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U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office of the Clerk

5107 Leesburg Pike, Suite 2000


Falls Church, Vtrgm1a 22041

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Hays, Gene OHS/ICE Office of Chief Counsel - LOS
Attorney at Law 606 S. Olive Street, 8th Floor
22421 Barton Rd., #165 Los Angeles, CA 90014
Grand Terrace, CA 92313

Name: GARCIA REYES, IVAN A 200-156-257

Date of this notice: 4/20/2017

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:
Creppy, Michael J.
Malphrus, Garry D.
Mullane, Hugh G.

Userteam: Docket

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Cite as: Ivan Garcia Reyes, A200 156 257 (BIA April 20, 2017)
..

, U.S. Department of Justice Decision of the Board of Immigration Appeals


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Executive Office for Immigration Review

Falls Church, Virginia 2204 l

File: A200 156 257 - Los Angeles, CA Date:

APR 2 0 2017
In re: IVAN GARCIA REYES

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Gene E. Hays, Esquire

APPLICATION: Cancellation of removal

,
The respondent appeals from the Immigration Judge s decision dated December 14, 2015,
denying his application for cancellation of removal for non-permanent residents under section
240A(b)(l) of the Immigration and Nationality Act, 8 U.S.C. 1229b(b)(l). The appeal will be
sustained and the record will be remanded.

We review for clear error the findings of fact made by the Immigration Judge. 8 C.F.R.
1003.l(d)(3)(i). We review de novo all other issues, including whether the parties have met
the relevant burden of proof, and issues of discretion. 8 C.F.R. 1003.1(d)(3)(ii).

The respondent, a native and citizen of Mexico, concedes that he is removable by virtue of
his unlawful presence in the United States (Exh. 1; Tr. at 10). See section 212(a)(6)(A)(i) of the
Immigration and Nationality Act, 8 U.S.C. l182(a)(6)(A)(i). As the respondenfs removability
is undisputed, the only issue before us on appeal is whether his criminal record renders him
ineligible for cancellation of removal under section 240A(b) of the Act.

The Immigration Judge found that the respondent is ineligible for cancellation of removal
because he has a 2011 conviction for altering or forging a vehicle document, license or license
plate in violation of Cal. Vehicle Code 4463(a)(l) - an offense which the Immigration Judge
deemed a crime involving moral turpitude ("CIMT) under the immigration laws. See section
240A(b)(l)(C) of the Act (requiring an applicant for cancellation of removal to prove that he
has not been convicted of-among other things-a CIMT under sections 212(a)(2) or 237(a)(2)
of the Act). Upon our de novo review, we reverse the Immigration Judge. 8 C.F.R.
1003.l(d)(3)(ii).

,,
The phrase "crime involving moral turpitude describes a class of offenses involving
reprehensible conduct committed with a culpable mental state. See Matter of Silva-Trevino
,,
("Silva-Trevino //!'), 26 l&N Dec. 826, 834 (BIA 2016). Conduct is "reprehensible in the
pertinent sense if it is "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 id at 833 (citation
omitted). To determine whether the respondenfs offense is a CIMT, we employ the "categorical
approach," which requires a focus on the minimum conduct that has a realistic probability of
being prosecuted under the statute of conviction, rather than on the actual conduct which led to
the respondent's particular conviction. Id. at 831-33.

Cite as: Ivan Garcia Reyes, A200 156 257 (BIA April 20, 2017)
,. A200 156 257
'

As noted by the Immigration Judge, the statute is not categorically a CIMT because it would
1
cover a simple act of vandalism, such as altering or damaging the license plate of another.
Thus, "there is at least one theory of violating section 4463(a)( l ) that could not be a CIMT"
(l.J. at 4). See, e.g., People v. Hughes, 2013 WL 2103414, at *6 (Cal. App. 5th Dist. May 16,
2013). Therefore, section 4463(a)(l ) is an overbroad statute vis-a-vis the CIMT concept.

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Although the Immigration Judge recognized that section 4463(a)( l ) is overbroad, he found
the statute "divisible" because it covers both the specific intent to defraud or misrepresent, as
well as an intent to prejudice or damage (l.J. at 4). Having found section 4463(a)( l ) to be
divisible, the Immigration Judge placed the burden on the respondent - as the applicant for relief
-to come forward with evidence to prove that his conviction was not for a CIMT. Because the
respondent did not carry that burden, the Immigration Judge denied relief.

We disagree with the Immigration Judge's determination that section 4463(a)( l ) is a divisible
statute vis-a-vis the CIMT concept. Although the provision is defined by reference to separate
mental states which are listed in the disjunctive, subsequent to the Immigration Judge's decision
the Supreme Court has explained that disjunctive statutory language does not render a criminal
statute divisible unless each statutory alternative defines an independent "element" of the
offense, as opposed to a mere "brute fact" describing various means or methods by which the
offense can be committed. See Mathis v. United States, 136 S. Ct. 2243, 2248 (2016); see also
Matter of Chairez ("Chairez /If'), 26 l&N Dec. 819 (BIA 2016) (holding that the approach to
divisibility announced in Mathis is applicable in removal proceedings nationwide).

Under the approach to divisibility adopted in Mathis, section 4463(a)(l ) can be regarded as
"divisible" into separate offenses with distinct mental states -that is, specific intent to defraud,
misrepresent, prejudice, or damage - only if California law requires a unanimous jury verdict as
to the particular mental state with which the accused acted. If a California jury can find a
defendant guilty of violating the statute without coming to an agreement about the defendant's

1
At all relevant times, Cal. Vehicle Code 4463(a)( l ) has punished anyone who, with intent to
prejudice, damage, or defraud, commits any of the following acts:

Alters, forges, counterfeits, or falsifies a certificate of ownership, registration card,


certificate, license, license plate, device issued pursuant to Section 4853, special
plate, or permit provided for by this code or a comparable certificate of ownership,
registration card, certificate, license, license plate, device comparable to that
issued pursuant to Section 4853, special plate, or permit provided for by a foreign
jurisdiction, or alters, forges, counterfeits, or falsifies the document, device, or
plate with intent to represent it as issued by the department, or alters, forges,
counterfeits, or falsifies with fraudulent intent an endorsement of transfer on a
certificate of ownership or other document evidencing ownership, or with
fraudulent intent displays or causes or permits to be displayed or have in his or
her possession a blank, incomplete, canceled, suspended, revoked, altered, forged,
counterfeit, or false certificate of ownership, registration card, certificate, license,
license plate, device issued pursuant to Section 4853, special plate, or permit.

Cite as: Ivan Garcia Reyes, A200 156 257 (BIA April 20, 2017)
A200 156 257

particular mental state, then it follows that such mental states are not alternative "elements."
Pursuant to Mathis, they are instead mere "brute facts" - alternative means by which the mens
rea element can be proven.

We are not aware of any California cases directly addressing whether intent to defraud,
misrepresent, prejudice, or damage operate as alternative "elements" or "means" in the context

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of section 4463(a)(l). The Immigration Judge noted that "state case law does not show that the
overarching 'intent to prejudice, damage or defraud' is divisible" (l.J. at 4, n.2). Moreover, the
respondent's conviction record - at which we have "peek[ed) . . . for 'the sole and limited
purpose of determining whether [intent to defraud, misrepresent, prejudice, or damage are)
element[s) of the offense,"' see Mathis v United States, supra, at 2256 - is silent on the
respondent's mental state (Respondent's Brief at 3; I.J. at 4-5; Exh. 3). See Mathis v. United
States, supra, at 2257 (holding that when a criminal charge alleges all statutory alternatives in
this manner, [t]hat is as clear an indication as any that each alternative is only a possible means
of commission, not an element that the prosecutor must prove to a jury beyond a reasonable
doubt."). Under the circumstances, we are satisfied that section 4463(a)(l) is both overbroad and
indivisible vis-a-vis the CIMT concept, notwithstanding that it lists different mental states in the
alternative. As section 4463(a)(l) is overbroad and indivisible, the respondent's conviction is
not a disqualifying CIMT conviction for cancellation of removal purposes. See Matter of
Chairez Ill, supra, at 825 & n.7.

Thus, we will vacate the Immigration Judge's decision in part and remand the record for the
Immigration Judge to further assess the respondent's eligibility for relief from removal,
including further development of the record as necessary, and an evaluation of whether the
respondent merits relief from removal as a matter of discretion. Section 240(c)(4)(A) of the Act;
8 C.F.R. 1240.8(d); see also Matter ofC-V-T-, 22 l&N Dec. 7 (BIA 1998) (the burden is on the
respondent to establish that he warrants relief as a matter of discretion); Matter of Blas,
15 l&N Dec. 626, 628-30 (BIA 1974; A.G. 1976). On remand, both parties should have an
opportunity to present evidence and argument in support of their respective positions for
consideration by the Immigration Judge. Matter ofL-0-G-, 21 l&N Dec. 413, 422 (BIA 1996).

ORDER: The appeal is sustained and the Immigration Judge's decision dated December 14,
2015 is vacated.

FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new decision.

3
Cite as: Ivan Garcia Reyes, A200 156 257 (BIA April 20, 2017)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
LOS ANGELES IMMIGRATION COURT
LOS ANGELES, CALIFORNIA

File No.: A200156 257

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In the Matter of:

GARCIA-REYES, Ivan, IN REMOVAL PROCEEDINGS

Respondent

CHARGE: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA)


present without admission or parole

APPLICATION: Cancellation of Removal for Certain Nonpennanent Residents pursuant to


section 240A(b) of the INA

ON BEHALF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT:


Paul Supple, Esquire Caroline Burrell, Assistant Chief Counsel
The Law Office of Paul C. Supple U.S. Department of Homeland Security
1815 North Broadway 606 South Olive Street, Eighth Floor
Santa Ana, California 92706 Los Angeles, California 90014

DECISION AND ORDERS OF THE IMMIGRATION JUDGE

I. Procedural History

Ivan Garcia-Reyes (Respondent) is a native and citizen of Mexico. On June 8, 2011, the
Department of Homeland Security (Department) personally served Respondent with a Notice to
Appear (NTA), alleging therein that he entered the United States at an unknown place, on an
unknown date, and was not then admitted or paroled after inspection by an immigration officer.
Exh. 1. Accordingly, the Department charged Respondent as inadmissible pursuant to section
212(a)(6)(A)(i) of the INA. Jurisdiction vested and removal proceedings commenced when the
Department filed the NTA with this Court on June 24, 2011. See 8 C.F.R. 1003.14(a),
1239.l(a) (2011).

On April 10, 2012, Respondent, through counsel, admitted the factual allegations,
conceded the charge of inadmissibility contained in the NTA, and designated Mexico as the
country of removal. On the same date, Respondent filed a Form EOIR-42B, Application for
Cancellation of Removal and Adjustment of Status for Certain Nonpennanent Residents, and
supporting documents. See Exh. 2.

For the following reasons, the Court denies Respondent's application for cancellation of
removal.

\
1
II. Law and Analysis

Respondent seeks relief in the form of cancellation of removal, pursuant to section


240A(b) of the INA. In order to qualify for cancellation of removal, a nonpermanent resident
must establish that: ( l ) he has been physically present in the United States for a continuous
period of not less than ten years immediately preceding the date of such application; (2) he has
been a person of good moral character during such period; (3) he has not been convicted of an

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offense under sections 212(a)(2), 237(a)(2), or 237(a)(3) of the INA; and (4) removal would
result in exceptional and extremely unusual hardship to his spouse, parent, or child, who is a
citizen of the United States or an alien admitted for lawful permanent residence. INA
240A(b)( l ). The respondent carries the burden of demonstrating eligibility for cancellation of
removal. 8 C.F.R. 1240.8(d); Young v. Holder, 697 F.3d 976, 989 (9th Cir. 2012).

At issue in the present case is whether Respondent has been convicted of an offense
described in section 237(a)(2) of the INA, and is therefore statutorily ineligible for cancellation
of removal. See INA 240A(b)(l). Pursuant to section 237(a)(2)(A)(i) of the INA, an alien is
removable if he has been convicted of a Crime Involving Moral Turpitude (CIMT) for which a
sentence of one year or longer may be imposed.

Here, the record indicates that on June 7, 2011, Respondent was convicted for the offense
of altering or forging a vehicle document, license or license plate, in violation of section
4463(a)( l ) of the California Vehicle Code (CVC).

For the following reasons, Respondent has failed to meet his burden to demonstrate that
his conviction does not preclude eligibility for cancellation of removal. See Young, 697 F.3d at
989.

A. Crime Involving Moral Turpitude

The Court must determine whether Respondent's conviction is a CIMT, as described in


section 237(a)(2) of the INA. See INA 240A(b)(l). A CIMT is one that is inherently base, vile
or depraved. Robles-Urrea v. Holder, 678 F.3d 702, 708 (9th Cir. 2012). Such crimes are of
two types: those involving fraud and those involving grave acts of baseness or depravity. Id.
The initial step of the CIMT inquiry is to determine whether the statute of conviction describes a
crime that is categorically a CIMT, under the approach laid out in Taylor v. United States, 495
U.S. 575, 602 (1990). Olivas-Motta v. Holder, 716 F.3d 1199, 1209 (9th Cir. 2013). If that
"categorical" inquiry does not resolve the question and the statute is "divisible," containing one
or more elements of the offense in the alternative, the Court should then conduct a "modified
categorical" analysis by looking to the respondent's record of conviction. Id; Descamps v.
United States, 133 S.Ct. 2276, 2283 (2013). However, if the statute is "indivisible," one not
containing multiple elements, then the court may not conduct a modified categorical analysis.
Descamps, 133 S.Ct. at 2283; Rendon v. Holder, 764 F.3d 1077, 1084-85 (9th Cir. 2014).

2
If the categorical and modified categorical approaches do not clarify whether
Respondent was convicted of a disqualifying offense, the respondent has failed to carry his
1
burden of demonstrating eligibility for cancellation of removal. See Young, 697 F.3d at 989.

Under the categorical approach, the Court may look only to the elements of the statute of
conviction, and may not consider the particular facts underlying the conviction. See Olivas
Motta, 716 F.3d at 1209.

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The Department argues that the statute is divisible, but, despite its divisibility, the statute
remains categorically a CIMT, as all subsections of the statute would individually qualify as
CIMTs. The Court agrees with the Department that the statute is divisible but finds that there is
a least one theory of violating section 4463(a)(l) that would not be a CIMT.

eve section 4463(a)(l) punishes anyone who, with the intent to "prejudice, damage, or
defraud" commits any of the following acts:

Alters, forges, counterfeits, or falsifies a certificate of ownership, registration


card, certificate, license, license plate, device issued pursuant to Section 4853,
special plate, or permit provided for by this code or a comparable certificate of
ownership, registration card, certificate, license, license plate, device comparable
to that issued pursuant to Section 4853, special plate, or permit provided for by a
foreign jurisdiction, or alters, forges, counterfeits, or falsifies the document,
device, or plate with intent to represent it as issued by the department, or alters,
forges, counterfeits, or falsifies with fraudulent intent an endorsement of transfer
on a certificate of ownership or other document evidencing ownership, or with
fraudulent intent displays or causes or permits to be displayed or have in his or
her possession a blank, incomplete, canceled, suspended, revoked, altered, forged,
counterfeit, or false certificate of ownership, registration card, certificate, license,
license plate, device issued pursuant to Section 4853, special plate, or permit.

eve 4463(a)(l).

The Department correctly asserts that there are four different subsections under which an
individual can be convicted under section 4463(a)(l). Dep't's Brief at 4; CVC 4463(a)(l).
An individual can be convicted under the statute if, with the intent to "prejudice, damage or
defraud," he or she commits any of the following acts:
(1) altering, forging, counterfeiting, or
falsifying a government-issued vehicle document or license plate; (2) altering, forging,
counterfeiting, or falsifying with the intent to represent it as issued by the DMV; (3) altering,

1 In Almanza-Arenas v. Holder, 771 F.3d 1184 (9th Cir. 2013), the Ninth Circuit held that a respondent remains
eligible for cancellation ofremoval where he presents a record ofconviction that is inconclusive regarding which
element(s) ofa divisible statute formed the basis for a conviction, provided at least one ofthe elements is not a
disqualifying conviction. Id at 1192. The court reasoned that Moncrieffe v. Holder, 133 S. Ct. 1678 (2013),
overruled Young, 697 F.3d 976, by holding that any ambiguity in a record ofconviction should be construed in the
respondent's favor, regardless ofthe ultimate burden ofproof. Almanza-Arenas, 771 F.3d at 1193-94. However, the
Ninth Circuit has subsequently voted to rehear the Almanza decision en bane and directed th.at the "three-judge panel
opinion shall not be cited by precedent." Almanza-Arenas v. Lynch, 785 F.3d 366 (9th Cir. 2015) (order granting
rehearing) . Accordingly, the burdens ofprooflaid out in Young continue to apply and bind this Court.

3
forging, counterfeiting, or falsifying with fraudulent intent a certificate of vehicle ownership; or
(4) displaying, with fraudulent intent, an invalid vehicle document. CVC 4463(a)(l). State
case law supports the conclusion that the statute is divisible, as the State prosecutes this statute
differently based on which of the specific subsections are charged. See generally People v.
Hughes, No. F061613, 2013 WL 2103414, at *6 (Cal. Ct. App. May 16, 2013) ("The elements of
the crime, as they were presented in the jury instructions, are as follows: '1. The defendant
displayed or caused or permitted to be displayed or have in his possession an altered, forged,

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counterfeit, or false license plate; AND 2. The defendant had the specific intent to defraud.'").

Out of the four subsections, (3) and (4) both include the specific intent to defraud,
subsection (2) requires a specific intent to misrepresent. CVC 4463(a)(l). Subsection (1), on
the other hand, has no additional specific intent, other than the overarching "intent to prejudice,
damage, or defraud."2 Id. The Department argues that an intent to defraud in subsection (1) is
implicit in the statute. The Department alleges that the altering a vehicle document or license
plate would necessarily be done for the purposes of defrauding the government in some way.
Dep't's Brief at 4.

The Court may find that "intent to defraud is implicit in the nature of the crime when the
individual makes false statements in order to procure something of value, either monetary, or
non-monetary." Blanco v. Mukasey, 518 F.3d 714, 719 (9th Cir. 2008). That is not the case for
subsection (1) because the prohibited conduct is not limited to instances where the violator
would procure something of value in his conduct. CVC 4463(a)(l). Subsection (1) broadly
punishes the act of altering or damaging license plates or vehicle documents. The subsection
does not limit the conduct to altering or damaging one's own license plate, but also would punish
the altering or damaging of the license plate of another. Id. Thus, one could be convicted under
the statute for a simple act of vandalism, altering the license plate of another with the "intent to
damage," and not have the implicit intent to defraud described by the Department. Dep't's Brief
at 4; CVC 4463(a)(l). As such, the Court finds that there exists at least one theory under
subsection (1) where a defendant could be convicted of a non-CIMT. Thus, the Court finds that
Respondent's conviction under CVC section 4463(a)(l) is not categorically a CIMT.

Because there is at least one theory of violating section 4463(a)(l) that could not be a
CIMT, the Court must next consider whether Respondent's conviction is a CIMT under the
modified categorical approach. See Olivas-Motta, 716 F.3d at 1209. The modified categorical
approach permits the Court to examine the charging document, the written plea agreement, the
transcript of the plea colloquy, or other judicially-noticeable documents to determine whether
Respondent's conviction falls under a subsection of the statute that would qualify as a CIMT.
See United States v. Leal-Vega, 680 F.3d 1160, 1168 (9th Cir. 2012).

Here, the record includes three documents that the Court can review under the modified
categorical approach: Respondent's minute order, his California Department of Justice Report,
and his plea agreement. Exh. 3, tab 0. None of these documents specify the subsection of the
statute for which Respondent was convicted. Id. Each document is silent as to the nature of the
crime and merely list "CVC section 4463(a)(l)" as the crime committed by Respondent. Id. As

2 The state case law does not show that the overarching "intent to prejudice, damage or defraud" is divisible. See
Hughes, 2013 WL 2103414 at *6.

4
such, Respondent has failed to meet his burden to demonstrate that his conviction was not a
CIMT. See Young, 697 F.3d at 989.

B. A Sentence of One Year or Longer may be Imposed

In order for Respondent's conviction to render him ineligible for cancellation of removal
the crime must be one which a sentence of one year or longer may be imposed. INA

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237(a)(2)(A)(i). Respondent argues that his conviction does not fall under section 237(a)(2) of
the INA because of superseding state legislation. At the time of his conviction, a misdemeanor
violation of the statute could be punished with up to 365 days in jail. On July 20, 2014, the state
of California passed California Penal Code (CPC) section 18.5(b), which reduced the maximum
sentence for any misdemeanor to 364 days. CPC 18.5(b). Respondent argues that as a result
of the passage of CPC section 18.5, his conviction cannot carry a sentence of a year or more.
However, as Respondent's conviction was entered in 2011 and CPC section 18.5(b) did not go
into effect until January 1, 2015, he does not benefit from the sentence reduction in CPC section
18.5(b). See Matter of Estrada, 63 Cal. 2d 740, 743 (1965) (holding that a mitigating criminal
statute should only be imposed retroactively if there is no saving clause and it becomes effective
before defendant's judgment of conviction becomes final). As a result, the Court concludes that
Respondent's conviction was for a crime for "which a sentence of one year or more may be
imposed." INA 237(A)(2)(A)(i).

As such, Respondent's conviction falls under section 237(a)(2)(A)(i) of the INA and
renders him statutorily ineligible for cancellation of removal. See INA 240A(b)(l); see also
Young, 697 F.3d at 990. Thus, the Court denies his application on this basis.

Accordingly, the following orders shall be entered:

5
ORDERS

IT IS HEREBY ORDERED that the Respondent's application for cancellation of


removal for certain nonpermanent residents under section 240A(b) of the INA be
PRETERMITTED and DENIED.

IT IS FURTHER ORDERED that the hearing scheduled for January 19, 2016, be

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VACATED.

IT IS FURTHER ORDERED that Respondent be REMOVED to Mexico.

DATE: DEC 1 2015


int alomino
Immigration Judge

APPEAL RIGHTS: Both parties have the right to appeal the decision in this case. Any appeal
is due at the Board of Immigration Appeals on or before thirty (30) calendar days from the date
of service of this Order.

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