 1).

Although the parties agree that the respondent's 1992 conviction is for a CIMT, that conviction
alone cannot support an allegation that the respondent is an applicant for admission, as it preceded
the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
("IIRIRA"). See Vartelas v. Holder, 566 U.S. 257, 261 (2012) (holding that
section 10l(a)( l 3)(C)(v) of the Act cannot be applied retroactively to a lawful permanent resident
whose conviction preceded the effective date of IIRIRA). Thus, our review of the
Immigration Judge's removability finding is limited to analyzing whether the respondent's
June 1997 conviction is a CIMT (U at 3 n.5). 1

Moral turpitude generally refers to conduct that is "inherently base, vile, or depraved, and
contrary to the accepted rules of morality and the duties owed between persons or to society in
general." See Matter of Silva-Trevino, 26 l&N Dec. 826, 833 (BIA 2016) (citation omitted);
see also Se"ato-Soto v. Holder, 510 F.3d 686, 689 (6th Cir. 2009). "To involve moral turpitude,
a crime requires two essential elements: reprehensible conduct and a culpable mental state."
Matter of Silva-Trevino, 26 l&N Dec. at 834. We employ the categorical approach to determine
whether the respondent's conviction is for a CIMT, and thus focus on the minimum conduct
necessary for a conviction under the statute, rather than on the actual conduct which led to the
respondent's particular conviction. Id at 831-33; see also Reyes v. Lynch, 835 F.3d 556, 559
(6th Cir. 2016).

At the time of the respondent's conviction, the Michigan aggravated assault statute, in pertinent
part, provided as follows:2

1 The OHS argued before the Immigration Judge that the respondent, in a motion to change venue,

conceded removability as charged in the NTA (DHS's Position Statement as to the Respondent's
Eligibility for Relief at 1-3; Respondent's Motion to Change Venue at 4). The prior
Immigration Judge did not rule on the removability issue and the new Immigration Judge did not
rely on the respondent's concession in determining he was removable as charged (U at 2, 10;
U order, May 2, 2011). See 8 C.F.R. 1240.lO(c) (providing that the Immigration Judge "may
determine that removability as charged has been established" by the alien's admission) (emphasis
added). The OHS does not raise this issue on appeal.

2 The respondent asserts that he was convicted under subsection (1) (Respondent's Br. at 9-11).
However, the Immigration Judge made no such finding (IJ at 1, 3). The record reflects the
respondent admitted allegation five in the NTA, which does not reference a specific subsection of
section 750.8la (U at l; Tr. at 3, 6; Exh. l; Respondent's Br. at 2).

Cite as: W-P-M-, AXXX XXX 160 (BIA July 18, 2017)
160

A person who assaults an individual without a weapon and inflicts serious or


aggravated injury upon that individual without intending to commit murder or to
inflict great bodily injury less than murder is guilty of a misdemeanor punishable
by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or
both.

Immigrant & Refugee Appellate Center, LLC | www.irac.net


MICH. COMP. LAWS 750.8la(l) (1997). Subsections (2) and (3) of the statute prohibit the same
conduct described in subsection (1), but they further require the victim and the assailant to be or
have been in a domestic relationship or residents of the same household. See MICH. COMP. LAws
750.8la(2)-(3). Subsection (3) also requires the act to be a repeated offense. See MICH. COMP.
LAWS 750.8la(3). Therefore, we analyze subsection (1) as it reflects the minimum conduct
necessary to sustain a conviction under the statute. See Matter of Silva-Trevino, 26 l&N
Dec. at 831.

A conviction under section 750.8la(l) involves two essential elements: (1) that the perpetrator
have committed an assault against the victim, and (2) that the assault have caused serious or
aggravated injury. See Michigan Model Criminal Jury Instructions ("MMCll") 17.6 (2016).
"Assault" in Michigan is a specific intent crime that requires an individual to intentionally attempt
to commit a battery or to commit an unlawful act with the intent to put the victim in reasonable .
fear or apprehension of an immediate battery. See People v. Datema, 533 N.W.2d 272,
279 (Mich. 1995); People v. Johnson, 284 N.W.2d 718, 718-19 (Mich. 1979); MMCll 17.6
(indicating that the prosecution must establish that the defendant intended either to injure the
victim or to make the victim reasonably fear an immediate battery); see also People v. Reeves,
580 N.W.2d 433, 435 (Mich. 1998) (defining "battery" as "an intentional, unconsented and
harmful or offensive touching of the person of another, or of something closely connected with the
person"). A "serious or aggravated injury" is defined as "substantial bodily (physical) injury or
injury that necessitated immediate medical treatment or caused disfigurement, impairment of
health or impairment of any bodily part." People v. Brown, 296 N.W.2d 121, 123 (Mich. Ct.
App. 1980); see MMCn 17.6.

Simple assault and battery-Le., the mere offensive touching or threatened offensive touching
of another person, committed with general intent and not resulting in serious bodily harm-is not
a CIMT. See, e.g., Matter of Wu, 27 I&N Dec. 8, 11 (BIA 2017); Matter of Ahortalejo-Guzman,
25 I&N Dec. 465, 466 (BIA 2011); Matter of Fualaau, 21 I&N Dec. 475, 477 (BIA 1996).
"However, this general rule does not apply where a statute contains elements that deviate from
those associated with simple assault and battery and 'involves some aggravating factor that
indicates the perpetrator's moral depravity.'" Matter of Wu, 27 I&N Dec. at 11 (quoting
Matter of Ahortalejo-Guzman, 25 l&N Dec. at 466); see also Matter of Ahortalejo-Guzman,
25 l&N Dec. at 466 (indicating that where an assault or battery involves an aggravating factor such
as the infliction of serious injury on a child or domestic partner, moral turpitude may inhere);
Matter of Fualaau, 21 I&N Dec. at 478 (noting that a reckless state of mind coupled with infliction
of serious bodily injury can be a CIMT).

Here, the respondent's statute of conviction differs from a simple assault statute because it
requires a specific intent-rather than general intent-to commit assault and requires the

3
Cite as: W-P-M-, AXXX XXX 160 (BIA July 18, 2017)
160

perpetrator to have caused serious physical injury to the victim. 3 In other words, section
750.8la(l) covers more than simple assault (or a more offensive touching); it covers assault that
inflicts serious or aggravated injury. Such aggravating elements not only increase the gravity of
the danger contemplated by the offender's conduct, but also increase the degree of mental
culpability. See Matter of Wu, 27 l&N Dec. at 11; see also Matter ofSolon, 24 I&N Dec. 239, 243
(BIA 2007) (determining that an assault statute requiring both the specific intent to injure and the

Immigrant & Refugee Appellate Center, LLC | www.irac.net


actual infliction of bodily harm upon a victim is categorically a CIMT); cf Matter ofHernandez,
26 l&N Dec. 464, 466 (BIA 2015) (holding that recklessly placing an individual in "imminent
danger of serious bodily harm is a CIMT}, rev 'd, Hernandez v. Lynch, 823 F.3d 279 (5th Cir.
"

2016) (per curiam); Matter ofLeal, 26 I&N Dec. 20, 24-25 (BIA 2012) (holding that "recklessly
endangering another person with a substantial risk of imminent death" is a CIMT}, aff'd, Leal v.
Holder, 771 F.3d 1140 (9th Cir. 2014). Additionally, we note that Michigan has a separate simple
assault statute that does not require the serious physical injury necessary for a conviction under
section 750.8la. See MICH. COMP. LAW 750.81 (2017). Thus, the conduct criminalized by
section 750.81a is of a more serious and morally turpitudinous nature than that of simple assault.

We are unpersuaded by the respondent's argument that his conviction under section 750.8la
is not for a CIMT because he was allegedly acting in self-defense (Respondent's Br. at 10).
Self-defense is an affirmative defense to a charge under section 750.8la, and therefore
such conduct would not sustain a conviction. See People v. George, 540 N.W.2d 487, 488
(Mich. App. 1995) (remanding for an opportunity for the defendant, charged under
section 750.81a, to present a character witness to support his claim he was acting in self-defense);
see also People v. Dupree, 788 N.W.2d 399, 406 (Mich. 2010) ("It is axiomatic that the common
law affirmative defense of self-defense is embedded in our criminal jurisprudence."). Moreover,
the respondent has not identified-nor have we uncovered-any case in which Michigan applied
section 750.8la to conduct falling outside the CIMT definition (Respondent's Br. at 10-11).

Based on the foregoing, we conclude that the respondent's conviction under section 750.8la
is categorically for a CIMT. See Matter ofSilva-Trevino, 26 I&N Dec. at 831-33. The respondent
is therefore removable as charged under section 212(a)(2)(A)(i)(I) of the Act. See
Matter ofRivens, 25 I&N Dec. at 625-26; section 10 l(a)(l3)(C)(v) of the Act. Additionally,
because this conviction occurred in June 1997, a waiver of inadmissibility under former
section 212(c) of the Act is unavailable. See Matter of Abdelghany, 26 l&N Dec. 254, 261
(BIA 2014).

II. ELIGIBILITY FOR CANCELLATION OF REMOVAL

3 Although section 750.8la requires a specific intent to commit assault, it does not require the
perpetrator to have intended to cause serious or aggravated injury. See People v. Van Diver,
263 N.W.2d 370, 372 (Mich. Ct. App. 1977) (noting that aggravated assault is distinguishable
from other types of assault because it lacks a specifically intended result as an element); cf MICH.
COMP. LAW 750.84 (2017) (defining a separate crime which requires that an individual commit
assault with the intent to cause great bodily harm).

4
Cite as: W-P-M-, AXXX XXX 160 (BIA July 18, 2017)
160

The respondent argues on appeal that he is eligible for cancellation of removal under
section 240A(a) of the Act and that the Immigration Judge improperly concluded that he had
abandoned his application (U at 2-3 & n.3; Respondent's Br. at 2-7). The Immigration Judge
deemed abandoned the respondent's claim for cancellation of removal because he did not submit
an application for the requested relief and because he did not submit briefing on the issue following
the OHS's renewed motion to pretermit the respondent's applications (U at 2-3 & n.3). The

Immigrant & Refugee Appellate Center, LLC | www.irac.net


respondent contends on appeal that he timely submitted briefing related to his eligibility for
relief-including cancellation of removal-in 2011 and that he chose to rely on that original
briefing in response to the OHS's 2014 renewed motion to pretermit (IJ at 2; Tr. at 14-15;
Respondent's Br. at 2-3; Respondent's Br. Opposing Intent to Pretermit, Nov. 17, 2011 at 2-5).

The record indicates that although the parties discussed the issue of cancellation of removal at
the June 22, 2011, hearing and the Immigration Judge granted the respondent's request to submit
briefing on the issue, neither the Immigration Judge nor the parties mentioned the respondent's
eligibility for cancellation of removal at the final hearing (l.J. at 3 n.3; Tr. at 14-15, 19-22). Insofar
as the Immigration Judge indicated he would consider the respondent's arguments relating to
cancellation eligibility and did not specify a deadline for the respondent to file his cancellation
application, we conclude that the respondent did not abandon his application for cancellation of
removal. Cf. Matter ofR-R-, 20 l&NOec. 547, 549 (BIA 1992) (noting that where an Immigration
Judge sets a time limit for the filing of an application, an application not filed by that deadline will
be deemed abandoned); 8 C.F.R 1003.31(c).

On appeal, the OHS argues that the respondent is not eligible for cancellation of removal
because he has been convicted of an aggravated felony. See section 240A(a)(3) of the Act.
Specifically, the OHS claims that the respondent's 1992 conviction for assault with intent to
commit criminal sexual conduct under section 750.520g(l) constitutes sexual abuse of a minor
(DHS's Br. at 2). See section 10l(a)(43)(A) of the Act, 8 U.S.C. 110l(a)(43)(A). We employ
the categorical approach to determine whether the respondent's offense qualifies as an aggravated
felony, and thus focus on the minimum conduct that has a realistic probability of being prosecuted
under section 750.520g(l). See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85 (2013).

Section 750.520g(l) criminalizes as a felony "[a]ssault with intent to commit criminal sexual
conduct involving sexual penetration." MICH. COMP. LAWS 750.520g(l) (1992). Michigan has
defined the elements of the offense as "(l) an assault, and (2) an intent to commit [criminal sexual
conduct] involving sexual penetration." People v. Nickens, 685 N.W.2d 657, 661 (Mich. 2004);
accord People v. Love, 283 N.W.2d 781, 784 (Mich. Ct. App. 1972). The age of the victim is not
an element of the offense. See Mathis v. United States, 136 S. Ct. 2243, 2248 (2016) (defining
"elements" as ''things the prosecution must prove to sustain a conviction" and noting that the focus
of the categorical approach is on elements rather than facts (internal citation omitted)). Because
an individual could be convicted under this statute regardless of whether the victim was an adult
or a minor, the statute is overboard vis-a-vis the age of the victim. See Matter ofV-F-D-, 23 l&N
Dec. 859, 862 (BIA 2006) (holding that "minor" means an individual under the age of 18 for the
purposes of determining whether an alien has been convicted of sexual abuse of a minor pursuant
to section 101(a)(43)(A) of the Act); but see Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568
(2017) (holding that in the context of statutory rape offenses that criminalize sexual intercourse
based solely on the age of the participants, the generic federal definition of "sexual abuse of a

5
Cite as: W-P-M-, AXXX XXX 160 (BIA July 18, 2017)
160

minor". under section 10 l (a)(43)(A) of the Act requires the victim to be younger than 16).
Section 750.520g( l ) is therefore not categorically sexual abuse of a minor.

Although the DHS claims that the respondent's conviction records establish that the victim
was under the age of 13, we may look at conviction records only when a statute is divisible and

Immigrant & Refugee Appellate Center, LLC | www.irac.net


only to determiri.e the elements of the respondent's conviction. See Descamps v. United States,
133 S. Ct. 2276, 2281, 2283 (2013) (explaining that the modified categorical approach only applies
when the statute is divisible, in that it lists multiple discrete offenses as enumerated alternatives or
defines a single offense by reference to disjunctive sets of elements, and more than one (but not
all) of those listed elements is a categorical match to the relevant generic standard);
Matter o/Chairez, 26 I&N Dec. 819, 822 (BIA 2016). Section 750.520g( l ) is not divisible with
regard to the age of the victim and thus we may not look to the respondent's conviction records.
Accordingly, the respondent is not barred from cancellation of removal for having been convicted
of a sexual assault of a minor aggravated felony. Sections 10 l (a)(43)(A) and 240A(a)(3) of the
Act.

Based on the foregoing, we will remand the record to the Immigration Judge to allow the
respondent to apply for cancellation of removal under section 240A(a) of the Act and any other
relief for which he may be eligible. On remand, the Immigration Judge should make the necessary
findings of fact and conclusions of law regarding the respondent's eligibility for the relief sought.
Additionally, the Immigration Judge should analyze whether the respondent's conviction under
section 750.520g( l ) is for a rape or attempted rape aggravated felony under sections 10 l (a)(43)(A)
and (U) of the Act, and thus bars him from cancellation of removal (Respondent's Br. at 4-7;
Respondent's Br. Opposing Intent to Pretermit, Nov. 17, 2011 at 3-6). See section 240A(a)(3) of
the Act. The Immigration Judge should also consider whether the respondent warrant s relief from
removal in the exercise of discretion and is not limited to the categorical approach in this analysis.
Accordingly, the following orders will be entered.

ORDER: The appeal is dismissed, in part.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.

6
Cite as: W-P-M-, AXXX XXX 160 (BIA July 18, 2017)
j "

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DETROIT, MICHIGAN

File No.: A -160 February 9, 2015

Immigrant & Refugee Appellate Center, LLC | www.irac.net


In the Matter of: )
)
,W P ) In Removal Proceedings
)
Respondent )

Charge: Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act ("INA"


or "Act"), as amended, in that, you are an alien who has been convicted of,
or who admits having committed, or who admits committing acts which
constitute the essential elements of a crime involving moral turpitude
(other than a purely political offense) or an attempt or cqnspiracy to
commit such a crime.

Application: Motion to Pretermit.

ONBEHALF OF RESPONDENT ONBEHALF OF THE GOVERNMENT


Richard G. Kessler Timothy McDonald, Assistant Chief Counsel
Law Offices of Richard Kessler, P.C. U.S. Immigration and Customs Enforcement
280 Valley Ave SW 333 Mt. Elliott, Second Floor
Grand Rapids, MI 49504 Detroit, MI 48207

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. PROCEDURAL HISTORY

Respondent, W P M , is a native and citizen of Jamaica. He became a Lawful

Permanent Resident on November 22, 1975. On March 19, 1992, respondent pied guilty to

assault with intent to commit criminal sexual conduct involving sexual penetration, in violation

of MICH. COMP. LAWS 750.520g(l) [hereinafter "CSC Conviction'l In 1997, he pied guilty to

aggravated assault, in violation of MICH. COMP. LAWS 750.8la.1 On April 16, 2010,

1 This offense is "[s]ometimes referred to as 'assault and infliction of serious injury."' People v. Brown, 296
N.W.2d 121, 123 n.2 (Mich. Ct App. 1980).

I
'

respondent arrived in Atlanta, Georgia, following a visit to Montego Bay, Jamaica. At that time,

the Department of Homeland Security ("OHS" or "Government") charged him as an

inadmissible arriving alien pursuant to section 212(a)(2)(A)(i)(I) of the Act. Respondent was

Immigrant & Refugee Appellate Center, LLC | www.irac.net


then personally served with a Notice to Appear (''NTA'') and paroled into the United States for

purposes of removal proceedings.

Following a change of venue, respondent attended his first master calendar hearing in this

Court on June 22, 2011. At that hearing, respondent admitted all factual allegations contained in

his NTA, but denied the alleged charge of inadmissibility. Specifically, respondent claimed that

while he was convicted of two crimes, only the CSC Conviction constituted a crime involving

moral turpitude ("CIMT"). Furthermore, respondent alleged prima facie eligibility for a waiver

of that conviction under former section 212(c) of the Act. Consequently, respondent argued that

he would ultimately be eligible for relief. 2 The Court continued the matter to provide respondent

time to submit his 212(c) waiver materials, and set an individual hearing date to determine

respondent's 212(c) eligibility. The Court also charged the Government with obtaining and

submitting the conviction records relating to respondent's aggravated assault conviction.

Prior to respondent's scheduled individual hearing, the Government requested that the

Court reset his master calendar hearing. At that reset master calendar hearing, respondent

requested time to brief his 212(c) waiver eligibility as well as his eligibility for relief in the

form of Cancellation of Removal for Certain Permanent Residents under INA 240A(a). The

Court granted respondent the requested time, instructing him to brief all "eligibility for relief

issues." While both respondent and the Government provided the requested briefing prior to

respondent's next master calendar hearing, neither party was able to procure the records related

2 Respondent also stated at that time that he would be seeking Voluntary Departure in the alternative. However, as
the Government correctly noted, respondent is ineligible for such relief due to his status as an arriving alien. See
INA 240B(a)(4), (b)(l).

2
"

3
to respondent's aggravated assault conviction. The Court, believing at that time that the entire

aggravated assault conviction record would be necessary to determine whether it constituted a

CIMT, thus disqualifying him from relief following a 212(c) waiver, denied the Government's

Immigrant & Refugee Appellate Center, LLC | www.irac.net


motion to pretermit based on the record before it. The Court further noted that it would

reconsider the Government's position if a renewed motion to pretermit was submitted in tandem

with a ''more complete record" of respondent's aggravated assault conviction.

On May 23, 2014, the Government submitted a Renewed Motion to Pretermit,

accompanied by a General Incident Report prepared by the Grand Rapids Police Department

("GRPD") relating to the respondent's aggravated assault conviction, as well as an Investigating

Officer's Offense Report Follow-Up prepared by Officer Bekker, presumably a member of the

4
GRPD. DHS's Renewed Motion to Pretermit, Tab 1 (May 23, 2014). Respondent declined to

respond to the Government's renewed motion, which the Court will now decide. As there is no

dispute whether respondent's first and second convictions are or are not covered by former

5
section 212(c) of the Act, respectively, the Court's discussion is limited to the issue of whether

respondent's conviction for aggravated assault, in violation of MICH. COMP. LAWS 750.8la,

constitutes a CIMT.

3 There was no discussion of respondent's eligibility for 240A(a) relief at that hearing, and respondent bas not
since submitted briefing on that issue, nor bas he submitted an application for such relief. The Court thus considers
respondent's 240A(a) eligibility claim abandoned.
4 The Court notes that these documents fall far short of respondent's full conviction record for the offense.

However, the Court's prior request for respondent's complete conviction records was made under the presumption
that a modified categorical approach would be necessary in reaching its decision. As will be shown below,
respondent's offense is categorically a CIMT, and thus access to his full conviction record is unnecessary.
Additionally, the Court notes that the documents submitted would have been insufficient even if it had conducted a
modified categorical approach as "a police report, standing alone, is not a part of a 'record of conviction' . . . . "
Mattero/Teixeira, 21 I&N Dec. 316, 316 (BIA 1996); see also text accompanying note 6.
s The parties and the Court are in agreement that respondent is eligible to seek a 212(c) waiver for his CSC
Conviction, which occurred following a guilty plea on March 19, 1992, but that his June 1997 aggravated assault
conviction would be ineligible for such relief. See generally Matter ofAbdelghany, 26 I&N Dec. 245 (BIA 2014)
(permitting 212(c) waiver for convictions obtained by guilty plea prior to April 24, 1996, but eliminating such
relief for all convictions occurring after April 1, 1997).

3
II. LEGAL STANDARDS

A. CRIMES INvOLVING MORAL TuRPITUDE

To qualify as a CIMT, "a crime must involve both reprehensible conduct and some

Immigrant & Refugee Appellate Center, LLC | www.irac.net


degree of scienter, whether specific intent, deliberateness, willfulness, or recklessness.'' Matter

of Silva-Trevino, 24 l&N Dec. 687, 689 n.l (A.G. 2008). Generally, moral turpitude refers to

conduct that is inherently base, vile, depraved, or contrary to the accepted rules of morality and

the duties owed between persons or society in general. See Ruiz-Lopez v. Holder, 682 F.3d 513,

518-19 (6th Cir. 2012); Matter ofFranklin, 20 l&N Dec. 867, 868 (BIA 1994). The seriousness

of a criminal offense, the severity of the sentence imposed, or the particular circumstances of the

crime's commission are of no import. Matter of Serna, 20 l&N Dec. 579, 581 (BIA 1992);

Matter ofShort, 20 I&N Dec. 136, 137 (BIA 1989). Therefore, when evaluating whether a crime

involves moral turpitude, the specific statute under which the conviction occured
r controls.

Matter of Lopez-Meza, 22 l&N Dec. 1188, 1193 (BIA 1999); see also Matter ofKhourn, 21 I&N

Dec. 1041, 1044 (BIA 1997); Franklin, 20 I&N Dec. at 868-69.

To determine whether an alien's conviction is a CIMT, the Court has traditionally

employed a two-step analysis, first using a categorical and then a modified categorical approach,

as enumerated in Taylor v. United States, 495 U.S. 575, 600-02 (1990), and Shepard v. United

States, 544 U.S. 13, 16-17 (2005). Prior to Descamps v. United States, 133 S. Ct. 2276 (2013),

some immigration judges applied the three-step CIMT analysis set forth in Matter of Silva-

Trevino, 24 I&N Dec. at 687.6

6It is worth noting that the Sixth Circuit Court of Appeals, in whose jurisdiction this Court sits, never formally
adopted this three-tiered approach. See Ruiz-Lopez, 682 F.3d at 518 (applying only the first two steps of Si/va
Trevino); Kellerman v. Holder, 592 F.3d 700, 703-05 (6th Cir. 2010) (same); Serrato-Soto v. Holder, 510 F.3d 686,
689-90 (6th Cir. 2009) (same). Further, Silva-Trevino was recently overruled by the Fifth Circuit Court of
Appeals. See Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014). While the Fifth Circuit decision is not binding
on this Court, the decisions of the Sixth Circuit are. In light of the foregoing, the Court will only employ the
categorical and modified categorical approaches for determining whether an offense constitutes a crime involving

4
Although Descamps involved the analysis employed for determining whether a

conviction is for a violent felony under the Armed Career Criminal Act, it provided clarification

as to the implementation of the categorical and modified categorical approaches employed in

Immigrant & Refugee Appellate Center, LLC | www.irac.net


both federal criminal sentencing and immigration. See also United States v. Covington, 738 F.3d

759, 763 (6th Cir. 2014) (applying Descamps in the sentencing context). As the Board, the

Attorney General, and the Sixth Circuit Court of Appeals have adopted the categorical and

modified categorical approaches for determining whether a crime involves moral turpitude, the

Descamps clarification necessarily impacts future decisions by this Court.

Under the categorical approach, the Court is limited to reviewing the elements of the

statute of conviction, rather than the specific facts of the alien's crime. Descamps, 133 S. Ct. at

2283; Serrato-Soto, 510 F.3d at 690. The Court must presume that the conviction rests upon

nothing more than the least serious of the acts criminalized by the statute. Moncrieffe v. Holder,

133 S. Ct. 1678, 1684 (2013). However, there must be a realistic probability that the state would

apply its statute to non-turpitudinous conduct contained within the offense in order to show that

the statute in question is not a categorical match. Id.; see also Gonzales v. Duenas-Alvares, 549

U.S. 183, 193 (2007); Silva-Trevino, 24 l&N Dec. at 688.

If all offenses under the statute are crimes which necessarily involve moral turpitude,

then the alien's conviction is for a crime involving moral turpitude and the inquiry ends. Ruiz

Lopez, 682 F.3d at 518. If instead the statutory language could encompass ''both conduct that

involves moral turpitude and conduct that does not," then the statute is not a categorical match.

Silva-Trevino, 24 l&N Dec. at 697. Under Descamps, deviation from the categorical approach

(i.e., application of the modified categorical approach) is permitted in only one scenario: when

(1) the respondent's prior conviction was for violating a divisible statute, and (2) only some of

moral turpitude.

5
7
the offenses or elements in the statute are a categorical match to the generic crime. Descamps,

133 S. Ct. at 2282-85 (citing Taylor, 495 U.S. at 602; Shepard, 544 U.S. at 17).

A divisible statute sets out one or more elements of the offense in the alternative-for

Immigrant & Refugee Appellate Center, LLC | www.irac.net


example, burglary involving entry into a building or an automobile, or breaking and entering

with or without a weapon. Id. at 2281, 2283. An offense's elements are those aspects which a

jury is required to find ''unanimously and beyond a reasonable doubt.'' Id. at 2288; Matter of

Chairez, 26 l&N Dec. 349, 354 (BIA 2014) (citations omitted). If jury unanimity is not required,

then the disjunctively presented alternatives are merely various ''means" by which a defendant

can commit the offense, not alternative "elements" of the offense. Chairez at 354 (citing Schad

v. Arizona, 501 U.S. 624, 636 (1991)). The focus of the modified categorical analysis is to

determine under which of the alternate elements respondent was convicted, rather than to

discover what respondent actually did. Id. at 2285. Using this approach, the Court may look at

extrinsic evidence such as the "charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual finding by the trial judge to which the defendant assented."

Shepard, 544 U.S. at 16.

B. AGGRAVATED ASSAULT MICH. COMP. LAWS 750.8la


-

MICH. COMP. LAWS 750.8la states, in pertinent part, that:

(1) Except as otherwise provided in this section, a person who assaults an

individual without a weapon and inflicts serious or aggravated injury upon

that individual without intending to commit murder or to inflict great

bodily harm less than murder is guilty of a misdemeanor punishable by

imprisonment for not more than 1 year or a fine of not more than

7In the CIMT context, this means that some of the offenses contemplated by the statute do not fit the definition of a
CIMT. Ruiz-Lopez, 682 F.3d at 518.

6
$1,000.00, or both.

(2) Except as provided in subsection (3), an individual who assaults his or

her spouse or former spouse, an individual with whom he or she has or has

Immigrant & Refugee Appellate Center, LLC | www.irac.net


had a dating relationship, an individual with whom he or she has had a

child in common, or a resident or form.er resident of the same household

without a weapon and inflicts serious or aggravated injury upon that

individual without intending to commit murder or to inflict great bodily

harm less than murder is guilty of a misdemeanor punishable by

imprisonment for not more than l year or a fine of not more than

$1,000.00, or both.8

MICH. COMP .. LAWS 750.8la(l)-(2) (West 2014). As indicated by the Michigan Model

Criminal Jury Instructions, three elements must be proven beyond a reasonable doubt in

aggravated assault cases: (l) that the defendant tried to physically injure another person; (2) that

the defendant intended to injure; and (3) that the assault caused a serious or aggravated injury.

MICH. M CRIM JI 17.6 (2014); see also Brown, 296 N.W.2d at 122-23 (rejecting defendant's

claim that prosecution failed to sustain burden of proof on aggravated assault charge, finding

evidence "sufficient to justify ... a serious or aggravated injury" where testimony showed victim

had been rendered unconscious by blow to the head, struck his head on concrete as a result, and

"suffered cuts on his face, an eye injury, and a bruised neck").

Ill. DISCUSSION AND ANALYSIS

Respondent's conviction in violation of MICH. COMP. LAWS 750.8la is categorically a

CIMT. The Board of Immigration Appeals (''BIA" or "Board'') has routinely stated that

8 Subsection (3) includes the same basic requirements as subsection (2), but provides for increased penalties if the
perpetrator has previously committed a similar domestic violence offense. See MICH. COMP. LAWS 750.8 l a(3).

7
'"simple assaults' are generally not considered to be crimes involving moral turpitude." Matter

of Solon, 24 I&N Dec. 239, 241 (BIA 2007) (citing Matter of Danesh, 19 I&N Dec. 669, 670

(BIA 1988)). Simple assaults often lack an intent requirement, and many "prohibit a wide range

Immigrant & Refugee Appellate Center, LLC | www.irac.net


of conduct or harm, including de minimis conduct or harm." Id. at 241 (citations omitted).

However, "( c]rimes committed intentionally or knowingly have historically been found to

involve moral turpitude." Id. at 240 (emphasis added) (citations omitted).

Specifically, in the context of assault crimes, ''intentional conduct resulting in a

meaningful level of harm, which must be more than mere offensive touching, may be considered

morally turpitudinous." Id. at 242; see also Singh v. Holder, 321 Fed. App'x 473, 476-77 (6th

Cir. 2009) (citations omitted) (noting that in the assault context, aggravating factors such as the

infliction of physical harm have prompted the BIA to find morally turpitudinous behavior). The

Board has previously found such a "meaningful level of harm," and ultimately a CIMT, where

the intentional action of the offender results in "impairment of physical condition or substantial

pain." Solon, 24 I&N Dec. at 245; see also Danesh, 19 I&N Dec. at 674 (''The fact that bodily

injury is an essential element indicates that sufficient force must have been employed to cause

harm to the victim's person. The offense is therefore properly deemed to be more serious than a

simple assault.").

Michigan's aggravated assault statute bears a striking resemblance to the New York

statute the Board deemed a CIMT in Matter of Solon. There, the Board determined that there

were two elements necessary to sustain a conviction of assault in the third degree: "(l) that the

offender acts with the conscious objective to cause another person [meaningful physical injury] .

. . and (2) that such impairment of physical condition or substantial pain actually results." Solon,

24 I&N Dec. at 245. Similarly, to sustain an aggravated assault conviction in Michigan, the

8
prosecutor must show beyond a reasonable doubt: (1) that the defendant tried to physically injure

another person; (2) that the defendant intended to injure; and (3) that the assault caused a serious

or aggravated injury. MICH. M CRIM JI 17.6 (2014). Though different in form, these three

Immigrant & Refugee Appellate Center, LLC | www.irac.net


elements are identical in substance to those considered by the Board in Solon. To be convicted

of aggravated assault in Michigan, the defendant must have intentionally acted to cause another

an injury decidedly more serious than a ''mere offensive touching," and been successful in that

9
attempt This is true regardless of which subset of the offense the defendant is charged under.

Michigan's aggravated assault statute is thus categorically&. CIMT. There is no realistic

probability that any conduct which is not sufficiently base, vile, depraved, or contrary to the

accepted rules of morality and the duties owed between persons or society in general will be

punished under MICH. COMP. LAWS 750.81a. See Ruiz-Lopez, 682 F.3d at 518-19. As such,

this Court is precluded from conducting a modified categorical approach, and the lack of

respondent's conviction records is immaterial. Because respondent is precluded from seeking a

10
waiver for his aggravated assault conviction under former section 212(c) of the Act and he has

abandoned his claim for cancellation of removal, the Government's motion to pretermit will be

granted.

9The Court notes, however, that "it has often been found that moral turpitude necessarily inheres in assault and
battery offenses that are defined by reference to the infliction of bodily harm upon a person whom society views as
deserving of special protection, such as ... a domestic partner." Matter ofSanudo, 23 I&N Dec. 968, 971-72 (BIA
2006) (emphasis added) (citations omitted). This suggests that subsections (2) and (3), which specifically relate to
aggravated assault of a domestic partner, are only more vile and reprehensible than the most basic form of
aggravated assault. See MICH. COMP. LAWS 750.Sl a.
10
See supra note 5.

9
'
'

IV. ORDERS

IT IS HEREBY ORDERED that the Government's motion to pretermit be


GRANTED.

IT IS FURTHER ORDERED that respondent's application for waiver under

Immigrant & Refugee Appellate Center, LLC | www.irac.net


former section 212(c) of the Act be DENIED.

IT IS FURTHER ORDERED that respondent be removed to JAMAICA under


the charges contained in the Notice to Appear.

Date Hoa D
U.S. hnmigration Judge

APPEALDUEDATE: March 11, 2015

10