..

Chen, Rex, Esquire

Catholic Charities
976 Broad Street
Newark, NJ 07102-0000
Name: GIBEK, BARBARA
U.S. Department of Justice
Executive Ofce fr Immigation Review
Board of Immigration Appeals
Ofce of the Clerk
J!07Lccv0ttrgIt8c, 0itcZ000
I0sC/tttrc/r, lrgtnto ZZ041
OHS/ICE Ofice of Chief Counsel - NEW
P.O. Box 1898
Newark, NJ 07101
A073-150-567
Date of this notice: 4/29/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Pauley, Roger
Sincerely,
Donna Carr
Chief Clerk
P.- .. MfW - ' ' '-'-'-'"-'. .. J.(.o,c :;,(_ --P.. . 7
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Cite as: Barbara Gibek, A073 150 567 (BIA Apr. 29, 2011)
: ?R .

U.. Department of Justice

Executive Ofce fr Imigation Review
Falls Church, Virgia 22041
File: A073 150 567 -Newak, NJ
In re: BARARA GIBEK
I RMOVAL PROCEEDIGS
APPEAL
ON BEHALF OF RESPONDENT: Rex Chen, Esquire
ON BEHALF OF DHS: Joseph Silver
Assistant Chief Counsel
CHARGE:
Decision of the Board of Imigation Appeals
Date:
APR i 9 2011
Notice: Sec. 212(a)(2)(A)(i)(I), I&N Act (8 U.S.C.

l
182(a)(2)(A)(i)(I)
) -
Crime involving moral turpitde
APPLICATION: Termination of proceedings
This case was last befre us on July 24, 2009, at which time we remanded the record of
proceedings fr te Immigration Judge to receive additional evidence ad analyze the respondent's
removability in light of te Atorey General's decision in 7''?* 9' |'r7*?r|19
24 I&N Dec. 687 (A.G. 2008). On October 6, 2009, the United States Cou of Appeals fr the Third
Circuit declined to fllow m7''?* 9' |'r7*?r|19 ?? J?71/9!| r H''j ?1 9' L1|'?1 '7'?
582 F.3d 462, 47-81 (3d Cir. 2009). Accordingly, on December 9, 2009, the Immigration Judge
reinstated her November 13, 2007, decision, concluding that the Deparment of Homeland Security
("DHS") failed to demonstrate that te respondent was removable as charged and terminating
proceedings. The DHS appeals the fnding of non-removability, and the respondent has fled a brief
in opposition to this appeal. The DHS's appeal will be dismissed.
We review Imigation Judges' fndings of fct fr clear eror. 8 C.F.R. 1003.l (d)(3)(i)
(2010). We review questions of law, including whether the paries have met the relevant burdens
of proof and issues of discretion, under a 1? 19r9 stdard. 8 C.F .R. 1003 . 1 ( d)(3 )(ii).
On appeal, the DHS argues that the respondent's conviction under N.J. STAT. AN.
2C: 17- 1 ( c) (West 2004) is categorically fr a crime involving moral turitude ("CIMT"), thus
rendering the respondent removable under section 212(a)(2)(A)(i)(I) of the Imigration and
Nationality Act, 8 U.S.C. 1182(a)(2)(A)(i)(I). The Third Circuit applies a categorical approach in
deterining whether a state law ofense is a CIMT, fcusing on the underlying criminal statute rather
than the alien's specifc act. J?71/9!| r H''j ?1 9' L1|'?1 '7'? !7*7 at 465. Under the
categorical approach, "we read the applicable statute to ascertain the least culpable conduct necessar
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Cite as: Barbara Gibek, A073 150 567 (BIA Apr. 29, 2011)
A073.150 567
to sustain a conviction under the statute." 7*j8 V. H''j L?1 9' L1|'?1 '7'?, 417 F.3d 408,
411 (3d Cir. 2005). Only if"a statute covers both turitudinous and nonturpitudinous acts" do we
t to a modifed categorical approach and "look to the record of conviction to determine whether
the alien was convicted under that pat of the statute defning a crime involving moral turpitude."
Id
The respondent, a native and citizen of Poland and a lawfl peranent resident of the United
States, was convicted in May 2004 of"Failure to control or report a dangerous fre," in violation of
N.J. STAT. AN. 2C:17-l (c) (West 2004) (Exh. 2). This statute stated:
A person who knows that a fre is endangering lif or a substantial amount of
property of another and either fils to take reasonable measures to put out or contol
the fre, when he can do so without substantial risk to himself, or to give prompt fre
alarm, commits a crime of the furh degree if:
(1) He knows that he is under an ofcial, contractual, or other legal duty to
prevent or combat the fre; or
(2) The fre was started, albeit lawflly, by him or with his assent, or on property
in his custody or contol.
The Third Circuit has held that fr a crime to involve moral turpitude, it must require conduct
that is "inherently base, vile, or depraved." 177|t V. H1*9T, 384 F.3d 84, 89 (3d Cir.2004)
(interal citations omited). Further, a act is turpitudinous if it "is accompanied by a vicious motive
or a corupt mind." 7*j8 V. H''j L?1 9' L1|'?1 '7'?, !7*7, 413.
We have held that attempted arson in violation of section 512 of the Criminal Code of Canada
(1947) is a CIMT because it involves an act committed purposely with an evil intent. m7''?* 9'-,
3 I&N Dec. 617, 618 (BIA 1949). However, the New Jersey statute at issue here does not require
that the alien commit any afrmative act, such as starting a fre. Instead, it punishes the '7|'!*? to
act (to report or control the fre) where it would be reasonable to do so and where the alien has some
connection to the fre. Taking the New Jersey statute at its minimum, a person could be convicted
fr filing to report a bonfre on his property that was started by a guest and has spread and now
endangers a substantial amount of that guest's property. While irresponsible, and not behavior that
we condone, we do not believe that moral turpitude inheres in such a scenario.
L' m7''?* 9' K99'?-L**?7, 24 l&N Dec. 22, 25-26 (BIA 2006) (holding that misprision of a felony
in violation of 18 U.S.C. 4 (2000) is a CIMT because it requires more than a mere failure to report
an ofense, but instead an afrmative act of concealment). Although we held in
m7''?* 9' 997*/999, 24 l&N Dec. 143, 145-46 (BIA 2007), that the '7|'!*? to register a a sex
ofender was a categorical CIMT, that case noted the high rate of sex ofender recidivism that such
registation statutes were designed to prevent, as well as concer about the pericious nature of the
underlying sexual ofense. These specifc concers are not present in the instant case.
The New Jersey statute is also distinguishable fom the arson statute in m7''?* 9' -, !7*7, in
that N.J. STAT. AN. 2C:l 7-l (c) does not require an evil intent, but merely requires that the person
have knowledge that the fre endangers lif or property of another and have an actual or implied duty
to combat it. This mental state is akin to New Jersey's defnition of"recklessness," which involves
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Cite as: Barbara Gibek, A073 150 567 (BIA Apr. 29, 2011)
A073 150 567
te conscioqs disregard of a "substantial and unjustifable risk" or a "gross deviation fom the
standard of conduct that a reasonable person would obsere in the actor's situation." N.J. STAT.
AN. 2C:2-2(b )(3). Moral turitude can lie in criminally reckless behavior where certain statutory
aggavating fctors are present, such as when a defendant consciously disregads a substantial risk
of serious ha or death to aother person. 177|t V. H1?*9, !7*7, at 89-90; m7''?* 9' P!7'77!,
2 1 l&N Dec. 475, 478 (BIA 1996); m7''?* 9' m?1|17, 15 l&N Dec. 611, 613 (BIA 1976).
Te New Jersey statute does not require a conscious disregard fr the safety of aother.
Although the person convicted must have knowledge that the fre represents a danger, this danger
need not be to a person and may instead only represent a danger to property. ?? m7''?* 9' L-,
2 l&N Dec. 716 (BIA 1946) (Caadian conviction fr malicious mischief and damaging private
propert did not involve moral turpitude because ofense did not contain a requirement of malicious
intent); m7''?* 9' , 2 l&N Dec. 867 (BIA 1947) (Caadian conviction fr malicious mischief
wherein intent may be been negligent or reckless did not involve moral turitude). Further, while
N.J. STAT. AN. 2C:l 7-l(c) requires that the defendant have some conection to the fre, the
connection may be as tenuous as having the fre occur on the defendant's property with the
defndant's knowledge. By contrast, adjacent sections ofN.J. STAT. A . 2C:17-l , such as the
sections prohibiting aggavated arson and arson, do explicitly punish ofenses involving dangerous
afrative conduct; these sections punish starting a fre and thereby purosely, knowingly, or
recklessly placing another person in danger of death or bodily injury or placing property in danger.
SeeN.J. STAT. AN. 2C:l 7-l a-b. The respondent did not plead guilty to these ofenses, but instead
to the furh degee ofense of violating N.J. STAT.AN. 2C:l 7-l(c) (Exh. 2). Because the statute
prohibits the mere failure to act in circumstances presenting no danger of injur to a person, we agee
with the Immigation Judge that a conviction under this statute is not categorically fr a CIMT. ??
7'9 K91*|g!??h?**?*7 V. N, 52 F.3d 2 38 (9th Cir. 1995).
The DHS argued that application of the modifed categorical approach is unnecessar because
any violation of N .J. ST AT. AN. 2C: 17-1 c would necessarily constitute a crime involving moral
turpitude. It has thereby waived any argument that application of the modifed categorical approach
is appropriate here. ?? J?71/9!| V. H'' } ?1 9' '1? L1|'?1 '7'?, !7*7, at 466 (describing our
limited fctual inquir to determine the specifc subpart under which a defendant was convicted in
cases in which the statute of conviction is "divisible").
Finally, in her opposition brief, and in numerous other motions to the Immigration Court and this
Board, the respondent has requested that the Immigration Judge or this Board order the DHS to pay
her attorey fees ad legal costs. This request is denied. Equal Access to Justice Act ("EAJA") fees
ae not recoverable in administrative deportation proceedings. H*1?'71| V. N, 502 U.S.12 9 (1991 ).
For the reasons above, the appeal will be dismissed.
ORER: Te appeal is dismissed.
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Cite as: Barbara Gibek, A073 150 567 (BIA Apr. 29, 2011)
.
UITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIW
IMMIGRATION COURT
NEWARK, NEW JERSEY
I THE MATTER OF:
GIBEK, Barbara
=
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=
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CASE NUMBER A073 150 567
RESPONDENT.
I RMOVAL PROCEEDINGS AT NEWARK. NEW JERSEY
FOR RSPONDENT:
Rex Chen, Esquire
Catholic Charities of the Archdiocese of Newark
976 Broad Street
Newark, NJ 07102
FOR THE US ICE:
Chief Counsel US OHS Newark
970 Broad Street, Room 1104B
Newark, NJ 07102
Attn: Gloria M. Alfnso, Assistant
DECISION OF THE JMMIGRA TION JUDGE
Proceedings were remanded by the Board oflmmigration Appeals on July 24, 2009 fr
this Immigration Court's application of the precedent decision, m7''?* 9||'r7*?r|19, 24 I&N
Dec. 687 (Att'y Gen'l 2008) to the instant case. Instruction to permit supplementation of the
Record of Proceeding by the party was within the parameter of the remand: permitting the
Departent of Homeland Security to amend its Notice to Appear and determining whether to
consider additional evidence of Respondent's criminal conviction described ihibi, th:._.
N ' A
** `
otlce to ppear.

::: c>;

L`*
` -`

The amended Notice to Appear (Exhibit IA), fled by the OHS with aon
to the Board on March 19, 2009, was admitted into evidence during te course he o
November 4, 2009, but over Respondent's objection. This court concluded ie c
of Homeland Security may amend its Notice to Appear at any time. Subject tier objctioe
Respondent, through counsel, admitted the truth of allegation 6. As a result, this coow iTes
that, in its interlocutor decision signed on November 13, 2007, the statutory provision described
at page 2 should be listed by the undersigned as Section 2C:l 7-l(c) and not 2C:l 7-2(c).
A transcript of araignment and plea hearing also fled with the Board of Immigration
Appeals by DHS on March 19, 2009, was ofered into the Record of Proceeding as Exhibit 3.
Respondent's counsel fled objections on December 3, 2009, accurately claiming that the OHS
could and should have fled the transcript at the earlier hearings and befre the undersigned
issued her decision of reconsideration of whether Respondent is deportable. Although the court
agrees, the transcript constitutes a part of the record of criminal conviction, so is admitted, as this
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A073 150 5{7
December 9, 2009
cou can see no prejudice to Respondent in doing so. The transcript makes clear that the
Respondent knowingly set a fre and filed to report it.
The undersigned was directed to reconsider her decision afer application of te |'r7
?r|19 decision to this mater. Proceedings were postponed to perit the parties to submit as
desired, which they both have done. Te Cou of Appeals fr the Third Circuit, in J?71/9!| r
H'' } ?1?7' 9' '1? L1|'?1 '7'? 9' Hw?|7, 582 F.3d 462 (3d Cir. 2009) determined that it
would not apply te |'r7-?r|19 decision to matters within its jurisdiction, which includes the
instant case. Proceedings were postponed to perit the parties to submit U desired any position
on this new development, as the undersigned announced her desire to retur this matter to the
Board of Immigration Appeal's jurisdiction as soon as practicable, as there no longer was a
purose served by the remand.
Further hearings are not required, the parties agree.
The court sees no propriety in permitting frther consideration of this matter at this time,
given that the Court of Appeals fr this circuit has spoken. Any new arguments not previously
addressed are outside the jurisdiction of this court in any event. Therefre, this court adopts and
incorporates fr all purposes, as if flly set frth herein, its decision of November 13, 2007 save
and except that the statute listed at page 2 should be cited as Section 2C: 17-l(c) instead, and the
charge of inadmissibility is not sustained. The court enters the fllowing decision:
ORDER
f

c t
IT IS ORDERED that Respondent's Motion to Terminate is GRANT

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IT IS FURTHER ORDERED that Respondent be admitted to the Unitt6f g

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America a returing resident.
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IT IS FURTHER ORDERED that Respondent comply with all Post-Hng craraf
instructions (an explanation of which is attached to this decision) and that, subject to mh
.
compliance, Respondent be provided with necessar documentation to efectuate the order of this
court. Signed on December 9, 2009 at Newark, New Jersey.
ANIE S. GARCY, Immigration Jud
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