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Department of Justice
Executive Office for Immigration Review
Martinez, Michael P.
A 041-556-896
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.
Wendtland, Linda S.
Pauley, Roger
Userteam: Docket
. '
20530
File:
Date:
FEB 1 9 2015
APPEAL
ON BEHALF OF RESPONDENT:
ON BEHALF OF OHS:
Jamee E. Comans
CHARGE:
Notice:
Sec.
Sec.
APPLICATION:
l l 82 (a)(2)(A)(i)(II)] -
1l82 (a)(2)(A)(i)(I)] -
Voluntary departure
The respondent appeals the Immigration Judge's October 22, 2012, decision finding him
removable as charged and pretermitting any applications for relief.
remanded to the Immigration Judge for further proceedings consistent with this opinion and for
September 24, 2004, conviction for assault in the fourth degree in violation of Kentucky Revised
Statutes section 508.030 to be a categorical "crime involving moral turpitude'' rendering him
removable under section 2 l 2(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U .S.C.
1l82(a)(2)(A)(i)(I ). See Respondent's Brief at 3-5.2 In particular, the respondent argues that
1
The Immigration Judge issued her decisfon finding the respondent removable
as
charged on
October 9, 2012, and explicitly incorporated that decision into her October 22, 2012, decision
denying the respondent's application for voluntary departure. The respondent does not dispute
the Immigration Judge's denial of his application for voluntary departure based on his failure to
In his Notice of Appeal, the respondent stated his position that the Immigration Judge erred in
finding him removable under section 2 l 2(a)(2)(A)(i)(II) of the Act "'because he was convicted of
possession of marijuana under Kentucky Law." See Respondent's Notice of Appeal. Indeed, in
her decision, the Immigration Judge did find the respondent removable based on his August 20,
2001 , conviction for possession of marijuana. However, the respondent does not pursue this
(continued... )
Cite as: Binh Ngoc Trinh, A041 556 896 (BIA Feb. 19, 2015)
IN REMOVAL PROCEEDINGS
a conviction under subsection (l)(a) of section 508.030, which requires that a person
intentionally or wantonly cause physical injury to another person, does not constitute
a categorical crime involving moral turpituda because he contends that wantonly does not require
the formation of any intent to cause any result. See Respondent's Brief at 4.3
The respondent does not dispute that a violation of subsection (b) of section 508.030, which
requires a person to act with "recklessness" in causing "physical injury to another person by
means of a deadly weapon or dangerous instrument" is a crime involving moral turpitude. See
Respondent's Brief at 5. We find it unnecessary to address this issue in this appeal.
4 The respondent appears to have misconstrued the Immigration Judge's decision in that he
states in his brief that she "seemed to correctly identify the statute as divisible." See
Respondent's Brief at 4. However, in her decision, the Immigration Judge engaged in the first
instance in the categorical approach and determined that both subsections of the statute are
crimes involving moral turpitude such that the statute is not divisible. See Matter of
Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).
2
Cite as: Binh Ngoc Trinh, A041 556 896 (BIA Feb. 19, 2015)
We find that the Department of Homeland Security ("DHS") has not met its burden in
establishing that the respondent's conviction for assault in the fourth degree in violation of
Kentucky Revised Statutes section 508.030 is a crime involving moral turpitude rendering him
removable under section 212(a)(2)(A)(i)(I) of the Act.4 See 8 C.F. R. 1003.l(d)(3)(ii) (2014)
(de novo review). The respondent was convicted of assault in the fourth degree in violation of
section 508.030 of the Kentucky Revised Statutes, which provides that:
In this case, however, an offense under section 508.030(a), which requires the risk of
"physical injury," which is defined as "substantial pain or any impairment of physical
condition," does not contain a sufficient aggravating factor to render it a crime involving moral
turpitude. See K.R.S. 500.080(13). Further, the DHS did not present evidence establishing
that the respondent was convicted under subsection (1)(b) of the statute. Thus, we find that
a conviction under section 508.030 is not a categorical crime involving moral turpitude, and the
evidence does not establish that the respondent's offense qualifies as a crime involving moral
turpitude such that he is removable under section 212(a)(2)(A)(i)(I) of the Act.
Further, we find that, given the procedural history of this case, the respondent's
application(s) for relief should not be deemed abandoned and a remand is necessary to allow him
to apply for relief. See Respondent's Brief at 6. Specifically, the Immigration Judge noted the
respondent's failure to file applications for relief despite being given opportunities to do so and
the "lengthy procedural history of this case," which was initiated in 2009, in deeming the
respondent's opportunity to file for relief abandoned (I.J. at 6). However, the record reflects that
the DHS also failed to comply with several filing deadlines in regard to the documents needed to
establish the respondent's inadmissibility, and it did not file the required documents until over
2 years after it initiated these proceedings (Exh. 3). See id. Thus, it appears that both parties,
not just the respondent, caused the delays which protracted these proceedings. See id. Given the
circumstances, and the respondent's equities, we find that he should be allowed to apply for
relief.
Accordingly, the record will be remanded to the Immigration Judge for further proceedings
consistent with this opinion and for entry of a new decision.
O RDER: The record is remanded to the Immigration Judge for further proceedings
consistent with this opinion and for entry of a new decision.
F R
. EBOARD
3
Cite as: Binh Ngoc Trinh, A041 556 896 (BIA Feb. 19, 2015)
October 22,
A041-556-896
2012
In the Matter of
C HARGE S:
Voluntary departure
see below) .
File:
(applications pretermitted,
JAM IE COMAN S
2009,
8 C. F . R.
The Notice to
Appear was marked and has been admitted into evidence as Exhibit
1.
Respondent appeared in court and denied the factual
allegations as well as the charges of rernovability set forth in
the Notice to Appear.
He,
however,
2009.
He
2004
A041-556-896
October 22,
The
2012
Further,
therefore,
Respondent has
INA Section
14 I&N
Matter of Gamboa,
Matter of Arguelles,
22 I&N Dec.
811
Dec.
244
(BIA 1999).
(BIA 1972);
To establish
A04 1-556-896
October 22, 20 12
that he
evidence that he has the means to depart the United States and
in tends to do so.
INA Section
240B(b)(1).
INA
A041-556-896
October 22,
He
20 1 2
said that in 2004 he was arrested for the second time for
fighting with a person and hitting him with a bottle.
He was
The
respondent testified that he was drunk and that they told him to
stay away from her and that he has not seen her in a long time.
Respondent also testified that he was arrested in 20 11 for a
DU I, pled guilty and paid a fine.
He testified on
On extensive questioning by
the visa,
A04 1-556-896
October 22, 20 12
,.
renewed and has no other travel documents other than these two
documents.
On cross-examination the respondent testified that he
was arrested on June 15,
and stated that he was not driving but was with a friend who was
driving and did not have his seatbelt on.
police arrested him and found that he had not paid his fines in
connection with his 2011 arrest and was required at that time to
pay the fine and he was then let go.
On
and go to Vietnam.
As noted above,
Further,
cooperate and failed to file any and all applications for relief
during the lengthy procedural history of this case.
Therefore,
the Court has preterrnitted any and all applications which may
have been relevant to these proceedings.
A041-556-896
Therefore,
this Court
a locked place.
The
Therefore,
although respondent
He is left,
therefore,
The
2012,
however,
fact and respondent was clear that he was arrested in 2012 for
failure to pay his fines in connection with a D U I in 2011.
The
Therefore,
A041-556-896
However,
October 22,
2012
do so,
and has the money to pay the bond, the respondent has
It is
testified that he has an old passport from his entry in 1 989 but
he has failed to renew the passport and does not have a current
passport.
He has also
A041-556-896
October 22,
2012
that he intends to leave the United States and has the money to
sources,
therefore,
enter:
IT I S HE REBY O R DERE D that the charges pursuant to
Section 2 12(a) (2) (A) (i) (I)
2012.
A041-556-896
October 22,
2012
..
IT
IS HEREBY
1Crokrno
t>iOLT
REBECCA L
Immigration Judge
A041-556-896
10
October 22,
2012
Appear.
..
...
/Isl/
Immigration Judge REBECCA L.
holtr on January 10,
HOLT
2013 at 7:27
PM GMT
A041-556-896
11
October 22,
2012