U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Osberg-Braun, Linda M., Esq. OHS/ICE Office of Chief Counsel - MIA
Osberg-Braun Immigration 333 South Miami Ave., Suite 200
10800 Biscayne Blvd., Ste. 925 Miami, FL 33130
Miami, FL 33161

Name: DEL RISCO PERDOMO, RICARDO A 023-475-486

Date of this notice: 11/13/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Adkins-Blanch, Charles K.
Kelly, Edward F.
Pauley, Roger

....J :.r. -s
Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: R-D-R-P-, AXXX XXX 486 (BIA Nov. 13, 2017)
' I

U.S. Department of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A023 475 486 - Miami, FL Date: HOV 1 3 2017

In re: Ricardo DEL RISCO PERDOMO

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Linda M. Osberg-Braun, Esquire

ON BEHALF OF DHS: Michele Drucker

Assistant Chief Counsel

APPLICATION: Termination; waiver of inadmissibility under section 212(c) of the Act;

waiver of inadmissibility under section 212(h) of the Act

In a written decision dated October 27, 2014, an Immigration Judge found the respondent
removable and granted his application for a waiver of inadmissibility under section 212(c) of the
Immigration and Nationality Act, 8U.S.C.1182(c). The respondent appealed from that decision,
with respect to the removability finding. The appeal will be sustained, and the proceedings will
be terminated. The request for oral argument is denied.

The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony and the likelihood of future events, under the "clearly erroneous" standard.
The Board reviews de novo questions of law, discretion, and judgment and all other issues in
appeals from decisions of Immigration Judges. 8 C.F.R 1003.l(d)(3)(i) and (ii) (2017); Matter
ofZ-Z-0-, 26 I&N Dec. 586, 587-88 (BIA 2015).

The Immigration Judge found the respondent removable as charged, as convicted of

an aggravated felony under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. 1227(a)(2)(A)(iii), in
conjunction with section 10l(a)(43)(F) of the Act, 8U.S.C.l10l(a)(43)(F). As substantiated by
conviction documents, the respondent has a February 28, 1994, conviction upon a plea of nolo
contendere for assault on a child under the age of 12 years under N.C. Gen. Stat. 14-33(b)(3).
For that crime, he was sentenced to imprisonment of 2 years, with imposition suspended subject
to the completion of probation. The crime was committed on December 15, 1992. (Ex. 2). The
respondent, a native and citizen of Cuba had his status adjusted to that of lawful permanent resident
on May 28, 1986, effective as of May 29, 1980. He notes that, as an aggravated felon, he is
ineligible to become a naturalizedUnited States citizen. The Immigration Judge initially sustained
the aggravated felony charge in a previous decision dated April 29, 2011. Prior to the
consideration of his applications for relief, the respondent submitted additional briefing
on the removability issue, in light of new precedent. In the October 2014 decision, the Immigration
Judge stated that he deemed it necessary to reexamine the issue of removability in light of
Descamps v. United States, 133 S.Ct. 2276 (2013), and Matter ofChairez, 26 I&N Dec. 349 (BIA
2014) (Chairez JI). On appeal, the respondent challenges the Immigration Judge's finding that he
is removable as an aggravated felony as convicted of a crime of violence under 18U.S.C.16(b).

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A023 475 486

We note that Mathis v. United States, 136 S.Ct. 2243 (2016), and Matter of Chairez, 26 l&N
Dec. 819 (BIA 2016) (Chairez Ill), were decided subsequent to the Immigration Judge's 2014
decision and are relevant in this case regarding whether the respondent is removable as convicted
of an aggravated felony crime of violence. However, because the issue of whether the respondent's
conviction is a crime of violence is a legal question, we find it unnecessary to remand the record,
as we have jurisdiction to decide the legal question in the first instance.

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In its decision in Mathis v. United States, 136 S. Ct. 2243 (2016), the Supreme Court applied
the categorical approach to a state burglary statute that contained alternative means to satisfy one
of its elements. Mathis thus provides guidance for determining whether a predicate statute of
conviction is divisible, further explaining the "divisibility" analysis set forth in Descamps
v. United States, 133 S. Ct. 2276 (2013). A statute that outlines only various means of committing

the predicate offense is not divisible, whereas a statute that sets forth alternative elements of each
offense is divisible. See Mathis at 2256 (emphasis added). Further, a state statute is indivisible
when it contains a single set of elements that are not set forth in the alternative. Such a statute
remains indivisible even if it "enumerates various factual means of committing a single element."
Mathis v. United States, 136 S.Ct. at 2249, 2256.

Under the categorical approach delineated in Mathis, we examine solely whether the state
statute defining the crime of conviction categorically fits within the generic federal definition of a
corresponding aggravated felony. We must compare the elements of the statute forming the basis
of the defendant's conviction with the elements of the generic crime, and a conviction under the
state statute will constitute a conviction for the generic offense only if the statute's elements are
the same as, or narrower than, those of the generic offense. If the statute can be violated by an act
that does not fit within the generic offense, then the statute cannot qualify as an aggravated felony
under the categorical approach, and this is true even if the actual conduct of the defendant fell
within the generic crime. The difficulty, however, lies in ascertaining whether the state statute
contains alternative means or elements. When we conduct this analysis, the Court in Mathis found
that we should defer to state law. Specifically, we may consider state court rulings, the face of the
statute, the statute's structure, and "if state law fails to provide clear answers," the record of prior
conviction. Mathis v. United States, 136 S.Ct. at 2247-50, 2256-57, 2257 n.7. In Chairez Ill,
26 I&N Dec. at 820, this Board instructed that the understanding of statutory "divisibility"
embodied in Descamps and Mathis applies in immigration proceedings nationwide to the same
extent that it applies in criminal sentencing proceedings and, further, that Immigration Judges and
the Board must follow applicable circuit law to the fullest extent possible when seeking to
determine what Descamps and Mathis require (internal quotation marks omitted).

The respondent's conviction is for assault on a child under the age of 12 years under N.C. Gen.
Stat. 14-33(b)(3). The version of N.C. Gen. Stat. 14-33(b)(3) that was in effect when the
respondent committed the assault crime in December 1992 provides, in pertinent part:

(b) Unless his conduct is covered under some other provision of law providing greater
punishment, any person who commits any assault, assault and battery, or affray is guilty of a
misdemeanor punishable by a fine, imprisonment for not more than two years, or both such
fine and imprisonment if, in the course of the assault, assault and battery, or affray, he:
(3) Assaults a child under the age of 12 years[.]

2
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A023 475 486

(3) Assaults a child under the age of 12 years[.]

The elements of the respondent's offense under N.C. Gen. Stat. 14-33(b)(3) are: 1) assaults
2) a child 3) under the age of 12 years. As there is no statutory definition of assault under North
Carolina law, the common-law rules governing these crimes apply to prosecutions under N.C. Gen.
Stat. 14-33. There are three different types of assault, pursuant to the common-law approach.

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First, under what can be called the "attempted battery" formulation, an assault can be committed
by an "overt act or an attempt, or the unequivocal appearance of an attempt, with force and
violence, to do some immediate physical injury to the person of another, which show of force or
menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate
bodily harm ." State v. Roberts, 155 S.E.2d 303, 305 (N.C. 1967) (internal quotation marks
omitted). Second, under the "show of violence" formulation, an assault can be committed by "a
show of violence accompanied by reasonable apprehension of immediate bodily harm or injury on
the part of the person assailed which causes him to engage in a course of conduct which he would
not otherwise have followed." State v. Roberts, 155 S.E. at 305. Third, under the "completed
battery" formulation, an assault conviction may be premised on proof of a battery. In re K.C., 742
S.E.2d 239, 243 (N.C. Ct. App. 2013) (recognizing that when a battery has occurred, assault may
be proven by a finding of either assault or battery on the victim). See United States v. Vinson, 805
F.3d 120, 124-25 (4th Cir. 2015); see also State v. Holman, 380 S.E.2d 128, 130 (N.C. Ct. App.
1989).1

A "crime of violence" is defined at 28 U.S.C. 16 as:

(a) an offense that has an element the use, attempted use, or threatened use of physical
force against the person or property of another, or

(b) any offense that is a felony and that, by its nature, involves a substantial risk that
physical force against the person or the property of another may be used in the course of
committing the offense.

In Chairez III, 26 l&N Dec. at 821, we recognized that, for purposes of this "crime of violence"
definition, the word ''use" denotes volition, Leocal v. Ashcroft, 543 U.S. 1, 9 (2004), while ''the
phrase 'physical force' means violent force - that is, force capable of causing physical pain or
injury to another person . . . ." Johnson v. United States, 559 U.S. 133, 140 (2010); see also Matter
ofGuzman-Polanco, 26 I&N Dec. 806 (BIA 2016) (clarifying Matter o/Guzman-Polanco, 26 l&N
Dec. 713 (BIA 2016)); Matter of Velasquez, 25 l&N Dec. 278 (BIA 2010). Concerning the level

1 Although the present case arises within the Eleventh Circuit, it involves North Carolina law so
that Fourth Circuit precedent is instructive. In United States v. Vinson, 805 F.3d at 125, upon
rehearing, the Fourth Circuit declined to decide whether the multiple assault formulations under
North Carolina law are alternate means or alternate elements, noting that such issue divided the
court in its original opinion in United States v. Vin son, 794 F.3d 418 (4th Cir. 2015). In that earlier
opinion, the Fourth Circuit observed that North Carolina courts generally are not required to give
the jury any definition of assault beyond a description of the charged conduct. United States v.
Vinson, 794 F.3d at 426-28.

3
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A023 475 486

of physical force needed for a "crime of violence," the Eleventh Circuit follows the Johnson
approach in requiring violent force. See, e.g., United States v. Vail-Bailon, 868 F.3d 1293, 1302
(11th Cir. 2017) (applying Johnson in fmding that Florida felony battery qualifies as a crime of
violence, pursuant to Sentencing Guidelines governing unlawfully entering or remaining in the
United States). However, a review of North Carolina case law shows that violent force is not
required for an assault conviction in that state. See, e.g., State v. Crouse, 610 S.E.2d 454, 457

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(N.C. Ct. App. 2005) (bespattering a law enforcement official with bodily fluids or excrement);
State v. Allen, 95 S.E. 2d 526, 528-29 (N.C. 1956) (repeatedly stopping a car near a woman and
implying a lustful desire toward her). For common-law battery, the physical force element is
satisfied by offensive touching. United States v. Castleman, 134 S.Ct. 1405, 1413 (2014). The
offensive touching could be a minimal level of force. State v. West, 554 S.E.2d 837, 840 (N.C. Ct.
App. 2001) (using force, however slight, applied directly or indirectly to another person) (emphasis
added). Under the second, non-battery common-law formulation of assault, touching is not even
required. State v. Roberts, 155 S.E. at 305.

As we also recognized in Chairez Ill a mens rea of recklessness does not satisfy the "use of
physical force" volition requirement for a "crime of violence." The Eleventh Circuit has held that
recklessness is an insufficient mental state for a "crime of violence." See U.S. v. Palomino-Garcia,
606 F.3d 1317, 1332-36 (11th Cir. 2010).2 However, recklessness may result in an assault
conviction under North Carolina law. See Hart v. Brianza, 784 S.E.2d 211, 216 (N.C. 2016)
(reckless behavior may be equated with an intentional act in the context of assault); State v.
Rawlings, 131 S.E. 632, 632-33 (N.C. 1926) (acquittal on reckless driving removed the reckless
element on which an assault could be predicated). Moreover, a mental state of "culpable
negligence," with negligence a lower mens rea than recklessness, may perm.it conviction of assault
on a child under the age of 12. See State v. Stevens, 745 S.E.2d 64, 69 (N.C. Ct. App. 2013) Oury
instruction on a criminal negligence theory of assault was improper where the theory was not
alleged in the indictment).3

2 The Fourth Circuit also has held that the reckless mental state is insufficient for a "crime of
violence." See, e.g., Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 447 (4th Cir. 2005).

3 The United States Supreme Court held that reckless assault involves the ''use of physical force"
within the meaning of the "misdemeanor crime of domestic violence" definition set forth at
18 U.S.C. 921(a)(33)(A) (2012). See Voisine v. United States, 136 S.Ct. 2272, 2280 (2016). In
so holding, the Supreme Court did not take a position on whether 18 U.S.C. 16(a) includes
reckless behavior. 136 S.Ct. at 2280 n.4. Because the Eleventh Circuit has held that reckless
conduct is insufficient to constitute a crime of violence under 18 U.S.C. 16, we will follow
that authority in this case. See U.S. v. Palomino-Garcia, 606 F.3d at 1332-36. We note that
Chairez Ill arose in the Tenth Circuit, which held that 18 U.S.C. 16(b) is unconstitutionally
vague. See Golicov v. Lynch, 837 F.3d 1065, 1073-75 (10th Cir. 2016). The Eleventh Circuit has
concluded that 18 U.S.C. 924(c), which contains language nearly identical to that in 18 U.S.C.
16(b), survives Johnson. See Ovalles v. United States, 861 F.3d 1257, 1267 1 l th Cir. 2017).

4
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A023 475 486

We agree with the Immigration Judge that N.C. Gen. Stat. 14-33(b)(3) does not define a
categorical crime of violence under 18 U.S.C. 16. We need not and do not reach the question
of whether the North Carolina statute is divisible so that the modified categorical approach
applies under Mathis, since none of the statute's formulations of assault qualifies as a "crime
of violence." Under any of its three formulations, N.C. Gen. Stat. 14-33(b)(3) allows a
conviction if an assault offense is committed with a mental state of recklessness (or less) and

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with force that falls short (perhaps far short) of violent force. we conclude that the respondent is
not removable on the sole charged ground, as convicted of an aggravated felony crime of
violence under sections 237(a)(2)(A)(iii) and 101(a)(43)(F) of the Act, based on his 1992
conviction for assault on a child under the age of 12 years under N.C. Gen. Stat. 14-33(b)(3).
Accordingly, we will sustain the appeal and will terminate the removal proceedings.

ORDER: The respondent's appeal is sustained, and the removal proceedings are terminated.

FOR THE BOARD

Cite as: R-D-R-P-, AXXX XXX 486 (BIA Nov. 13, 2017)

) ,

/J '
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION RE\TIJW
IMMIGRATION COURT
MIAMI, FLORIDA

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IN THE MATTER OF: )
)
DEL RISCO PERDOMO, Ricardo ) IN REMOVAL PROCEEDINGS
A# 023-475-486 )
)
RESPONDENT )
)

CHARGE: Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"):

an alien who at any time after admission has been convicted of an
aggravated felony as defined in section 10l (a)(43)(F) of the INA: a crime
of violence (as defined in section 16 of title 18 of the United States Code
("U.S.C."), but not including a purely political offense) for which the term
of imprisonment is at least one year.

APPLICATIONS: Former section 212(c) of the INA, Criminal Waiver

Section 212(h) of the INA, Criminal Waiver.

ON BEHALF OF RESPONDENT ON BEHALF OF DEPARTMENT

Linda Osberg-Braun, Esq. Michele Drucker
Bernstein, Osberg-Braun, Caco & Solow Assistant Chief Counsel
11900 Biscayne Boulevard, Suite 700 Department of Homeland Security
Miami, Florida 33 181 333 S. Miami Avenue, Suite 200
Miami, Florida 33130

WRITTEN DECISION AND ORDERS OF THE IMMIGRATION JUDGE

I. Procedural History

Respondent, Ricardo Del Risco Perdomo, D.O.B. May 25, 1956, is a native and citizen of
Cuba. Exh. l. Respondent was paroled into the United States on or about May 19, 1980. Id. On
May 28, 1986, Respondent was accorded lawful permanent resident ("LPR") status as of May
29, 1980. See Respondent's Notice of Filing, p. 21-22 (Nov. 17, 2011) .

On February 28, 1994, Respondent was convicted of assault on a child under 12 years of
age in violation of section 14-33(b)(3) of the North Carolina General Statutes. Exh. 2, p. 4, 5.
 '

)
..

Respondent received a suspended sentence of two years imprisonment. Id. He was ordered to
pay costs, fines, and restitution and was placed on supervised probation for two years. Id.

On September 26, 2006, the Department of Homeland Security ("OHS") served

Respondent with a Notice to Appear ("NTA") charging him with removability under section
237(a)(2)(A)(iii) of the INA as an alien who, at any time after admission, has been convicted of

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an aggravated felony as defined in section l0l(a)(43)(F) of the INA, a crime of violence (as
defined in section 16 of title 18 of the U.S.C.) for which the tenn of imprisonment is at least one
year.

Respondent admitted allegations one through four of the NTA. Respondent denied
allegation five concerning the time, place, and manner of his 1994 conviction and contested the
sole removability charge.

On October 5, 2007, Respondent submitted a Motion to Terminate in which he contested

his removability. Respondent's Motion to Terminate (Oct. 5, 2007). Respondent asserted that
his 1994 conviction under N. C. Gen. Stat. 14-33(b)(3) did not constitute a crime of violence
and that he was not "sentenced to at least one year of imprisonment" as required by INA
l0l (a)(43)(F). Id.

On November 16, 20 l 0, Respondent submitted a second Motion to Terminate.

Respondent's Second Motion to Terminate (Nov. 16, 2010). Respondent maintained that he had
not been "sentenced to at least one year of imprisonment" and asserted that his 1994 conviction
1
did not constitute a crime of violence in light of recent case law. Id.

On April 29, 2011, the Court ruled that Respondent's 1994 conviction constituted a crime
of violence aggravated felony under INA 10l(a)(43)(F), sustained allegation five an the sole
2
removability charge, and denied Respondent's two Motions to Terminate. Order on Motion to
Terminate (Apr. 29, 2011). On November 17, 2011, Respondent submitted an application for
relief under INA 212(h) with a concurrent application for adjustment of status. Respondent's
Notice of Filing (Nov. 17, 2011). During an individual hearing on July 3, 2013, Respondent
stated his intention to apply for relief under both INA 212(h) and former INA 212(c).

On November 8, 2013, Respondent submitted additional briefing in which he argues that

his 1994 conviction does not constitute a crime of violence in light of recent case law.3
Respondent's Notice of Supplemental Authority (Nov. 8, 2013). OHS has not submitted a
response.

1 See Johnson v. United States, 130 S. Ct. 1265 (20 I 0); Maner of Velasgue 25 l&N Dec. 278 (BIA 2010).
2 Before the Court issued its ruling, Respondent submitted a third Motion to Terminate on the basis that
Respondent's 1994 conviction had been vacated. Respondent's Third Motion to Terminate (Jan. 26, 2011).
However, OHS submitted evidence showing that Respondent's recently vacated conviction had, in fact, been
reinstated. See DHS's Opposition to Motion to Terminate (Feb. 24, 2011). The vacated judgment and its
subsequent reinstatement were addressed by this Court in its order. See Order on Motion to Terminate (Apr. 29,
2011).
3 See Descamps v. United States, 133 S. Ct. 2276 (2013); Matter ofChaireb 26 I&N Dec. 349 (BIA 2014).

2
 II. Summary of the Evidence

The Court heard testimony from Respondent during two individual merits hearings held
on July 3, 2013, and November 18, 2013. On November 17, 2011, August 8, 2012, October 25,
2012, and November 18, 2013, Respondent submitted additional evidence in support of his
applications for relief. All admitted evidence has been considered in its entirety regardless of

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whether specifically mentioned in the text of this decision.

A. Respondent's Testimony

Respondent testified that he was born in Havana, Cuba on May 25, 1966. His biological
parents divorced when he was a child and he was raised by his biological mother, Miriam
4
Perdomo, and his stepfather, Amaury Mendez. Respondent left Cuba for the United States with
his mother, stepfather, and stepsiblings in 1980. Upon arrival, the family resided in Miami,
Florida. During the November 18, 2013 hearing, Respondent testified that his mother and
stepfather currently live in Orlando and that his biological father, Victor Del Risco, lives in
Miami.

Respondent testified during the November 18, 2013 individual hearing that his mother,
biological father, stepfather, grandparents, and siblings are members of the Jehovah's Witness
faith. Respondent stated that his biological father was imprisoned in Cuba for his religious
beliefs. His stepfather was also imprisoned in Cuba for the family's religious beliefs after
Respondent refused to participate in communist youth activities as a young boy in school.
Respondent was baptized when he was twelve years old.

Respondent testified that while attending high school in Miami, he participated in a

vocational electronics program. After transferring to a school which lacked a similar program,
Respondent left high school, received his GED, pursued specialized training in avionics, and
received his associate's degree from Miami Dade College. In December of 1986, Respondent
married his first wife. Respondent worked in avionics for Eastern Airlines, but was unable to
find similar work after Eastern Airlines workers went on strike. Respondent testified that as a
result, he and his first wife made the decision to relocate to Fayetteville, North Carolina to
minister and help develop the region's Hispanic Jehovah's Witness community. Respondent and
his first wife became members of the Fayetteville Spanish Jehovah's Witness congregation,
where Respondent assumed various leadership roles until he was eventually appointed as church
elder. He was one of four elders in the congregation.

Respondent testified that while at church in March or April of 1993, he was approached
5
by Paul Robinson ("Mr. Robinson"), a fellow elder, and his wife Esther Robinson ("Mrs.
6
Robinson"), their three or four year old child, Paul Robinson Jr., and John Rivera ("Mr.

4 Respondent testified that his mother's name is "Miriam Perdomo," although records show that she has adopted
Respondent's stepfather's last name. See Respondent's Notice ofFiling, Tab F (Nov. 17, 2011) .

s Although Respondent named Paul Robinson's wife as "Dorames Robinson" or "Elsa Dorames," records submitted
by OHS show that her formal name is, in fact, Esther Robinson. Exh. 2, p. 4, 5.
6 It is unclear whether Paul Robinson Jr. was three or four years old at the time of the alleged incident and
subsequent accusation, although Respondent repeatedly testified that at the time of the initial accusation, Paul
Robinson Jr. was three years old.

I
 )

Rivera"), another church elder. They requested that Respondent speak with them in a separate
room. Once inside the room, Mr. Rivera stated that the Robinson family had something to say to
Respondent and prompted Paul Robinson Jr. to speak. When Paul Robinson Jr. began speaking,
Respondent testified that he could not understand him because Paul Robinson Jr. was "garbling,
like how three year olds talk." When Respondent expressed confusion, Mr. Robinson infonned
him that Paul Robinson Jr. was accusing Respondent of taking him into a room located at the

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back of the church auditorium and fondling his genitals. Respondent stated that it was not true
and expressed disbelief. Mrs. Robinson then repeated the accusation. After this initial meeting,
Respondent testified that he participated in two or three additional meetings with the Robinson
family and church elders. The Robinson family subsequently reported Respondent to local law
enforcement. Respondent testified that "because [he] had nothing to hide," he cooperated with
local law enforcement and willingly gave a statement in which he maintained his innocence.

Respondent testified that he had never been alone with Paul Robinson Jr., either at the
church or otherwise. Although the Robinson family accused Respondent of abusing their son
during a church service on a Tuesday evening, the alleged scene of the crime was a room
constructed of partial glass panels and visible to church members during worship. It was unclear
whether church services were, in fact, held on Tuesday evenings at the time of the alleged
7
incident.

When asked if there was an alternate explanation for the accusation, Respondent testified
that his friend and fellow elder, Fernando Doreste ("Mr. Doreste"), had been previously accused
by Mrs. Robinson of sexual misconduct. Respondent explained that he grew up with Mr.
Doreste in Cuba and that they remained close friends. When Mr. Doreste was accused by Mrs.
Robinson, Respondent vouched for him in front of the congregation. Although no charges were
filed, Mr. Doreste eventually moved to Georgia. Respondent believes that his support of Mr.
Doreste in the face of Mrs. Robinson's accusations provoked her to fabricate accusations of
abuse against Respondent himself. When asked why he accepted a plea bargain in spite of his
alleged innocence, Respondent testified that the criminal prosecutor was seeking "life plus ten"
and that he was apprehensive of his chances in a trial by jury as a young Hispanic man in a
predominantly white, conservative area. He also stated that he had incurred a substantial amount
of debt in litigating his case. When he was offered to serve no jail time and participate in two
years of probation in exchange for pleading no contest to assault on a child, Respondent testified
that he was relieved. After Respondent was convicted, he had no contact with the Robinson
family and was asked to leave the North Carolina congregation.8

7 Respondent testified during the July 3, 2013 hearing that to the best of his recollection, there were no general
church services held in the auditorium on Tuesday evenings in 1992. During the November 18, 2013 hearing,
Respondent further testified that the church may have held Bible study meetings and trainings on either Tuesdays or
Wednesdays in 1992, but that he could not recall on precisely which day of the week the meetings and trainings
occurred.
8 During cross examination, OHS raised the possibility that a second child in Respondent's congregation had

accused him of sexual misconduct. Respondent testified that Mrs. Robinson had spoken with other members of the
congregation about Paul Robinson Jr.'s allegations and that one other family "became hysterical." Although the
dfree-year old daughter of the other family subsequently made similar allegations, the church elders investigated the
claim and dismissed it as unfounded. To Respondent's knowledge, it was never reported to local law enforcement
or relied upon as evidence in Respondent's criminal case. Respondent testified that the daughter's father
approached him afterwards and "said he believed [him] and didn't think [he] had done anything to his daughter."

4
 )

Respondent testified that following the incident, he and his first wife moved back to
Miami, Florida, to live with Respondent's family and begin repaying the debts incurred in his
criminal defense. Respondent stated that the financial struggle, combined with the living
situation, took a toll on Respondent's marriage. In 1998, Respondent and his first wife divorced
as a result of her infidelity.

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In February 2002, Respondent married his second wife, Elsa Yanes ("Mrs. Yanes"). Mrs.
Yanes is also a member of the Jehovah's Witness faith and is employed full-time as a paralegal.
Mrs. Yanes and Respondent have one daughter, Arianna Del Risco ("Arianna"), born June 7,
2007. During the individual hearing on November 18, 2013, Respondent testified that Mrs.
Yanes reads with Arianna and that Respondent helps with her homework. Respondent further
testified that Arianna is in a gifted program at school. Because Respondent often works from
home, he is responsible for picking Arianna up from school.

Respondent testified that upon his return to Miami, he was granted reinstatement into a
local Jehovah's Witness congregation. Although Respondent acknowledged that "the church
treated [him] as if [he] were guilty," he testified that he remains a devout Jehovah's Witness
because of his dedication to God. Respondent and his wife regularly attend services and
participate in church activities at Terranova Spanish, a local Jehovah's Witness church. When
questioned, Respondent acknowledged that there are certain church activities that he is not
allowed to participate in because of his 1994 conviction and that he is not permitted to be a
church elder. Respondent stated that he brings Arianna to church every week and that the
family reads children's books with her on religious teachings. When Respondent and Mrs.
Yanes participate in weekly public preaching, they often bring Arianna along. When asked if he
would be able to raise his family in this manner if removed to Cuba, Respondent testified that he
would not.

Respondent testified that after returning to Florida from North Carolina, he worked in an
accounting firm's mailroom and at UPS. He then started a medical supply business with his first
wife's brother. After selling the medical supply business, Respondent started an auto supply
business which "was killed" in 2007 by the financial downturn. Respondent was employed by
Zen Distributors from 2007 until early 2012, during which time he developed his leather holster
business plan.9 Respondent started his company selling leather gun holsters in 2010 as an online
website. Respondent testified during the November 18, 2013 hearing that his company ''took
off' during the 2012 Christmas holiday season and that it was now profitable enough for
Respondent to pay himself income from internet sales. Respondent predicted that his company
would continue growing in 2013 and stated that it had "more products [and] better products." He
testified during the November 18, 2013 hearing that the company had one full-time independent
contractor selling holsters at gun shows in North Florida. Respondent planned to hire a full-time
sales representative for the company by 2014.

During the November 18, 2013 hearing, Respondent testified that he has always filed
taxes and declared his income. He also testified that he files business taxes for his leather holster

9 Respondent testified that his business imports leather gun holsters from a manufacturer in Colombia and distributes
them in the United States through internet retail websites.

5
 )

business. In 2004, Respondent and Mrs. Yanes purchased a home. During the November 18,
2013 hearing, Respondent stated that he makes timely mortgage payments and owes $119,000
(One Hundred Nineteen Thousand Dollars) on the home. Respondent stated that other than his
1994 conviction, he has no criminal record and considers himself a "law-abiding citizen."

Respondent testified that his wife has high blood pressure and requires regular medical

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treatment. Respondent stated that his mother has diabetes, poor circulation, and other physical
illnesses. When Respondent's stepfather was unemployed in 2008, Respondent helped his
mother and stepfather with their finances. During the November 18, 2013 hearing, Respondent
testified that his stepfather would be retiring in one year and that Respondent might need to
resume financially supporting his stepfather and mother. Respondent's biological father is
retired and was recently in a bus accident. He required surgery on his knee and is almost entirely
deaf. Respondent testified that he assisted his biological father by driving him to medical
appointments and helping him to run errands.

III. Removability under INA 237(a)(2)(A)(iii) as defined in INA 10l(a)(43)(F)

In the case of an alien who has acquired the status of an LPR, DHS has the burden of
establishing by clear and convincing evidence that the alien is removable as charged. INA
240(c)(3); 8 C.F.R. 1240.8(a). Generally, evidence is "clear and convincing" if it enables the
fact finder "to come to a clear conviction, without hesitancy, of the truth of the precise facts of
the case." Cruzan by Cruzan v. Director, Missouri Dep't. of Health, 497 U.S. 261, 285 n.l l
(1990) (explaining that the "clear and convincing" evidence leaves the trier of fact with a "firm
belief or conviction as to the truth of the allegations sought to be established"). Accordingly,
OHS bears the burden to establish by clear and convincing evidence that Respondent was
convicted of a crime of violence aggravated felony.

A. Legal Standard

Despite its initial ruling, the Court finds it necessary to revisit the issue of Respondent's
removability to determine whether or not Respondent remains subject to removal in light of
10
Descamps, 133 S. Ct. 2276, and Chairez, 26 I&N Dec. 349. In order to ascertain whether
Respondent's North Carolina conviction under N. C. Gen. Stat. 14-33(b)(3) constitutes a crime
of violence aggravated felony within the meaning of INA 101(a)(43)(F), the Court must
employ the categorical approach. Descamps, 133 S.Ct. at 2283. The categorical approach
requires the Court to look "only to the statutory definitions -i.e., the elements" of the state
offense and "not to the particular facts underlying those convictions." Id. (quoting Taylor v.
United States, 495 U.S. 575, 600 (1990)). A state offense categorically matches a generic federal
offense "only if a conviction for the State offense 'necessarily involved ... facts equating' to the
generic federal offense." Matter of Ferreira, 26 I&N Dec. 415, 419 (BIA 2014) (quoting
Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013)). In conducting its analysis, the Court "must
presume that the state conviction 'rested upon [nothing] more than the least of th[e] acts'
criminalized." Moncrieffe, 133 S. Ct. at 1684 (quoting Johnson, 130 S. Ct. 1265)). If the terms
of the state statute criminalize conduct which falls outside the generic federal offense, the Court

10
"An immigration judge may upon his or her own motion at any time ... reopen or reconsider any case in which he

....
or she has made a decision " 8 C.F.R. 1003.23(b)(I).

6
 j )

must decide whether there is a "realistic probability" that state courts would, in fact, apply the
statute to such non-generic conduct. Ferreira, 26 I&N Dec. at 419; see also Ramos v. U.S. Att'y
Gen., 709 F.3d 1066, 1071-72 (11th Cir. 2013).

The Court may resort to the modified categorical approach only if the statute defining the
state offense is divisible. Statutes are considered divisible when they contain alternative

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elements which "effectively create several different . . . crimes," some of which match the
generic definition of the federal offense and some of which do not. Descamps. 133 S.Ct. at 2285
(quoting Nijhawan v. United States, 557 U.S. 29, 41 (2009)). Elements are defined as the facts
of the offense that must be found by a jury beyond a reasonable doubt in order to obtain a
conviction. Id. at 2288.

Section l0 l(a)(43)(F) of the INA defines as an aggravated felony "a crime of violence (as
defined in section 16 of title 18 of the (U.S.C.])" for which the term of imprisonment is at least
one year. INA l0 l (a)(43)(F). 18 U.S.C. 16 defines a crime of violence as:

(a) An offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another; or
(b) Any other offense that is a felony and that, by its nature, involves a substantial
risk that physical force against the person or property of another may be used
in the course of committing the offense.

18 U.S.C. 16. Thus, a state offense may constitute a crime of violence aggravated felony if it
corresponds to the federal definition at either 18 U.S.C. 16(a) or 18 U.S.C. 16(b).

In order to constitute a crime of violence under 18 U.S.C. 16(a), an element of the state
offense must require "the intentional use of violent force." Velasquez, 25 I&N Dec. at 282
(quotations omitted). The physical force necessary to establish a crime of violence must be
"violent force-that is, force capable of causing physical pain or injury to another person."
Johnson, 130 S. Ct. at 1271 (emphasis in original) (also considering that the word "violent"
"connotes a substantial degree of force"); see. e.g., Hernandez v. U.S. Att'y Gen., 513 F.3d 1336
(11th Cir. 2008) (holding that a conviction under Georgia's simple battery statute constituted a
crime of violence under 18 U.S.C. 16(a) because the statute required intentional causation of
physical harm to victim).

11
A crime of violence under 18 U.S.C. 16(b) is defined as a felony in which "the
conduct encompassed by . . . the offense presents a substantial risk of the use of physical force in
the ordinary case." Matter of Singh, 25 I&N Dec. 670, 677 (BIA 2012) (emphais in original);
see also Matter of Sweetser, 22 I&N Dec. 709, 703 (BIA 1999). The "use" of force
contemplated by section 16(b) requires a risk of "active employment" of force, and not merely
"accidental or negligent conduct." Leocal v. Ashcroft, 543 U.S. 1, 11 (2004); see also Singh, 25
I&N Dec. at 677 (noting that "the focus in assessing whether an offense is a crime of violence
under l 6(b) is . . . on whether there is a substantial risk that the perpetrator will resort to

11
For purposes of the crime of violence aggravated felony provision, the Court looks to whether a state conviction
would constitute a federal felony. Velasquez, 25 I&N Dec. at 280. Under federal law, an offense is a felony if it is
punishable by more than one year in prison. See 18 U.S.C. 3559(aXS).

7
intentional physical force in the course of committing the crime."). Thus, a state offense may
constitute a crime of violence under 18 U.S.C. 16(b) where, in the ordinary case, the
underlying conduct presents "an augmentation of the risk that the offender will actively employ
physical force against a third party . . . in committing the offense." Dixon v. U.S. Att'y Gen.,
_F.3d_, No. 13-11492, 2014 U.S. App. WL 4854206 at *4 (1 l th Cir. 2014) (emphasis in
original).

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B. Respondent's 1994 Conviction for Assault on a Child Under 12

t2
On February 28, 1994, Respondent pled no contest to assault on a child under 12 years
of age in violation of N. C. Gen. Stat. 14-33(b)(3). Exh. 2, p. 4, 5. The statute provides in
relevant part:

(b) Unless his conduct is covered under some other provision of law providing greater
punishment, any person who commits any assault, assault and battery, or affray is guilty
of a misdemeanor punishable by a fine, imprisonment for not more than two years, or
both such fine and imprisonment if, in the course of the assault, assault and battery, or
affray, he:

(3) Assaults a child under the age of 12 years[.]

N. C. Gen. Stat. 14-33(b){3) (1994).

Thus, "[o]ne is guilty of misdemeanor assault on a child if he '[a]ssaults a child under the
age of 12 years."' State v. Holman, 380 S.E.2d 128 (N.C. Ct. App. 1989). The North Carolina
Supreme Court has set out two rules under which a person may be prosecuted for assault. State
v. Roberts, 155 S.E.2d 303, 305 (N.C. 1967). Under the first rule, an assault occurs when the
offender makes "an intentional offer or attempt by force or violence to do injury to the person of
another." Holman, 380 S.E.2d at 130. Under the second rule, an assault occurs where the
offender makes "a 'show of violence' causing [in the victim] a reasonable apprehension of
immediate bodily harm." Id.; see also Roberts, 155 S.E.2d at 305. Either course of conduct is
sufficient to support a conviction for assault on a child under the age of 12 in North Carolina.
Holman, 380 S.E.2d at 130.

Although each definition of assault contains the term "violence," a review of relevant
state case law shows that a defendant may be convicted of assault even where he has not used,
attempted, or threatened "violent force-that is, force capable of causing physical pain or injury
to another person." Johnson, 130 S. Ct. at 1271 (emphasis in original); see, e.g., State v. Crouse,
610 S.E.2d 454 (N.C. Ct. App. 2005) ("bespattering a law enforcement official with bodily fluids
or excrement certainly includes an assault"); State v. Mitchell, 592 S.E.2d 543 (N.C. 2004) (law
enforcement had reasonable articulable suspicion that defendant committed assault where he
accelerated his car towards law enforcement officers); State v. West, 554 S.E.2d 837 (N.C. Ct.
App. 2001) (no error in jury instructions for assault on a female which required jury to find that

12
The Court notes that although Respondent's criminal j udgment indicates that he pied guilty to the offense, both
the plea colloquy and "Dismissal/Notice of Resinstatement'' as to the other criminal charges clearly show that
Respondent did, in fact, plead no contest. See Exh. 2, p. 3, 6-7.

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 )

"[ d]efendant intentionally used force, however slight, to cause contact with the alleged victim. . .
.");State v. Allen, 95 S.E.2d 526 (N.C. 1956) (defendant committed assault where he repeatedly
stopped his car near woman and "impl[ied] a lustful desire toward her"); State v. Hawkins, 34
S.E. 537 (N.C. 1899) (defendant committed assault where he ran towards woman and attempted
to kiss her); State v. Hampton, 63 N.C. 13 (N.C. 1868) (defendant committed assault where he
was within striking distance of prosecutor, "clenched his right hand," and said "I have a good

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mind to hit you").

Because a conviction under N. C. Gen. Stat. 14-33(b)(3) does not necessarily involve
the use, attempted use, or threatened use of "force capable of causing physical pain or injury to
another person," see Johnson, 130 S. Ct. at 1271, it is not categorically a crime of violence under
18 U.S.C. 16(a). See Ferreir 26 I&N Dec. at 419.

However, N. C. Gen. Stat. 14-33(b)(3) may nonetheless constitute a crime of violence

under 18 U.S.C.16(b) if it is a felony in which "the conduct encompassed by the elements of
the offense presents a substantial risk of the use of physical force in the ordinary case." Singh,
25 I&N Dec. at 677 (emphasis in original). The Court notes as a threshold matter that N. C. Gen.
Stat. 14-33(b)(3) states that assault on a child is a misdemeanor offense. N. C. Gen. Stat. 14-
33(b) (1994). However, assault on a child clearly constitutes a felony for purposes of the crime
of violence aggravated felony provision because it is punishable by up to two years
imprisonment. Id.; see Velasquez, 25 I&N Dec. at 280; 18 U.S.C. 3559(a)(5). The Court also
finds that there is a substantial risk that an offender who acts intentionally to intimidate, threaten,
or "make a showing of violence" to a child will "provoke the sort of confrontation that leads to
the intentional use of physical force." See Cole v. U.S. Att'y Gen., 712 F.3d 517, 528 (11th Cir.
2013) (holding that a South Carolina conviction for pointing a firearm at another qualified as a
crime of violence under 18 U.S.C. l 6{b) because the underlying offense required intentional
conduct, necessarily involved an encounter with a victim, and presented a risk of confrontation
leading to intentional use of physical force); see also Ramsey v. I.N.S., 55 F.3d 580 (11th Cir.
1995) (finding that a Florida statute criminalizing "handl[ing], fondl[ing], or assault[ing]" a child
in a "lewd" manner involves a substantial risk that "physical force may be used against the
victim" and thus constitutes a crime of violence under 18 U.S.C. 16(b)); Dixon, 2014 U.S.
App. WL 4854206 at *4 (finding that a conviction under Florida's aggravated fleeing statute
constitutes a crime of violence under 18 U.S.C. 16(b) because "an individual who disregards an
officer's order is substantially more likely to use physical force against an officer-and perhaps,
civilian bystanders-when the officer attempts to halt the flight"). Therefore, although a
defendant under N. C. Gen. Stat. 14-33(b)(3) need not use, attempt to use, or threaten to use
physical force to be convicted, assault as defined by North Carolina courts naturally involves a
substantial risk that the offender will, in fact, follow his course of conduct to its logical
conclusion and use physical force against his victim during the commission of the crime.

In the "ordinary case" of conduct occurring under N. C. Gen. Stat. 14-33(b)(3), see
Singh, 25 l&N Dec. at 677, there is a substantial risk that the offender will use physical force
capable of causing physical pain or injury to the child victim. See Johnson,130 S. Ct. at 1271.
As such, a conviction under N. C. Gen. Stat. 14-33(b)(3) constitutes a crime of violence under
18 U.S.C. 16(b) and an aggravated felony under INA 10l (a)(43)(F). Upon reconsideration.in
light of Descamps, 133 S. Ct. 2276, the Court finds that Respondent has been convicted of an

9
 )
. .
aggravated felony within the meaning of INA 10 l (a)(43)(F). Accordingly, the Court will
readopt its April 29, 2011 order sustaining removability under INA 237(a)(2)(A)(iii).

IV. Eligibility for Relief under Former Section 212(c) of the INA

A. Burden of Proof and Credibility

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Because Respondent remains subject to removability, the Court must analyze whether
Respondent merits relief from removal. The REAL ID Act amended the standards for burden of
proof and credibility determinations in applications for relief from removal made on or after May
11, 2005. See REAL ID Act IO l (h)(2), Pub. L. No. 109-13, 119 Stat. 231 (2005); INA
240(c)(4){C). In this case, Respondent applied for relief from removal on November 17, 2011.
Therefore, the REAL ID Act governs his application. Accordingly, Respondent has the burden to
establish that he is eligible for relief and that he merits a favorable exercise of discretion. See
INA 240(c)(4); 8 C.F.R. 1240.8(d).

In determining whether Respondent has met this burden, the Court will ascertain whether
Respondent's testimony is credible, persuasive, and fact-specific. INA 240(c)(4)(B). The Court
weighs the testimony along with other record evidence. In making its credibility determination,
the Court considers the totality of the circumstances and all relevant factors, including: the
demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the
applicant's or witness's account, the consistency between the applicant's or witness's written and
oral statements (whenever made and whether or not under oath, and considering the
circumstances under which the statements were made), the internal consistency of such
statements, the consistency of such statements with other evidence of record (including the
reports of the Department of State on country conditions), and any inaccuracies or falsehoods in
such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the
heart of the applicant's claim, or any other relevant factor. INA 240(c)(4)(C). There is no
presumption of credibility. Id.

Although there were some minor inconsistencies in Respondent's testimony, after careful
consideration of the totality of the circumstances and all relevant factors, the Court finds
Respondent credible. The Court acknowledges that over 10 years have elapsed between
Respondent's testimony in the present proceedings and the date of the alleged incident
underlying Respondent's criminal conviction. Respondent was forthright and candid when
questioned about the sensitive nature and circumstances surrounding his 1994 conviction and he
provided thorough and plausible responses to questions submitted by both DHS and this Court.
Respondent's testimony regarding his employment, education, and personal history was
consistent with the documentary evidence in the record.

B. Statutory Eligibility

Former section 212(c) of the INA provides for a discretionary waiver of certain grounds
of removability for "aliens lawfully admitted for permanent residence who temporarily
proceeded abroad voluntarily and not under an order of deportation, and who are returning to a
lawful unrelinquished domicile of seven consecutive years." INA 212(c) (l 995). The Second

10
 )
..
Circuit held that the constitutional requirements of due process and equal protection required that
the section 212(c) waiver be afforded to non-departing lawful permanent residents, as well as
those who had proceeded abroad. Francis v. INS, 532 F.2d 268 (2d Cir. 1976); see also Matter
of Silva, 16 I&N Dec. 26 (BIA 1976) (adopting the holding of the Francis decision). Section
212(c) was subsequently repealed by section 304(b) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 ("IIRIRA").

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As a result, to be eligible for section 212(c) relief if placed in removal proceedings after
April 24, 1996, an applicant must be removable by virtue of a conviction entered prior to April 1,
1997, when section 212(c) was effectively repealed by IIRIRA. INS v. St. Cyr, 533 U.S. 289,
326 (2001); see also Matter of Abdelghany, 26 I&N Dec. 254, 255 (BIA 2014) (clarifying
eligibility requirements for relief under former section 212(c) and holding that otherwise-eligible
applicants may merit relief regardless of whether the relevant conviction resulted from a plea
agreement or trial). An applicant must also have maintained lawful, unrelinquished domicile in
the United States for a period of seven consecutive years. INA 212(c) (1995). An aggravated
felon may be eligible for relief if his conviction was entered between November 29, 1990, and
April 24, 1996, and if he has served less than five years imprisonment (in the aggregate) for such
conviction. Abdelghany, 26 l&N Dec. at 272. Former section 212(c) may be used to waive all
inadmissibility and removal grounds except those at INA 212(a)(3)(A). (B), (C), (E), and
(IO)(C). Id.; see also Judulang v. Holder, 132 S. Ct. 476 (2011) (invalidating BIA precedent
applying the "statutory counterpart rule" for determining eligibility under former 212(c)).

Respondent was convicted of assault on a child under 12 years of age before April 1,
1997. See Exh. 2. He was placed in proceedings after April 24, 1996. See Exh. 1. Although
Respondent's conviction constitutes a crime of violence aggravated felony, it was entered after
November 29, 1990, and before April 24, 1996, and Respondent was sentenced to a suspended
two-year term of imprisonment. Further, Respondent has maintained lawful, unrelinquished
domicile in the United States since his initial entry on May 19, 1980. Thus, under Abdelghany,
Respondent is statutorily eligible to waive the application of INA 237(a)(2)(A)(iii) resulting
from his 1994 conviction for assault on a child under 12 years of age. Id. at 255.

C. Discretion

The applicant bears the burden of establishing that a waiver under former section 212(c)
of the INA should be granted in the exercise of discretion. Matter of Marin, 16 I&N Dec. 581,
583 (BIA 1978); see 8 C.F.R. 12 l 2.3(a). Upon review of the record as a whole, the Court "is
required to balance the positive and adverse factors to determine whether discretion should be
favorably exercised." Marin, 16 I&N Dec. at 585. Positive factors include the applicant's
family ties within the United States; duration of residence in the United States (giving significant
weight where the grant of LPR status occurred at a young age); evidence of hardship to the
applicant and his family if removal were to occur; employment history; existence of property or
business ties; evidence of value and service to the community; proof of genuine rehabilitation if
a criminal record exists; and other evidence attesting to the applicant's good character. Id. at
584-85. Negative factors include the nature and underlying circumstances of the removability
grounds at issue; any additional significant violations of United States immigration laws; the
. nature, recency, and seriousness of the applicant's criminal record; and the presence of any other

11
 )

evidence indicative of his bad character or undesirability. Id. at 584. As the adverse factors
grow more serious, an applicant must introduce additional favorable evidence which may
involve "unusual" or "outstanding" equities. Matter of Roberts, 20 l&N Dec. 294, 299 (BIA
1991) (considering that an applicant for relief under former fNA 212(c) with a single serious
crime is required to introduce such additional evidence); see also Marin, 16 l&N Dec. at 586-87.

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Respondent has resided as an LPR in the United States for thirty.four years and was
accorded that status as a fourteen-year old boy. Exh. l. Respondent's mother, father, brother,
uncle, cousin, wife, and sevenyear old daughter are United States citizens and reside in the
United States. See Respondent's Notice of Filing (Nov. 17, 2011); Respondent's Witness List
(Aug. 8, 2012). Id. Respondent is a loving father to his daughter and helps her with homework
assigned through participation in a gifted program at her school. Respondent submitted evidence
showing that his wife receives medical treatment for high blood pressure. Respondent's Notice
of Filing, Tab I (Aug. 8, 2012). Respondent also submitted evidence showing that his mother
receives medical treatment for anxiety, depression, diabetes, "hypothyroidism secondary to
thyroid cancer," and abnormal blood cholesterol. Id. at Tab J. He is a practicing Jehovah's
Witness and attends church services regularly with his wife and daughter. Id. at Tab K.
Respondent has a long history of gainful employment. See Respondent's Notice of Filing, Tab
W, X, Z (Aug. 17, 2012). He also started a business selling leather gun holsters. See id. at Tab
BB. Respondent and his wife own their home and make timely mortgage payments. Id. at Tab
U. He files federal income taxes and has only collected unemployment benefits for ten months
of the thirty-four years he has resided in the United States. See id. at Tab Z; Respondent's
Notice of Filing, Tab N (Aug. 8, 2012). The Court finds these to be exceptionally strong positive
factors in Respondent's case.

The seriousness of Respondent's 1994 criminal conviction for assault on a child in North
Carolina is a significant negative factor. Respondent was accused of sexually abusing a child
while acting as a church elder. During extensive testimony given on July 3, 2013, and
November 18, 2013, Respondent maintained his innocence and denied any wrongdoing.
Respondent voluntarily underwent psychological testing to demonstrate to the Court that he
poses no danger to society or to children. See Respondent's Filing of Psychological Evaluation
(Oct. 25, 2012). Other than his 1994 conviction, Respondent has no criminal record, see
Respondent's Notice of Filing, Tab P (Aug. 8, 2012), and he has submitted extensive letters from
family, friends, and coworkers attesting to his good moral character. See Respondent's Notice of
Filing, Tab AA (Aug. 17, 2012).

Although Respondent maintains his innocence, the fact remains that he has been
convicted by the State of North Carolina of assault on a child under 12 years of age. The Court
considers this to be a serious crime. See Roberts, 20 I&N Dec. at 299. However, the Court finds
that Respondent's case presents "outstanding" equities which outweigh this adverse factor. Id.
Respondent is a contributing member of society, a devoted father and husband, and an
entrepreneur. He has been an LPR for over three decades. His 1994 conviction was entered over
20 years ago and appears to be an isolated incident. He was candid and forthright with the Court
regarding the circumstances of his conviction and he has demonstrated that he does not pose a
threat to society. In light of these considerations, the Court finds that Respondent merits a
favorable grant of discretion for relief under former section 212(c) of the fNA.

12
..

Although Respondent has applied for reliefunder INA 212(h) and adjustment ofstatus,
the Court need not address this application in light of its decision to grant relief under former
section 212(c), which waives Respondent's sole ground of removability. See I.N.S. v.
Bagamasbad, 429 U.S. 24 (1976) (considering that agencies are not required to make findings on
issues which are unnecessary to the result).

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V. Conclusion

Upon reconsideration in light of Descamps, 133 S. Ct. 2276, the Court finds that
Respondent's 1994 conviction for assault on a child under 12 years ofage constitutes a crime of
violence aggravated felony within the meaning of INA 10 l (a)(43){F). As such, the Court will
readopt its April 29, 2011 order ruling that Respondent is removable under INA
237(a)(2)(A)(iii) as an alien who, at any time after admission, has been convicted of an
aggravated felony.

However, the Court finds that Respondent is statutorily eligible under former INA
212(c) to waive the sole charge ofremovability under INA 237(a){2){A)(iii) based on his 1994
conviction. After careful deliberation of both positive and negative factors, the Court finds that
Respondent merits a favorable exercise ofdiscretion.

In light of the foregoing, the Court will enter the following orders:

ORDERS

IT IS HEREBY ORDERED that the Court's prior ruling sustaining the sole charge of
removability under section 237(a)(2)(A)(iii)ofthe INA is AFFIRMED.

IT IS FURTHER ORDERED that Respondent's application for a waiver of

removability under former Section 212(c) ofthe INA is GRANTED.

DATED this 27th day of October, 2014.

cc: Assistant Chief Counsel

Counsel for Respondent
Respondent

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