U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Of
f ice ofthe Clerk

5107 Leesburg Pike, Suue 2000

Falls Church, Virginia 22041

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Nasseri, Joubin OHS/ICE Office of Chief Counsel - LOS
Nasseri Law Gropu 606 S. Olive Street, 8th Floor
617 S. Olive St. Suite 500 Los Angeles, CA 90014
Los Angeles, CA 90014

Name: ALCALA TORRES, JOSE JESUS A 087-193-598

Date of this notice: 2/22/2018

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Creppy, Michael J.
Mullane, Hugh G.
Liebowitz, Ellen C

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Usertea m: Docket

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Cite as: Jose Jesus Alcala Torres, A087 193 598 (BIA Feb. 22, 2018)
' U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 2204 l

File: A087 193 598 - Los Angeles, CA Date:

FEB 2 2 2818
In re: Jose Jesus ALCALA TORRES a.k.a. Jesus Alcala

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IN REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Joubin Nasseri, Esquire

ON BEHALF OF OHS: Heather Libeu

Assistant Chief Counsel

APPLICATION: Adjustment of status

The Department of Homeland Security ("OHS") has appealed from the Immigration Judge's
October 4, 2016, written decision granting the respondent's application for adjustment of status
under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a). The respondent,
a native and citizen of Mexico and lawful permanent resident of the United States, has filed a brief
in opposition to the appeal. The DHS's appeal will be dismissed in part, and the record will be
remanded to the Immigration Judge for further action or proceedings.

We review findings of fact determined by an Immigration Judge, including credibility fmdings,

under a "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). We review questions of law,
discretion, and judgment, and all other issues in an appeal from the decision of an
Immigration Judge, de novo. 8 C.F.R. § 1003. l(d)(3)(ii).

The OHS argues on appeal that the Immigration Judge erred in holding that the respondent's
conviction for child abuse under section 273a(a) of the California Penal Code does not qualify as
a conviction for a crime involving moral turpitude, which would require the respondent to obtain
a waiver of inadmissibility under section 212(h) of the Act, 8 U.S.C. § 1182(h). We are not
persuaded by the DHS's appellate arguments in this regard.

A California court has held that child endangerment under the substantively indistinguishable
precursor to section 273a(a) does not qualify as a crime involving moral turpitude, as an offense
may involve a mens rea of only criminal negligence, and the statute "can be violated by wholly
passive conduct, free from any element of force, violence, threat, fraud, deceit, or stealth, even
when motivated by a sincere, good faith but unreasonable belief the conduct is in the child's best
interests." People v. Sanders, 10 Cal. App. 4th 1268, 1274-75 (Cal. Ct. App., Fifth Dist. 1992).
Moreover, this Board has held that a mens rea of criminal negligence is insufficient to qualify an
offense as a crime involving moral turpitude. Matter of Perez-Contreras, 20 I&N Dec. 615
(BIA 1992); cf Matter of Wu, 27 I&N Dec. 8 (BIA 2017) (concluding that assault with a deadly
weapon or force likely to produce great bodily injury under California law, which requires a
culpable mental state greater than recklessness and criminal negligence, categorically involves
Cite as: Jose Jesus Alcala Torres, A087 193 598 (BIA Feb. 22, 2018)
( A081 193 5�8
I

moral turpitude). Furthermore, the United States Court of Appeals for the Ninth Circuit has held
that section 273a(a) of the California Penal Code is indivisible with respect to the mens rea
element. Ramirez v. Lynch, 810 F.3d 1127 (9th Cir. 2016).

As the least culpable violation of the statute does not involve moral turpitude, and the statute

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is indivisible such that we may not refer to the respondent's conviction record to determine the
mens rea involved in his specific violation of the statute, we affirm the Immigration Judge's
holding that the respondent was convicted of a crime that categorically does not qualify as a crime
involving moral turpitude (IJ at 10-12). See generally Matter of Chairez, 26 I&N Dec. 819
(BIA 2016) (providing that a state statute is "divisible" where the statute provides alternative
elements, as opposed to alternative means of committing the crime, and that in the case of a
"divisible" statute, we may look to the conviction record to determine whether the conviction at
issue qualifies as a conviction for a generic federal crime). We therefore dismiss the appeal insofar
as the DHS challenges this holding.

The DHS also argues that the respondent is statutorily ineligible for adjustment of status
because he is inadmissible under section 212(a)(9)(C) of the Act. See generally section 245(a)(2)
of the Act. The Immigration Judge did not provide adequate findings of fact or analysis to allow
for meaningful appellate review of this issue. In particular, while the respondent claims to have
entered the United States in 1994, and testified that he was outside of the United States for a total
of 20 to 30 days before reentering without authorization in July 1998, the Immigration Judge did
not make clear findings of fact regarding whether the respondent was unlawfully present in the
United States for at least 1 year before reentering without authorization in July 1998 (Tr. at 121-26;
Exh. 18; cf IJ at 13 (stating that "it is possible that the [r]espondent departed the United States
before accruing [l) year of unlawful presence subsequent to April 1, 1997" (the date the unlawful
presence clock began to run, pursuant to the pertinent regulation))).

In addition, the Immigration Judge did not adequately explain why the respondent's 2008
adjustment of status would overcome the indication in the record that the respondent was
unlawfully present for more than 1 year before reentering the United States without authorization
in July 1998 (cf IJ at 13). See generally 8 C.F.R. § 1240.8(d). In this regard, we note that the
respondent did not disclose his 1998 departures from the United States on the Application to
Register Permanent Residence or Adjust Status (Form 1-485) that he filed with the court
(Exh. 6(B); see also Tr. at 121-22 (respondent's initial testimony that he had never departed the
United States after first entering in 1994)). Moreover, the record is devoid of evidence indicating
whether he disclosed such departures in relation to his 2008 adjustment of status. We emphasize
that the respondent has the burden to establish his eligibility for relief from removal. See section
240(c)(4)(A) of the Act, 8 U.S.C. § 1229a(c)(4)(A); see also 8 C.F.R. § 1240.8(d).

In view of the foregoing, we will remand the record to the Immigration Judge for further
consideration of the respondent's statutory eligibility for adjustment of status. Matter of S-H-,
23 l&N Dec. 462 (BIA 2002) (emphasizing the need for Immigration Judges to include in their
decisions clear and complete findings and analysis that are in compliance with controlling law, in
view of this Board's inability to conduct fact-finding on appeal). Because we- will remand the
record on the foregoing basis, we will not presently address the DHS's alternative argument that
the respondent has not shown that he merits a discretionary grant of adjustment of status because

2
Cite as: Jose Jesus Alcala Torres, A087 193 598 (BIA Feb. 22, 2018)
A08'7 193 598

he has not established that his removal will result in exceptional and extremely unusual hardship. 1
See generally Matter of J-G-, 26 I&N Dec. 161, 170 (BIA 2013). Accordingly, the following
orders will be entered.

ORDER: The DHS's appeal is dismissed in part.

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

Board Member Hugh G.' Mullane would reverse the grant of adjustment of status in the exercise
of discretion and so remand is not warranted.

1 The respondent has not appealed from any portion of the Immigration Judge's decision,
including the Immigration Judge's determination that his child abuse conviction qualifies as a
conviction for a violent or dangerous crime which triggers the heightened discretionary standards
set forth in Matter of Jean, 23 I&N Dec. 373 (A.G. 2002). See generally Torres-Valdivias
v. Lynch, 786 F.3d 1147 (9th Cir. 2015). He also does not challenge the finding that he is
removable as charged under section 237(a)(2)(E)(i) of the Act, 8 U.S.C. § 1227(a)(2)(E)(i)
(Exh. 1).

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Cite as: Jose Jesus Alcala Torres, A087 193 598 (BIA Feb. 22, 2018)