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Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net U.S. Department of Justice Executive Office for Immigration Review

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

Wiesinger,

Benjamin

Todd

OHS/ICE

Office of Chief Counsel

- EAZ

Pope &

Associates

P.O. Box

25158

320

E. McDowell

Road, Ste.

220

Phoenix,

AZ 85002

Phoenix,

AZ 85004

Name: REYES-GUILLEN,

PEDRO

A 076-703-814

 

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

Immigrant & Refugee Appellate Center | www.irac.net U.S. Department of Justice Executive Office for Immigration Review

For more unpublished BIA decisions, visit www.irac.net/unpublished

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

.:;

Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net U.S. Department of Justice Executive Office for Immigration Review

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration 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

OHS / ICE Office of Chief Counsel - EAZ P.O. Box 25158 Phoenix, AZ 85002

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,

 

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)

Decision of the Board of Immigration Appeals U.S. Department of Justice Executive Office for Immigration Review
Decision of the Board of Immigration Appeals
U.S. Department of Justice
Executive Office for Immigration Review
Falls Chiirch, Virginia 20530

Immigrant & Refugee Appellate Center | www.irac.net

Fil:

A076 703 814 - Eloy, AZ

In re: PEDRO REYES-GUILLEN IN REMOVAL PROCEEDINGS
In
re:
PEDRO REYES-GUILLEN
IN REMOVAL PROCEEDINGS

Date:

DEC

- 5 2014

APPEAL

ON BEHALF OF RESPONDENT:

Benjamin Todd Wiesinger, Esquire

CHARGE:

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

Sec.

237(a)(2)(A)(ii), l&N Act [8 U.S.C. § 1227(a)(2){A)(ii)] - Convicted of two or more crimes involving moral turpitude

APPLICATION: Termination

Decision of the Board of Immigration Appeals U.S. Department of Justice Executive Office for Immigration Review

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

, · A076 703 814
,
· A076 703 814

"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.

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.

Immigrant & Refugee Appellate Center | www.irac.net , · A076 703 814 "divisibility" that appears substantially

FOR THE BOARD

Immigrant & Refugee Appellate Center | www.irac.net , · A076 703 814 "divisibility" that appears substantially

2

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

Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION
Immigrant & Refugee Appellate Center | www.irac.net UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT ELOY, ARIZONA

Immigrant & Refugee Appellate Center | www.irac.net UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION

File: A076-703-814

In the Matter of

May 29, 2014

PEDRO REYES-GUILLEN

RESPONDENT

)

)

IN REMOVAL PROCEEDINGS

)

)

CHARGES:

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.

Immigrant & Refugee Appellate Center | www.irac.net UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION

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

Immigrant & Refugee Appellate Center | www.irac.net UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION

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

Immigrant & Refugee Appellate Center | www.irac.net UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION

Department of Homeland Security brought these removal proceedings against the

respondent under the Immigration and Nationality Act.

Proceedings commenced with a

1

Immigrant & Refugee Appellate Center | www.irac.net UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION

Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net filiAg of a Notice to Appear dated January 29,

filiAg of a Notice to Appear dated

January 29, 2014,

Exhibit 1.

against the respondent. See
against the
respondent.
See

At a Master Calendar hearing, respondent, through counsel, admitted the first

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

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

Immigrant & Refugee Appellate Center | www.irac.net filiAg of a Notice to Appear dated January 29,

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

Immigrant & Refugee Appellate Center | www.irac.net filiAg of a Notice to Appear dated January 29,

involving moral turpitude based upon the Supreme Court decision of Descamps v.

Immigrant & Refugee Appellate Center | www.irac.net filiAg of a Notice to Appear dated January 29,

United States, 133 S. Ct. 2276 (2013). See Exhibit 9. On May 9, 2014, the

Immigrant & Refugee Appellate Center | www.irac.net filiAg of a Notice to Appear dated January 29,

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

Immigrant & Refugee Appellate Center | www.irac.net filiAg of a Notice to Appear dated January 29,

documentary evi dence 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

Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net and, therefore, sustained. In addition, a review of the

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

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

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).

Immigrant & Refugee Appellate Center | www.irac.net and, therefore, sustained. In addition, a review of the

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:

Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net ORDERS · IT IS HEREBY ORDERED that the motion
Immigrant & Refugee Appellate Center | www.irac.net ORDERS · IT IS HEREBY ORDERED that the motion

ORDERS

·
·

IT IS HEREBY ORDERED that the motion to terminate is denied.

IT IS HEREBY ORDERED that both charges of removability are sustained.

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

States to Mexico.

Immigrant & Refugee Appellate Center | www.irac.net ORDERS · IT IS HEREBY ORDERED that the motion

LINDA I. SPENCER-WALTERS

Immigration Judge

Immigrant & Refugee Appellate Center | www.irac.net ORDERS · IT IS HEREBY ORDERED that the motion

Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net CERTIFICATE PAGE I hereby certify that the attached proceeding

CERTIFICATE PAGE

Immigrant & Refugee Appellate Center | www.irac.net CERTIFICATE PAGE I hereby certify that the attached proceeding

I hereby certify that the attached proceeding before JUDGE LINDA I. SPENCER-

WALTERS, in the matter of:

PEDRO REYES-GUILLEN

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£ �
4(!(11L71i-
r7£ �

ANTOINETTE T. KEANE (Transcriber)

FREE STATE REPORTING, lnc.-2

JULY 29, 2014

(Completion Date)

Immigrant & Refugee Appellate Center | www.irac.net CERTIFICATE PAGE I hereby certify that the attached proceeding