U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Su/le 2000

Falls Church. Virgm1a 22041

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Gott, Lynsay Kaye OHS/ICE Office of Chief Counsel - CHI
Kozoll & Associates Immigration Law PLLC 525 West Van Buren Street
332 W. Broadway Chicago, IL 60607
Suite 1213
Louisville, KY 40202

Name: DELGADO, SIXTO A 075-423-408

Date of this notice: 3/27/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Mullane, Hugh G.
Malphrus, Garry D.
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: Sixto Delgado, A075 423 408 (BIA March 27, 2017)
 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 22041

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DELGADO, SIXTO OHS/ICE Office of Chief Counsel - CHI
A075-423-408 525 West Van Buren Street
MCHENRY COUNTY JAIL Chicago, IL 60607
2200 SEMINARY AVE
WOODSTOCK, IL 60098

Name: DELGADO, SIXTO A 075-423-408

Date of this notice: 3/27/2017

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,
1
/ I

4Jt
Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Mullane, Hugh G.
Malphrus, Garry D.
Pauley, Roger

Userteam:

Cite as: Sixto Delgado, A075 423 408 (BIA March 27, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A075 423 408 - Chicago, IL Date:

MAR 2 7 2017
In re: SIXTO DELGADO a.k.a. Sixto Delgado-Vine

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Lynsay Kaye Gott, Esquire

ON BEHALF OF OHS: Daniel Rah

Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(A)(iii), l& N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -

Convicted of aggravated felony

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: Termination

This case was last before us on March 12, 2015, when we denied the Department of
Homeland Security's (OHS) motion for reconsideration of our January 2, 2015, order sustaining
the respondent's appeal of the Immigration Judge's August 25, 2014, decision finding him
removable as charged and ordering his removal from the United States. Specifically, we held in
our January 2, 2015, decision, that the respondent's 2003 conviction for sexual misconduct in
violation of section 510.140 of the Kentucky Revised Statutes (KRS) did not subject the
respondent to removability under section 237(a)(2)(A)(iii) of the Immigration and Nationality
Act, 8 U.S.C. 1227(a)(2)(A)(iii), as an alien who has been convicted of an aggravated felony as
defined in sections 101(a)(43)(A) and (F) (rape and crime of violence, respectively), or under
section 237(a)(2)(A)(i) of the Act, as an alien who has been convicted of a crime involving moral
turpitude (CIMT). We remanded the record for the Immigration Judge to consider whether the
respondent's 2003 conviction for unlawful imprisonment in violation of KRS 509.030, subjected
the respondent to removability under section 237(a)(2)(A)(i) of the Act (CIMT) and/or section
237(a)(2)(A)(iii) of the Act, as defined in section 10l(a)(43)(F) (crime of violence).

On remand to the Immigration Judge, the OHS conceded that the respondent's conviction for
unlawful imprisonment was not for an aggravated felony crime of violence; however, the OHS
lodged an additional ground of removability, alleging that the respondent's sexual misconduct
conviction constitutes an aggravated felony under section 237(a)(2)(A)(iii), as defined in section
10 l (a)(43)(A) (sexual abuse of a minor). The respondent denied the charges and moved to
terminate proceedings. In a decision dated June 11, 2015, the Immigration Judge sustained the
charges, specifically concluding that the respondent was removable under section
237(a)(2)(A)(iii) of the Act, as defined in section 101(a)(43)(A) (sexual abuse of a minor), based
on his sexual misconduct conviction, and was further removable under section 237(a)(2)(A)(i) of

Cite as: Sixto Delgado, A075 423 408 (BIA March 27, 2017)
A075 423 408

the Act (CIMT), based on his unlawful imprisonment conviction. The respondent appeals from
that decision. The appeal will be sustained and these removal proceedings will be terminated.

The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under the"clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). The
Board reviews questions of law, discretion, and judgment and all other issues in appeals from

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decisions of Immigration Judges de novo. 8 C.F.R. 1003. l (d)(3)(ii).

The issues before us on appeal are: (1) whether the respondent's conviction for sexual
misconduct constitutes a conviction for an aggravated felony for sexual abuse of a minor; and (2)
whether the respondent's conviction for unlawful imprisonment is for a CIMT.

In considering the first issue, we employ the"categorical approach," which requires looking
not to the facts of a prior criminal case, but to"whether 'the state statute defining the crime of
conviction' categorically fits within the 'generic' federal definition of a corresponding" removal
ground. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85 (2013);
Matter ofChairez-Castrejon, 26 l&N Dec. 819, 821 (BIA 2016). Section 510.140 of the KRS
provides: "A person is guilty of sexual misconduct when he engages in sexual intercourse or
deviate sexual intercourse with another person without the latter's consent."

We have determined that for purposes of section 101(a)(43)(A) of the Act, sexual abuse of a
minor generally consists of "the employment, use, persuasion, inducement, enticement, or
coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct
or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest
with children." See Matter of Rodriguez-Rodriguez, 22 l&N Dec. 991, 995-96 (BIA 1999); see
also Gaiskov v. Holder, 567 F.3d 832, 835 (7th Cir. 2009) (affording deference to the definition
of"sexual abuse" set forth in Matter of Rodriguez-Rodriguez, supra). We have further held that
a victim of sexual abuse who is under the age of 18 is a "minor" for purposes of section
10l(a)(43)(A) of the Act. See Matter of V-F-D-, 23 I&N Dec. 859 (BIA 2006). Thus, a relevant
offense will qualify as "sexual abuse of a minor" if the victim is under 18 years old, see
Matter of V-F-D-, supra, and the crime meets the generic definition of "sexual abuse" in

Matter ofRodriguez-Rodriguez, supra.

We conclude that section 510.140 of the KRS, as defined above, is categorically overbroad
relative to the Board's definition of "sexual abuse of a minor." Specifically, the Immigration
Judge found that the elements of the statute on its face are: (1) a person engages in sexual
intercourse or deviate sexual intercourse; (2) with another person; (3) without that person's
consent (I.J. at 5). She further noted that, based on these elements, the statute, on its face,
encompasses more than "minor" victims (l.J. at 5). The Immigration Judge further found that
notwithstanding the plain language of the statute, because the statute is "only" applied when the
victim is under the age of 16, there is no "realistic probability" that a prosecution under the
statute would take place in a case where the victim was not a minor (l.J. at 5). See
Moncrieffe v. Holder, supra, at 1685 (affirming that there must be a realistic probability, not a
theoretical possibility, that the State would apply its statute to conduct that falls outside the
generic definition of a crime) (internal citations omitted). The Immigration Judge based this
determination, in part, on the commentary to the statute, which states that the statute is:

2
Cite as: Sixto Delgado, A075 423 408 (BIA March 27, 2017)
A075 423 408

"designed primarily to prohibit nonconsensual sexual intercourse or deviate sexual intercourse

under two circumstances: when the victim is 14 or 15 and the defendant is less than 21; or when
the victim is 12, 13, 14, or 15 and the defendant is less than 18 years of age."

However, the commentary also notes that the statute "provides a useful plea-bargaining tool
for the prosecutor in certain cases." The respondent properly points to his own case as an

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example of where the statute was applied, as a plea-bargaining tool, to conduct not covered by
the federal offense of "sexual abuse of a minor." See Gonzales v. Duenas-Alvarez, 127 S. Ct.
815, 822 (2007) (holding that to show a realistic probability that the State would apply its statute
to conduct that falls outside the generic definition of a crime, an offender may show that the
statute was so applied in his own case); see also Matter of Ferreira, 26 I&N Dec. 415, 419 (BIA
2014). Specifically, the respondent was convicted of sexual misconduct under KRS 510.140;
however, the victim was his adult spouse, not a minor. Contrary to the Immigration Judge's
statement in her decision, the Supreme Court's decision Descamps v. United States, 133 S. Ct.
2276 (2013), does not preclude an alien from pointing to his own criminal case in order to
establish, during the course of conducting a categorical analysis, that there is a "realistic
probability" that the statute at issue may be applied to conduct not covered by the federal
offense.

Accordingly, because the respondent has established that there is a realistic probability that
section 510.140 of the KRS may be applied in a case where the victim was not a minor, the
statute does not define a categorical aggravated felony for sexual abuse of a minor. The parties
do not assert on appeal that the statute at issue is divisible or that the modified categorical
approach applies. Accordingly, we agree with the respondent that he is not removable under
section 237(a)(2)(A)(iii) of the Act, as defined in section 10l(a)(43)(A) (sexual abuse of a
minor), based on his sexual misconduct conviction.

Turning to the second issue presented, we consider whether the respondent's conviction for
unlawful imprisonment constitutes a CIMT. We recently clarified that the categorical and
modified categorical approaches provide the proper framework for determining whether a
conviction is for a CIMT. Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016). In the
controlling federal jurisdiction of the Seventh Circuit, the realistic probability test, which focuses
on the minimum conduct that has a realistic probability of being prosecuted under the statute of
conviction, is applied in determining whether an offense is a categorical crime involving moral
turpitude. See Cano-Oyarzabal v. Holder, 774 F.3d 914, 917 (7th Cir. 2014) (adopting the
realistic probability standard in deciding whether a crime categorically involves moral turpitude).
If a statute of conviction is not categorically a CIMT, the next step is to determine whether the
statute is divisible such that the modified categorical approach may be applied. See
Matter ofSilva-Trevino, supra, at 833; see also Matter ofChairez, 26 I&N Dec. 819, 822 (2016).

The crime of unlawful imprisonment in the second degree under Kentucky law provides: "A
person is guilty of unlawful imprisonment in the second degree when he knowingly and
unlawfully restrains another person." KRS 509.030. "Restrain," as used in the statute, means:

to restrict another person's movements in such a manner as to cause a substantial

interference with his liberty by moving him from one place to another or by

Cite as: Sixto Delgado, A075 423 408 (BIA March 27, 2017)
. .

A07 5 423 408

confining him either in the place where the restriction commences or in a place to
which he has been moved without consent. A person is moved or confined
"without consent" when the movement or confinement is accomplished by
physical force, intimidation, or deception, or by any means ...

KRS 509.010(2). The commentary to the statute states, in relevant part:

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When . . . KRS 509.030 [is] read in conjunction with the definition of"restrain" in
KRS 509.010, it is clear that the crime of unlawful imprisonment ... is not
committed unless the following elements are joined: an unlawful and
non-consensual restriction of another's movements; knowledge by the defendant
of the restriction; and a "substantial interference" with the liberty of the person
restricted. The first of these elements serves to exempt from liability a
confinement that is "lawful" (e.g., an imprisonment of an individual through a
proper arrest) as well as one that follows a voluntary consent by the person
confined ... The second element provides that"knowingly" is the culpable mental
state for the offense, serving thereby to preclude conviction for a confinement that
occurs accidentally and without criminal fault. The third element has as its
purpose the exclusion from criminal liability of trivial restrictions on the
movement of others that possess no threat of danger and only minor
inconvenience.

Moral turpitude refers generally to "conduct that shocks the public conscience as being
inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties
owed between persons or to society in general." See Arias v. Lynch, 834 F.3d 823, 826 (7th Cir.
2016) (citing Matter o/Solon, 24 l&N Dec. 239, 240 (BIA 2007 ) ). To involve moral turpitude, a
crime requires both a culpable mental state and reprehensible conduct. See Matter of Ortega
Lopez, 26 l&N Dec. 99, 100 (BIA 2013). The Seventh Circuit has stated that"a crime of moral
turpitude is one that is deliberately committed and serious, either in terms of the magnitude of
the loss that it causes or the indignation that it arouses in the law-abiding public." See Padilla v.
Gonzales, 397 F.3d 1016, 1019 (7th Cir. 2005) (internal citations omitted), overruled on other
grounds by Arias v. Lynch, supra.

Applying the Board's recently articulated framework for determining whether a crime is a
CIMT, as stated above, we conclude that unlawful imprisonment in the second degree under
section 509.030 of the KRS is not categoricly a CIMT. We recognize that KRS 509.030
includes the requisite culpable mental state in that it requires that the perpetrator knowingly and
unlawfully restrain another person. See generally Matter of Ortega-Lopez, 26 l&N Dec. 99, 101
(BIA 2013) (stating that crimes that are committed knowingly can satisfy the scienter
requirement for purposes of determining whether a crime is a CIMn. However, with respect to
the conduct involved, we conclude that there is a realistic probability that the statute would be
applied to conduct that is not morally turpitudinous. See e.g. Jungblom v. Hopkins County,
Kentucky, No. 4:1l-CV-00126-JHM, 2013 WL 1187 949 (W.D. Ky. Mar. 21, 2013) (holding
that there were reasonable grounds for believing that a man committed unlawful imprisonment in
the second degree where the man told teenage boys to exit their vehicle in his driveway, get on
their knees, and give him their cell phones so they could not contact anyone or leave the scene

Cite as: Sixto Delgado, A075 423 408 (BIA March 27, 2017)
. .

A075 423 408

after realizing the boys were planning to pick up the man's daughter who had sneaked out of the
house); see also Duenas-Alvarez, supra, at 193 (explaining that to show a realistic probability, an
offender "must at least point to his own case or other cases in which the state courts in fact did
apply the statute in the special (nongeneric) manner for which he argues.");
Matter ofSilva-Trevino, supra, at 831.

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While the Seventh Circuit has not addressed whether KRS 509.030 is a CIMT, other
Federal Courts of Appeals have held that similar statutes are not categorically CIMTs, and we
are persuaded by the reasoning used in these cases. See Turijan v. Holder, 744 F.3d 617 (9th
Cir. 2014) (holding that felony false imprisonment under California law is not categotically a
CIMT because, in relevant part, the statute had been applied by California courts to reach
conduct that fell short of the generic definition of "moral turpitude"); see also Hamdan v. INS,
98 F.3d 183 (5th Cir. 1996) (holding that simple kidnapping under Louisiana law is not
categorically a CIMT because it reached conduct that fell short of that involving moral
turpitude).

We are not persuaded by the Immigration Judge's reliance on Matter of P-, 5 I&N Dec. 444
(BIA 1953), in determining that the respondent's conviction for unlawful imprisonment under
KRS 509.030 is categorically a CIMT. In Matter ofP-, this Board held that a conviction under
the Federal Kidnapping Act was for a CIMT. However, the statute at issue in
Matter ofP- contained different elements from the unlawful imprisonment statute at issue in
these proceedings, most significantly, the Federal Kidnapping Act required that the kidnapping
be "for ransom or reward or otherwise." See id., at 445. KRS 510.030 has no such
requirement. See generally Castrijon-Garcia v. Holder, 704 F.3d 1205, 1210 (9th Cir. 2013)
(holding that simple kidnapping under California law is not categorically a CIMT, and
distinguishing the Board's holding in Matter ofP- on the grounds that simple kidnapping under
California law had no ransom element).

Because we conclude that KRS 509.030 is not categoricall y a CIMT, and because the
parties do not assert on appeal that the statute at issue is divisible or that the modified categorical
approach applies, pursuant to Descamps v. U.S., supra, at 2286, "the inquiry is over." Thus, we
agree with the respondent's appellate assertion that he is not removable under section
237(a)(2)(A)(iii) of the Act, as defined in section 10 l(a)(43)(A) (sexual abuse of a minor}, or
under section 237(a)(2)(A)(i) of the Act (CIMT). We therefore conclude that the respondent is
not removable as charged. The appeal will be sustained and removal proceedings will be
terminated.

ORDER: The appeal is sustained and the hnmigration Judge's June 11, 2015, decision is
vacated.

FURTHER ORDER: The removal proceedings are terminated and the record is returned to
the hnmigration Court without further action.

LUa.wdS. OR BOARD c::::::

Cite as: Sixto Delgado, A075 423 408 (BIA March 27, 2017)
 J

UNITED STATES JEPARTMENT OF JUSTICE

EXECUTIVE OFFICE PoR IMMIGRATION REVIEW
lMMlGRATION COURT
CHICAGO, ILLINOIS

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File #: A07 5-423-408 Date: June 11, 2015

In the Matter of: )

)
Six.to DELGADO, ) IN REMOVAL PROCEEDINGS
)
Respondent. )

CHARGES: Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"

or "Act") - Alien who at any time after admission has been convicted of
an aggravated felony as defined in INA 101(a)(43)(F) , a crime of
violence (as defined in section 16 of title 18, United States Code, but not
including a purely political offense) for which the term of imprisonment is
at least one year.

Section 237(a)(2)(A)(iii) of the Act - Alien who at any time after

admission has been convicted of an aggravated felony as defined in INA
10 l(a)(43)(A) , sexual abuse of a minor.

Section 237(a)(2)(A)(i) of the Act - Alien who is convicted of a crime

involving moral turpitude ("CIMT'') committed within five years after the
date of admission for which a sentence of one year or longer may be
imposed.

APPLICATION: Motion to Terminate.

ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE GOVERNMENT:

Lynsay Kaye Gott, Esq. Daniel Rah, Assistant Chief Counsel
Kozoll & Associates Immigration Law PLLC Department of Homeland Security
332 West Broadway Street, Suite 1213 525 West Van Buren Street, Suite 7 01
Louisville, Kentucky 40202 Chicago, Illinois 60607

DECISION OF THE IMMIGRATION JUDGE

For the following reasons, the Court finds that the respondent is removable as charged
pursuant to INA 237(a){2)(A)(i) and INA 237(a)(2)(A)(iii) (as defined in section INA
10l(a)(43)(A) ) . Accordingly, the Court will deny the respondent's motion to terminate his
reo_val proceedings.

1
 l

I. BACKGROUND

The respondent is a 45-year-old male native and citizen ofMexico. On May 18, 2000, he
adjusted his status to that ofa lawful permanent resident. In March 2003, he was convicted in the
Jefferson County Circuit Court at Louisville, Kentucky, for the offenses of sexual misconduct, in
violation ofKRS 510.140, and unlawful imprisonment in the second degree, in violation of

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KRS 509.030. On April 29, 2014, the Department ofHomeland Security ("OHS" or "the
Government") initiated removal proceedings by filing a Notice to Appear ("NTA") with the
Chicago Immigration Court. The NTA alleged the above facts and charged the respondent as
removable pursuant to INA 237(a)(2)(A)(iii) as defined in INA 10l(a)(43)(A) (aggravated
felony- rape) and (F) (aggravated felony- crime of violence), and INA 237(a)(2)(A)(i)
(CIMT).

At a master calendar hearing at the Chicago Immigration Court on June 4, 2014, the
respondent admitted the factual allegations contained in the NTA but contested all charges of
removability. At a master calendar hearing on July 14, 2014, the Court sustained all three
charges ofremovability. The respondent declined to designate a country ofremoval, so the Court
designated Mexico, his country of citizenship, pursuant to INA 24 l (b)(2)(D). The respondent
did not file any applications for, or argue he was eligible for, any relieffrom removal.
Accordingly, at a hearing on August 25, 2014, the Court ordered him removed to Mexico.

The respondent filed a timely appeal with the Board ofImmigration Appeals ("BIA" or
the "Board"). On January 13, 2015, the BIA sustained the respondent's appeal, holding that his
conviction for sexual misconduct, under KRS 510.140, was neither a CIMT nor an aggravated
felony as defined in INA 101(a)(43)(A) (rape) or INA 101(a)(43)(F) (crime ofviolence). It
remanded the respondent's case to the Chicago Immigration Court to determine whether his
conviction for unlawful imprisonment in the second degree, in violation ofKRS 509.030, made
him removable under INA 237(a)(2)(A){i) (CIMT) or INA 237(a)(2)(A){iii) as defined in
INA 10l(a)(43)(F) (aggravated felony- crime of violence).1 On April 25, 2015, OHS lodged an
additional ground ofremovability under INA 237(a)(2)(A)(iii) as defined in INA
10l(a)(43)(A) (aggravated felony-sexual abuse ofa minor). At a hearing on May 19, 2015, the
respondent, through counsel, contested all charges ofremovability.

II. ANALYSIS

"[T]he Service has the burden of establishing by clear and convincing evidence that, in
the case ofan alien who has been admitted to the United States, the alien is deportable." INA
240(c)(3). OHS claims that the respondent's conviction for unlawful imprisonment in the second
degree renders him removable under INA 237(a)(2)(A)(i) because it constitutes an crime
involving moral turpitude. It further claims that the respondent's conviction for sexual
misconduct renders him removable because it constitutes an aggravated felony as defined in INA

1 OHS, in its reply brief, conceded that it is unable to meet its burden of proof to show that the respondent's

conviction for unlawful imprisonment in the second degree is an aggravated felony as defined in INA
IOI(a)(43){F) (crime of violence). Accordingly, the Court will consider this concession

r
GW\Jd.or.,. .

2
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 )

10 1(a)(43)(A) (sexual abuse of a minor).The respondent contests both charges of

removability.

A. Sexual Misconduct under KRS 510.140 is categorically an aggravated felony as

defined in INA 10l(a)(43)(A) - sexual abuse of a minor.

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i. The Board's defmition of divisibility after Descamps v. United States

In Matter of Chairez-Castrejon, the BIA reiterated that the categorical approach requires
a court determining whether a respondent's conviction qualifies as an aggravated felony to
"focus on the minimum conduct that has a realistic probability of being prosecuted ...rather
than on the facts underlying the respondent's particular violation of [a] statute." 26 I&N Dec.
349, 351 (BIA 2014) (citing Moncrieffe v. Holder, 133 S.Ct.1678, 1684-85 (2013)). In Chairez,
the Board adopted the definition of divisibility set forth in Descamps v. United States, a Supreme
Court decision discussing the categorical and modified categorical approaches in the context of
sentence enhancements under the Armed Career Criminal Act.133 S.Ct.2276 (2013).
Specifically, the Board noted:

The Supreme Court explained [in Descamps] that a criminal statute is divisible, so
as to warrant a modified categorical inquiry, only if (I) 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. 133 S. Ct.at 2281, 2283.The Court further explained that for
purposes of the modified categorical approach, an offense's 'elements' are those
facts about the crime which '[t]he Sixth Amendment contemplates that a jury
not a sentencing court-will find ... unanimously and beyond a reasonable
doubt.' Id. at 2288 (citing Richardson v. United States, 526 U.S.813, 817 (1999)).

Chairez, 26 I&N Dec.at 353.

In addition to confirming that the Descamps definition of divisibility applies to

categorical analysis of aggravated felonies, the Board in Chairez also noted that it is "bound to
apply divisibility consistently with the individual circuits' interpretation of divisibility under
Descamps." Id at 354 (describing differing interpretations of Descamps divisibility in the First
and Third Circuits).However, because the Tenth Circuit-where the. Chairez case arose-had
not yet interpreted Descamps in the immigration context, the Board stated it would "follow [its
own] understanding of divisibility as set forth in Descamps." Id Similarly, in the instant case,
the Court is not aware of any precedential Seventh Circuit decisions interpreting divisibility
under Descamps in the immigration context.Accordingly, the Court will employ the Board
adopted definition of Descamps divisibility in its categorical analysis of KRS 510.140. 2

2 The respondent, through counsel, argues that it is permissible for the Court to look to the facts of the case to
determine the age of the victim to determine whether a crime is an aggravated felony as defined in INA
l 01(a)(43)(A). See U.S. v. Martinez-Carma, 250 F.3d 1101, 1104 (7th Cir. 2001). However, this inqltiiy is not
permissible undet the categorical approach. See Descamps v. United States, 133 S.Ct. 2276 (2013).

3
 ) )

ii. Categorical analysis of KRS 510.140

OHS contends that the respondent's conviction is categorically an aggravated felony as

defined in 10 l (a)(43)(A) (sexual abuse of a minor). The respondent argues that his conviction is
not categorically an aggravated felony because the statute of conviction is overbroad. For the
reasons that follow, the Court will sustain the charge of removability.

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INA 10l (a)(43)(A) includes, among other things, "sexual abuse of a minor." The INA
does not define "sexual abuse" or "minor." However, the BIA has interpreted the term "sexual
abuse" broadly to include, among other acts, "the use of . . . sexually explicit conduct." Matter of
Rodriguez-Rodriguez, 22 l&N Dec. 991, 995 (BIA 1999). The Seventh Circuit has found the
BIA's interpretation to be reasonable. See Gattem v. Gonzalez, 412 F.3d 758, 764-65 (7th Cir.
2005); Gaiskov v. Holder, 567 F.3d 832, 836 (7th Cir. 2009). The BIA has interpreted the term
"minor" to be persons under the age of 18. See Matter of V-F-D-, 23 l&N Dec. 859 (BIA 2006).
Accordingly, in defining sexual abuse of a minor for the purposes of INA 10l(a)(43)(A), the
general rule adopted by the BIA is that the punished act must fall within the definition
enunciated in Rodriguez-Rodriguez and the victim must be under the age of 18.

However, the BIA recently held that an exception to the above rule exists for certain
statutory rape statutes. In Matter ofJuan Esquivel-Quintana, the BIA held that a state statute
must contain a "meaningful age differential" between defendant and victim to constitute sexual
abuse of a minor if the statute: 1) may include 16- or 17-year-olds as victims; and 2) does not
make lack of consent an element of the offense. 26 I&N Dec. 469, 475 (BIA 2015). However, if
the state statute at issue does not include 16- or 17-year-olds as potential victims, then it need not
require a meaningful age differential in order to be categorically sexual abuse of a minor under
INA 101(a)(43)(A).

Here, the respondent's statute of conviction, KRS 510.140, punishes the act of "sexual
intercourse or deviate sexual intercourse with another person without the latter's consent."
Sexual intercourse is defined in Kentucky to require penetration of a sex organ. KRS
510.010(8). Deviate sexual intercourse is defined in Kentucky to require an act of sexual
gratification involving the sex organs of one person in the mouth or anus of another. KRS
510.010(1).

Though on its face the text of the statute does not appear to limit its scope to statutory
rape or minors as victims, examination of Kentucky case law and jury instructions reveals that
this statute is only directed towards these limited circumstances. As the BIA noted in its remand,
"KRS 510.140 is designed primarily to prohibit nonconsensual intercourse or deviate sexual
intercourse under two circumstances: When the victim is 14 or 15 and the defendant is less than
21; or, when the victim is 12, 13, 14, or 15, and the defendant is less than 18 years of age."
Kentucky case law clearly supports this proposition. See Deno v. Commonwealth, 177 S.W.3d
753, 762-63 (Ky. 2005); Johnson v. Commonwealth, 864 S.W.2d 266, 277 (Ky. 1993). Kentucky
jury instructions show that two elements must be proven beyond a reasonable doubt to sustain a
conviction under KRS 510.140: I) the defendant engaged in sexual intercourse or deviate
sexual intercourse; and 2) at the time of such intercourse the victim was less than 16 years of
age. Kentucky Instruction to Juries: 4.32; 4.44.

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The Court finds that the elements of the Kentucky sexual misconduct statute match the
BIA's generic definition of sexual abuse of a minor. The act that is required to be committed,
sexual intercourse or deviate sexual intercourse, meets the BIA definition of sexual abuse. See
Rodriguez-Rodriguez, 22 I&N Dec. at 995. Further, the elements of the Kentucky statute require
that the victim be a person less than 16 years of age. This satisfies the BIA' s definition of a
"minor." See V-F-D-, 23 l&N Dec. at 859. Further, the statute need not require a meaningful age

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differential to be categorically a sexual abuse of a minor aggravated felony. See Esquivel
Quintana, 26 l&N Dec. at 475. Accordingly, the Court finds that DHS has met its burden to
establish that the respondent's conviction for sexual misconduct is categorically an aggravated
felony as defined in INA 101(a)(43)(A).

The Court notes that the elements of the sexual misconduct statute, as seen in Kentucky
state case law and jury instructions, do not necessarily match up to the text of the statute.
However, even deriving the elements from the text of the statute, the Court still finds it is
categorically sexual abuse of a minor. A breakdown of the text of the statute shows three
elements: I) sexual intercourse or deviate sexual intercourse; 2) with another person; 3) without
that person's consent. KRS 510.140.

As discussed above, the first element of the state statute categorically matches the generic
offense of "sexual abuse" as defined by the BIA. However, it appears that the second element,
that the victim be a "person," may be overbroad because it could encompass both adults and
minors as victims. However, there must be a realistic probability of prosecution of the conduct
that falls outside the generic definition of the removable offense even if a state statute on its face
appears to be overbroad. See Matter ofFerreira, 26 I&N Dec. 415 (BIA 2014). Here, Kentucky
case law and jury instructions make clear that the statute at issue is applied "only" when the
victim is under the age of 16. Deno, 177 S.W.3d at 762-63. Therefore, there is no reasonable
probability of prosecution under KRS 510.140 when the victim is over the age of 16.
Accordingly, DHS has met its burden to show that the Kentucky sexual misconduct statute is
categorically an aggravated felony as defined in INA 10l(a)(43)(A).

B. Unlawful imprisonment in the second degree under KRS 509.030 is a CIMT.

According to the BIA, a criminal statute involves moral turpitude when it proscribes
"reprehensible conduct committed with some degree of scienter, either specific intent,
deliberateness, willfulness, or recklessness." Matter ofLouissaint, 24 I&N Dec. 754, 756-57
(BIA 2009) (quoting Matter of Silva-Trevino, 24 l&N Dec. 687 (A.G. 2008) (vacated by Silva
Trevino v. Holder, 26 I&N Dec. 550 (A.G. 2015), which noted, "Nothing in this order is
intended to affect Board determinations that an offense entails or does not entail 'reprehensible
conduct committed with some degree of scienter. "')).

The Seventh Circuit and the BIA have held that a crime involves moral turpitude when it
entails "conduct that shocks the public conscience as being 'inherently base, vile, or depraved,
and contrary to the accepted rules of morality and the duties owed between persons or to society
in general."' Lagunas-Salgado v. Holder, 584 F.3d 707, 710 (7th Cir. 2009) (quoting Matter of
Solon, 24 I&N Dec. 239, 240 (BIA 2007)). Criminal conduct involves moral turpitude when it is
"accompanied by a vicious motive or a corrupt mind." Matter ofFlores, 17 I&N Dec. 225, 227-

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228 (BIA 1980) (internal citations omitted). The distinction between CIMTs and other crimes is
one between "acts that are seen as ethically wrong without any need for legal prohibition (acts
wrong in themselves, or ma/um in se) and those that are ethically neutral and forbidden only by
positive enactment (acts wrong because they are so decreed, or malum prohibitum)." Ali v.
'
Mukasey, 521 F.3d 737, 740 (7th Cir. 2008) (internal citations omitted).

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Former Attorney General Holder recently vacated Matter ofSilva-Trevino, 24 I&N Dec.
687 (A.G. 2008)). See Matter of Silva-Trevino, 26 I&N Dec. 550 (A.G. 2015). One issue that the
Attorney General's decision in 2008 endeavored to address was the lack of administrative
guidance on a cohesive methodology for determining that a crime involves moral turpitude. See
Silva-Trevino, 24 l&N Dec. at 693. At that time, the Board determined whether an alien's crime
involved moral turpitude in accordance with the law of the circuit in which his case arose. See id.
At that time, the Board determined whether an alien's crime involved moral turpitude in
accordance with the law of the circuit in which his case arose. See id Accordingly, in the
absence of a unified administrative methodology now that Silva-Trevino has been vacated, the
Court will revert to making CIMT determinations based on applicable law in our circuit, until the
Board provides further guidance.

i. CIMT analysis under Seventh Circuit precedent

In Ali v. Mukasey, the Court held that the Board "has the discretion to consider evidence
beyond the charging papers and judgment of conviction," and clarified that courts should engage
in the following two-question inquiry with regard to CIMT determinations: "The first is the fact
of the prior conviction ... . The second is the appropriate classification of that conviction, which
may require additional information." 521 F.3d at 741-42.

Applying the two-question inquiry from Ali, the Court first assesses the fact of the
respondent's conviction. 521 F.3d at 741-42. To do so, the Court can examine any type of
document in the record that is listed in INA 240(c)(3), the section of the Act pertaining to
3
"proof of a criminal conviction." As noted in Ali, INA 240(c)(3) is "similar to the approach of
Taylor and Shepard, but to the extent of any difference the statute must control." Id. at 742. To
answer the second question, which is "whether the agency may go beyond the record of
conviction to characterize or classify an offense" as a crime involving moral turpitude,

3 INA 240(c) provides, "In any proceeding under this chapter, any of the following documents or records (or a

certified copy of such an official document or record) shall constitute proof of a criminal conviction:
(i) An official record of judgment and conviction.
(ii) An official record of plea, verdict, and sentence.
(iii) A docket entry from court records that indicates the existence of the conviction.
(iv) Official minutes of a court proceeding or a transcript of a court hearing in which the court takes notice
of the existence of the conviction.
(v) An abstract of a record of conviction prepared by the court in which the conviction was entered, or by a
State official associated with the State's repository of criminal justice records, that indicates the charge or
section of law violated, the disposition of the case, the existence and date of conviction, and the sentence.
(vi) Any document or record prepared by, or under the direction of, the court in which the conviction was
entered that indicates the existence of a conviction.
(vii) Any document or record attesting to the conviction that is maintained by an official of a State or
Federal penal institution, which is the basis for that institution's authority to assume custody of the
individual named in the record."

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 ) )

"additional evidence may be taken by the immigration judge when necessary." Id. (citing Matter
of Babaisakov, 24 l&N Dec. 306 (BIA 2007)).

Here, the first step of the Ali inquiry is complete, as there is no dispute that the
respondent was convicted of unlawful imprisonment in the second degree in violation of KRS
510.030. However, given the complex nature of the statute and the lack of state case law

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interpreting it, the Court finds it necessary to consult other evidence, under the second step of the
Ali inquiry, to make a determination regarding whether the respondent's conviction is a CIMT.
For the reasons that follow, the Court finds that the respondent's conviction for unlawful
imprisonment in the second degree is a CIMT.

The statute of conviction punishes a person who "knowingly and unlawfully restrains
another person."KRS 510.030. "Restrain" is defined inKRS 509.010(2) and requires that the
defendant restrict the victim's movements in a manner that causes a substantial interference with
the victim's liberty. Id. This can be accomplished by moving the victim to another place,
confining the victim in the place where the restriction commences, or confining the victim to a
place they have been moved without their consent. Id. The statute further states that a person is
moved or confined "without consent" if it is accomplished by physical force, intimidation,
deception, or "by any means." Id.

Here, the record of conviction makes it clear that the respondent's conviction was a
CIMT. The guilty plea states the facts of the case, including that the respondent had "sexual
intercourse without [the victim's] consent twice," bruised the victim's arms while he held her
down, and would not allow her to leave the house for a period of time. On these facts, the Court
finds that the respondent's conviction was committed intentionally and with sufficient physical
force to constitute a CIMT. See Matter ofSolon, 24 l&N Dec. 239, 242 (BIA 2007) (Intentional
conduct that results in a "meaningful level of harm" to the victim often involves moral
turpitude.) Accordingly, the Court finds that the respondent's conviction for unlawful
imprisonment in the second degree is a CIMT. The Court further finds that this conviction took
place within five years of the respondent's admission and that a sentence of one year or longer
may be imposed. SeeKRS 532.090(1).

ii. CIMT analysis under the categorical approach

Alternatively, even following the categorical approach under Matter ofChairez

Castrejon, the Court finds that the respondent's conviction for unlawful restraint in the second
degree in violation ofKRS 510.030 is still a CIMT.

The Court does not know of any BIA or Seventh Circuit precedent on whether the statute
of conviction, or any unlawful imprisonment statute, is a CIMT. However, the BIA has
interpreted similar statutes in the context of kidnapping. Notably, in Matter of P----, the BIA held
that a conviction under the FederalKidnapping Act was a CIMT. 5 l&N Dec. 444, 445 (BIA
1953). It noted that the statute of conviction had two elements: 1) the victim has been unlawfully
seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away by any means
whatsoever and 2) the victim was held for ransom, reward, or otherwise. Id. The BIA noted the
importance of the second element, because it "implies an unlawful physical or mental restraint

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for an appreciable period." The BIA held these elements required moral turpitude, because
together they required 1) unlawful physical or mental restraint; 2) for an "appreciable" period; 3)
against the person's will; and 4) with a willful intent. Id.

Here, the respondent's statute of conviction requires the defendant knowingly and
unlawfully restrain the victim. KRS 510.030. "Restrain," as defined in KRS 509.010(2),

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requires that the defendant restrict the victim's movements in a manner that causes a substantial
interference with the victim's liberty. Id. This can be accomplished by moving the victim to
another place, confining the victim in the place where the restriction commences, or confining
the victim to a place they have been moved without consent. Id. The statute further states that a
person is moved or confined "without consent" if it is accomplished by physical force,
intimidation, deception, or "by any means." Id.

Using the BIA's generic definition of a kidnapping CIMT as defined in Matter ofP----.
the Court finds the respondent's conviction for unlawful imprisonment in the second degree is .
categorically a CIMT. The first element of the generic offense, an unlawful physical or mental
restraint, is also an element of the respondent s statute of conviction. The definition of restraint
in Kentucky is not broader than the element required by the generic offense. KRS 509.010(2).
The second element of the generic offense, the victim is held for an appreciable period of time, is
satisfied by the state statute's requirement that the restraint cause a "substantial interference with
[the victim's] liberty." Id. The BIA has not defined what an "appreciable" time period is.
However, the Court finds that a restraint which causes a substantial interference with the
victim's liberty implies the passage of an appreciable period of time, even if the statute does not
require the defendant hold the victim for ransom or any other specified reason. The generic
offense's third element, that the crime be committed against the victim's will, is satisfied by the
state statute's requirement that the crime be committed without the consent of the victim. Finally,
the fourth element of the generic offense, a willful intent, is satisfied by the state statute's
requirement that the defendant commit the crime "knowingly." KRS 509.030.

In sum, the Court finds that the respondent's conviction for unlawful imprisonment in the
second degree is a CIMT. The Court further finds that this conviction took place within five
years of the respondent's admission and that a sentence of one year or longer may be imposed.
See KRS 532.090(1).

III. CONCLUSION

For the above reasons, the Court finds that the respondent's conviction for sexual
misconduct under KRS 510.140 is an aggravated felony as defined in INA 1 0 l (a)(43)(A).
The Court further finds that the respondent's conviction for unlawful imprisonment in the second
degree under KRS 509.030 is a CIMT that was committed within five years of his admission
and for which a sentence of one year or longer may be imposed. Therefore, the following order
will be entered:

8

ORDER OF THE IMMIGRATION JUDGE

ITIS HEREBY ORDERED that the respondent is removable as charged under INA
237(a)(2)(A)(iii) as defined inINA 10l(a)(43)(A).

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ITIS FURTHER ORDERED that the respondent is removable as charged underINA
237(a)(2)(A)(i).

LAMCNU TY
IMMIGRATION JUDGE