U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5107 leesburg Pike, Suile 2000
Falls Church, Virginia 20530

OHS LIT.Nork Co. PrisonNOR

3400 Concord Road
York, PA 17402

Name: SILVA, JONATHAN ENRIQUE

A 036-404-266

Date of this notice: 7/14/2015

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

DorutL c

t1AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.

Userteam: Docket

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Cite as: Jonathan Enrique Silva, A036 404 266 (BIA July 14, 2015)

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SILVA, JONATHAN ENRIQUE

LS-2395/A036-404-266
SCI - LAUREL HEIGHTS
5706 GLADE PIKE
PO BOX 631
SOMERSET, PA 15501

. U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executie Office for Immigration Review

Falls Church, Virginia 20530

File: A036 404 266- York, PA

Date:

JUL J 4 2015

In re: JONATHAN ENRIQUE SILVA

APPEAL
ON BEHALF OF RESPONDENT: Pro se
ON BEHALF OF DHS: Jeffrey T. Bubier
Senior Attorney
CHARGE:
Notice:

Sec. 237(a)(2)(E)(i), I&N Act [8 U.S.C. 1227(a)(2)(E)(i)] Convicted ofcrime of domestic violence, stalking, child abuse, child
neglect, or child abandonment
Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a )(2)(A)(iii)] Convicted of aggravated felony

APPLICATION: Removability

The respondent, a native and citizen of Ecuador, has appealed from the April 20, 2015,
Immigration Judge's decision. We review questions of law, discretion, and judgment arising in
appeals from decisions oflmmigration Judges de novo, whereas we review findings offact in such
appeals under a "clearly erroneous" standard. See 8 C.F.R. 1003.l(d)(3). The record will be
remanded.
The respondent argues that he should have been provided counsel to assist him during his
removal proceedings. There is no right to free representation in immigration proceedings. Section
292 of the Immigration and Nationality Act, 8 U.S.C. 1362, provides that every person in removal
proceedings "shall have the privilege of being represented (at no expense to the Government ) by
such counsel, authorized to practice in such proceedings, as he shall choose." The respondent was
provided a list of free legal service providers at the time he was served with the Notice to Appear
(Exh. I and attachment), and the Immigration Judge explained the right to counsel and advised the
respondent to hire an attorney ifhe wished to be represented (Tr. at 1-3, 9-10). The respondent's
proceedings were continued several times, and he had the right to secure counsel at any time during
the process. We therefore conclude that the respondent's right to counsel was not violated. See
Madrigal-Calvo, 21 I&N Dec. 323, 327-28 (BIA 1996).

Cite as: Jonathan Enrique Silva, A036 404 266 (BIA July 14, 2015)
,+ ill

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IN REMOVAL PROCEEDINGS

A036 404 266

Finally, while the Immigration Judge sustained the charge under section 237(a)(2)(E)(i) of the
Act during the hearing (Tr. at 20), he did not make specific findings and conclusions on this charge
in the course of his oral decision. This should be done on remand.
ORDER: The record is remanded for further proceedings.

Cite as: Jonathan Enrique Silva, A036 404 266 (BIA July 14, 2015)
4

&Jd......i

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However, we find it appropriate to remand the record to allow the Immigration Judge to analyze
more thoroughly whether the respondent's conviction for unlawful contact with a minor under 18 Pa.
Cons. Stat. 6318(a)(4) qualifies as a "sexual abuse of a minor" aggravated felony under section
237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U .S.C. l 227(a)(2)(A)(iii). In particular,
the Immigration Judge should identify more specifically which elements of the statute of conviction
match the definition of sexual abuse of a minor adopted in Matter ofRodriguez-Rodrigu,ez, 22 I&N
Dec. 991 (BIA 1999). See Cadapan v. Atty Gen. of United States, 749 F.3d 157 (3d Cir. 2014);
Stubbs v. Atty Gen. of United States, 452 F.3d 251 (3d Cir. 2006). He should also clarify whether
the statute of conviction is a categorical aggravated felony or divisible in light of Descamps v. United
States, 133 S. Ct. 2276 (2013).

File: A036-404-266

April 1, 2015

In the Matter of
)
)
)
)

JONATHAN ENRIQUE SILVA

RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGE:

Section 237(a)(2)(E)(i); Section 237(a)(2)(A)(iii).

APPLICATIONS:

None.

ON BEHALF OF RESPONDENT: PRO SE

ON BEHALF OF OHS: RICHARD O'BRIEN
Assistant Chief Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE

This respondent is a 42-year-old single male alien, native and citizen of Ecuador.
who was placed into removal proceedings by certified mail of a Notice to Appear, Form
1-862, on or about November 3, 2014. He was properly served with the legal services
list the Court maintains. He appeared prose at all his Master Calendar proceedings"
including today.
The respondent, a lawful permanent resident since 1979, was charged and
convicted as indicated on allegation no. 4 in the Notice to Appear for unlawful contact

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
YORK, PENNSYLVANIA

with a minor (obscene and other sexual materials and performances) in violation of Title
18, Pennsylvania Code, Section 6318A4. The Court held the case over until today to

In Matter of Rodriquez-Rodriquez, 22 l&N Dec. 991, 995 (BIA 1999), the Board
utilized the definition of "sexual abuse" expressing that the definition is not all
compassing in this regard. The basic component, however, is there must be some
sexual "contact" with a "minor." In Singh v. Ashcroft, 383 F.3d 144 (3rd Cir. 2004), the
Third Circuit requires a categorical approach for an aggravated felony unless the
statutory scheme requires a modified categorical approach, such asis where the
disjunctive phrasing of the statute invites inquiry into the specifics of the conviction. In
Stubbs v. Attorney General, 652 F.3d 251 (3rd Cir. 2006), the Third Circuit reiterated the
record must support sexual contact with a child that isJ. a past act with a child.
Given the wide breadth of conduct encompassed within 18 U.S.C. Section
3508(a)(8), as the Board adopted in Matter of Rodriquez-Rodriquez, this Court is
persuaded that the respondent, convicted under the Pennsylvania statute at issue, has
necessarily engaged in an act within the definition of "sexual abuse of a minor" as
defined in the aggravated felony category in INA Section 101(a)(43)(A). While
respondent argues that he had no physical contact with the minor at issue, which the
Court has no reason to doubt, the term "sexually explicit conduct" which includes the
specific type of sexual acts absent in the present case, 18 U.S.C. Section 3508(a)(8),
also includes "other forms of sexual exploitation of children."
To this Court, at least, contacting the minor through electronic media with a
specific obscene intent through materials or performancesJ. falls within the ambit of
"child exploitation" and hence constitutes the sexual abuse of a minor and thus an
aggravated felony. Therefore, the following order is hereby entered:

A036-404-266

April 1, 2015

Immigrant & Refugee Appellate Center, LLC | www.irac.net

examine the statute at issue as well as the conviction record.

ORDER
The respondent is hereby ordered removed from the United States to Ecuador.

signature

A036-404-266

WALTER A. DURLING
Immigration Judge

April 1, 2015

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WOP/ease see the next page for electronic

/Isl/
Immigration Judge WALTER A. DURLING

A036-404-266

Immigrant & Refugee Appellate Center, LLC | www.irac.net

durlingw on May 7, 2015 at 8:47 PM GMT

April 1, 2015