U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Fa/ls Church, Virginia 2204/

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ROSAS-HERNANDEZ, GASPAR OHS/ICE Office of Chief Counsel - EAZ
ELOY DETENTION CENTER Eloy Detention Ctr, 1705 E. Hanna Rd
1705 E HANNA ROAD Eloy, AZ 85131
ELOY, AZ 85131

Name: ROSAS-HERNANDEZ, GASPAR A 205-147-712

Date of this notice: 5/16/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Liebowitz, Ellen C
Cole, Patricia A.
Malphrus, Garry D.

I .

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Gaspar Rosas-Hernandez, A205 147 712 (BIA May 16, 2017)
,

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

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A205 147 712 - Eloy, AZ Date:

MAY 16 2017
In re: GASPAR ROSAS-HERNANDEZ a.k.a. Gaspar Hernandez

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Pro se

APPLICATION: Cancellation of removal

This case is before us pursuant to the United States Court of Appeals for the Ninth Circuit's
order dated March 30, 2016, granting the government's unopposed motion to remand for further
proceedings. We will sustain the respondent's appeal in part, and remand for further
proceedings.

We review findings of fact determined by an Immigration Judge, including credibility

findings, under a "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). We review questions
of law, discretion, and judgment, and all other issues in appeals from decisions of Immigration
Judges de novo. 8 C.F.R. 1003.l(d)(3)(ii).

In our decision dated February 25, 2014, we adopted and affirmed the Immigration Judge's
decision dated November 6, 2013, which denied the respondent's application for cancellation of
removal for non-permanent residents under section 240A(b) of the Immigration and Nationality
Act, 8 U.S.C. 1229b(b), and denied his application for asylum and withholding of removal
under sections 208 and 24l(b)(3) of the Act, 8 U.S.C. 1158 and 123l(b)(3), and his request
for protection under the Convention Against Torture (the "CAT''). 8 C.F.R. 1208.16-1208.18.
We affirmed the Immigration Judge's conclusion that the respondent's conviction for aggravated
driving under the influence, in violation of Ariz. Rev. Statutes 28-1383(A)(l), is a crime
involving moral turpitude (CIMT), which renders him ineligible for cancellation.

On March 30, 2016, the Ninth Circuit granted the government's unopposed motion to
remand to allow the Board to further consider whether the respondent's conviction under Ariz.
Rev. Statutes 28-1383(A)(l) is "divisible under Descamps v. United States, 133 S. Ct. 2276
(2013)" (Government's Motion at 2). Upon further consideration, we conclude that the
respondent's conviction does not qualify as a CIMT.

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 Ill'), 26 I&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).

Cite as: Gaspar Rosas-Hernandez, A205 147 712 (BIA May 16, 2017)
f A205 147 712

To determine whether a conviction is a CIMT, we first employ the categorical approach,

which requires us to focus on the "elements" of the offense, rather than the facts underlying the
respondent's particular conviction. Id at 831-33; Moncrieffe v. Holder, 133 S. Ct. 1678, 1684
(2013); see also Olivas-Motta v. Holder, 716 F.3d 1199 (9th Cir. 2013). The categorical
approach focuses 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

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particular conviction. Silva-Trevino III, supra, at 831-33; Moncrieffe v. Holder, supra, at 1684;
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185-87 (2007).

The Ninth Circuit has concluded that Ariz. Rev. Stat. 28-1383(A)(l) encompasses some
conduct that is morally turpitudinous and other conduct that is not. 1 Compare Marmolejo
Campos v. Holder, 558 F.3d 903, 914-17 (9th Cir. 2009) (en bane) (deferring to Matter ofLopez
Meza, 22 l&N Dec. 1188 (BIA 1999), in which this Board found that moral turpitude inheres in
the act of "driving" under the influence of alcohol or drugs with knowledge that one's driving
privileges have been revoked), with Hernandez-Martinez v. Ashcroft, 329 F.3d 1117, 1118-1119
(9th Cir. 2003) (holding that moral turpitude does not inhere in the act of exercising "actual
physical control" over a vehicle while intoxicated, even if the accused knew his driving
privileges had been suspended). Thus, Ariz. Rev. Statutes 28-1383(A)( l) is not categorically a
CIMT.

The Supreme Court's interpretation of "divisibility" as set forth in Mathis v. United States,
_U.S.__, 136 S. Ct. 2243 (2016) and Descamps, is substantially narrower than that embodied
in Marmolejo-Campos, which this Board and the Immigration Judge applied to the respondent's
case. See Matter of Chairez, 26 l&N Dec. 819 (BIA 2016) (holding that the concept of
divisibility as embodied in Descamps and Mathis "applies in immigration proceedings to the
same extent that it applies in criminal sentencing proceedings"); see also Aguilar-Turcios
v. Holder, 740 F.3d 1294, 1301-02 (9th Cir. 2014) (concluding that the approach to divisibility
announced in Descamps applies in the immigration context).

Under the approach to divisibility adopted in Mathis, Ariz. Rev. Statutes 28-1383(A)(l)
can be regarded as "divisible" into separate offenses - that is either "driving" or exercising
"actual physical control" over a vehicle - only if Arizona law requires a unanimous jury verdict
as to the particular actus reus the accused committed. If an Arizona jury can find a defendant
guilty of violating the statute without coming to an agreement about the defendant's particular
actus reus, then it follows that such acts are not alternative "elements." Pursuant to Mathis, they
are instead mere "brute facts" - alternative means by which the actus reus element can be proven.

1 Ariz. Rev. Stat. 28-1383(A)( l ) provides that:

A person is guilty of aggravated driving or actual physical control while under the
influence of intoxicating liquor or drugs if the person ... Commits a violation of
28-1381, 28-1382 or this section while the person's driver license or privilege
to drive is suspended, canceled, revoked or refused or while a restriction is placed
on the person's driver license or privilege to drive as a result of violating 28-
1381 or 28-1382 or under 28-1385.

Cite as: Gaspar Rosas-Hernandez, A205 147 712 (BIA May 16, 2017)
A205 147 712

The Arizona Supreme Court has held that the State's constitutional requirement of jury
unanimity, see Ariz. Const., Art. II, 23, does not entitle a defendant "to a unanimous verdict on
the precise manner in which the [criminal] act was committed"). See State v. Encinas,
647 P.2d 624, 627 (Ariz. 1982). Applying that principle to Arizona's DUI statutes, the Arizona
Court of Appeals has squarely determined that a jury need not be unanimous as to whether a

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defendant was "driving" under the influence or merely in "actual physical control" of a vehicle
while under the influence. State v. Rivera, 83 P.3d 69, 72-73 (Ariz. Ct. App. 2004). According
to the Rivera court, "driving" and being in "actual physical control" are merely "two ways of
committing a single offense" rather than "two offenses." Id. at 73; see also Schad v. Arizona,
501 U.S. 624, 636 (1991) (plurality opinion) ("[L]egislatures frequently enumerate alternative
means of committing a crime without intending to define separate elements or separate crimes.").

State v. Rivera establishes that "driving" and "actual physical control" are not alternative
"elements" of the offense defined by Ariz. Rev. Stat. 28-1383(A)(l) within the meaning of
Mathis and Descamps. Accordingly, the distinction between "driving" and "actual physical
control" does not make the statute divisible. Moreover, based on Hernandez-Martinez v.
Ashcroft, supra, we are prohibited from finding this statute to be categorically a CIMT. As the
offense defined by Ariz. Rev. Stat. 28-1383(A)(l) is neither a categorical CIMT nor divisible
vis-a-vis the CIMT concept, it follows that the respondent's conviction does not render him
ineligible for cancellation of removal under section 240A(b)(1)(C).

In light of the above, the record will be remanded to enable the Immigration Judge to
reassess the respondent's eligibility for cancellation of removal, including 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 of C-V-T-, 22 I&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 I&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 I&N Dec. 413, 422 (BIA 1996).

Accordingly, the following order will be entered.

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.

Cite as: Gaspar Rosas-Hernandez, A205 147 712 (BIA May 16, 2017)