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

Troy J. Mattes, Esq.

OHS LIT./York Co. Prison/VCR

3400 Concord Road
York, PA 17402

Name:CHEA,CHHREY

A 027-321-642

Date of this notice: 12/22/2014

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

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Mann. Ana

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Chhrey Chea, A027 321 642 (BIA Dec. 22, 2014)

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126 E. Chestnut St.

Lancaster, PA 17602-0000

Decision of the Board of Immigration Appeals

U.S. Department of Justice

Executive Office for Immigration Review
Falls Church, Virginia 20530

File:

Date:

A027 321 642 - York, PA

DEC .2 .2 20f

In re: CHHREY CHEA

IN REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT:

Troy J. Mattes, Esquire

Brian G. McDonnell

ON BEHALF OF DHS:

Assistant Chief Counsel

CHARGE:
Notice:

Sec.

237(a)(2)(A)(ii), I&N Act [8 U.S.C. 1227(a)(2)(A)(ii)] Convicted of two or more crimes involving moral turpitude

APPLICATION: Termination

The Department of Homeland Security ("DHS") appeals the Immigration Judge's March 28,
2013, decision terminating proceedings. The appeal will be dismissed.
We review for clear error the findings of fact, including the determination of credibility,
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.l(d)(3)(ii).
The respondent, a lawful permanent resident of the United States since October 6, 1987, was
convicted on July 13, 2004, of five counts of simple assault under 18 Pa. Cons. Stat. 270l(a)(l)
(Exh. 2, tab C). The DHS issued him a Notice to Appear ("NTA"), charging him with
removability under section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C.
1227(a)(2)(A)(ii), as an alien convicted of two or more crimes involving moral turpitude not
arising out of a single scheme of criminal misconduct (Exh. I). The respondent denied that he
was removable.

The Immigration Judge concluded that the DHS did not meet its burden to

establish by clear and convincing evidence that the respondent was removable, as the
respondent's convictions did not constitute crimes involving moral turpitude (I.J. at 4-5). As
such, the Im.migration Judge terminated proceedings against the respondent. The DHS now
appeals.
The sole issue on appeal is whether the Immigration Judge erred in terminating proceedings
The respondent was convicted of violating 18 Pa. Cons. Stat.

against the respondent.

2701(a)( I). That statute provides, in relevant part, that "[a] person is guilty of assault if he: (I)
attempts to cause or intentionally, knowingly, or recklessly causes bodily injury to another."
18 Pa. Cons. Stat. 270l(a)(l). The portion of the statute that punishes "recklessly caus[ing]
bodily injury to another" constitutes the least culpable conduct required for a conviction under

Cite as: Chhrey Chea, A027 321 642 (BIA Dec. 22, 2014)

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APPEAL

'

A027 321 642

270l{a)(l). See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013) (as we consider only what
the conviction necessarily involved, rather than the facts underlying the case, we must presume
that it "rested upon nothing more than the least of the acts criminalized, and then determine
whether even those acts are encompassed by the generic federal offense") (internal quotations
omitted). We have held that where a crime involves recklessness, at a minimum there must be
an offense involving the infliction of serious bodily injury, or some aggravating factor in order to
See Matter of Fualaau, 21 I&N Dec. 475, 478

(BIA 1996); see also Matter of Danesh, 19 l&N Dec. 669, 673 (BIA 1988). As the statute of
conviction does not contain any aggravating factor, including any requirement that the state
prove assault against a particular class of victim, and does not punish the infliction of serious
bodily injury, the respondent's offenses are not categorically crimes involving moral turpitude.
In

analyzing

whether

the

respondent's

offenses

constitute

crimes

involving

turpitude, the Immigration Judge applied the modified categorical approach.

v.

moral

See Descamps

United States, 133 S.Ct. 2276, 2283 (2013) (a criminal statute is divisible, so as to warrant a

modified categorical inquiry, only if: (1) it lists multiple discrete offenses as enumerated
alternatives or defines a single offense by reference to a disjunctive sets of "elements," more than
one combination of which could support a conviction; and (2) at least one (but not all) of those
listed offenses or combinations of disjunctive elements is a categorical match to the relevant
"generic" federal standard). Specifically, the Immigration Judge analyzed the Information,
which states that the respondent "did attempt to cause or did intentionally, knowingly, or
recklessly cause bodily injury to another." (l.J. at 4; Exh. 2, Tab C).

After analyzing the

Information, the Immigration Judge concluded that he could not determine, using only the
judicially recognizable documents in the record, which mental state the respondent possessed
when he committed his crimes (I.J. at 4). Therefore, the Immigration Judge concluded that,
under the modified categorical approach, the DHS did not meet its burden to show by clear and
convincing evidence that the respondent's offenses render him removable as charged (l.J. at 4-5).
The DHS has not raised any arguments on appeal that persuade us to disturb the Immigration
Judge's decision. Accordingly, the following order will be entered.
ORDER: The appeal is dismissed.

Cite as: Chhrey Chea, A027 321 642 (BIA Dec. 22, 2014)

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constitute a crime involving moral turpitude.

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
YORK, PENNSYLVANIA
IN THE MATTER OF

Respondent.

IN REMOVAL PROCEEDINGS
A027 321642

Charge: 237(a){2)(A)(ii) of the Immigration and Nationality Act ("INA"), alien

convicted of two crimes involving moral turpitude not arising out of a single scheme of
criminal misconduct.
ON BEHALF OF RESPONDENT

ON BEHALF OF DHS

Troy Mattes, Esquire

Brian G. McDonnell, Esquire

126 East Chestnut Street

Assistant Chief Counsel

Lancaster, PA 17602

Immigration and Customs Enforcement

York, PA

DECISION AND ORDER

I.

Facts and Procedural History

Respondent is a 43-year-old native and citizen of Cambodia. Ex. 2, Tab B; Ex. 1. On

June 28, 1984, he entered the United States at Seattle, Washington as a refugee. Ex. 2,
Tab B. Respondent adjusted his status to a lawful permanent resident October 6, 1987.
Id., Tab D.
On July 13, 2004, he was convicted offive counts of Simple Assault, under 18 Pa.Cons.
Stat. 270l(a)(l) and sentenced to ten years of probation. Ex. 2, Tab C (Sentencing
Form).
On January 29, 2013, the Department of Homeland Security ("DHS") filed a Notice to
Appear ("NTA") charging respondent with removability under INA 237(a)(2)(A)(ii), as
an alien convicted of two crimes involving moral turpitude not arising out of a single
scheme of criminal misconduct. Ex. 1.
On March 7, 2013, respondent submitted a brief in support ofhis oral motion to
terminate. He argues therein that the DHS failed to meet its burden in establishing that
his convictions are crimes involving moral turpitude and that these convictions did not
arise out of a single scheme of criminal misconduct. See Brief in Support of Motion to
Terminate Proceedings (Motion). DHS filed a Brief in Opposition to Respondent's

Cite as: Chhrey Chea, A027 321 642 (BIA Dec. 22, 2014)

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)
)
)
)

CHHREY CHEA,

..

Motion to Terminate Proceedings (Opposition) on March 12, 2013, and an Amended

Brief in Opposition to Respondent's Motion to Terminate (Amended Opposition) on
March 19, 2013.
II.

Law & Analysis

A.

Respondent's convictions pursuant to 18 Pa. Cons. Stat. 270l(a)(l) are

not crimes involving moral turpitude ("CIMT")
Legal Standard

1.

Moral turpitude "refers generally to conduct which 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. Moral turpitude has been defined as an act which is per se morally
reprehensible and intrinsically wrong." Matter of Franklin, 20l&N Dec. 867, 868 (BIA
1994) (citations omitted). As the Board oflrnmigration Appeals ("BIA") noted, "[t]he
test to determine if a crime involves moral turpitude is whether the act is accompanied by
a motive or corrupt mind." Matter of Flores, 17 I&N Dec. 225 (BIA 1980). Moral
turpitude "contains an honesty component . . . which includes conduct that is contrary to
justice, honesty, or morality." Smriko v. Ashcroft, 387 F.3d 279, 283 (3d Cir. 2004).
In determining whether a state law conviction constitutes a CIMT, the BIA and the Third
Circuit have historically applied a "categorical" approach, "focusing on the underlying
criminal statute 'rather than the alien's specific act."' Knapik v. Ashcroft, 384 F.3d 84,
88 (3d Cir. 2004) (quoting DeLeon-Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d Cir.
2002)). Thus, as reiterated in Jean-Louis v. Att'y Gen., 582 F.3d 462 (3d Cir. 2009), the
court is to "look to the elements of the statutory state offense, not to the specific facts."
Knapik, 384 F.3d at 89 (quoting Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003)).
When a statute is "divisible," meaning that it prohibits several different types of conduct,
the court must "look to the record of conviction to determine whether the alien was
convicted under [a] part of the statute [which] defin[es] a crime involving moral
turpitude." Partvka

v.

Att'y Gen., 417 F.3d 408, 411 (3d Cir. 2005). When no subsection

is specified in the record of conviction, the court must begin its categorical inquiry with
the subsection requiring the least culpability. Id. Accordingly, a crime involves moral
turpitude when "the least culpable conduct necessary to sustain a conviction under the
statute" can be considered morally turpitudinous. Id.
Documents that comprise a respondent's record of conviction, and thus documents that
are appropriate for the court's consideration in determining whether an offense involves
moral turpitude, include the information, charge or indictment, plea, verdict or judgment,
sentence, and transcript from proceedings of arraignment. Matter of Teixeira, 21 I&N

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DHS has the burden of establishing by clear and convincing evidence that an alien
admitted to the United States is deportable. INA 240(c)(3)(A).

Dec. 3 16, 319 (BIA 1996); 8 C.F.R. 1003.41. See also P artyka, 4 17 F .3d at 4 14 (record
of conviction includes the "indictment, plea, verdict, and sentence").
The modified categorical approach has been applied even when clear sectional divisions
do not delineate the statutory variations separating potentially turpitudinous behavior
from non-turpitudinous behavior. See Garcia v. Att'y Gen., 462 F.3d 287 (3d Cir. 2006).

Evanson v. Att'y Gen., 550 F. 3d 284, 293 (3d Cir. 2008). A police report submitted to a
local court as grounds for issuing a complaint is not an appropriate document to consider,
particularly where it has been superseded by a formal charging document. Taylor v.
United States, 495 U.S. 575 (1990); Evanson, 550 F.3d at 290.
In Matter of Solon, the BIA analyzed its prior decisions assessing whether assault
offenses are crimes involving moral turpitude:
In the context of assault crimes, a finding of moral turpitude involves an
assessment of both the state of mind and the level of harm required to complete
the offense. Thus, intentional conduct resulting in a meaningful level of harm,
which must be more than mere offensive touching, may be considered morally
turpitudinous. However, as the level of conscious behavior decreases, i.e., from
intentional to reckless conduct, more serious resulting harm is required in order to
find that the crime involves moral turpitude. Moreover, where no conscious
behavior is required, there can be no finding of moral turpitude, regardless of the
resulting harm. This body of law, then, deems intent to be a crucial element in
determining whether a crime involves moral turpitude.
Matter of Solon, 24 I&N Dec. 239, 242 (BIA 2007).
Generally speaking, moral turpitude will not lie in cases where mere negligence is the
mens rea for an offense. Id. at 4 14; Matter of Perez-Contreras, 20 I&N Dec. 6 1 S, 617
(BIA 1992) (bodily harm accompanied by "substantial pain" and "considerable suffering"
lacks moral turpitude when committed with criminal negligence). On the other hand, an
assault-type conviction in which recklessness is an element of the offense may, in certain
circumstances, be considered morally turpitudinous. Matter of Medina, 15 I&N Dec.
61 1, 613 (BIA 1976). In Matter of Medina, the BIA reviewed the Illinois aggravated
assault statute, which contained a mens rea of recklessness. There, Illinois defined
recklessness as "consciously disregarding a substantial and unjustifiable risk that
circumstances exist that ... constitutes a gross deviation from the standard of care which
a reasonable person would exercise in the situation." Id.
In Matter of Fualaau, the Board analyzed whether the Hawaii third degree assault statute
constituted a morally turpitudinous offense. Matter of Fualaau, 2 1 I &N Dec. 475, 477
(BIA 1996). That statute stated, in pertinent part: "A person commits the offense of
assault in the third degree if he .

. (1) intentionally, knowingly, or recklessly causes

bodily injury to another person." HAW. REV. STAT. 707-7 12 ( 1992). The BIA
3

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A court applying the modified categorical approach may only consider the charging
document to the extent that the respondent was actually convicted of the charges.

ultimately concluded that, because the state statute governing the misconduct simply
required bodily injury rather than serious bodily injury, no aggravating factor was present
to support a crime involving moral turpitude. Matter of Fualaau, 21 I&N Dec., at 477-8.
That is, "for an assault of the nature at issue in this case to be deemed a crime involving
moral turpitude, the element of reckless state of mind must be coupled with an offense
involving the infliction of serious bodily injury." Id. at 478 (citing,' Matter of

The BIA has held that any simple assault statute requiring bodily injury -- as opposed to
serious bodily injury -- to another, coupled with a mens rea ofeither knowledge or intent,
is a morally turpitudinous offense. Matter of Solon, 24 I&N Dec. 239. The same can be
said for a subsection that requires an attempt by physical menace to put another in fear of
serious bodily injury, as any attempt would necessarily impliedly include some mens rea
greater than negligence, because "attempt implies an intent." Partyk 417 F.3d at 413,
n.3.
2.

Respondent's Convictions

The provision under which respondent was convicted, section 270l(a)(l) of 18 Pa. Cons.
Stat. states, in pertinent part: "A person is guilty of assault if he: (1) attempts to cause or
intentionally, knowingly or recklessly causes bodily injury to another."
As an initial matter, 18 Pa. Cons. Stat. 2701(a)(l) requires a mens rea of either intent,
knowedge, or recklessness. Because a conviction under this statute requires a minimum
mens rea of recklessness, which in some instances is not indicative of a crime involving
moral turpitude, the court must apply the modified categorical approach to determine
whether this conviction constitutes a crime involving moral turpitude.
Looking to the record of conviction, it is unclear whether the respondent pled to the
requisite behavior needed to constitute a crime involving moral turpitude. The
Information in respondent's case contains five charges, each of which is identical. Ex. 2,
Tab C. Each count states:
. The actor did attempt to cause or did intentionally, knowingly, or recklessly cause
bodily injury to another, TO WIT: The actor, DOB 1/30/70, did have offensive
contact with the victim, Alyssa Wenrich, DOB 11111/88, said offense occurred at
308 Partridge Drive, Litiz, Lancaster County, PA.
Id.

DHS argues that respondent's convictions involved "an attempt to cause bodily

injury" through the vehicle of offensive contact, which arises from an intentional act.
Amended Opposition, at 8. Moreover, DHS argues that because there is no indication
that an injury took place, it can be concluded that the respondent "attempted to cause
bodily injury," which requires a form of intentional conduct. Id. Reviewing the record as
a whole, however, the court does not concur with the analysis of DHS.

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Medina, 15l&N Dec. 611 (BIA 1976)).

The record does not contain a clear indication of the conduct for which the respondent
was convicted, nor is there evidence that the conduct was accompanied by a motive or
corrupt mind. Thus, the court must apply the least culpable mens rea sufficient for a
conviction under 18 Pa. Cons. Stat. 270l(a)(l), which, in this case, is recklessness.
Because there is no proof that the offense resulted in serious bodily injury, the court must
find that DHS has failed to establish, by clear and convincing evidence that respondent's

B.

Single Scheme of Criminal Misconduct under INA 237(a)(2)(A)(ii)

1.

Legal Standard

The BIA has interpreted the phrase "single scheme of criminal misconduct" narrowly,
applying it only where the crimes "were performed in furtherance of a single criminal
episode, such as where one crime constitutes a lesser offense of another or where two
crimes flow from and are the natural consequences of a single act of criminal
misconduct." Matter of Adetiba, 20 l&N Dec. 506 (BIA 1992). Crimes in a single
scheme must take place at one time, meaning there must be no substantial interruption
that would allow the participant to disassociate himself from his enterprise and reflect on
what he has done. Id. at 509-510 (quoting Pacheco v. INS, 546 F.2d 448 (1st Cir.1976),
cert. denied, 430 U.S. 985 (1977).
Following this reasoning, the BIA has found that notwithstanding an overall plan to
commit a series of crimes, when an alien commits one crime which, in and of itself,
constitutes a complete, individual, and distinct crime, and again commits such an act,
even though one may closely follow the other, the offenses do not arise out of a single
scheme of criminal misconduct. Matter df Adetiba, 20 I&N at 509 (no single scheme
where respondent used credit cards in the names of different people, with intent to
defraud, notwithstanding that the crimes were committed pursuant to an elaborate plan
and the modus operandi was the same in each instance); see also Matter of Islam, 25 l&N
Dec. 637 (BIA 2011) (no single scheme where respondent used multiple stolen credit or
debit cards to obtain items of value from several retail outlets on five separate occasions
over the course of a day); Matter of A-, 5 l&N Dec. 470 (BIA 1953) (no single scheme
for robberies involving separate victims at different times); Matter of B-, 8 I&N Dec. 236
(BIA 1958) (no single scheme where respondent passed forged checks on two different
occasions within 10 days notwithstanding a general criminal intent to continue to defraud
victims).
In addition, in assessing whether there was a single scheme for separate offenses, the BIA
has not deferred to an alien's perception that his offenses were carried out as part of a
single plan. See Matter of Islam, 25 l&N Dec. 637 (BIA 2011) (no single scheme found
where respondent claimed he did not have time to reflect on his first crime or disassociate
himself from the criminal enterprise before completing his additional crimes); Matter of
Adetib 20 I&N Dec. 506 (no single scheme found even though respondent claimed his
offenses were plotted as part of one elaborate scheme).

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convictions are crimes involving moral turpitude. Matter of Fualaau, 21 I&N Dec., at
477-8; see also INA 240(c)(3)(A).

'

Despite the circuit split on this matter, the BIA has held that in determining whether an
alien's convictions for two or more crimes involving moral turpitude arose out of a
"single scheme of criminal misconduct," it will uniformly apply its interpretation of that
phrase in all circuits. Matter of Islam, 25 I&N Dec. 637 (BIA 20 11 ).
Respondent's convictions

The Information in respondent's case states that the five offenses occurred "[b ]etween
Thursday, the 15th day of August, 2002 [sic] and Sunday the 3 1st day of August, 2003
[sic]." Ex. 2, Tab C.

Here, respondent was sentenced to two years' probation for each of those offenses, to be
served consecutively. Id. It is apparent from this that the sentences did not merge for
those crimes. Id. The Pennsylvania statute governing merger of sentences in criminal
cases states:
No crimes shall merge for sentencing purposes unless the crimes arise from a
single criminal act and all of the statutory elements of one offense are included in
the statutory elements of the other offense. Where crimes merge for sentencing
purposes, the court may sentence the defendant only on the higher graded offense.
42 Pa.C.S.A. 9765. Here, as DHS states, because respondent received separate
sentences for each of those identical offenses, which involved the same victim at the
same location, the court finds that each of the crimes was a separate criminal act. See id.;
see also Amended Opposition, at 11. Accordingly, the court would conclude that those
offenses did not arise out of a single scheme of criminal misconduct.
III.

Conclusion

Because the court finds that DHS has failed to establish that respondent's convictions for
simple assault under 18 Pa.Cons. Stat. 270l(a)(l) are crimes involving moral turpitude
by clear and convincing evidence, it has not met its burden of establishing that the
respondent is removable under INA 237(a)(2)(A)(ii), as an alien convicted of two
crimes involving moral turpitude not arising out of a single scheme of criminal
misconduct. Because this is the sole charge in the Notice to Appear, respondent's Motion
to Terminate is granted, and these proceedings are terminated without prejudice to
refilling.

March 28, 2013

r--n____

{If
Immigration Judge

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2.