U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 leesburg Pike, Sulle 2000

Falls Church, 11,rgm,a 22041

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Hathaway, John Alan OHS/ICE Office of Chief Counsel• OMA
Vondra & Malott, PLC 1717 Avenue H, Room 174
1934 Boyrum Street Omaha, NE 68110
Iowa City, IA 52240

Name: AUSTIN KAHN, JUNIOR A 094-642-783

Date of this notice: 2/28/2020

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Wendtland, Linda S.
Donovan, Teresa L.
Swanwick, Daniel L.

Userteam: Docket

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Cite as: Junior Austin Kahn, A094 642 783 (BIA Feb. 28, 2020)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A094-642-783 - Omaha, NE Date:

FEB 2 8 2020

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In re: Junior AUSTIN KAHN

IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT: John A. Hathaway, Esquire

APPLICATION: Reopening

The respondent, a native and citizen of the Ivory Coast, and a lawful permanent resident, has
filed a timely motion to reopen our July 26, 2019, decision dismissing his appeal. He has also
filed a motion for a stay of removal. The Department of Homeland Security has not responded to
the motion. The motion will be granted and the record will be remanded.

In an August 29, 2018, decision an Immigration Judge found the lawful permanent resident
removable as charged, and denied his application for cancellation of removal under section 240A(a)
of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a). Incorporated in that decision was a
separate decision dated June 11, 2018, addressing the charge of removability, in which the
Immigration Judge found that the respondent was removable under section 237(a)(2)(A)(ii) of the
Act, 8 U.S.C. § 1227(a)(2)(A)(ii), as an alien who has been convicted of two or more crimes
involving moral turpitude not arising out of a single scheme of misconduct (Exhs. l , 5). The
charge was based on the respondent's March 6, 2018, conviction for two counts of the offense of
Indecent Exposure, in violation oflowa Code§ 709.9 and 903B.2 (Exhs. l, 5). In a July 26, 2019,
decision, the Board affirmed the Immigration Judge's finding that the Department of Homeland
Security had established the respondent's removability under section 237(a)(2)(A)(ii) of the Act,
and that the respondent did not merit cancellation of removal as a matter of discretion. The
respondent now seeks reopening because his prior counsel allegedly provided ineffective
assistance of counsel at the pleadings stage of proceedings before the Immigration Judge as she
did not argue that his convictions under Iowa Code § 709.9 were not crimes involving moral
turpitude (Mot. at 7-8).
The respondent has complied with the requirements of Matter of Assaad, 23 I&N Dec. 553
(BIA 2003), and Matter of Lozada, 19 l&N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir.
1988). In addition, the respondent has demonstrated the requisite prejudice. See Singh v. Lynch,
803 F.3d 988 (8th Cir. 2015). His former counsel, in a brief and statements to the court, indicated
that the respondent was not contesting that Iowa Code § 709.9 was a crime involving moral
turpitude, but rather argued that his convictions were part of a single scheme not rendering him
removable under section 237(a)(2)(A)(ii) of the Act. The respondent argues that his former
counsel should have argued to the Immigration Judge that his offenses under Iowa Code§ 709.9 do
not qualify as crimes involving moral turpitude because the Iowa statute applies only a negligence
mens rea standard, as opposed to recklessness or higher (Respondent's Br. at 8-13). We agree
with the respondent that an argument to the Immigration Judge that the mens rea of the Iowa statute
was not sutlicient for turpitudinousness could have changed the outcome of the proceedings.
Cite as: Junior Austin Kahn, A094 642 783 (BIA Feb. 28, 2020)
. A094-642-783

Accordingly, the motion to reopen will be granted and the record remanded for consideration of
whether the respondent's offenses under Iowa Code§ 709.9 are crimes involving moral turpitude
that would render him removable under section 237(a)(2)(A)(ii) of the Act. The following orders
will be issued.

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ORDER: The motion is granted.

FURTHER ORDER: The record is remanded for further proceedings in accordance with this
decision, and entry of a new decision.

FOR THE BOARD

Cite as: Junior Austin Kahn, A094 642 783 (BIA Feb. 28, 2020)