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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 22041

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Chan, R Linus DHS/ICE Office of Chief Counsel -BLM
Detainee Rights Clinic U of Minn Law (MSP)
School 1 Federal Drive, Suite 1800
190 Walter Mondale Hall Ft. Snelling , MN 55111
22919th Avenue S
Minneapolis, MN 55455

Name: T ,E A 069

Date of this notice: 9/13/2017

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:
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index

Cite as: Elvis Tahirovic, A078 477 069 (BIA Sept. 13, 2017)
(T.S. D�fiartment of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 2204 I

File: 069 - Fort Snelling, :tvfN Date:

In re: E T SEP 1 3 2017

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: R. Linus Chan, Esquire

ON BEHALF OF OHS: Cassondra Bly


Assistant Chief Counsel

APPLICATION: Termination

The Department of Homeland Security ("DHS") appeals from an Immigration Judge's


April 26, 2017, decision terminating the respondent's removal proceedings. The respondent has
filed a brief in opposition to the DHS's appeal. The DHS's appeal will be dismissed.

This Board must defer to the Immigration Judge's factual findings, including findings as to the
credibility of testimony, unless they are clearly erroneous. See 8 C.F.R. § 1003.l(d)(3)(i);
Matter of Z-Z-O-, 26 I&N Dec. 586 (BIA 2015). We review questions of law, discretion, and
judgment de novo. See 8 C.F.R. § 1003.l(d)(3)(ii).

On appeal, the DHS argues that the Immigration Judge erred in finding that the respondent's
conviction for unlawful transaction with a minor in violation of Kentucky Revised Statute (KRS)
§ 530.065 is not a crime involving moral turpitude (CIMT). Also, the OHS maintams that the
Immigration Judge erred in failing to find that the respondent's conviction for indecent exposure
in violation of North Dakota Century Code (NDCC) § 12.1-20-12.1 constitutes a CIMT.

In Matter ofSilva-Trevino III, 26 I&N Dec. 826 (BIA 2016), we held that the categorical and
modified categorical approaches provide the proper framework for detennining whether a
conviction is for a crime involving moral turpitude. We further held that, unless the controlling
case law of the governing Federal court of appeals expressly dictates otherwise, the realistic
probability test, which focuses on the minimum conduct that has a realistic probability of being
prosecuted under the statute of conviction, should be applied in determining whether an offense is
a categorical crime involving moral turpitude. See id.

In its decision in Mathis v. United States, 136 S. Ct. 2243 (2016), the Supreme Court applied
the categorical approach to a state burglary statute that contained alternative means to satisfy one
of its elements. In so doing, Mathis provided guidance for determining whether a predicate statute
of conviction is divisible. A statute that outlines only various means of committing the predicate
offense is not divisible, whereas a statute that sets forth alternative elements of each offense is
divisible. See id. at 2256 (emphasis added). Further, a state statute is indivisible when it contains
a single set of elements that are not set forth in the alternative. See id. Such a statute remains

Cite as: Elvis Tahirovic, A078 477 069 (BIA Sept. 13, 2017)
069

indivisible even if it "enumerates various factual means of committing a single element." See id
at 2249.

Under the categorical approach outlined in Mathis, we examine solely whether the state statute
defining the crime of conviction categorically fits within the generic Federal definition of a
corresponding aggravated felony. See id. We must compare the elements of the statute forming

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the basis of the defendant's conviction with the elements of the generic crime, and a conviction
under the state statute will only constitute a conviction for the generic offense if the statute's
elements are the same as, or narrower than, those of the generic offense. See id. If the statute can
be violated by an act that does not fit within the generic offense, then the statute cannot qualify as
an aggravated felony under the categorical approach, and this is true even if the actual conduct of
the defendant fell within the generic crime. See id. We must ascertain whether the state statute
contains alternative means or elements. In so doing, the Court in Mathis determined that state law
should be consulted. See id. at 2250. Specifically, we may consider state court rulings, the face
of the statute, the statute's structure, and "if state law fails to provide clear answers,'' the record of
prior conviction. Id. at 2256-57 & n.7.

Moral turpitude involves "conduct that shocks the public conscience as being inherently base,
vile, or depraved, and contrary to the accepted rules of morality and the duties owed between
persons or to society in general, or, in other words, an act which is per se morally reprehensible
and intrinsically wrong, and is accompanied by a vicious motive or a corrupt mind."
Da Silva Neto v. Holder, 680 F.3d 25, 29 (1st Cir. 2012) (internal quotation marks and citations
omitted).

For the reasons provided in the Immigration Judge's decision, we concur that the respondent's
conviction for unlawful transaction with a minor in the second degree is not categorically a CIMT
(IJ at 4-6). K.R.S. § 530.065 provides that (1) a person is guilty of unlawful transaction with a
minor in the second degree when he knowingly induces, assists, or causes a minor to engage in
illegal controlled substances activity involving marijuana, illegal gambling activity, or any other
criminal activity constituting a felony; (2) unlawful transaction with a minor in the second degree
is a Class D felony.

The Immigration Judge considered the respondent's conviction under the categorical approach
and observed that the statute under which the respondent was convicted lists three separate
activities under which a person could be convicted for inducing a minor to participate in (IJ at 5).
The Immigration Judge found that the s�tute was overbroad and encompassed both turpitudinous
and non-turpitudinous conduct (IJ at 5). The Immigration Judge determined that because the
specific acts listed in the statute are overbroad, the crime that the respondent was convicted of is
categorically not a CIMT. On this record, the hnmigration Judge properly found that the
respondent's conviction for unlawful transaction with a minor in violation of KRS § 530.065 is
not a crime involving moral turpitude and thus properly did not sustain the charge of removability
under section 237(a)(2)(A)(ii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(ii).

Accordingly, the following order will be entered.

2
Cite as: Elvis Tahirovic, A078 477 069 (BIA Sept. 13, 2017)
. .

069

ORDER: The DHS's appeal is dismissed.

fl�-Lf�
lf FOR THE BOARD

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3
Cite as: Elvis Tahirovic, A078 477 069 (BIA Sept. 13, 2017)
(

UNITE DSTATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION RE VIEW
IMMIGRATION COURT
FORTSN ELLING,MINNESOTA

File Number: A -069 APR 2 6 2017


Date: -----------

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In the Matter of: )
) In RemovalProceedings
E T , )
) - DE TAINE D-

__________
Respondent. )
)

Charge: INA § 237(a)(2)(A)(ii) - an alien who at any time after admission is convicted of
two crimes involving moral turpitude not arising out of a single scheme of criminal
misconduct.

Re: Respondent's Motion to Tenninate

ON BE HALF OF THE RESPONDENT: ON BEHALF OF DBS:


Linus Chan, Esq. Cassondra Bly, Esq.
Detainee Rights Clinic, Univ. of Minn. Law School Assistant Chief CounseVICE
190 Walter Mondale Hall 1 Federal Dr., Suite 1800
229 19th Avenue South Fort Snelling, MN 55111
Minneapolis, MN 55455

MEMORAN DUM AN D ORDER OF IMMIGRATION JU DGE

I. Background

E T , Respondent, is a 26-year-old man and a native and citizen of Bosnia-Herzegovina.


(Ex. 1). Respondent was admitted to the United States at New York, New York on or about
November 21, 2000, as a refugee. Id. On December 16, 2002, Respondent filed an application for
adjustment of status pursuant to section 209 of the Immigration and Nationality Act ("INA" or ''the
Act"). Id. On March 29, 2010, Respondent was convicted of Unlawful Transaction with a Minor in
violation of Ky. Rev. Stat Ann.§ 530.065 for which he was sentenced to a term of imprisonment of
two years. 1 (Ex. 1; Ex. 5). On December 10, 2010, Respondent was served an I-862 Notice to
Appear (NTA) by ICE Bowling Green. (Ex. 2). On or about June 7, 2011, Respondent was granted
·an I-602 waiver and bis adjustment of status application was granted, thereby terminating his
removal proceedings. (Ex. 2; Ex. 4). On July 18, 2016, Respondent was convicted of Indecent

The Court notes that there is a clerical error in regards to allegation 6 on Respondent's NTA. (Ex. 1). The NTA
states that Respondent was in violation of Ky. Rev. Stat. Ann. § 530.65, but the submitted conviction records list the
statute as Ky. Rev. Stat. Ann. § 530.065. (Ex. 1; Ex. 5). Both parties agree that Respondent was convicted under
Ky. Rev. Stat Ann.§ 530.065. See Ex. 6; Ex. 7.

Memorandum and Order - 069 1


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Exposure in violation of N.D. Cent. Code § 12. 1-20-12.l(a) and was sentenced to 360 days in jail.
(Ex. 1; Ex. 3). These crimes did not arise out of a single scheme of criminal misconduct. (Ex. 1).

On February 1 7, 201 7, the Department of Homeland Security (DHS) commenced removal


proceedings against Respondent with the filing of the NTA, as well as the filing of an I-261 (which
replaced the original allegation 5), charging Respondent with removability under

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section 237(a)(2)(A)(ii) of the Act for having been convicted of two crimes involving moral
turpitude (CIMTs) after admission. (Ex. 1 ; Ex. 4). Respondent admitted all factual allegations, but
he denied the charge of removability. Id.

On April 3, 201 7, Respondent filed a motion to terminate proceedings, arguing that he is not
removable under INA § 237(a)(2)(A)(ii) because neither of his convictions are CIMTs. (Ex. 6).
DHS filed a written response opposing Respondent's Motion to Terminate on April 1 0, 201 7. (Ex.
7). For the reasons stated below, the Court will grant Respondent's Motion to Terminate.

II. Legal Standard

The government bears the burden to show by clear and convincing evidence that an alien who has
been admitted to the United States is removable. See INA § 240(c)(3)(A); 8 C.F.R. § 1240.8(a). A
respondent is removable if he has been convicted of two CIMTs not arising out of a single scheme
of criminal conduct. INA § 237(a)(2)(A)(ii). A "conviction" means "a formal judgment of guilt of
the alien entered by a court" or where "a judge or jury has found the alien guilty or the alien has
entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of
guilt, and the judge has ordered some form of pwrishment, penalty, or restraint on the alien's
liberty." INA § 101(a)(48)(A).

A crime involves moral turpitude "if the relevant statute defines the offense in such a manner that it
necessarily entails conduct on the part of the offender that is inherently base, vile, or depraved, and
contrary to accepted rules of morality and the duties owed between persons or to society in
general." Matter of Kochlani, 24 I&N Dec. 128, 129 (BIA 2007). Morally turpitudinous conduct is
"per se morally reprehensible and intrinsically wrong or malum in se, so it is the nature of the act
itself and not the statutory prohibition of it which renders a crime one involving moral turpitude."
Chanmouny v. Ashcroft, 376 F.3d 810, 811 (8th Cir. 2004). The BIA has held that "[n]either the
seriousness of a criminal offense nor the severity of the sentence imposed is detenninative of
whether a crime involves moral turpitude." Kochlani, 24 I&N Dec. at 129. A CIMT must also
involve some degree of scienter, whether specific intent, deliberateness, recklessness, or willfulness.
Bobadilla v. Holder, 679 F.3d 1052, 1053-54 (8th Cir. 201 2); Matter of Louissaint, 24 I&N Dec.
754, 756-57 (BIA 2009). "Among the tests to determine if a crime involves moral turpitude is
whether the act is accompanied by a vicious motive or a corrupt mind," but "the presence or
absence of a corrupt or vicious mind is not controlling." Chanmouny.. 376 F.3d at 8 1 1 ; see also
Hernandez-Perez v. Holder.. 569 F.3d 345, 348 (8th Cir. 2009).

When analyzing whether a .crime involves moral turpitude, Immigration Judges and the Board of
Immigration Appeals ("BIA" or "the Board") use the categorical and modified categorical
approaches as the proper framework. Matter of Silva-Trevino, 26 I&N Dec. 826, 831 (BIA 2016).
Where the INA contains the phrase "convicted of," the Court employs a categorical approach to

Memorandum and Order - 069 2


( (

determine wheth� the respondent's statute of conviction matches the generic definition of the
ground of removability in the INA. See Moncrieffe v. Holder, 1 3 3 S. Ct. 1 678, 1684 (201 3). Under
this approach, the Court looks not to the particular facts of the case but instead to the minimum
conduct that is required for a conviction, and then decides whether that conduct necessarily involves
facts that equate to the generic definition. Id.

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In evaluating the criminal statute under the categorical approach, the Court uses the "realistic
probability test," if the controlling federal circuit applies it. Silva-Trevino, 26 l&N Dec. at 83 1-33;
see also Matter of Chairez, 26 l&N Dec. 8 1 9, 820 (BIA 201 6). The Eighth Circuit uses the "realistic
probability" test. See Villatoro v. Holder, 760 F.3d 872, 877-79 (8th Cir. 2014). Under this test,
assessing the minimwn conduct criminalized by the statute is "not an invitation to apply 'legal
imagination' to the offense." Moncrieffe, 1 33 S. Ct at 1 684-85. Specifically, there must be "a
realistic probability," not simply a theoretical possibility, that the statute would be applied to
conduct that falls outside the generic definition of the relevant removability ground. Id. Ultimately,
a respondent's statute of conviction matches the removability ground at issue only if his conviction
'"necessarily' involved ...facts equating to" the generic off�e, and whether his actual conduct
involved such facts is "quite irrelevant." Id. at 1 684 (citations omitt�).

The first step in assessing whether a crime involves moral turpitude is to look to the statutory
language of the crime and "examine the statute itself to determine whether the inherent nature of the
crime involves moral turpitude." Chanmouny� 376 F.3d at 8 1 1 ; see also Hernandez-Perez, 569 F.3d
at 348. "If the statute defines a crime in which moral turpitude necessarily inheres," because its
elements match or are narrower than the generic CIMT definition, the conviction is categorically a
CIMT and the analysis ends. Chanmouny, 376 F.3d at 8 1 1; see also Descamps v. United States, 133
S. Ct. 2276, 2281 (201 3). Alternatively, if the statute sweeps more broadly than the CIMT
definition, so that it encompasses both turpitudinous -and non-turpitudinous conduct, and the Court
must examine divisibility and, if the statute is divisible, proceed to the modified categorical
approach, which involves reviewing the record of conviction. See Descamps, 133 S. Ct. at 2281,
2283; Chanmouny. 376 F.3d at 812.

A statute is "divisible" with respect to moral turpitude if: (1) it lists multiple discrete offenses as
enumerated alternatives or defines a single offense by reference to disjunctive sets of elements,
more than one combination of which could support a conviction; and (2) at least one, but not all, of
those listed offenses or combinations of disjunctive elements categorically qualifies as a CIMT. See
Descamps, 1 33 S. Ct. at 2281 , 2283; United States v. Tucker, 740 F.3d 1 1 77, 1 1 82 (8th Cir. 201 4).
If the statute '�list[s] elements in the alternative, thereby defin[ing] multiple crimes," it is divisible.
Mathis v. United States, 136. S. Ct. 2243, 2249 (2016). The elements are the parts of the crime's
legal definition that "[a]t trial, a jury must find beyond a reasonable doubt to convict the defendant;
and at a plea hearing, [that] the defendant necessarily admits when he pleads guilty." Id. at 2248
(citations omitted). The Court should determine the elements of the statute by examining the text of
the statute or state case law. ML at 2256. Any statutory alternative that increases the maximum
punishment for the offense must be an element. Id. When state law fails to clarify the elements, the
Court may examine the record of conviction for the sole purpose of determining whether the listed
parts are elements of the offense. Id. at 2256-257. The record of conviction may include "the
charging· document and jury -instructions, -or in the -case -of a guilty plea, the plea agreement, plea
colloquy, or 'some comparable judicial record' of the factual basis for the plea" in order to

Memorandum and Order -- 069 3


( (

determine which portion of the statute Respondent was convicted under. Moncrieffe, 133 S. Ct. at
1 684-85. However, the Court may only use the record of conviction in its analysis if it speaks
plainly as to the el�ents of the statute. Mathis, 133 S. Ct. at 2253 ("In other words, the modified
approach serves-and serves solely-as a tool to identify the elements of the crime of conviction
when a statute's disjunctive phrasing renders_ one (or more) of them opaque.'l. If the record of
conviction does not shed light on which alternative the respondent was convicted of, the inquiry

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ends. Descamps, 133 S. Ct. at 2283; see also ·Matter of Tavares Peralta, 26 l&N Dec. 171 (BIA
201 3) . .

m. Analysis

A. Collateral estoppel

As a preliminary issue, the Court must determine whether collateral estoppel applies. DHS argues
that Respondent's conviction in violation of Ky. Rev. Stat. Ann. § 530.065 is collaterally estopped
from being re-litigated because in 201 1, an Immigration Judge in Chicago determined Respondent's
conviction was a CIMT. (Ex. 2; Ex. 4). In making the determination that Respondent's conviction
was a CIMT, the Immigration Court's analysis was guided by the framework under Silva-Trevino,
24 l&N Dec. 687 (AG 2005) vacated by 26 l&N Dec. 550 (AG 2015). Respondent subsequently
received a 209(c) waiver for his cqnviction and adjusted his status in 201 1. (Ex. 2; Ex. 4).

Collateral estoppel is applicable ''when an issue of ultimate fact has been determined by a valid and
final judgment." United States v. Brekke, 97 F.3d 1043, 1 049 (8th Cir. 1996). It extends to
circumstances where "the controlling facts and applicable legal rules remain unchanged/' Ginters v.
Frazier, 614 F.3d 822, 826-27 (8th Cir. 201 0) (quoting Montana v. United States, 440 U.S. 1 47, 158
(1 979)). An exception to collateral estoppel exists when the governing principals of law have
changed. See id. at 827. Furthermore, collateral estoppel ·is a question of law, which is a
discretionary doctrine. See Estrada-Rodriguez v. Lynch, 825 F.3d 397, 401-03 (8th Cir. 201 6)
(finding that an U's decision to reconsider whether Respondent's conviction was a CIMT after his
· case was remanded from the BIA was not an abuse of discretion).

Collateral estoppel does not bar the Court from re-detennining whether Respondent's conviction is
a CIMT because the controlling law has changed. See Ginters,- 6 1 4 F.3d at 827. Respondent's case
was previously analyzed under the now abandoned Silva-Trevino standard to determine whether
Respondent was removable. The Co�, in its discretion, will reconsider Respondent's conviction in
light of the fact that �e Eighth Circuit had utilized Silva-Trevino only out of Chevron deference to
the Board and the fact that Silva-Trevino has been vacated by the Attorney General. See Silva­
Trevino, 26 I&N 550; see also Estrada-Rodreguez, 825 F.3d at 401-403 . Under the change in law,
the Court now looks to the Eighth Circuit's methodology apart from its deference to Silva-Trevino
in making a new determination as to whether Respondent's conviction is a CIMT. See Ginters, 6 1 4
F.3d at 827.

B. Respondent 's conviction is categorically not a CIMT

Respondent was convicted of unlawful transaction with a minor in the second degree as prohibited
by Ky. Rev. Stat. Ann. § 530.065. (Ex. 5). The statute of conviction reads, in relevant part:

Memorandum and Order - 069 4


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1 . A person is guilty of unlawful transaction with a minor in the second degree when
he knowingly induces, assists, or causes a minor to engage in illegal controlled
substances activity involving marijuan� illegal gambling activity, or any other
criminal activity constituting a felony.
2. Unlawful transaction with a minor in the second degree is a Class D felony.

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Ky. Rev. Stat. Ann. § 530.065 (2016). The Court begins with the categorical approach. See
Moncrieffe, 1 33 S. Ct. at 1 684. Except when related to sexual offenses,' contributing to the
delinquency of minors has been traditionally found to not be a CIMT. See Matter of P-, 2 I&N Dec.
1 1 7, 121-22 (BIA 1 944) (finding that the Washington statute prohibiting the willful contribution to
the delinquency of minors does not involve moral turpitude where neither the statute nor the
underlying record of conviction disclosed an evil intent); Sheikh v. Gonzales, 427 F.3d 1077, 1082
(8th Cir. 2005) (misdemeanor conviction for contributing to delinquency of a minor was a CIMT
for having sexual intercourse with a minor). Under Respondent's statute of conviction, there are
three separate activities that a person could be convicted for inducing a minor to participate in:
"illegal controlled substances activity involving marijuan� illegal gambling activity, or any other .
criminal activity constituting a felony." Ky. Rev. Stat. Ann. § 530.065.

The language of the statute is overbroad and encompasses both turpitudinous and non-turpitudinous
conduct. See Chanmouny, 376 F.3d at 812. The language related to illegal activity involving
marijuana is very broad and can cover inducing a child to possess or distribute marijuana. See
Nelson v. Commonwealth of Kentucky, 2003 WL 21475890, at 3 (Ky.Ct.App. June 27, 2003)
(defendant was convicted of second degree unlawful transaction with a minor for failing to prevent
a 14-year-old girl from picking up a marijuana joint at his residence). Drug possession offenses are
generally not CIMTs, Matter of Abreu-Semino, 12 I&N Dec. 775 (BIA 1968), but intent to
distribute is. Matter of Khoum, 21 I&N Dec. 1041, 1046-47 (BIA 1997). Gambling has also not
been found to be a CIMT. See Matter of Gaglioti, 10 I&N Dec. 719 (BIA 1964); see also Matter of
E, 2 I&N Dec. 610, 611 (BIA 1946) (encouraging a minor to frequent a pool hall where a gambling
machine is located is not conduct that falls under moral turpitude). Encouraging a minor to engage
in any felony criminal activity is also overbroad and could include crimes that involve turpitudinous
and non-turpitudinous conduct. Not all felonies will constitute a CIMT because there must be some
vicious intent or "malum in se" within the act itself. See Chanmouny, 376 F.3d at 8 1 1 ; see also
Ky. Rev. Stat. Ann. § 218A.1415 (201 1) (possession of controlled substance in the first degree is a
felony); see also Abreu-Semino 12 I&N Dec. 775. Because assisting a minor to engage in conduct
related to marijuan� gambling, or any other felony is overboard, the statute is categorically not a
CIMT.2 Therefore, the Court concludes that Respondent's conviction for _violating

2
Even if, as DHS argues, the inducement, encouragement, or causing of a child to possess marijuana elevates
this conduct to a CIMT, Ex. 7, the Court would still find that Respondent's conviction is not a CIMT using the modified
categorical approach. The statute is still overbroad because assisting a minor to gamble is not a CIMT. See Gaglioti. 1 0
l&N Dec. 719; Matter ofF-, 2 l&N Dec. at 6 1 1 . Because the statute i s overbroad, th e Court must next look to whether
the statute is divisible as_ to elements with respect to moral turpitude. See Descamps, 1 33 S.Ct. at 2281, 2283; Tucker,
740 F.3d at 1 182. Here, the statute is divisible because it lists three discrete offenses. See Descamps, 133 S.Ct. at 228 1.
State law is unclear because state courts have not issued a decision to whether these offenses are alternative methods.
However, under Mathis, courts are allowed to take a ''peek,, at the record of conviction, which includes the charging
document, plea colloquy, or jucy instructions to detennine whether something is an element or a means. 136 S .Ct at
2256-57; � also Matter of Chairez-Castrejon, 27 I&N Dec. 21, 23 (BIA 2017). In this case, the charging document

Memorandum and Order - 069 5


Ky. Rev. Stat. Ann. § 530.065 is categorically not a CIMT. Thus, the Court finds that DHS has
failed to meet its burden that a violation of Ky. Rev. Stat. Ann. § 530.065 is a crime involving
moral turpitude. See INA § 240(c)(3)(A); 8 C.F.R. § 1 240.8(a).

The Court does not reach whether Respondent's conviction for indecent exposure in violation of
N.D. Cent. Code § 1 2. 1 -20-12.l (a) is a crime involving moral turpitude because OHS must

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establish that Respondent was convicted of two CIMTs. DHS has not met its b�den that a violation
of Ky. Rev. Stat Ann. § 530.065 is a CIMT. Therefore, because the Court has found that DHS has
failed to meet its burden to show Respondent has been convicted of "two crimes involving moral
turpitude" as described in section 237(a)(2)(A)(ii) of the Act, the Court dismisses the charge.
Consequently, because there are no other charges of removability in this case, the Court terminates
these removal proceedings. Accordingly, the Court enters the following orders:

ORDER
IT IS HEREBY ORDERED that the charge of removability brought under INA § 237(a)(2)(A)(ii)
be NOT SUSTAINED.

IT IS FURTHER ORDERED that Respondent's Motion to Terminate Proceedings be


GRANTED.

�ID.�-
Kristin W. Olmanson
Immigration Judge

was included with the record of conviction and shows that Respondent was only charged under the third activity of
inducing a minor to engage in "criminal activity constituting a felony." (Ex. 5 at 9). Therefore, because each of the
listed offenses must be individually proven beyond a reasonable doubt, the three separate activities are elements as
opposed to means. See Mathis, 136 S.Ct. at 2257.

Since the statute is divisible as to elements of moral turpitude, the Court is allowed to use the modified categorical
approach and review the record of conviction to see what Respondent was convicted of. See Descamps, 133 S.Ct. at
228 1. As previously noted, the charging document shows Respondent,, was convicted under the third activity of inducing
a minor to engage in "criminal activity constituting a felony. (Ex. 5 at 9). While felonies are indicative of the
seriousness of a crime, seriousness alone is not determinative to whether a crime is a CIMT. See Kochlani, 24 l&N Dec.
at 129. This is because for a crime to be considered a CIMT, there must be some malum in se, or morally reprehensible
. conduct. See Chanmouny, 376 F.3d at 811. The BIA has held that it is appropriate to look at the substantive crimes
underlying an inchoate 'offense "to determine whether inchoate offenses .. . constitute crimes involving moral turpitude.''
Matter of Gonzalez Romo, 26 I&N Dec. 743 , 746 (BIA 2016). In the case of Respondent, it is unclear within the record
of conviction what the underlying felony Respondent induced, assisted, or caused a minor to engage in. As discussed
above, there are certain felonies that are not CIMTs. � Ky. Rev. Stat. Ann. § 2 1 8A. 1415. The mere contribution to a
minor's delinquency through the commission of a crime is not enough to establish it as a CIMT unless the statute
requires evil intent and the prohibited conduct is so reprehensible. See Matter of P-, 2 I&N at 121-22; � 427 F.3d
at 1082. Respondent's statute of conviction only requires intent to assist, cause, or induce a minor to commit a felony,
but it does not describe what the specific felony is. Without knowing what the underlying felony is, the Court is unable
to determine whether Respondent engaged in morally reprehensible conduct. See Chanmouny. 376 F.3d at 811.
Because the record is inconclusive, and Respondent's . conviction could include · both turpitudinous and non­
turpitudinous conduct, the Court finds that DHS has failed to meet its burden that a violation of
Ky. Rev. Stat. Ann.§ 530.065 is a crime involving moral turpitude. See INA§ 240(c)(3)(A); 8 C.F.R. § 1240.S(a).

Memorandwn and Order - A -069 6