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U.S. Department of Jnstice Executive Office for Immigration Review ' Board ofl111111igratio11 Appeals Office ofthe
U.S. Department of Jnstice
Executive Office for Immigration Review
'
Board ofl111111igratio11 Appeals
Office ofthe Clerk

5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 20530

Muro, Roxana V., Esq Law Offices of Roxana V. Muro 51O W. 6th Street., Suite 420 Los Angeles, CA 90014

OHS/ICE Office of Chief Counsel· LOS 606 S. Olive Street, 8th Floor Los Angeles, CA 90014

Name: E

-L

, C

A

A

485

Date of this notice: 7/3/2014

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

Sincerely,

0Gn.nL CWVLJ

Enclosure

Panel Members:

Pauley, Roger

Donna Carr

Chief Clerk

williame Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: C-A-E-L-, AXX XXX 485 (BIA July 3, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

U.S. Department of Justice Decision ofthe Board oflmrnigration Appeals Executive Office for Immigration Review Falls
U.S. Department of Justice
Decision ofthe Board oflmrnigration Appeals
Executive Office for Immigration
Review
Falls Church, Virginia 20530
File:
485 - Los Angeles, CA
Date:
JUL
- 3
2014

In re:

C

A

E

-L

a.k.a.

1N REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:

CHARGE:

R . oxana V. Muro, Esquire

Notice:

Sec.

212(a)(6)(A)(i), I&N Act [8 U.S.C.§ 1 l 82(a)(6)(A)(i)] - Present without being admitted or paroled

APPLICATION:

Cancellation of removal

The respondent, a native and citizen of Guatemala, appeals from the Immigration Judge's

decision dated May 29, 2013, denying his application for cancellation of removal. See section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b). The record will be

remanded.

Act, 8 U.S.C. § 1229b(b). The record will be remanded. of his unlawful presence, cancellation of

of his

unlawful presence,

cancellation of removal. Section 240A(b)(! )(C) of the Act requires that an applicant for cancellation of removal demonstrate that he has not been convicted of an offense under sections 212(a)(2) or 237(a)(2) of the Act, 8 U.S.C. §§ 1182(a)(2), 1227(a)(2). According to the

Immigration Judge, the respondent did not carry his burden of proof under section 240A(b)( l )(C)

because he sustained a 1998 conviction for violating Cal. Penal Code § 261.5(d), an offense that may constitute a crime involving moral turpitude ("CIMT") under section 237(a)(2) of the Act (I.J. at 3-9). On appeal, the respondent challenges the Immigration Judge's detetmination that he

was convicted of a CIMT.

the only issue on appeal is whether he is eligible to apply for

The

respondent concedes

and thus

that

he

is removable from

the United

States

by

virtue

a "categorical approach."

Olivas-Motta v. Holder, 716 F.3d 1199, 1204 (9th Cir. 2013).1 Under that approach, an offense is a categorical CIMT if the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction corresponds to the generic meaning of the CIMT concept. See, e.g., Gonzalez-Cervantes v. Holder, 709 F.3d 1265, 1266 (9th Cir. 2013); Nunez v. Holder,

594 F.3d 1124, 1129 (9th Cir. 2010).

To determine whether an offense qualifies as a CIMT, we employ

At the time of the respondent's conviction in 1998, Cal. Penal Code§ 261.5(d) stated:

Any person over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony,

1 Whether the respondent was convicted of a CIMT is a question of law that we review de novo.

8 C.F.R.§

1003.l(d)(3)(ii).

Cite as: C-A-E-L-, AXX XXX 485 (BIA July 3, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net 485 and shall be punished by imprisonment in a

485

Immigrant & Refugee Appellate Center | www.irac.net 485 and shall be punished by imprisonment in a

and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years.

It is undisputed that the offense defined by Cal. Penal Code § 261.5(d) is not a categorical

CIMT because it "does not require a perpetrator to have engaged in intentional sexual conduct with someone he or she knew or should have known to be a child"; as such, there is a realistic

probability that it could be applied to conduct that does not involve moral turpitude. Matter ofAlfaro, 25 I&N Dec. 417, 424 (BIA 2011); see. also Quintero-Salazar v. Keisler, 506 F.3d 688, 692-93 (9th Cir. 2007) (concluding that an offense is not a categorical CIMT because it criminalizes certain conduct that the court deemed malum prohibitum, such as consensual intercourse between a college sophomore and high school junior). As Cal. Penal Code§ 261.5(d) encompasses both turpitudinous and non-turpitudinous conduct, this Board and the Ninth Circuit have treated it as a "divisible" statute vis-a-vis the CIMT concept, authorizing

Immigration Judges to consult aliens' conviction records under the "modified categorical approach" to determine whether the particular alien before the court knew or should have known that the victim was a child. Here, the Immigration Judge conducted such a modified categorical inquiry and found that the record was inconclusive as to this question such that the respondent failed to carry his burden of proving statutory eligibility for cancellation of removal (I.J. at 6-8).

See Young v. Holder, 697 F.3d 976, 988-89 (9th Cir. 2012).

Holder, 697 F.3d 976, 988-89 (9th Cir. 2 0 1 2 ) . H o w

However, during the pendency of this appeal, the Supreme Court held that the modified categorical approach operates narrowly, and applies only if: (1) the statute of conviction is divisible in the sense that it lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of "elements," 2 more than one combination of which could support a conviction, and (2) some (but not all) of those listed offenses or

combinations of disjunctive elements are a categorical match to the relevant generic standard. Descamps v. United States, 133 S. Ct. 2276, 2281, 2283 (2013). Thus, after Descamps 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; according to

the Descamps Court, such crimes are "overbroad" but not "divisible." Id. at 2285-86, 2290-92; see also Aguilar-Turcios v. Holder, 740 F.3d 1294, 1301-02 (9th Cir. 2014) (applying the approach to divisibility announced in Descamps in the immigration context).

Because the respondent has shown that his conviction is not for a categorical CIMT, the remaining issue is whether Cal. Penal Code § 261.5(d) is a "divisible" statute such that the Immigration Judge would be permitted to conduct a "modified categorical" inquiry. Cal. Penal Code § 261.5(d) contains the following elements: (1) sexual intercourse with another person;

(2) the defendant was at least 21 years of age at the time of intercourse; and (3) the other person was under the age of 16 years at the time of intercourse. Palayo-Garcia v. Holder, 589 F.3d 1010, 1014 (9th Cir. 2009). It does not include a scienter requirement. Id Like the

criminal statute at issue in Descamps, Cal. Penal Code § 261.5(d) defines "Unlawful Sexual

2 By "elements," we understand the Descamps Court to mean those facts about a crime which must be proved to a jury beyond a reasonable doubt and about which the jury must agree by whatever margin is required to convict . in the relevant jurisdiction. Id. at 2288 (citing Richardson v. United States, 526 U.S. 813, 817 (1999)).

(citing Richardson v. United States, 526 U.S. 813, 817 (1999)). 2 Cite as: C-A-E-L-, AXX XXX

2

Cite as: C-A-E-L-, AXX XXX 485 (BIA July 3, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net 485 ' ' Intercourse" more broadly than the

485

' '
'
'

Intercourse" more broadly than the corresponding generic offense because it does not require that the perpetrator knew or should have known that that the victim was a child.3 Because the statute is missing an element of the generic crime, our inquiry ends here; we do not undertake a modified categorical analysis. Descamps v. United States, supra, at 2283, 2292 (holding that the

modified categorical approach does not apply to statutes that contain an '"indivisible' set of elements sweeping more broadly than the corresponding generic offense," meaning that "the statute of conviction has an overbroad or missing element"). "Because of the mismatch in elements, a person convicted under [Cal. Penal Code § 261.5(d)] is never convicted of the

generic crime." Id. at 2292.

As the offense defined by Cal. Penal Code § 261.5(d) is neither a categorical CIMT nor divisible vis-a-vis the CIMT concept, the respondent's conviction under that statute does not necessarily render him ineligible for cancellation of removal under section 240A(b)(1)(C).4 Accordingly, the record will be remanded for further consideration of the respondent's application for relief. We express no present opinion as to whether the respondent is otherwise eligible for, or deserving of, cancellation of removal. Such matters are for the Immigration Judge to decide in the first instance. The following order shall be issued.

in the first instance. The following order shall be issued. ORDER: The record is remanded to

ORDER: The record is remanded to the Immigration Judge for futther proceedings consistent

with the foregoing opinion and for the entry of a new decision.

FOR TE BOARD --=::::::
FOR TE BOARD --=::::::

3 A defendant charged with statutory rape under this section may present evidence of a good faith belief that the victim was over the age of consent. See People v. Hernarndez, 61 Cal. 2d

529 (1964). However, the availability of a limited mistake-of-age defense is "not equivalent to the requirement that the govermnent prove that the defendant had the requisite state of mind."

Palayo-Garcia v. Holder, supra, at 1015.

4 We note that the respondent has argued that his conviction under Cal. Penal Code§ 261.5(d) is also not an aggravated felony under section 101(a)(43)(A) of the Act, 8 U.S.C.§ l 101(a)(43)(A),

which would bar him from relief. See Pelayo-Garcia v. Holder, supra, at 1014 (noting that a defendant could be convicted under this statute even if the government failed to prove beyond a

reasonable doubt that the defendant "knowingly" engaged in a sexual act). Because the Immigration Judge did not reach this question, we will remand for the parties to have the opportunity to address this question in the first instance, as well as whether the respondent's

conviction under Cal. Penal Code§ 243(e)( l) affects his eligibility

forrelief.

3

under Cal. Penal Code§ 243(e)( l) affects his eligibility forrelief. 3 Cite as: C-A-E-L-, AXX XXX

Cite as: C-A-E-L-, AXX XXX 485 (BIA July 3, 2014)