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Birach, Robert M., Esq.

Charoos, Giovan & Birach, L.L.P.


645 Griswold, Suite 1800
Detroit, Ml 48226
Name:LEE,SANGCHUL
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leebur Pke, Suite 2000
Falls Church, Vrginia 2204/
OHS/ICE Ofice of Chief Counsel DET
333 Mt. Elliot St., Rm. 204
Detroit, Ml 48207
A 200-298-115
Date of this notice: 7/5/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Cole, Patricia A.
Sincerely,
Don c a,
Donna Carr
Chief Clerk
yungc
Userteam: Docket
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Cite as: Sangchul Lee, A200 298 115 (BIA July 5, 2013)
U.S. Department of Justice
Executive Ofce fr Imigation Review
Decision of the Board oflrigration Appeals
Falls Church, Virginia 22041
File: A200 298 115 - Detoit, MI
In re: SANGCHUL LEE
I REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Robert M. Birach, Esquire
ON BEHALF OF DHS:
CHARGE:
Brian G. Burgtorf
Assistant Chief Counsel
JUL -
5 2013
Notice: Sec. 237(a)(2)(A)(i), l&N Act [
8
U.S.C. 1227(a)(2)(A)(i)] -
Convicted of crime involving moral turpitude
APPLICATION: Terination of proceedings
The respondent appeals the Immigration Judge's December 27, 2011, decision fnding him
removable as charged. The record will be remanded to the Immigration Judge fr fher
proceedings consistent with this opinion and fr entry of a new decision.
The Immigration Judge fund the respondent removable as charged based his October 14,
2011, conviction fr the ofense of aggravated assault in violation of Michigan Compiled
Statutes section 750.8 la, which she fund to be a categorical crime involving moral turitude
(1.J. at 4-5; Exh. 2). We fnd the Immigration Judge misinterpreted the relevant statute (I.J. at 4-
5). Therefre, we fnd that the Immigration Judge erred in fnding the respondent removable as
charged based on the reasons cited in her decision (l.J. at 4-5). See 8 C.F.R. 1003.l(d)(3)(ii)
(2013) (de novo review).
Section 750. 81 a of the Michigan Compiled Statutes provides, in perinent part:
A person who assaults an individual without a weapon and inficts serious
or aggavated injury upon that individual without intending to commit
murder or to infict geat bodily injury less than murder ...
M.C.L. 750.8la(l) (emphasis added). As noted by the respondent on appeal, the Immigation
Judge eroneously refrred to his conviction as one fr "assault with a dangerous weapon" (I.J. at
4). Contrary to the Immigation Judge's interpretation, the statute specifcally states that the
assailant acted "without a weapon" (I.J. at 4). Further, the statute specifcally states that the
assailant acted "without intent" (1.J. at 5). As a result, there is a "realistic probability" the statute
reaches conduct that does not involve moral turpitude and is not a categorical crime involving
moral turpitude (I.J. at 4-5). See Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008);
Yeremin v. Holder, 707 F.3d 616 (6th Cir. 2013).
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Cite as: Sangchul Lee, A200 298 115 (BIA July 5, 2013)
A200 298 115
Under these circumstances, the modifed categorical approach is employed to deterine
whether the respondent's ofense is one that involves moral turpitude. See id. Here,
Immigration Judge's discussion of the modifed categorical approach is somewhat unclear (I.J. at
5-6). At one point, the Immigration Judge states that the documents in the record establish,
under the modifed categorical approach, an aggravated flony but not a crime involving moral
turpitude (l.J. at 5). Following that statement, the Immigration Judge fnds the police repor
establishes the ofense a a crime involving moral turpitude (I.J. at 6). Given the lack of claity
in this porion of the Immigration Judge's decision and our limited fct-fnding ability on appeal,
we fnd a remand is waranted.
Accordingly, the record will be remanded to the Immigration Judge fr fher proceedings
consistent wit this opinion and fr entry of a new decision.
ORDER: The record is remanded to the Immigation Judge fr frher proceedings
consistent with this opinion and fr entry of a new decision.

F
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Cite as: Sangchul Lee, A200 298 115 (BIA July 5, 2013)
6~.

.
.
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRTION REVIEW
U.S. IMMIGRATION COURT
File NO.: A200 298115
In the Matter of:
Sangchul Lee
Respondent
Detroit, Michigan
In Removal Proceedings
Charge(s): Section 237(a)(2)(A)(i) of the Immigration & Nationality Act
Applications: Termination
On Behalf of Respondent:
Nicole Mackmiller
Attorney at Law
206 N. Huron
Ypsilanti, MI 48171
F
On Behalf of the Department:
Brian Burgtorf
Ass't Chief Counsel
333 Mt. Elliott
Detroit, MI 48207
DECISION AND ORDER
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. M P
Respondent is a single male who is a native and citizen of the Republic of South Korea. The
Department of Homeland Security (DHS) initiated proceedings against the respondent pursuant
to the authority contained in section 240 of the Immigration & Nationality Act (the Act).
Proceedings were commenced with the immigration court by the fling of the Notice to Appear
(NTA). 8 C.F.R. 1003.14(a): Exhibit (Ex.) 1.
The respondent, through counsel, has admitted all the fctual allegations contained in the NT A.
but denies that he is subject to removal under Section 237(a)(2)(A)(i) of the Act. Respondent
asserts that the conviction fr aggravated assault pursuant to Michigan Compiled Laws (MCL)
750.81 a does not constitute a crime involving moral turpitude (CIMT) fr purposes of
immigration law. Counsel argues that the Michigan statut
e
lacks the required scienter to
establish the elements of a CIMT pursuant to Maller of Short, 20 I&N Dec. 136 (BIA 1989).
Respondent argues that the statute categorically docs not constitute a CIMT pursuant to the
required analysis . . \after <?f'Silr 'frevinu. 24 l&N Dec. 687(BlA 2007).
The Department of Homeland Security argues that the ofense in this matter is CIMT whether
considered solely categorically or pursuant to a modifed categorical analysis under Silva
Trevino.
-
. ~ l+
. .. . ~ .... --T
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M
I. Legal Standards
A. Crimes Involving Moral Turitude
Moral turpitude refers generally to conduct which is inherently base. vile, depraved, or
contrary to the accepted rules of morality and the duties owed between persons or society in
general. See Maller <?Franklin. 20 I&N Dec. 867. 868 (BIA 1994). A crime involving moral
turpitude requires "some degree of scienter. whether specific intent, deliberateness, willflness.
or recklessness." Matter of Silva-Trevino, 24 I&N Dec. 687, 689 n. l & 706 n.5 (A.G. 2008).
Moral turpitude also has been defned as an act which is per se morally reprehensible and
intrinsically wrong. or ma/um in se. so it is the nature of the act itself and not the statutory
prohibition of it which renders a crime one of moral turpitude. See Matter of Torres-Varela, 23
I&N Dec. 78, 85 (BIA 2001); see also Franklin, 20 I&N Dec. at 868; Matter of Fualaau, 21 I&N
Dec. 475 (BIA 1996). The seriousness of a criminal ofense, the severity of the sentence
imposed. or the paricula circumstances of the crime's commission do not determine whether the
crime involves moral turpitude. Matter of Serna. 20 I&N Dec. 579, 581 (BIA 1992); Matter of
Short. 20 l&N Dec. 136. 137(BIA 1989).
To determine whether a specifc crime involves moral turpitude, the Court frst applies
the "'categorical approach." The Court looks to whether there is a "realistic probability, not a
theoretical possibility," that the applicable criminal statute "would be applied to reach conduct
that does not involve moral turpitude." Silva-Trevino, 24 I&N Dec. at 696-97. The Court must
determine whether moral turpitude necessarily inheres in all cases that have a realistic probability
.. .
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(7' .-
V
of being prosecuted by looking at whether the statute was applied to conduct that did not involve
moral turpitude. Id at 696-97. Specifcally, .. whether at the time of the alien's removal
proceeding, any actual .. . case exists in which the relevant criminal statute was applied to
conduct that did not involve moral turpitude." Id at 697. If the statute has not been applied to
any case, including respondent's case, where moral turpitude is absent, the Court may
categorically treat all convictions under the statute as involving moral turpitude. Id.
When a statute is divisible, that is, when some of the conduct prohibited by the statute
involves moral turpitude and some does not, the Court must apply the '"modifed categorical
approach" and look at the record of conviction, including the indictment, judgment of conviction,
jury instructions. a signed guilty pica, and the pica transcript to determine if moral turpitude is
involved. Id at 690. If the record of conviction is inconclusive, the Immigration Judge may
consider any pertinent evidence beyond the frmal record of conviction to determine if the alien
engaged in conduct that constitutes a crime involving moral turpitude. Id at 704; Matter of
Ahortalejo-Gu=man, 25 l&N Dec. 465, 469 (BIA 2011 ).
Respondent was convicted of assault with a dangerous weapon under Michigan Compiled
Laws ("MCL") 750.81 a. states, in pertinent part:
[A I person who assaults another person with out a weapon und inficts serious or
aggravated injury upon that individual without intending to commit murder o to
inllict great bodily harm less than murder is guilty of a misdemeanor punishable
by imprisonment for not more than I year or a line of not more than $1.000.00
MCL 750.8la
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Under the categorical approach, this Court is only to consider whether there is a
''realistic probability, not a theoretical possibility," that the conduct does not involve moral
turpitude. Silva-Trevino, 24 I&N Dec. at 689-90. In making its determination that respondent's
conviction under MCL 750.81 a is categorically a crime involving moral turpitude, the Court
finds that the crime involves both reprehensible conduct and scienter. Aggravated assault
" .. .intending to infict great bodily harm''is clearly contrary to the accepted rules of morality and
the duties owed between persons and society in general. It is vile, morally base, degrading. and
contrary to the duties owed between persons and society in general. Unlike the assault at issue in
Matter of Sanuedo, 23 I&N Dec. 968 (BIA2006) which did not require the infiction of harm, the
Michigan statute requires the infiction of .. great bodily harm".
The provisions of MCL 750.81 a also additionally requires general intent. See, People v.
Johnson. 407 Mich 196. 284 N. W. 2d 718 (1979). The Michigan Supreme Court fund that are
assaults ac general intent crimes requiring the intent to commit an unlawful act. Here the statute
couples the general intent to commit an unlawfl act with the infiction of aggravated injur on
the victim. The ofense of aggravated assault pursuant to MCL 750.81 a is categorically a
CIMT. Matter of Perez Contreras, 20 I&N Dec. 615, 620 (BIA 2006).
However, even if the ofense were not categorically a CIMT, the Court would fnd that
the respondent's conviction did constitute an aggravated flony based upon the submission of the
police report. The conviction and underlying infrmation do not resolve the issue of whether the
ofense is one of moral turpitude. Ex. 2. The OHS did submit a copy of the police report in
connection with its response to respondent's motion to dismiss. TABB. A review of the police
.P
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I
report shows that the respondent engaged in repeated kicks to the victim to the fce and head,
punching the victim in the fce repeatedly and throwing him to the ground. The report shows the
infiction of serious injuries to the victim. While counsel fr respondent has objected to the
consideration of the report, the decision in Si/\-Tevino permits consideration of evidence
outside of the record of proceeding to establish moral turpitude. The respondent in this case was
convicted of a CIMT under either approach of analysis.
The respondent has requested no relief from removal. Based on the fregoing, the
fllowing order is entered:
ORDER: IT IS ORDERED that the respondent be removed and deported to the Republic
of South Korea on the charges contained in the Notice to Appear.
1 2/27/11
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