U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - EAZ

Pope & Associates

320 E. McDowell Road, Ste. 220
Phoenix, AZ 85004

P.O. Box 25158

Phoenix, AZ 85002

Name: REYES-GUILLEN, PEDRO

A 076-703-814

Immigrant & Refugee Appellate Center | www.irac.net

Wiesinger, Benjamin Todd

Date of this notice: 12/5 /2014

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

[)Crt.ltL ct1/VU
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Malphrus, Garry D.
Mullane, Hugh G.
Pauley. Roger

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Pedro Reyes-Guillen, A076 703 814 (BIA Dec. 5, 2014)

:;

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Q[fice of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 20530

REYES-GUILLEN, PEDRO
A076-703-814
ICE, 1705 EAST HANNA ROAD
ELOY, AZ 85131

Name: REYES-GUILLEN, PEDRO

A 076-703-814

Date of this notice: 12/5/2014

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.S(a).

If the attached decision orders that you be

removed from the United States or affirms 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.
Sincerely,

Dowu..., CaJVU
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Malphrus, Garry D.
Mullane, Hugh G.
Pauley, Roger

Userteam:

Cite as: Pedro Reyes-Guillen, A076 703 814 (BIA Dec. 5, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

OHS/ICE Office of Chief Counsel - EAZ

P.O. Box 25158
Phoenix, AZ 85002

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Chiirch, Virginia 20530

Fil: A076 703 814 - Eloy, AZ

In

Date:

DEC

5 2014

re: PEDRO REYES-GUILLEN

APPEAL
ON BEHALF OF RESPONDENT:

Benjamin Todd Wiesinger, Esquire

CHARGE:
Notice: Sec.

Sec.

APPLICATION:

237(a)(2)(A)(i), l&N Act [8 U.S.C. 1227(a)(2)(A)(i)] Convicted of crime involving moral turpitude
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 turpitude
Termination

The respondent appeals an Immigration Judge's May 29, 2014, decision denying his motion
to terminate these removal proceedings. The record will be remanded.
The respondent challenges the Immigration Judge's determination that his convictions under
Ariz. Rev. Stat. 28-1383(A)(l), which prohibits any person from "driving" or exercising
"actual physical control" over a motor vehicle while under the influence of intoxicating liquor or
drugs if the person knows that his driver license or privilege to drive is suspended, canceled,
revoked, refused or restricted for driving under the influence, are for crimes involving moral
turpitude. He contends that the Department of Homeland Security ("DHS") has not satisfied its
burden of proving that he is removable as charged pursuant to sections 237(a)(2)(A)(i) and (ii) of
the Act, 8 U.S.C. 1227(a)(2)(A)(i) and (ii), and the proceedings should be terminated.
The United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this
matter arises, concluded that Ariz. Rev. Stat. 28-1383(A)(l) encompasses some conduct that
is morally turpitudinous and other conduct that is not. The Ninth Circuit has treated the statute
as "divisible," authorizing Immigration Judges to consult aliens' conviction records under
the "modified categorical approach" to determine whether the particular alien before the court
was convicted of "driving," which is turpitudinous conduct, rather than merely exercising
"actual physical control," which does not involve moral turpitude. Marmolejo-Campos
v. Holder, 558 F.3d 903, 914-17 (9th Cir. 2009) (en bane).
The Immigration Judge conducted such a modified categorical inquiry here and found that
the respondent was convicted of "driving" while intoxicated (l.J. at 2-5). The Immigration Judge
rejected the respondent's argument that Descamps v. United States, 133 S. Ct. 2276 (2013),
mandated a different result. In Descamps, the Supreme Court articulated a conception of
Cite as: Pedro Reyes-Guillen, A076 703 814 (BIA Dec. 5, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A076 703 814

The Ninth Circuit has determined that the categorical approach applies in removal cases
involving CIMT convictions, see Olivas-Motta v. Holder, 716 F.3d 1199 (9th Cir. 2013), and has
also concluded that the approach to divisibility announced in Descamps applies in the
immigration context. See Aguilar-Turcios v. Holder, 740 F.3d 1294, 1301-02 (9th Cir. 2014).
Accordingly, the present task is to decide whether Ariz. Rev. Stat. 28-1383(A)(l) remains
"divisible" for CIMT purposes within the meaning of Descamps. See United States v. De La
Torre-Jimenez, _ F.3d _, 2014 WL 5786715 (9th Cir. November 7, 2014); Rendon v. Holder,
764 F.3d 1077 (9th Cir. 2014). Thus, we will remand the record to the Immigration Judge for
further proceedings - including the lodging of substituted removal charges, if appropriate -- and
for the entry of such further orders as the Immigration Judge deems proper.
Accordingly, the following order will be entered.
ORDER: The record is remanded for further proceedings consistent with the foregoing
opinion and for the entry of a new decision.

FOR THE BOARD

2
Cite as: Pedro Reyes-Guillen, A076 703 814 (BIA Dec. 5, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

"divisibility" that appears substantially narrower than that embodied in Marmolejo-Campos. The
Descamps Court held that a criminal statute is divisible, so as to warrant a modified categorical
inquiry, only 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 is a categorical match to the relevant generic standard.
Id. at 2281, 2283. In other words, the modified categorical approach does not apply merely
because the elements of a crime can sometimes be proved by reference to conduct that fits the
generic federal standard; under Descamps, such crimes are merely "overbroad," they are not
"divisible." Id. at 2285-86, 2290-92.

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ELOY, ARIZONA

In the Matter of

)
)
)

PEDRO REYES-GUILLEN

RESPONDENT

CHARGES:

IN REMOVAL PROCEEDINGS

Section 237(a)(2)(A}(i) of the Immigration and Nationality Act convicted of a crime involving moral turpitude committed within five
years after admission for which a sentence of one year or longer
may be imposed.
Section 237(a)(2)(A)(ii) of the Immigration and Nationality Act - at
any time after admission having been convicted of two crimes
involving moral turpitude not arising out of a single scheme of
criminal misconduct.

APPLICATION:

Motion to terminate.

ON BEHALF OF RESPONDENT: BENJAMIN T. WIESINGER, Esquire

ON BEHALF OF OHS: DANIEL CRIMMONS, Assistant Chief Counsel

ORAL DECISION AND ORDERS OF THE IMMIGRATION JUDGE

The respondent is a male native and citizen of Mexico. The United States
Department of Homeland Security brought these removal proceedings against the
respondent under the Immigration and Nationality Act. Proceedings commenced with a

Immigrant & Refugee Appellate Center | www.irac.net

May 29, 2014

File: A076-703-814

filiAg of a Notice to Appear dated January 29, 2014, against the respondent. See
Exhibit 1.
At a Master Calendar hearing, respondent, through counsel, admitted the first

the factual allegations and the two charges of removability. The case was set by this
Court for a contested hearing and both parties submitted documentary evidence
contained in the Court's Record of Proceedings marked and admitted from Exhibit 2
through 10.
First, the Department of Homeland Security submitted documents pertaining to
the alleged factual allegations contained in Exhibits 2 through 8. On May 6, 2014,
respondent, through counsel, filed a motion to terminate with this Court in which he
argued that he was not removable as charged as his convictions are not crimes
involving moral turpitude based upon the Supreme Court decision of Descamps v.
United States, 133 S. Ct. 2276 (2013). See Exhibit 9. On May 9, 2014, the
Government filed its opposition to respondent's motion to terminate as contained in
Exhibit 10. A hearing was scheduled for April 29, 2014, during which the Court ruled on
the denied factual allegations and the two charges of removability as referenced above.
The documentary evidence submitted by the Government contained in Exhibits 4
through 8 established the denied factual allegations 4, 5, 6 and 7 and, therefore, the
Court sustained those allegations. Factual allegation no. 8 was stricken as a legal
conclusion.
As it relates to the charges of removability, the Court has reviewed the
documentary evidence submitted by both parties regarding the charges of removability
.
and the records do reflect that the respondent was convicted on three separate
occasions in the Maricopa County Superior Court for aggravated driving under the

A076-703-814

May 29, 2014

Immigrant & Refugee Appellate Center | www.irac.net

three factual allegations as contained in the Notice to Appear, denying the remainder of

influence, a class 4 felony in violation of Arizona Revised Statute Section 28-1383(a)(1)1

et cetera. For the March 181 2005 conviction1 respondent was sentenced to three years
imprisonment and that offense was committed on September 25, 2004. For the March

respondent was sentenced to four years imprisonment and given ten years probation.
Lastly, for the July 31, 2008, conviction, respondent was sentenced to four years
imprisonment. See Exhibits 4 through 6.
The basis or the essence of respondent's motion to terminate is that under the
statute for which he was convicted, as under revised statute Section 28-1381(a)(1),
respondent argues that that statute is not "divisible" statute as described in Descamps,
which is a United States Supreme Court case, and, therefore, that that case overrules
the case of Marmolejo-Campos v. Holder, 558 F.3d 903, 912 (9th Cir. 2009).
In Marmolejo-Campos, the Ninth Circuit recognized that a conviction under this
section of the Arizona Statute is not categorically a crime involving moral turpitude and
this Court is not making any ruling to the contrary. In making its determination, the
Ninth Circuit Court of Appeals stated that a conviction under Arizona Revised Statute
Section 28-1383(a)(1) only involves moral turpitude if the person had actually been
driving at the time of the arrest and if they actually knew that their license had been
suspended or revoked at the time of their arrest.
The respondent in this case contends that that section of the Arizona Revised
Statute, which states that it is unlawful for a person to drive or be in actual physical
control of a vehicle, is indivisible because driving and being in actual physical control
are alternative means of committing the offense rather than alternative elements.
Therefore, the respondent has argued that the modified categorical approach analysis
as required by Marmolejo-Campos is barred or prevented by the Descamps because

A076-703-814

May 29, 2014

Immigrant & Refugee Appellate Center | www.irac.net

18, 2005 conviction! for which that offense was committed on December 30, 2004,

the Arizona DUI statute is indivisible.

As adequately pointed out in the Government's brief, this very same point of a
distinction between alternative means versus alternative elements was addressed by

states: "and if the dissent's real point is that distinguishing between 'alternative
elements' and 'alternative means' is difficult, we can see no real-world reason to worry.
Whatever a statute lists, whether elements or means, the documents approved in the
Taylor and Shepard cases, that is indictment, jury instructions, plea colloquy, and plea
agreements, would reflect the crime's elements. So a Court need not parse state law in
the way the dissent suggests. When a state law is drafted in the alternative, the Court
merely resorts to the approved documents and compares the elements revealed there
to those of the generic offense."
In the case at bar, utilizing the documents approved in both the Taylor and
Shepard cases, specially the record of conviction, which not only includes the
sentencing documents but also the transcripts of proceedings as contained in the record
marked and admitted as Exhibits 7 and 8, those documents clearly reveal that the
respondent was driving and not merely in actual physical control of his vehicle for all
three offenses.
Based upon the Court's review of the documentary evidence as submitted in this
case, not only does the Court find that the factual allegations have been established
and, therefore, sustains the allegations, the Court finds that the respondent has been
convicted of crimes involving moral turpitude. Based upon the specific dates listed in
the factual basis as to the date of commission of the offenses, the Court finds that that
the crimes involving moral turpitude DUl's did not arise out of a single scheme of
criminal misconduct. And, therefore, the charge under 237(a)(2)(A)(ii) is established

A076-703-814

May 29, 2014

Immigrant & Refugee Appellate Center | www.irac.net

the Supreme Court. In the majority decision of the Descamps case, that decision

and, therefore, sustained.

In addition, a review of the documentary evidence, specifically Exhibit No. 2,
established that the respondent's status was adjusted to that of a lawful permanent

status for the respondent. With a 2001 lawful entry or admission date for the
respondent and the commission of the December 30, 2004, offense, which resulted in
the March 18, 2005, conviction, this Court finds that the respondent's DUI which was
committed on September 25, 2004, and the second one which was committed on the
December 30, 2004, were committed within five years after his admission, which was
September 12, 2001. As these offenses were class 4 felony offenses, the respondent
could have received, and he did receive, a sentence of one year or longer in this case.
As such, the Court finds that the respondent has been convicted of a crime involving
moral turpitude that was committed within five years after his admission for which a
sentence of one year or longer maybe imposed. As such, the charge under Section
237(a)(2)(A)(i) is also sustained.
Respondent designated Mexico as the country of removal expressing no fear of
return cognizable under the Act or the Convention against Torture.
Respondent, through counsel, stated that there is no citizenship claim to be
addressed in this case.
Based upon the recency of respondent's lawful permanent resident status and
the commission of these offenses shortly thereafter, he is not eligible for cancellation of
removal under Section 240A(a).
He is also ineligible for readjustment of status.
There being no other form of relief that this respondent is eligible to seek, the
following orders are entered:

A076-703-814

May 29, 2014

Immigrant & Refugee Appellate Center | www.irac.net

resident September 12, 2001, and there is no indication of any prior lawful entry or

.___.

ORDERS
IT IS HEREBY ORDERED that the motion to terminate is denied.
IT IS HEREBY ORDERED that both charges of removability are sustained.

States to Mexico.

LINDA I. SPENCER-WALTERS
Immigration Judge

A076-703-814

May 29, 2014

Immigrant & Refugee Appellate Center | www.irac.net

IT IS HEREBY ORDERED that the respondent be removed from the United

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE LINDA I. SPENCERWALTERS, in the matter of:

A076-703-814

ELOY, ARIZONA

was held as herein appears, and that this is the original transcript thereof for the file of
the Executive Office for Immigration Review.

4(!(11L71i-

r7

ANTOINETTE T. KEANE (Transcriber)

FREE STATE REPORTING, lnc.-2
JULY 29, 2014
(Completion Date)

Immigrant & Refugee Appellate Center | www.irac.net

PEDRO REYES-GUILLEN