U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Qffice ofthe Clerk
5107 Leesburg Pike. Suile 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - IMP

Name: RUIZ-AVALOS, ANTONIO

A 077-170-048

Date of this notice: 4/2/2015

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

DOWtL ct1JVL)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Holmes, David B.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index
Cite as: Antonio Ruiz-Avalos, A077 170 048 (BIA Apr. 2, 2015)

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1115 N. Imperial Ave.

El Centro, CA 92243

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board oflmmigration Appeals

Falls Church, Virginia 20530

File:

A077 170 048

Imperial,

Date:

APR

2 2JI5

In re: ANTONIO RUIZ-AVALOS a.k.a. Antonio Ruiz a.k.a. Anton Io Rigoberto Ruiz
IN REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT:

Pro se

ORDE R:

This Board has been advised that the Department of Homeland Security's ("DHS") appeal
has been withdrawn.

See 8 C.F.R. 1003.4.

Since there is nothing now pending before the

Board, the record is returned to the Immigration Court without further action.

FOR THE BOARD

Cite as: Antonio Ruiz-Avalos, A077 170 048 (BIA Apr. 2, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL

-l

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
IMPERIAL, CALIFORNIA

In the Matter of

ANTONIO RUIZ-AVOLOS

)
)

IN REMOVAL PROCEEDINGS

)
)

RESPONDENT

Section 237(a)(2)(A)(ii) (convicted of two crimes of moral turpitude),

CHARGES:

Immigration and Nationality Act (INA); 237(a)(2)(C) (convicted of a

firearm offense), INA. Lodged charge in lieu of Notice to Appear
charges, Section 237(a)(2)(A)(ii) (crimes involving moral turpitude),
INA.

APPLICATIONS:

Termination.

ON BEHALF OF RESPONDENT: PRO SE

ON BEHALF OF OHS: JOHN HOLLIDAY
1150 NORTH IMPERIAL AVENUE
EL CENTRO, CALIFORNIA 92243

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a 29-year-old young man who is a native and citizen of
Mexico and who has been a lawful permanent resident of the United States since March
2002. The Immigration authorities began removal proceedings with the filing of a Notice
to Appear on November 19, 2014, in which the Government alleged that the respondent

Immigrant & Refugee Appellate Center | www.irac.net

December 9, 2014

File: A0??-170-048

was removable because he had been convicted of two crimes of moral turpitude and
because he had been convicted of a firearms offense. The firearms offense was
alleged to have been a handgun. However, the Government ultimately withdrew the

See Exhibit 2.
The Government ultimately chose then to proceed upon the new
allegations and charge found at Exhibit 2. Both the Notice to Appear and the additional
charges were properly served on the respondent. In the lodged charge, the
Government simply alleged that the respondent was convicted of two or more crimes of
moral turpitude, not arising in the same scheme of criminal misconduct, because he had
been convicted of a felony vandalism which had been enhanced for criminal street gang
participation, and because he had been convicted of being in possession of a dirk or
dagger, also in connection with the criminal street gang activity.
It is clear that the respondent's conviction for vandalism is a crime of moral
turpitude. See Matter of Hernandez, 26 l&N Dec. 397 (BIA 2014). The Government
urges that the essential rationale of Hernandez, supra, would apply to lead to the
conclusion that the respondent's misdemeanor conviction for possession of a weapon in
violation of California Penal Code Section 12020(a)(1) is also a crime of moral turpitude
because of the street gang enhancement. However, I disagree.
Essentially, a crime of moral turpitude is one in which the conduct is
11inherently base, vile, or depraved, and contrary to the accepted rules of morality and
the duties owed between persons or to society in general." See Matter of Ortega
Lopez, 26 l&N Dec. 99, 100 (BIA 2013). For a crime to involve moral turpitude, there
must be two essential elements, namely reprehensible conduct and a culpable mental
state. !Q. For a crime generally to involve reprehensible conduct, there must be some

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December 9, 2014

Immigrant & Refugee Appellate Center | www.irac.net

original charges in the Notice to Appear and filed an amendment or additional charges.

degree of scienter, either specific intent, deliberateness, willfulness, or recklessness.

Matter of Louissaint, 24 l&N Dec. 754, 756-57 ( BIA 2009).
It is clear that the respondent's conviction for the simple possession of a

therefore, is not categorically in and of itself a crime of moral turpitude. The

Government urges that the enhancement transforms it into a crime of moral turpitude.
In my view, the fact that the definition of street gang activity permits one to be involved
in activities as a street gang member, or that the gang itself be involved in conduct
which will define it as street gang activity, includes many offenses which are not crimes
of moral turpitude. In other words, when the California statute found that Penal Code
Section 186.22(e) defines pattern of criminal activity, it defines it as the commission or
attempted commission or conspiracy to commit or solicitation of two or more offenses.
The statute then gives a list of 33 offenses. Among those offenses is burglary, as
defined in Section 459. However, burglary, under the California statute, does not
necessarily involve moral turpitude. Kidnapping is also listed as one of the defining
offenses. However, even kidnapping does not necessarily involve moral turpitude. See
Castrijon-Garcia v. Holder, 704 F.3d 1205 (9th Cir. 2013). In addition, theft and the
unlawful taking or driving of a vehicle as defined in Section 10851 of the Vehicle Code is
included in the list. Section 10851 does not necessarily involve crimes of moral
turpitude. Also within the list is prohibited possession of a firearm, among which would
include possession by a proscribed person, such as a felon, which does not necessarily
include turpitude. Neither does carrying a loaded firearm necessarily involve moral
turpitude. Consequently, it is possible for a person to be involved in a gang whose gang
meets the definition of a gang involved in a pattern of criminal gang activity by simply
being in a gang that has met the definition through the commission or conspiracy to

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December 9, 2014

Immigrant & Refugee Appellate Center | www.irac.net

weapon is not a crime involving moral turpitude. His misdemeanor conviction,

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commit a host of crimes not involving moral turpitude. Consequently, the offense the
Government urges is a crime of moral turpitude would be found to be a crime of moral
turpitude when its principle activities are not morally turpitudinous and the street gang

lead then to the ridiculous conclusion, in my view, that a gang not involved in crimes of
moral turpitude, and a member of the gang who has not committed a crime of moral
turpitude, is nevertheless removable for a crime of moral turpitude simply because it
was connected to a gang.
I recognize that Matter of Hernandez, supra, discusses why being a gang
is itself problematic. The Board is careful not to find that simple membership in a
criminal gang is morally turpitudinous. However, its analysis relies upon the bane upon
society that gangs cause. I see, however, a very important distinction between that
case and the current respondent's situation. Vandalism involves deliberate damage or
defacing of property of another person. It is aimed at the larger society, or at a person
in particular other than the criminal committing the offense.

Possession of a weapon is

nothing more than simply being possessed of a weapon. It does not require that the
possessor have any further intent to carry out a crime, to do harm against another, or in
any way would use the weapon in any other crime. Thus, I am persuaded that the
simple possession of a weapon, even when coupled with a finding that the weapon is
possessed in furtherance of some gang activity, rises to the level of moral turpitude.
The weapon might be possessed simply for purposes of protection of rival gangs. While
the possession of such a weapon in that case does anticipate the use of force against a
person, it is lawful force to protect oneself from imminent death or serious bodily injury.
I do not by this decision condone gang members or, for that matter, any
member of society gadding about the streets of America with weapons. The

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Immigrant & Refugee Appellate Center | www.irac.net

has not itself been involved in morally turpitudinous activity. That combination would

'

introduction of weapons clearly escalates the risk of danger to the larger community.
However, that danger to the larger community is not the test of moral turpitude.
In my view, the respondent's possession of a dirk or dagger, which is in

in furtherance of criminal gang activity, does not alter that the offense does not involve
moral turpitude. Therefore, I'm constrained to find that the Government has failed to
show by clear and convincing evidence that the respondent is removable as charged.
The matter must be terminated and dismissed. It is also my view that any ambiguity on
the charges of removability must be found in favor of the respondent.
Having considered all the evidence of record, whether discussed above or
not, I make the following order:
ORDER
IT IS THEREFORE ORDERED that the matter be TERMINATED.

JACKW. STATON
Immigration Judge

A077-170-048

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Immigrant & Refugee Appellate Center | www.irac.net

effect a kind of knife, even though coupled with a finding that he possessed the weapon