Eduardo Enriquez-Alvarez, A070 731 338 (BIA Sept. 22, 2014)

Khanh Ngoc Nguyen, Esquire Khanh Nguyen Law Office 8120 Penn Ave. South Suite 549 Bloomington, MN 55431

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 -BLM (MSP) 1 Federal Drive, Suite 1800 Ft. Snelling , MN 55111

Name: ENRIQUEZ-ALVAREZ, EDUARDO A 070-731-338

Date of this notice: 9/22/2014

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

Enclosure

Panel Members: Greer, Anne J. Malphrus, Garry D. Pauley, Roger

Sincerely,

Donna Carr Chief Clerk

1..1(.. ISd Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Eduardo Enriquez-Alvarez, A070 731 338 (BIA Sept. 22, 2014)

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ENRIQUEZ-ALVAREZ, EDUARDO A070-731-338 C/O ICE/OHS 2901 METRO DR. 100 BLOOMINGTON, MN 55425

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 -BLM (MSP) 1 Federal Drive, Suite 1800 Ft. Snelling , MN 55111

Name: ENRIQUEZ-ALVAREZ, EDUARDO A 070-731-338

Date of this notice: 9/22/2014

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.

Enclosure

Panel Members: Greer, Anne J. Malphrus, Garry D. Pauley, Roger

Sincerely,

Dom1a Carr Chief Clerk

lucasd Userteam: Doc�!


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U.S. Department of Justice Executive Office for Immigration Review

Falls Church, Virginia 20530

File: A070 731 338 - Bloomington, MN

In re: EDUARDO ENRIQUEZ-ALVAREZ

IN REMOVAL PROCEEDINGS

APPEAL

Decision of the Board oflmmigration Appeals

Date:

ON BEHALF OF RESPONDENT: Khanh Ngoc Nguyen, Esquire

CHARGE:

Notice: Sec. 237(a)(2)(A)(i), I&N Act [8 U.S.C. § 1227(a)(2)(A)(i)] -Convicted of crime involving moral turpitude

APPLICATION: Termination

The respondent appeals from an Immigration Judge's April 22, 2014, decision ordering him removed from the United States.1 The appeal will be sustained and the record will be remanded for further proceedings consistent with this order.

The respondent, a native and citizen of Mexico and a lawful permanent resident of the United States since 2009, sustained a 2012 conviction for stalking under section 609.749(2)(1) of the Minnesota Statutes (Exh. 3). The Immigration Judge sustained the charge of removal, denied the respondent's motion to terminate, and ordered his removal from the United States. This timely appeal followed.

We review an Immigration Judge's factual determinations, including credibility determinations, for clear error. See 8 C.F.R. § 1003.l(d)(3)(i). The Board uses a de novo

standard of review for questions of law, discretion, judgment, and all other issues in appeals from decisions of Immigration Judges. See 8 C.F.R. § 1003. l (d)(3)(ii). On appeal, the respondent maintains that the Department of Homeland Security ("DHS") did not prove his removability by clear and convincing evidence. See section 240(c)(3)(A) of the Act, 8 U.S.C. § 1229a(c)(3)(A).

The phrase "moral turpitude" refers to conduct that 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. Matter of Ortega-Lopez, 26 I&N Dec. 99, 100 (BIA 2013). Thus, to involve moral turpitude, a crime requires two essential elements: a culpable mental state and reprehensible conduct. Id. (citing Matter of Louissaint, 24 I&N Dec. 754, 756-57 (BIA 2009)). Where a state statute can be violated with general intent only, it follows that the underlying offense may be

1 The Immigration Judge also issued a written order on March 27, 2014, addressing the respondent's motion to terminate.


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A070 731 338

committed without the evil intent, depraved or vicious motive, or corrupt mind associated with moral turpitude. Matter of Solon, 24 I&N Dec. 239, 241 (BIA 2007).

The Immigration Judge used the approach adopted by the Attorney General in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008) to determine whether the underlying offense is a crime involving moral turpitude. In that decision, the Attorney General held that a crime involving moral turpitude is a crime that "involves both reprehensible conduct and some form of scienter," whether specific intent, deliberateness, willfulness, or recklessness. Id. at 706 & n.5. Furthermore, the Attorney General determined that if all cases that have a "reasonable probability" of being prosecuted under the statute of conviction involve the requisite "reprehensible conduct" and "scienter," then the offense qualifies categorically as a crime involving moral turpitude, notwithstanding the "theoretical possibility" that some nonturpitudinous crimes could also be prosecuted under the same statute. Id. at 697-98 (quoting Gonzales v. Duenas Alvarez, 549 U.S. 183, 193 (2007)) see also Bobadilla v. Holder, 679 F.3d 1052, 1056 (8th Cir. 2012). After concluding that the Minnesota statute requires proof of intentional or purposeful conduct, the Immigration Judge noted that it also "encompasses a large number of unlawful actions, some of which may not be conduct that qualifies as a CIMT." See I.J. at 2. Therefore, the court proceeded to examine the complaint, which contained an allegation that the respondent was involved in a physical attack in which he threatened the victim by indicating that he had "the heat," which he intended would place the victim in fear of using a gun against him. See I.I. at 3 (citing Exh. 7). The Immigration Judge concluded that this statement indicated that the respondent had a "purpose to cause extreme fear in the victim," and that the respondent's conviction for stalking under Minnesota law was a crime of moral turpitude.

We observe that although the Immigration Judge's citation to Matter of Silva-Trevino, supra, reflects the current guidance from the Eighth Circuit with regard to analysis of whether an offense is a crime involving moral turpitude, 2 the Immigration Judge's consideration of the complaint was in error. That is because the complaint contains only three counts (and associated factual allegations), and it did not initially appear to charge the respondent with stalking under section 609. 7 49 of the Minnesota statutes. Although Exhibit 7 contains a handwritten notation adding "count IV," the allegations in the complaint appear to pre-date this amendment and pertain only to the other three counts under which the respondent was initially charged and do not (on their face) relate to a charge of stalking. See Exh. 7.

Accordingly, we find that remand of this matter is required for further fact-finding with regard to the conviction documents that are associated with the respondent's offense of stalking under Minnesota law, and we will remand this record for further proceedings to permit the Immigration Judge to make relevant factual findings.

2 In Descamps v. United States, 133 S. Ct. 2276 (2013), the United States Supreme Court held that a modified categorical analysis applies only if the statute that defines the offense of conviction is "divisible" vis-a-vis the generic offense or concept to which it must correspond (in this case, the CIMT concept).

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Furthermore, additional analysis is required to determine the extent that the Minnesota statute requires the requisite scienter. In Matter of Ajami, 22 I&N Dec. 949 (BIA 1999), we held that "the intentional transmission of threats" by means of a "course of conduct" is morally turpitudinous when the threats are made willfully and place the victim in great fear. "Stalking" under Minnesota law requires that the perpetrator "engage in conduct which the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated, and causes this reaction on the part of the victim regardless of the relationship between the actor and victim." See Minn. Stat. § 609.749(1) (providing general description of actus reus). Although this statute at one time was interpreted as requiring specific intent, in 1997, the legislature amended the statute to provide that proof of specific intent was not required for a conviction. See King v. State, 649 N.W.2d 149, 159 (Minn. 2002). Specifically, the statute provides that "the state is not required to prove that the actor intended to cause the victim to feel frightened, threatened, oppressed, persecuted, or intimidated, or except as otherwise provided in subdivision 3, paragraph (a), clause (4), or paragraph (b), that the actor intended to cause any other result." See Minn. Stat. § 609. 7 49(1 a). The respondent's conviction arose under subdivision 2(1) of the statute, and, therefore, the state did not have to prove any specific intent to obtain a conviction.

We therefore find further analysis is appropriate as to whether the Minnesota statute requires the requisite level of scienter, which is a prerequisite to a determination that an offense is a crime involving moral turpitude, pursuant to Matter of Silva-Trevino, supra. See also Matter of Solon, supra.

We therefore will sustain the respondent's appeal and remand this record for further proceedings as discussed herein. The following order will be entered.

ORDER: The appeal is sustained and the record is remanded for further proceedings consistent with this order.

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT BLOOMINGTON, MINNESOTA

File: A0?0-731-338

In the Matter of

April 22, 2014

EDUARDO ENRIQUEZ-ALVAREZ ) ) ) )

IN REMOVAL PROCEEDINGS

RESPONDENT

CHARGES: Section 237(a)(2)(A)(ii) of the Immigration and Nationality Act -controlled substance conviction.

·

APPLICATIONS: None.

ON BEHALF OF RESPONDENT: KHANH NGUYEN Khanh Nguyen Law Office 8120 Penn Avenue S., Suite 549 Bloomington, Minnesota 55431

ON BEHALF OF OHS: COLIN JOHNSON Assistant Chief Counsel/ICE 2901 Metro Drive, Suite 100 Bloomington, Minnesota 55425

ORAL DECISION OF THE IMMIGRATION JUDGE

Background

The respondent is a 25-year-old unmarried, male, native and citizen of

Mexico, who initially entered the United States at or near San Ysidro, California on or

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·----- .

about April 15, 1988. At that time, he entered without inspection. On August 21, 2009,

the respondent was adjusted to that of a lawful permanent resident under Section 245

of the Act.

The Department of Homeland Security (hereinafter "the Government") has

commenced removal proceedings against the respondent by the issuance of a Notice to

Appear (hereinafter "NTA") dated January 9, 2014, charging the respondent with being

removable pursuant to the above-captioned section of the Immigration and Nationality

Act (hereinafter "the Act").

Removability

At the respondent's removal hearing, respondent appeared with the

above-referenced counsel and conceded to the service of the NTA (Exhibit 1). The

respondent has admitted all the factual allegations, but denied removability. Therefore,

removability is at issue in these proceedings.

The Court has issued a written decision dated March 27, 2014, finding the

respondent removable as charged. The Court will incorporate by reference that

decision as though fully set forth herein.

The respondent has designated Mexico as the country of removal should

that become necessary.

Relief

The respondent has not sought any relief in this country. The Court notes

that the respondent is not eligible for relief.

The respondent is not eligible for cancellation of removal pursuant to

Section 240A(b) of the Act because he does not have the requisite seven years'

residence after admission in any status. See Section 240A(a)(2).

The respondent is not eligible to adjust status because no petitions have

A070-731-338 2 April 22, 2014

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been filed on his behalf that would allow him to adjust status. Even if one had been, the

respondent would not be eligible for adjustment of status because he does not have the

requisite seven years' residence, as required in Section 212(h) of the Act. Therefore,

since he cannot waive his conviction, he cannot adjust status. The respondent has not

sought voluntary departure.

The respondent has made no claim to citizenship, either through himself

or through his parents. It appears that he would not be eligible for derivative citizenship

because he became a permanent resident after he turned 18 years of age.

Respondent has made no claims to have any fears of persecution or

torture if he returns back to Mexico and has not sought that form of relief.

Respondent has made no claim to having been the victim of a crime or

human trafficking, nor that he is eligible for relief under DACA.

The respondent sought a continuance of this case to afford him an

opportunity to have his conviction vacated. Respondent has indicated that he has an

attorney working on that case but at this time has not filed a motion for a continuance,

and no hearings have been set on the motion to vacate the conviction. The Court notes

that the Board has admonished Immigration Judges not to continue cases solely for the

purpose of seeking post-conviction relief. See Matter of Gabryelsky, 20 l&N Dec. 750

(BIA 1993).

Therefore, there being no other relief available to the respondent, the

following orders shall be entered:

A070-731-338 3 April 22, 2014

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ORDER

IT IS HEREBY ORDERED that respondent be removed from the United

States to Mexico.

A0?0-731-338

WILLIAM J. NICKERSON, JR. Immigration Judge

4 April 22, 2014

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CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE WILLIAM J.

NICKERSON, JR., in the matter of:

EDUARDO ENRIQUEZ-ALVAREZ

A070-731-338

BLOOMINGTON, MINNESOTA

was held as herein appears, and that this is the original transcript thereof for the file of

the Executive Office for Immigration Review.

GRACE SHIPPS (Transcriber)

DEPOSITION SERVICES, lnc.-2

JUNE 19, 2014

(Completion Date)

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Eduardo Enriquez-Alvarez, A070 731 338 (BIA Sept. 22, 2014)