I

Graziano, Robert F.
Attorney of Law
80 Hoyt Street
Bufalo, NY 14213
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigrtion Appeals
0fice of the Clerk
5107 Leesburg Pik Suire 1000
Fals C1rch. lri11i11 22041
OHS/ICE Ofice of Chief Counsel - LOS
606 S. Olive Street, 8th Floor
Los Angeles, CA 90014
Name: OVSEPYAN, ASHOT ZHORAHIKOVIC A045-201-16
Date of this notice: 2/17/2011
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure.
Panel Members:
Cole, Patricia A.
Filppu, Lauri S.
Pauley, Roger
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Ashot Zhorahikovic Ovsepyan, A045 201 416 (BIA Feb. 17, 2011)
For more unpublished BIA decisions, visit www.irac.net/unpublished
OVSEPYAN, ASHOT ZHORAHIKOVIC
A# 045-201-416
501 THE CITY DRIVE SOUTH
ORANGE, CA 92868
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Office of the Clerk
5 /07 /.,esb11rg Pike, Suite :000
Falls Cl111rc/1, Virginia : :041
OHS/ICE Office of Chief Counsel - LOS
606 S. Olive Street, 8th Floor
Los Angeles, CA 90014
Name: OVSEPYAN, ASHOT ZHORAHIKOVIC A045-201-416
Date of this notice: 2/17/2011
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.5(a). If the attached decision orders that you be removed
from the United States or afirms an Immigration Judge's decision ordering that you be
removed, any petition for review of the attached decision must be filed with and received by the
appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Cole, Patricia A.
Filppu, Lauri S.
Pauley, Roger
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Ashot Zhorahikovic Ovsepyan, A045 201 416 (BIA Feb. 17, 2011)

U..DcgaHcnlof JuslIcc
Executive Ofce fr Imigation Review
Decision of the Board of Imigration Appeals
Falls Church, Virginia 2204 l
File: A045 20 I 416 - Los Angeles, CA
In re: ASHOT ZHORAHIKOVIC OVSEPY AN a.k.a. Ashot Hovsepyan
I REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Robert F. Graziano, Esquire
ON BEHALF OF DHS:
CHARGE:
Shadee M. Star
Assistant Chief Counsel
Date:
Notice: Sec. 237(a)(2)(A)(iii), l&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -
- /9Il
Convicted of aggavated felony (as defned under section IOI(a)(43)(F))
Lodged: Sec. 237(a)(2){A)(ii), l&N Act [8 U.S.C. 1227(a)(2)(A)(ii)] -
Convicted of two or more crimes involving moral turitude
APPLICATION: Terination
The respondent appeals an Immigration Judge's June 8, 2010, decision fnding him removable
as charged under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C.
1227(a)(2)(A)(iii) fr an aggavated flony crime of violence conviction, and under section
237(a)(2)(A)(ii) of the Act fr convictions fr two crimes involving moral turpitude ("CIMT"). The
Deparment of Homeland Security ("DHS") opposes the appeal, which will be sustained in part and
remanded in part.
The respondent contends that the removability charge under section 237(a)(2)(A)(iii) of the Act
was sustained in eror. He argues that his flony conviction under Califria Penal Code 422 fr
making criminal threats was subsequently reduced to a misdemeanor conviction, which, under
Califria law, means that he could not be sentenced to a ter of imprisonment equal to his original
16-month sentence. Consequently, the respondent asserts, he was not convicted of an aggravated
flony pursuant to section 101(a)(43)(F) of the Act. The respondent also argues that he is not
removable under section 237(a)(2)(A)(ii) of the Act because his conviction under Cal. Penal Code
647(b) fr soliciting prostitution does not constitute a CIMT.
We review an Immigration Judge's fndings of fct, including fndings as to the credibility of
testimony, under the "clearly eroneous" standard. 8 C.F.R. I 003. l(d)(3)(i). The Board reviews
de novo questions of law, discretion, judgment, and all other issues in appeals fom decisions of
Immigration Judges. 8 C.F.R. I 003. l (d)(3)(ii); Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008).
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Cite as: Ashot Zhorahikovic Ovsepyan, A045 201 416 (BIA Feb. 17, 2011)
AQ45 201416
The Immigration Judge fund that the OHS satisfed its burden of establishing that the
respondent was removable as an aggravated felon because he was convicted of maing a criminal
threat and was sentenced to16 months' imprisonment (1.J. at 10). The Immigration Judge based this
fnding on Rosales-Rosa/es v. Ashcrof, 347 F.3d 714 (9th Cir. 2003), where the United States Court
of Appeals fr the Ninth Circuit held that a violation of Cal. Penal Code 422 is categorically
a crime of violence. The respondent does not dispute that he originally was convicted of a felony
violation of 422 or that he was sentenced to 16 months in prison. However, he argues that the
charge against him subsequently was reduced to a misdemeanor, meaning tat under Califria law,
a 16-month sentence could not have been imposed (x.7 Tab A unnumbered pages 1, 5).
Section 422 of the Califria Penal Code is a "wobbler" ofense punishable as a felony with
a ter of confnement in the state prison, or as a misdemeanor by imprisonent in the county jail.
Cal. Penal Code 17(a), (b) (defning a "felony" as a crime punishable by imprisonment in state
prison and a "misdemeanor" when punishment is a fne or a ter of imprisonment other than in state
prison). The record refects that the trial court ordered the criminal infrmation alleging that the
respondent committed a flony violation of 422 be deemed amended pursuant to l 7(b) to instead
allege a misdemeanor ofense, and the charge to "proceed as a misdemeanor" (Exh. 7 Tab A
unnumbered page 5). The trial court then set aside the judgment and dismissed the Inforation
pursuant to 1203.4 of the Penal Code, Califria's rehabilitation statute, without imposing any
term of imprisonment. .
As the respondent acknowledges, he retains a conviction fr immigration purposes irespective
of the vacatur of the judgment and sentence. Ramirez-Castro v: INS, 287 F .3d 1172 (9th Cir. 2002);
Matter of Marroquin, 23 I&N Dec. 705 (BIA 1997; A.G. 2005). Notwithstanding, since the tial
court amended the charge against the respondent under 422 fom a felony to a misdemeanor
and did not impose a prison term of at least 1 year, the conviction no longer constitutes an aggavated
flony as contemplated under section 101(a)(43)(F) of the Act. See Ferreira v. Ashcrof, 382
F.3d 1045, 1051 (9th Cir. 2004) (noting the maximum possible penalty fr a misdemeanor
is 6 months in the county jail); Garcia-Lopez v. Ashcrof, 334 F.3d 840, 844 (9th Cir. 2003) (holding
that a Califria Cour's conversion of a conviction fom a felony to a misdemeanor fr a "wobbler"
ofense is binding on the Boad). Thus, the respondent is not removable under section
237(a)(2)(A)(iii) of the Act, and the appeal will be sustained as to that fnding.
The Imigation Judge fund that the respondent was removable under section 237(a)(2)(A)(ii)
of the Act (l.J. at 8-9). The Immigation Judge relied on Matter of Lambert, 11 l&N Dec. 340 (BIA
1965), to deterine that the respondent's conviction under 64 7(b) of the Califra Penal Code fr
''willflly and unlawflly solicit[ing], engag[ing], and agreeing to engage in an act of prostitution,"
was a conviction fr a crime involving moral turpitude (I.J. at 9).
Historically, the Board's case law characterized solicitation of prostitution as a crime involving
moral turpitude. See Matter of W-, 4 I&N Dec. 401 (BIA 1951) (legacy IS Central Ofce decision
citing 1947 unpublished case law). More recently, unpublished Board decisions have relied on
Matter of Lambert, supra, to fnd that soliciting prostitution is a CIMT. However, Matter of
Lambert does not conclusively resolve the solicitation-as-CIMT question, a that decision considered
the turpitudinous character of the ofense of ofering to secure an individual ad directing that
individual to another fr the purpose of prostitution, a diferent crime.
2
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Cite as: Ashot Zhorahikovic Ovsepyan, A045 201 416 (BIA Feb. 17, 2011)
. '045 201 416
B
The Attorey General has supplied recent guidance fr deterining whether a conviction is fr
a crime involving moral turpitude. The Attorey General concluded that a CIMT must include both
reprehensible conduct and some degree of scienter, whether specifc intent, deliberateness,
willflness, or recklessness. Matter of Silva-Trevino, 24 l&N Dec. 687, 689 n.l, 706 (A.G. 2008).
The case provides a famework that directs Immigration Judges to: ( 1) look to the statute of
conviction under the categorical inquiry and determine whether there is a "realistic probability,"
rather than a ''theoretical possibility,'' that the state or fderal criminal statute underpinning the
conviction would be applied to reach conduct tat does not involve moral turpitude; (2) if the
categorical inquiry does not resolve the question, engage in a modifed categorical inquiry and
examine the record of conviction, including documents such as the indictent, the judgment of
conviction, jur instuctions, a signed guilty plea, and the plea transcript; and (3) if the record of
conviction is inconclusive, consider any additional evidence deemed necessary or appropriate to
resolve accurately the moral turitude question. Matter of Silva-Trevino, supra, at 690, 704.
The third step of the Silva-Trevino analysis perits the adjudicator to look beyond the statute and
record of conviction to examine the actual conduct underinning the conviction, a process which
may inure to the beneft--or the detriment--f a respondent. The question to be answered here
is whether under the fcts of this case, a single act of solicitation fr prostitution is "reprehensible"
conduct that constitutes a crime involving moral turpitude. Matter of Silva-Trevino, supra, at
689 n.l, 706. Thus, we will remand the record to the Immigration Judge so that the parties may
develop the fcts and the Immigration Judge can make the determination in the frst instance.
The respondent agues in a fotnote that his conviction under 422 fr criminal threats is not
a conviction fr a CIMT. He asserts that Matter of Ajami, 22 I&N Dec. 949 (BI 1999), the decision
relied on by the Immigation Judge, is inapposite to his case and does not contol a fnding of
whether his ofense was turitudinous. On remand, the Immigation Judge also should analyze the
422 conviction according to the Silva-Trevino famework to determine whether that ofense
involves moral turpitude.
Accordingly, the fllowing orders will be entered.
ORDER: The appeal is sustained as to the fnding that the respondent is removable uder section
237(a)(2)(A)(iii) of the Act, and the Immigration Judge's decision is reversed as to that fnding.
FURTHER ORDER: The record is remanded fr fher proceedings consistent with this
decision and the preparation of a new decision as to the fnding that the respondent is removable
under section 237(a)(2)(A)(ii) of the Act.
3
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Cite as: Ashot Zhorahikovic Ovsepyan, A045 201 416 (BIA Feb. 17, 2011)
IMMIGRATION COURT
606 SOUTH OLIVE ST., 15r FLOOR
.. .
LOS ANG'ES, CA 90014
In the Maner of: O `
l
Case No.: A ~c

&b.ci Zhor
; /<v1 C
Respondent IN REMOVAL PROCEEDINGS
ORDER OF THE IMMIGRATION JUDGE
This is a summar; of the oral decision entered on +. q 1 @0 /
Thi. memorandum is Sl'icly fr the convenience of tieparies. If the proceedings sho11ld he appea|ed or reopened.the
oral decision will aeccne the ofcial opinion in the case.

@ The respondent was ordered removed fom the United States to ''_ y or in the
alternative to

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Respondent's application fr voluntar deparure was denied and respondent was ordered removed to
or in the alternative to
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Respondent's application fr voluntary deparun! was granted until upon posting a bond
in the amount of$ with an alterative order of removal to

Respondent's application fr:

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Asylum was ( ) granted ( ) denied () withdra\n ( ,)other.
[ [ Withholding of removal was ( ) granted ( ) dedied. {)withdrawn ( ) other.
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Respondent's application fr [ } withholding of removal
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[deferral of reval under Anclc Ill of the
Convention Against Torure was ( )granted ( ) denied ( ) withdrawn ( ) other.
[

A Waiver under section was (}granted ()denied ( ) withdrawn ()other.

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Caaeela tieaof removal under cecti*n 24A(a)ws( ) granted ( ) denied ( ) withdrawn ( ) other.
Respondent's application fr:
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Cancellation under section 24A(b)(1)was ()granted ()denied ()withdrawn ()other. If granted, it
was ordered that the respondent be issued all appropriate documents necessar to give efect to this order.
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Cancellation under section 24A(b)(2) was ()granted ()denied (}withdrawn ()other. If granted, ii
wa ordered that the respondent be issued all appropriate documents necessar to give efect to this order.
[ [ Adjustment of Status under section was ()granted ( ) denied ()withdrawn (}other.
If granted, it was ordered that respondent be issued all appropriate documents necessar to give efect to this
order.
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Respondent's status was rescinded under section Z4.
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Respondent is admitted to the United States as a. until
l l
As a condition of admission, respondent is to po;t a$ bond.
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Respondent knowingly fled a fivolous asylum 11pplication afer proper notice.
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Respondent was advised of the limitation on dis<retionary relief fr filure to appear as ordered in_ihe
>
Immigration Judge's oral decision.
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Proceedings w re terginat'd.
@
\
Other:)
*
Date:
-.
CERTIFICATIOF SERVICE

1u!so
0
CuH NT WAS SERVED BY: MAil (H) PERSONAL SERVIC
TO: LIE [ [ALIEN c/o Custodial Ofc [ J ALIEN's A I/REP [ X J DUS
DATE: = 6 BY: COURT STA F
.

Attachmcnls: I EOIR-33 [ I EOIR-28 [ I L gal 5crviccs |ist [ [ Othcr Q6

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