U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - CHI

Kozoll Immigration PLLC

332 W Broadway, STE. 1213
Louisville, KY 40202

525 West Van Buren Street

Chicago, IL 60607

Name: DELGADO, SIXTO

A 075-423-408

Date of this notice: 3/12/2015

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

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Holmes, David 8.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index
Cite as: Sixto Delgado, A075 423 408 (BIA March 12, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

Gott, Lynsay Kaye

U.S. Department of Justice

Executive Office for Immigration Review
Board of Immigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - CHI

525 West Van Buren Street
Chicago, IL 60607

CHICAGO, IL 60605

Name: DELGADO, SIXTO

A 075-423-408

Date of this notice: 3/12/2015

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. 1292.5(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,

bowu., {!tVlA)
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Holmes, David B.

Userteam:

Cite as: Sixto Delgado, A075 423 408 (BIA March 12, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

DELGADO, SIXTO
A075-423-408
C/O OHS CUSTODY
101 WEST CONGRESS APRKWAY

,U\S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File: A075 423 408 - Chicago, IL

Date:

In re: SIXTO DELGADO a.k.a. Sixto Delgado-Vine

MAR l 2 2015

MOTION
ON BEHALF OF RESPONDENT: Lynsay Kaye Gott, Esquire
ON BEHALF OF DHS:

Daniel Rah
Assistant Chief Counsel

On January 2, 2015, a three-member panel of the Board sustained the respondent's appeal
concerning an lmmigrtion Judge's August 25, 2014, decision, and remanded the case to the
Immigration Court for further proceedings. The Department of Homeland Security (the "DHS")
filed a timely motion seeking reconsideration of this order, on February 2, 2015, which is
opposed by the respondent. Section 240(c)(6) of the Immigration and Nationality Act, 8 U.S.C.
1229a(c)(6); 8 C.F.R. 1003.2(b). The motion will be denied.
The respondent was convicted in Kentucky, on March 12, 2003, of sexual misconduct in
violation of KRS 510.140, and unlawful imprisonment in the second degree, in violation of KRS
509.030.
The respondent was charged with being subject to removal under section
237(a)(2)(A)(i) of the Act, as an alien convicted of a crime involving moral turpitude. The
respondent was also charged with being subject to removal under section 237(a)(2)(A)(iii) of the
Act, as an alien who has been convicted of an offense defined as an aggravated felony under
section 101(a)(43) of the Act. The respondent's offenses were alleged to be aggravated felonies
both under section 101(a)(43)(A) of the Act, as an offense related to rape, and under section
101(a)(43)(F) of the Act, as a crime of violence for which the term of imprisonment is at least
one year.
The Board found that the respondent's actual conduct meets the common-law definition of
rape, constitutes a violent crime, and is reprehensible and morally turpitudinous. However, after
fully considering the record and relevant controlling federal court law, which we are obliged to
follow, we determined that a conviction under KRS 510.140 for sexual misconduct is not defined
as an aggravated felony under sections 10l(a)(43)(A) or (F) of the Act, and is not a crime
involving moral turpitude. Consequently, we found, the DHS did not establish that the
respondent was subject to removal under section 237(a)(2)(A)(i) of the Act, or under section
237(a)(2)(A)(iii) of the Act, on the basis of his conviction under KRS 510.140.
As for his conviction for unlawful imprisonment in the second degree in violation of KRS
509.030, we remanded the record to the Immigration Court. Upon remand, the Immigration
Judge was directed to give further consideration to whether the respondent's conviction under
KRS 509.030 satisfies the burden of the DHS to establish the respondent's removability under
section 237(a)(2)(A)(iii) of the Act, by operation of section 1 Ol(a)(43)(F) of the Act, and under
section 237(a)(2)(A)(i) of the Act.
Cite as: Sixto Delgado, A075 423 408 (BIA March 12, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A075 423 408

ORDER: The motion to reconsider filed by the DHS is denied.

FURTHER ORDER: The record is again remanded to the Immigration Court for further
proceedings.

--

FOR THE BOARD

Cite as: Sixto Delgado, A075 423 408 (BIA March 12, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

The pending motion argues that the Board erred in its January 2, 20 I 5, decision. However,
that decision correctly resolved the respondent's appeal, in a lengthy decision that fully
considered, and applied, the proper facts and law to this case. The DHS has not identified any
error of fact or law in the Board's prior decision which would alter the outcome. See 8 C.F.R.
1003.2(b) ; see also Matter of 0-S-G-, 24 I&N Dec. 56 (BIA 2006)( discussing the
requirements for motions to reconsider). Therefore, the DHS' motion to reconsider will be
denied.