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A097-72-829
ETOWAH DETENTION FACILITY
827 FORREST AVENUE
GADSDEN, AL 35901
U.S. Department of Justice
Executive Ofce fr Imigation Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leeburg Pike, Suite 2000
Fals Church, Vrginia 22041
OHS
/
ICE Ofice of Chief Counsel - SND
880 Front St., Room 1234
San Diego, CA 92101-8834
Name: HERNANDEZ-GARCIA, SALVAD ... A 097-472-829
Date of this notice:
9
/
20
/
2013
Enclosed is a copy of the Boad's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Greer, Anne J.
Malphrus, Garr D.
Pauley, Roger
Sincerely,
DO cO
Donna Car
Chief Clerk
lucasd
Userteam: Docket
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Cite as: Salvador Hernandez-Garcia, A097 472 829 (BIA Sept. 20, 2013)
For more unpublished BIA decisions, visit www.irac.net/unpublished
, U.S. Deparment of Justice.
Executive Ofce fr Immigation Review
Falls Church, Virginia 22041
File: A097 4 72 829 - Sa Diego, CA
In re: SALVADOR HERADEZ-GARCIA
IN RMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RSPONDENT: Pro se
ON BEHALF OF DHS:
CHARGE:
Kathryn Stuever
Senior Atorey
Decision ofte Boad of Immigation Appeals
Date:
SEP 2 v /lJ
Notice: Sec. 237(a)(2)(A)(i), l&N Act [8 U.S
.
C. 1227(a)(2){
A)(i)] -
Convicted of crime involving moral turpitde (withdraw)
Lodged: Sec. 237(a)(2)(A)(ii), I&N Act [8 U.S.C.
1227(a)(2)(A)(ii)] -
Convicted of two or more crimes involving moral tupitude
APPLICATION: Termination of proceedings
The respondent appeals the Immigation Judge's April 5, 2013, decision fnding him
removable as chaged and orderng him removed fom te United States. 1 The appeal will be
sustained, ad te proceedings will be terinated.
In her decision, te Immigration Judge fund te respondent removable uder section
237(a)(2)(A)(ii) of the Imigation and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(ii), baed on
his October 12, 2004, conviction fr the ofense of petty thef in violation of Califria Penal
Code section 484( a), and his August 14, 2012, conviction fr te ofense of obstucting or
resisting e xecutive ofcers in perforace of duties in violation of Califria Penal Code secton
69 (I.J. at 8). On appeal, the respondent contends that his 2012 conviction fr resisting arest in
violation of Califra Pena Code section 69 is not a crime involving moral turpitude.
2
The
respondent contends that te Depaent of Homeland Security ("DHS") has not met its buden
in establishing his removability as chaged. We agee. See 8 C.F.R. 1003.l(d)(3)(ii) (2013)
(de novo review).
1 The respondent, a native and citizen of Mexico, was previously ganted cacellation of removal
by a Immigration Judge on August 24, 2010. Tat decision was afrmed by te Boad on
December 30, 2010 (l.J. at 3).
2
The respondent fled a moton to terinate in lieu of a brief The motion was initially rejected
by the Board as untimely. The respondent resubmitted te motion to terinate along wit his
motion to accept the late fling. We have considered the respondent's motion to terminate in
rendering our decision.
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Cite as: Salvador Hernandez-Garcia, A097 472 829 (BIA Sept. 20, 2013)
.
. A097 4 72 829
It is undisputed that Califra Penal Code section 69 is not a categorical crime involving
moral titude (I.J. at 5-6). However, the Imigation Judge fud that, under the modifed
categorcal approach, the record of conviction establishes te respondent's ofense as one
involving moral titude because the respondent pied to Count I chaging him with resisting
arest toug te use of "frce ad violence" (1.J. at 6; Exh. 4). According to the Immigation
Judge, the use of "frce ad violence" raises te respondent's ofense to the level of moral
tpitude (l.J. at 7). Alteratively, the Immigaton Judge utilized the third step of te analysis
set frt Matter of Silva-Trevino, 24 l&N Dec. 687 (A.G. 2008), and looked to te police repors
to deterine tat the respondent's ofense involves moral turpitude (I.J. at 8). I this regad, te
Imigaton Judge noted tat the police repors show both the respondent ad the ofcers were
injured during the incident (1.J. at 8).
The Boad has held that the ofense of resisting ares is a crime involving moral titude
only when it results in bodily ha to the victm, or involved the treat of the use of deadly frce.
See Matter of Logan, 17 I&N Dec. 367 (BIA 1980); Matter of Danesh, 19 l&N Dec. 669 (BIA
1988). Section 69 of the Califra Penal Code provides, in pertinent par, "[ e ]very person who
attempts, by meas of ay threat or violence, to deter or prevent a executive ofcer fom
perforing any duty imposed upon such ofcer by law, or who kowingly resists, by te use of
force or violence, such ofcer, in the performance of his duties . . . " See CPC 69 (emphasis
added). However, we note that the portion of the statute punishing resistance by "frce or
violence" is not divisible as to whether a injur occured. Indeed, resultant injur is not a
element of the ofense. In this regard, subsequent to te Immigation Judge's decision, the
Unted States Supreme Cour decided Descamps v. United States, 133 S.Ct. 2276 (2013), holding
that te modifed categorical approach may not be applied when the crime has a single,
indivisible set of elements. Because neither te theat of use of deadly frce nor injury is an
element of te respondent's ofense, under Descamps, we canot apply the modifed categorical
approach to fnd that the ofense involved such conduct or results.
Furher, subsequent to the Immigration Judge's decision, the United States Cou of Appeals
fr the Nint Circuit, where tis case aises, invalidated the third step of te Silva-Trevino
analysis. See Olivas-Motta v. Holder, 716 F.3d 1199 (9th Cir. 2013) (holding that evidence
outside te record of conviction canot be used to deterine whether a alien has been
"convicted of' a crime involving moral tuitude). Under tese circumstaces, we canot fnd
the conviction documents in the record sufciently establish tat te respondent's 2012
conviction involves moral tupitude such tat te chage under section 237(a)(2)(A)(ii) of the
Act ca be sustained. As there ae no additional chages lodged in this case, we fnd it
appropriate to terinate the proceedings.
Accordingly, te appeal will be sustained, ad te proceedings will be terminated.
ORER: The appeal is sustined, and the proceedings ae terminated.
-
f
,
F0 THEBOAD c: _
Board Member Garry D. Malphrus respectfully dissents without separate opinion.
2
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Cite as: Salvador Hernandez-Garcia, A097 472 829 (BIA Sept. 20, 2013)
-
4
IMIGRATION COURT
446 ALTA ROA
SA DIEGO, CA 92158
In the Matter of
Case No.: A097-472-829
HERNADEZ-GARCIA, SALVAOR
Respondent IN REMOVAL PROCEEDINGS
ORDER OF THE IMMIGRTION JUGE
This is a summary of the oral decision entered on April 5, 2013.
This memorandum is solely for the convenience of the parties. If the
proceedings should be appealed or reopened, the oral decision will become
the official opinion in the case.
J
[ ]
The respondent was ordered removed from the United States to
MEXICO.
] Respondent's application for voeparture was denied and
respondent was ordered removed
Respondent's application for voluntary departure was granted until
upon posting a bond in the amount of $
with an alternate order of removal to MEXICO.
Respondent's application for:
[ J Asylum was ( )granted )denied( )withdraw.
[ ]
Withholding of removal was
[ ] A Waiver under Section
) granted ( } denied ) withdrawn.
was ( ) granted ( ) denied ) withdrawn.
( ] Cancellation of removal under section 240A(a) was { )granted )denied
( )withdrawn.
Respondent1s application for:
[ ] Cancellation under section 240A(b) (1) was ( ) granted ) denied
]
M
( ) withdrawn. If granted, it is ordered that the respondent be issued
all appropriate documents necessary to give effect to this order.
Cancellation under section 240A(b) (2) was { )granted ( )denied
( )withdrawn. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this order.
Adjustment of Status under Section was ( )granted { )denied
( )withdrawn. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this order.
Respondent's application of ( ) withholding of removal { ) deferral of
removal under Article III of the Convention Against Torture was
( ) granted ( ) denied { ) withdrawn.
Respondent's status was rescinded under section 246.
Respondent is admitted to the United States as a
As a condition of admission, respondent is to post a $
ut-H
bond.
Respondent knowingly filed a frivolous asylum application after proper
notice.
Respondent was advised of the limitation on discretionary relief for
faiiure to appear as
rd