U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suile 2000

Falls Church, Virginia 22041

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Shaw, Jonathan E OHS/ICE Office of Chief Counsel - DEN
Muhaisen & Muhaisen, LLC 12445 East Caley Avenue
2020 S. Parker Rd. Unit L Centennial, CO 80111-5663
Denver, CO 80231

Name: C -N , E A 788

Date of this notice: 10/13/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Cole, Patricia A.

'<LISS::!H
Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: E-C-N-, AXXX XXX 788 (BIA Oct. 13, 2017)
 '
'

..

U.S. Department of Justice

'

Decision of the Board of Immigration Appeals

. Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 788 - Denver, CO Date: OCT 13 2811

In re: E C -N a.k.a.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Jonathan E.Shaw, Esquire

ON BEHALF OF OHS: Aminda B.Katz

Assistant Chief Counsel

APPLICATION: Cancelation of removal

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
June 18, 2015, decision. In that decision, the Immigration Judge pretermitted the respondent's
application for cancellation of removal under section 240A(b) of the Immigration and Nationality
Act, 8 U.S.C. 1229b(b).1 The record will be remanded.

On appeal, the respondent argues that the Immigration Judge erred in pretermitting his
cancellation of removal application. Specifically, the respondent contends that the Immigration
Judge erred in determining that his 2013 conviction for the offense of False Information During
Investigations in violation of Denver Municipal Code ("DMC") section 38-40 constitutes a crime
involving moral turpitude rendering him ineligible for relief.2

We review the Immigration Judge's findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeal are reviewed de novo. 8 C.F.R.
1003. l (d)(3)(i), (ii); see also Matter o/Z-Z-0-, 26 I&N Dec. 586 (BIA 2015).

We conclude that remand of the record is warranted. To be statutorily eligible for cancellation
of removal, an alien must show, among other things, that he has not been convicted of a crime
involving moral turpitude. See section 240A(b)(l)(C); Garcia v. Holder, 584 F.3d 1288, 1289
(10th Cir.2009) (stating that "[a]n alien convicted of a CIMT is ...not eligible for cancellation
of removal ...."). The offense of False Information During Investigations under DMC section
38-40 provides:

1 The Immigration Judge also determined that the respondent was eligible for voluntary departure
(IJ at 3-4).

2 To the extent that the respondent challenges our decision in Matter ofJurado, 24 I&N Dec. 29
(BIA 2006), we decline to revisit that case at this time (Respondent's Br. at 2).

Cite as: E-C-N-, AXXX XXX 788 (BIA Oct. 13, 2017)
 788

It shall be unlawful for any person knowingly and willfully to give false information
to an officer or employee of the city when such officer or employee is acting in
their official capacity, concerning the identity of any person participating in,
connected with, or responsible for, or concerning the manner of the commission of,
any act, when, as part of their official duties or employment, such officer or

Immigrant & Refugee Appellate Center, LLC | www.irac.net

employee is investigating:

(1) The legality of such act; or

(2) The identity of the person participating in, connected with, or responsible for
the commission of such act.

DMC section 38-40. We disagree with the Immigration Judge's determination that DMC section
38-40 categorically constitutes a crime involving moral turpitude (IJ at 2-3). We have held that
the categorical and modified categorical approaches provide the proper framework for determining
whether a conviction is for a crime involving moral turpitude. See Matter of Silva-Trevino III,
26 I&N Dec. 826 (BIA 2016). Since the Immigration Judge issued his decision, the United States
Court of Appeals for the Tenth Circuit (the "Tenth Circuit"), the jurisdiction in which this case
arises, held thatDMC section 38-40 is not categorically a crime involving moral turpitude because
the minimum conduct it proscribes does not meet the definition of a crime involving moral
turpitude. See Flores-Molina v. Sessions, 850 F.3d 1150 (10th Cir. 2017).

Because the Tenth Circuit has found DMC section 38-40 to be categorically overbroad, the
respondent's conviction cannot disqualify him from cancellation of removal unless the statute is
"divisible," so as to permit consideration of the conviction record under the "modified categorical"
approach. 3 In removal proceedings, we evaluate the divisibility of criminal statutes by employing
the standards set forth in Mathis v. United States, 136 S. Ct. 2243 (2016), and Descamps v. United
States, 133 S. Ct. 2276 (2013). See Matter of Chairez ("Chairez III"), 26 I&N Dec. 819 (BIA
2016).

Under Mathis and Descamps, the divisibility ofDMC section 38-40 depends upon whether the
statute defines separate offenses with discrete "elements"-i.e., facts that must be proven to the
jury, unanimously and beyond a reasonable doubt, in order to convict-or merely an alternative
set of "brute facts." Our research has identified no Colorado case squarely addressing this
question. On its face, however, we conclude that DMC section 38-40 contains merely separate
means of committing the offense rather than separate offenses with discrete elements; thus it is not
"divisible." See e.g., Alvarado v. People, 132 P.3d 1205 (Colo. 2006) (holding that the criminal
statute of impersonation, which lists similar alternate means of committing the crime, only requires
proof that the defendant assumed a false identity, regardless of the manner in which he did so).
Therefore, we conclude that DMC section 38-40 is both overbroad and indivisible with regard to
the question of whether it qualifies as a crime involving moral turpitude. As the respondent's
conviction does not qualify as a crime involving moral turpitude, he remains eligible for

3 We note that the Tenth Circuit has not addressed whether DMC section 38-40 is divisible. See
Flores-Molina v. Sessions, 850 F.3d at 1158, n.3 (stating that there was no occasion in that case to
consider whether the modified categorical approach applied to DMC section 38-40).

Cite as: E-C-N-, AXXX XXX 788 (BIA Oct. 13, 2017)
 788

cancellation of removal. We therefore find it necessary to remand the record to the Immigration
Judge to reassess the respondent's eligibility for relief, including further development of the record
as necessary, and an evaluation of whether the respondent merits relief as a matter of discretion.

Accordingly, the following order will be entered.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

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

Cite as: E-C-N-, AXXX XXX 788 (BIA Oct. 13, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DENVER, COLORADO

Immigrant & Refugee Appellate Center, LLC | www.irac.net

File: 788 June 18, 2015

In the Matter of

)
E C -N ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGES: Immigration and Nationality Act Section 212(a)(6)(A)(i), present in

the United States without being admitted or paroled.

APPLICATIONS: Cancellation of removal pursuant to Immigration and Nationality Act

Section 248(b)(1), voluntary departure pursuant to Immigration and
Nationality Act Section 240B(b).

ON BEHALF OF RESPONDENT: JONATHAN SHAW

2020 South Parker Road, Unit L
Denver, Colorado 80231

ON BEHALF OF OHS: AMINDA KATZ

Assistant Chief Counsel
Denver, Colorado

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is 32 years old. He is a native and citizen of Mexico. He

arrived in the United States here in Nogales, Arizona on or about January 1, 2002. He

was not admitted or paroled after inspection by an Immigration officer. The Notice to
Appear was issued to him on July 16, 2013. It was served upon him in person on that

date (see Exhibit 1). Respondent appeared in these proceedings. Through counsel, he

admitted the factual allegations of the Notice to Appear and conceded the charge.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Therefore, the charge will be sustained.

The respondent submitted an application for cancellation of removal for

non-permanent residents, pursuant to Immigration and Nationality Act Section

240A(b)(1) (Exhibit 2). In connection with that application, the respondent submitted a

criminal history chart (Exhibit 3). The criminal history chart shows that the respondent

was convicted of a violation of the Denver Municipal Code Section 38-40 on July 15,

2013. The Denver Municipal Code section which respondent was convicted of states as

follows: "It shall be unlawful for any person knowingly and willfully to give false

information to an officer or employee of the city when such officer or employee is acting

in their official capacity, concerning the identity of any person participating in, connected

with, or responsible for, or concerning the manner of the commission of, any act, when,

as part of their official duties or employment, such officer or employee is investigating

(1) the legality of such acts; or (2) the identity of the person participating in, connected

with, or responsible for the commission of such act."

Counsel for respondent has argued that there is no requirement that

defendant intend any fraud or any misdeeds of any nature, and so the crime cannot be

considered a crime involving moral turpitude. The Court, however, believes that the

offense involves "inherently deceptive conduct." The Court would note also that the

offense indicates that such deceptive conduct would result in the impairment of

government functions, or other significant societal harm. See Matter of Kochlani, 24

l&N Dec. 128, 130-31 (BIA 2007).

Accordingly, the Court believes that the provision that the respondent was

788 2 June 18, 2015

convicted of is a crime involving moral turpitude. The Denver Municipal Code sets a

default maximum sentence of one year in jail, and that would apply to the offense in

question in this case. The offense that the respondent was convicted of, thus, appears

Immigrant & Refugee Appellate Center, LLC | www.irac.net

to be an offense described in INA Section 237(a)(2)(A), which sets forth crimes

involving moral turpitude "for which a sentence of one year or longer may be imposed."

Because the offense was a crime described in Section 237(a)(2)(A).

Respondent has not established that he is eligible for cancellation of

removal because e has not established that he meets the statutory requirements set

forth at Section 240A(b)(1)(C). In other words, respondent has not established that he

"has not been convicted of an offense under Section ... 237(a)(2) ..." The fact that the

offense is a deportable offense rather than offense described in the inadmissibility

statute is not relevant for determining whether the respondent was convicted of an

offense "under" a specified section of the INA. See Matter of Cortez-Canales, 25 l&N

Dec. 301. (BIA 2010).

Based on the above discussion, then, the Court finds that the respondent

is not eligible for cancellation of removal for non-permanent residents. Clearly, he has

not established his eligibility, which is his burden to do if he wishes to be granted that

form of relief. The Court will deny cancellation under INA Section 248(b)(1).

The respondent has also requested voluntary departure. The crime for

which the respondent was convicted does not render him inadmissible for a finding of

good moral character. The Court has considered the positive factors in respondent's

case. He has applied for relief under Section 248(b)(1) and he has shown that he has a

qualified relative. He has a long residence in this country. Other than the offense which

was described above, the respondent has no other criminal convictions in this country.

Balancing the positive and negative factors in the case, the Court determines that the

788 3 June 18, 2015



respondent does merit a favorable exercise in discretion. The Court will also find that

he has been a person of good moral character. Good moral character does not require

moral excellence, and a blemish on the respondent's record would not render him

Immigrant & Refugee Appellate Center, LLC | www.irac.net

ineligible for a finding of good moral character. The respondent will be granted

voluntary departure under INA Section 240B(b) for the maximum period, condition upon

posting the minimum bond.

The following order shall issue:

ORDER

Respondent's application for cancellation of removal under INA Section

240A(b)(1) is denied.

Respondent's application for voluntary departure under INA Section

240B(b) is granted until August 15, 2015, conditioned upon respondent posting a

voluntary departure bond in the amount of $500 on or before June 24, 2015. And if the

respondent fails to post a bond by that date or depart the United States by the date

given, he shall be removed from United States to Mexico pursuant to the charge set

forth in the Notice to Appear.

DONN L. LIVINGSTON
Immigration Judge

788 4 June 18, 2015