U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Qffice ofthe Clerk
5 /07 Leesburg Pike, Suite 2000
Falls Church. Virginia 22041

DHS/ICE Office of Chief Counsel - NYD

201 Varick, Rm. 1130
New York, NY 10014

Name: DARWIN HAYNES, SEAN TERRY

A 036-57 4-645

Date of this notice: 12/2/2016

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

bOYutL C

l1/VL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley. Roger
Geller. Joan B
Greer, Anne J.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Sean Terry Darwin Haynes, A036 574 645 (BIA Dec. 2, 2016)

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Kessler, Bridget Phillips

Brooklyn Defender Services
180 Livingston Street, Ste. 300
Brooklyn, NY 11201

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Qffice of the Clerk
5107 leesburg Pike, Suite 2000
Fa/Js Church. Virginia 22041

OHS/ICE Office of Chief Counsel - NYD

201 Varick, Rm. 1130
New York, NY 10014

Name: DARWIN HAYNES, SEAN TERRY

A 036-57 4-645

Date of this notice: 12/2/2016

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Geller, Joan B
Greer, Anne J.

Userteam:

Cite as: Sean Terry Darwin Haynes, A036 574 645 (BIA Dec. 2, 2016)

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DARWIN HAYNES, SEAN TERRY

A036-574-645
c/o Hudson County Jail
30-35 S. Hackensack Ave
Kearny, NJ 07032

U.S. Department of Justice

Decision of the Board of Immigration Appeals

f;xecutiw, Office for Immigration Review

FallsChurch, Virginia 22041

File: A036 574 645 -New York, NY

Date:

DEC- 2 2016

In re: SEAN TERRY DARWIN HAYNES a.k.a. Sean Moseley

APPEAL
ON BEHALF OF RESPONDENT: Bridget P. Kessler, Esquire
CHARGE:
Notice: Sec.

237(a)(2)(E)(ii), I&N Act [8 U.S.C. 1227(a)(2)(E)(ii)] Violated court protective order (withdrawn)

Lodged: 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

Sec.

237(a)(2)(A)(iii), l&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony under section
101(a)(43)(F), I&N Act [8 U.S.C. l 101(a)(43)(F)] Crime of violence

Sec.

237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony under section
101(a)(43)(U), I&N Act [8 U.S .C. 110 l (a)(43)(U)] Attempt or conspiracy

APPLICATION: Termination
The respondent appeals from an Immigration Judge's October 28, 2015, decision ordering
him removed from the United States. The appeal will be sustained and the removal proceedings
will be terminated.
The respondent, a native and citizen of Barbados and a lawful permanent resident of the
United States, has two convictions that are pertinent here: ( 1) in 2008, for attempted assault in
the second degree in violation of sections 110 and 120.05(3) of the New York Penal Law; and
(2) in 2014, for obstructing governmental administration in the second degree in violation of
section 195.05 of the New York Penal Law.
According to the Immigration Judge, the respondent's 2008 conviction renders him
removable as an alien convicted of an "aggravated felony," see section 237(a)(2)(A)(iii) of the
Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii), while his 2008 and 2014
convictions, taken together, render him removable as an alien convicted of multiple crimes

Cite as: Sean Terry Darwin Haynes, A036 574 645 (BIA Dec. 2, 2016)

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IN REMOVAL PROCEEDINGS

A036 574 645

involving moral turpitude ("CIMT"), see section 237(a)(2)(A)(ii) of the Act. 1 The respondent
challenges those determinations, which we review de novo. See 8 C.F.R. 1003.l (d)(3)(ii).

ORDER: The appeal is sustained, the Immigration Judge's decision is vacated, and the
removal proceedings are terminated.

FOR THE BOARD

The respondent was initially charged with removability for having violated a domestic
violence protection order (Exh. 1). See section 237(a)(2)(E)(ii) of the Act. In April 2015,
however, the aforementioned aggravated felony and multiple-CIMT charges were lodged "in lieu
of' that original charge (Exh. 4). Accordingly, we have no occasion to address whether the
respondent is removable under section 237(a)(2)(E)(ii) of the Act.
The respondent's 2014 conviction for obstructing governmental administration in the second
degree does not, standing alone, support any removal charge.

2
Cite as: Sean Terry Darwin Haynes, A036 574 645 (BIA Dec. 2, 2016)
LZWE&

l. ( (.x. . .il4QQ.Q&(1:0..!# ..(......?4 .&AZ..Q l.M. fo. 22d

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The respondent's main appellate argument is that his 2008 conviction under sections 110 and
120.05(3) of the New York Penal Law cannot be an aggravated felony or a CIMT because the
offense of conviction-Le., attempted assault in the second degree-is a "legally impossible"
crime under People v. Campbell, 532 N.E.2d 86 (N.Y. 1988) (Respondent's Brief at 10-19).
That argument is supported by the controlling precedents of the United States Court of Appeals
for the Second Circuit, as well as by persuasive authority from other circuits. See United States
v. Moreno, 821 F.3d 223, 230 (2d Cir. 2016); Gill v. INS, 420 F.3d 82, 84 (2d Cir. 2005);
see also Dale v. Holder, 610 F.3d 294, 302 (5th Cir. 2010); Knapik v. Ashcroft, 384 F.3d 84,
91-92 (3d Cir. 2004). As the respondent's 2008 conviction cannot support either removal charge
as a matter of Second Circuit law, we will sustain his appeal, dismiss the removal charges, and
terminate the removal proceedings.2

'

.,
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
201 VARICK STREET
NEW YORK, NEW YORK

In the Matter of:

REMOVAL PROCEEDINGS

DARWIN HAYNES, Sean Terry

a.k.a. Sean T. Moseley

The Respondent.
Section 237(a)(2)(A)(ii) of the Immigration and Nationality Act
("INA") (Convicted of two CIMTs not arising out of a single scheme)

CHARGES:

Section 237(a)(2)(A)(iii) of the INA (Convicted of a "crime of

violence" (18 U.S.C. Section 16) aggravated felony as defmed by INA
Section 10l(a)(43)(F) for which the term of imprisonment was at least
one year)
Section 237(a)(2)(A)(iii) of the INA (Convicted of an aggravated
felony as defmed by INA Section 10l(a)(43)(U), an attempt or
conspiracy to commit a crime of violence (18 U.S.C. Section 16) for
which a term of imprisonment was at least one year)
APPLICATION:

8 C.F.R. 1239.2(c)
8 C.F.R. 1239.2(c)

Motion to Terminate Proceedings

Motion to Dismiss DHS's Supplemental
Charge Dated May 22, 201S
ON BEHALF OF DBS
Kamephis Perez, Esq.
Assistant Chief Counsel
201 Varick Street, Room 1130
New York, NY 10014

ON BEHALF OF THE RESPONDENT

Ruben Loyo, Esq.

Brooklyn Defender Services
177 Livingston St., ih Floor
Brooklyn, NY 11201

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I.

PROCEDURAL HISTORY

Sean Terry Darwin Haynes ("the Respondent") is a native and citizen of Barbados. (Ex.
1). He entered the United States ("U.S.") on January 21, 1980 at New York, NY as a lawful
1

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File No.: A036-574-645

On March 4, 2015, DHS personally served the Respondent with an NTA, charging him
with removability pursuant to INA 237(a)(2)(E)(ii), as having been convicted of being enjoined
by a protection order and violating it through conduct such as credible threats of violence,
repeated harassment, or bodily injury to the person or persons for whom the protection order was
issued. (Ex. 1).
On April 28, 2015, OHS filed an 1-261, which was submitted in lieu of the NTA and
replaced its allegations and charges entirely, charging him with removability pursuant to INA
237(a)(2)(A)(ii) as an alien, who after admission, was convicted of two crimes involving moral
turpitude ("CIMT") not arising out of a single scheme of criminal misconduct and INA
237(a)(2)(A)(iii) as having been convicted of an aggravated felony as defined in INA I 01
(a)(43)(F), a "crime of violence" as defined by 18 U.S.C. 16. (Ex. 4). During a hearing that
same day, the Respondent, through counsel, admitted factual allegations one through three and
five through seven, denied factual allegation four, and denied both charges of removability. The
Court did not make a determination regarding the fourth factual allegation or the charges of
removability at that time, but accepted the Respondent's request for an adjournment to prepare
briefs for an impending motion to terminate Proceedings. Respondent's Hearing ("Resp. Hmg."),
(Apr. 28, 2015).
On May 8, 2015, the Respondent filed a motion to terminate proceedings, alleging that
the government failed to meet its burden of establishing the charges of removability. He first
contends that he did not plead to a specific subsection of NYPL 110-120.05 and specifically
did not plead to subsection (3). Second, he contends that even if the Court finds that the plea was
covered by subsection (3) that a conviction under NYPL 110-120.05(3) is neither a CIMT nor
a "crime of violence" because the statute does not contain a coherent mens rea element, and it
has been determined to be a legally impossible crime according to the New York Court of
Appeals. See Resp. Mt. p. 5-7 (citing People v. Campbell, 72 N.Y.2d 602 (N.Y. 1988)). He also
argues that for immigration purposes, "no mental state can be discerned" from a conviction for a
legally impossible crime, and thus, a guilty plea to such a crime like that of a plea to NYPL
110-120.05(3) cannot satisfy either the CIMT or aggravated felony charges. See id. p. 9 (citing
Gill v. INS, 420 F.3d 82, 91 (2d. Cir. 2005)). Further, he alleges that his conviction under NYPL
195.05 for obstructing governmental administration is also not a CIMT because it was not
accomplished through "deceit, graft, trickery, or dishonest means" as required by the BIA to
make such an offense morally turpitudinous, the statute is missing elements of intentional
violence or other aggravating factors, and New York case law has demonstrated that the statute is
broad and does not require a false statement, physical assault or harm. See id. p. 10-11.

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panent resident ("LPR"). (Exs. 1; 2, Tab A). On July 14, 2008, he pled guilty to Attempted
Assault in the Second Degree, in violation of New York Penal Law ("NYPL") 110-120.05
and was sentenced to one year imprisonment. (Ex. 3, Tab E, p. 33); see also Respondent's
Motion ("Resp. Mt.") (Ex. 5). On December 18, 2014, he pied guilty to Obstructing
Governmental Administration in the Second Degree, in violation of NYPL 195.05 and received
1 year of conditional discharge and an order of protection for five years. (Ex. 3, Tab F, p. 44,
48); see Resp. Mt.

' .

'.
}Ip'. ' :

This decision addresses the issue of the Respondent's removability pursuant to INA
237(a)(2)(A)(ii) and 237(a)(2)(A)(iii) as defined in both INA 10l(a)(43)(F) and
10I(a)(43)(U). For the reasons outlined below, the Court finds that OHS has met its burden to
establish his removability by clear and convincing evidence. Thus, the Respondent's motion to
dismiss DHS's supplemental charge under INA 237(a)(2)(A)(iii) as defined in INA
101(a)(43)(U) and his motion to terminate proceedings will therefore be denied, and the charges
of removability will be sustained.
II.

LEGAL STANDARDS & ANALYSIS

A. Legal Framework

OHS bears the burden of establishing by clear and convincing evidence that an alien who
has been admitted to the U.S. is removable as charged. See INA 240(c)(3)(A); 8 C.F.R.
1240.8(a). The Respondent has been charged with removability pursuant to INA 237
(a)(2)(A)(ii) for having been convicted of two CIMTs not arising out of a single scheme of
criminal conduct. He also has two charges of removability under INA 237(a)(2)(A)(iii), for an
aggravated felony as defined in INA 10l (a)(43)(F) as a "crime of violence" (as defined by 18
U.S.C. 16), and for an aggravated felony as defined in INA I01(a)(43)(U) as an attempt or
conspiracy to commit a "crime of violence" under 18 U.S.C. 16. Both aggravated felony
charges require a term of impris.onment for at least one year. In order to support these charges,
OHS cites to Respondent's convictions for Attempted Assault in the Second Degree, in violation
of NYPL 110-120.05, and Obstructing Governmental Administration in the Second Degree,
in violation of NYPL 195.05.
1. CIMTs

An alien who at any time after admission is convicted of two or more crimes involving
moral turpitude ("CIMT") not arising out of a single scheme of criminal misconduct, regardless
of whether confined and regardless of whether the convictions were in a single trial, is
removable. INA 237(a)(2)(A)(ii).
The INA does not define the tenn "CIMT." The term ''moral turpitude" generally refers
to conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of
morality and the duties owed between persons, or the duties owed to society in general. Matter
of Torres-Varela, 23 I&N Dec. 78, 83 (BIA 2001); Matter of Tran, 21 I&N Dec. 291, 292-93
(BIA 1996); Matter of Short, 20 l&N Dec. 136, I 39 (BIA 1989). Because "[i]t is in the intent
3

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On May 22, 2015, OHS filed an opposition to the Respondent's motion to tenninate, in
conjunction with a second 1-261, adding a new charge of removability under INA
237(a)(2)(A)(iii} as having been convicted of an aggravated felony as defined in INA
10I(a)(43)(U), an attempt or conspiracy to commit a "crime of violence" (defined in 18 U.S.C.
16) for which the term of imprisonment was at least one year. (Exs. 6; 7). On June 8, 2015, the
Respondent filed a motion to Dismiss DHS's supplemental charged filed on May 22, 2015, in
conjunction with a Letter-Brief in response to DHS's reply memorandum in opposition to
Respondent's motion to terminate. (Bxs. 8; 9).

Further, if an offense involves moral turpitude, then an attempt or conspiracy to commit

that offense also involves moral turpitude. U.S. ex rel. Meyer v. Day, 54 F.2d 336, 337 (2d Cir.
1931); Matter of Vo, 25 I&N Dec. 426 (BIA 2011) (holding that where the substantive offense
underlying an alien's conviction for an attempt is a crime involving moral turpitude, the alien is
considered to have been convicted of a crime involving moral turpitude for purposes of INA
237(a)(2)(A), even though that section makes no reference to attempt offenses). However, a
crime does not involve moral turpitude if "no mental state can be clearly discerned from" a
conviction that requires an attempt to commit a crime of recklessness, such as Attempted Assault
in the Second Degree, in violation of NYPL I 10-120.05(4). Gill v. INS, 420 F.3d p. 91-92.
In determining whether an individual's state conviction constitutes a CIMT within the
meaning of INA 237(a)(2)(A)(ii), the Court begins by employing a categorical approach
whereby the Court examines "whether [the offense] categorically fits within the definition of a
CIMT." See Efstathiadis, 752 F.3d p. 595 (citing Moncrieffe v. Holder, 133 S. Ct. 1678, 1684
(2013)). The categorical approach focuses on the "minimal conduct criminalized by the state
statute" that is necessary to sustain a conviction under that statute. Moncrieffe, 133 S.Ct. p. 1685
(conviction "rested upon [nothing] more than the least of th[e] acts" criminalized) (citing
Johnson v. United States, 559 U.S. 133, 137 (2010)); see Gertsenshteyn v. Mukasey, 544 F.3d
137, 143 (2d Cir. 2008) (citing Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir. 2001). Under the
categorical approach, the Court must look only to the statutory elements without considering the
facts underlying the conviction, therefore rending actual conduct "irrelevant" for this analysis.
Moncrieffe, 133 S.Ct. p. 1684 (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007);
see Gertsenshteyn, 544 F.3d p. 143; Martinez v. Mukasey, 551 F.3d 113, 119 (2d Cir. 2008).
When evaluating divisibility, an Immigration Judge must follow the law of the circuit
court of appeals in whose jurisdiction he or she sits. Matter of Chairez-Castrejon (II), 26 I&N
Dec. 478 (BIA 2015). In the Second Circuit, divisibility analysis is governed by Descamps." 1
Flores v. Holder, 779 F.3d 159 (2d Cir. 2015). If a statute is divisible, the categorical approach
will necessarily be inconclusive, and the court must proceed to the modified categorical
approach. 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 disjunctive sets of "elements," more than one combination of which could support a
1

See Descamps v. United States, 1 33 S. Ct. 2276, 228 1-83 (20 1 3). However, where a respondent before an IJ fails
to assert that Descamps prohibits the use of the modified categorical approach the BIA may properly apply the
doctrine of waiver if that respondent later asserts Descamps applies. Prabhudial v. Holder, 780 F.3d 553 (2d Cir.
2015).
4

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that moral turpitude inheres," the focus of the analysis is generally "on the mental state reflected"
in the statute. Efstathiadis v. Holder, 752 F.3d 591, 595 (2d Cir. 2014) (citing Gill v. INS. 420
F.3d p. 89; Mendez v. Mukasey. 547 F.3d 345, 347 (2d Cir. 2008) ("Whether a crime is one
involving moral turpitude depends on the offender's evil intent or corruption of the mind.")
(internal quotation marks omitted)). Moral turpitude requires ''reprehensible conduct and a
culpable mental state." Matter of Hernandez, 26 I&N Dec. 397, 398 (BIA 2014) (citing Matter
of Louissaint, 24 I&N Dec. 754, 756-57 (BIA 2009), which stated that a "crime involving moral
turpitude involves reprehensible conduct committed with some degree of scienter, specific intent,
deliberateness, willfulness, or recklessness").

To detennine whether an assault-type crime involves moral turpitude, the court must
analyze ''both the state of mind and the level of hann required to complete the offense." Matter
of Solon, 24 I&N Dec. 239, 242 (BIA 2007). "[A]s the level of conscious behavior decreases,
i.e., from intentional to reckless conduct, more serious harm is required in order to find that the
crime involves moral turpitude." Id. A lesser degree of culpable mental state and resulting hann
is required for offense that "necessarily involve[] aggravating factors[,]" such as "a deadly
weapon[,]" or ''bodily harm upon a person whom society views as deserving of special
protection, such as a child, a domestic partner, or a peace officer." Matter of Sanudo, 23 I&N
Dec. 968, 971-72 (BIA 2006). Thus, assaults requiring "intentional infliction of serious bodily
injury on another" involve moral turpitude. Id. p. 971 (emphasis in original). In New York, an
assault that requires both specific intent and physical injury is a crime involving moral turpitude.
See Solon, 24 l&N Dec. p. 243(finding that assault in the third degree in violation of NYPL
120.00(1 ), which requires both specific intent and physical injury, is a CIMT).
A crime "involving [an] assault against a peace officer, which results in bodily harm to
the victim and which involves knowledge by the offender that his force is directed to an officer
who is perfonning an official duty, constitutes a crime involving moral turpitude." Matter of
Danesh, 19 I&N Dec. 669, 670 (BIA 1988); but see Zaranska v. U.S. Dep't of Homeland Sec.,
400 F. Supp. 2d 500, 513-21 (E.D.N.Y. 2005) (conviction under NYPL 120.05(3) was not a
CIMT under the predecessor statute effective through October 31, 2006) (citing People v. Rojas,
97 N.Y.2d 32, 40 (2001) ("a defendant's intent to injure is irrelevant to the crime of assault in the
second degree under Penal Law 120.05(3)); People v. Campbell, 72 N.Y.2d p. 604 ("Under the
plain wording of this subdivision it is evident that a defendant may be convicted even though the
injury caused is unintended or accidental. The only proviso is that the injury must occur while
the defendant is acting with the intention of preventing the police officer [] from performing a
lawful duty.").
a. Attempted Assault in the Second Degree, NYPL 110-120.05
Here, the categorical approach is inconclusive because the Respondent's statute of
conviction is divisible. He pied guilty to violating NYPL 110-120.05, Attempted Assault in
the Second Degree. (Ex. 3, Tab E, p. 33). His certificate of disposition does not indicate whether
he pled guilty to a specific subsection of the statute. NYPL " 110-120.05 is divided eleven
different subsections, which are multiple discrete offenses listed as enumerated alternatives.
Courts have found that certain subsections are categorically CIMTs while other subsections do
not categorically involve moral turpitude. For example, subsection (1) was been found to be a
CIMT in Singh v. DHS (526 F.3d 72, 78-80 (2d. Cir. 2008)), whereas in Gill v. INS, attempted
reckless assault under subsection (4) is not a CIMT because attempted recklessness is legally
incoherent. 420 F.3d p. 91. Accordingly, NYPL 11 0-120.05 is a divisible statute and requires
5

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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 standard. Descamps, 133 S.
Ct. p. 2281-83; see Matter of Chairez-Castrejon (Q, 26 I&N Dec. 349, 353 (BIA 2014)
(rejecting Matter of Lanfennan, 25 I&N Dec. 721 (BIA 2012) "to the extent that it is inconsistent
with [the Board's] understanding of the Supreme Court's approach to divisibility in
Descamps").

a modified categorical analysis because the statute lists multiple discrete offenses as enumerated
alternatives and at least one (but not all) of those listed offenses is a categorical match to the
relevant CIMT standard. Descamps, 1 33 S. Ct. p. 2281 -83.
i.

Modified Categorical Approach

Under the modified categorical approach the Court's inquiry is limited to the ''record of
conviction. Moncrieffe, 133 S. Ct. p. 1 684-85 (a Court may resort to the modified categorical
approach by examining the record of conviction only to "determine which particular offense the
noncitizen was convicted of'). The record of conviction includes ''the charging document and
jury instructions, or in the case of a guilty plea, the plea agreement, plea colloquy, or 'some
comparable judicial record' of the factual basis for the plea."' Id. p.1 685 (quoting Nijhawan v.
Holder, 557 U.S. 29, 35 (2009)); see INA 240(c)(3)(B)(i)-(vii). The Court may also review the
combined evidentiary weight of documents, not just the weight of each individual document,
submitted as part of the record of conviction in determining if the conviction has been proven by
clear and convincing evidence. See Singh, 526 F.3d p. 78-80 (clear and convincing evidence
established that petitioner was convicted of assault under NYPL 1 20.05(1) by upholding the
admission of a conditions of probation document, a certificate of disposition, and a post
conviction rap sheet which individually would be insufficient but in combination proved the
conviction).
A Respondent cannot be removed for an offense if he "did not admit to, was not charged
with, and was not required to plead to" conduct that would render him removable. Wala v.
Mukasey, 511 F.3d 102, 109 (2d. Cir. 2007). "[A] petitioner necessarily pleads facts when, for
example, he actually admits specific facts in his plea colloquy or comparable judicial record that
establish he violated a divisible statute in [a] manner that satisfies the criteria of the pertinent
removability statute." Id. p. 1 08.
Here, the Court examined the certificate of disposition and the plea minutes for the
Respondent's conviction pursuant to NYPL 1 1 0-1 20.05 in addition to his rap sheet, all of
which were submitted by OHS. (Exs. 3, Tab E; 2, Tab D, p. 14-16); see Nijhawan 557 U.S. p.
35. First, the certification of disposition states that the Respondent pled guilty to Attempted
Assault in the Second Degree under NYPL 110-120.05, but it does not specify a specific
subsection of the statute. (Ex. 3, Tab E, p. 33). The certificate categorizes his conviction as a
Class E felony and states that he was sentenced of one year of imprisonment. Id. Further, it is
6

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The "modified categorical approach" allows a court to look beyond the statute, to the
record of conviction, for the limited purpose of determining whether the alien's conviction, not
the alien's conduct, falls under the part of the statute that would render the alien removable. See
generally, Descamps; Dickson v. Ashcroft, 346 F.3d 44, 48-49 (2d Cir. 2003) (citing Kuhali v.
Reno, 266 F.3d 93, 106-07 (2d Cir. 2001)); Matter of Vargas-Sarmiento, 23 I&N Dec. 651 , 654
(BIA 2004), petition for review denied by Vargas-Sarmiento v. U.S. Dep't of Justice, 448 F.3d
159, 1 62 (2d Cir. 2006). Because the modified categorical approach is a means to implement the
categorical approach, it is an elements-based inquiry, not a facts-based search. Moncrieffe, 133
S. Ct. p. 1684 (under the categorical approach, ''we examine what the state conviction
necessarily involved, not the facts underlying the case"); see Descamps, 1 33 S. Ct. p. 2292-93.

The Court finds DHS's argument persuasive. While the Court recognizes the lack of
specificity in the certificate of disposition, the record of conviction demonstrates that the
Respondent was convicted under subsection (3) of NYPL 120.05. According to his post
conviction rap sheet, he was charged under Count 1 with two counts of Assault in the Second
Degree: With the Intent to Cause Physical Injury to Officer/Fireman/EMT under NYPL
120.05(3), both of which were Class D felonies. (Ex. 2, Tab D, p. 14-16). In the plea minutes, his
criminal attorney entered "a plea of guilty of Count 1 of the Indictment to Attempted Assault in
the Second Degree in full satisfaction of all the accounts therein." (Ex. 3, Tab E, p. 37). Further,
in the plea minutes, the Respondent pied guilty to "attempt[ing] to prevent a police officer from
performing a lawful duty and ...attempt[ing] to cause physical injury to such police officer." (Ex.
3, Tab E, p. 38). He specifically admitted to being involved in an altercation with a lieutenant
and a police officer regarding his unwillingness to leave the precinct bathroom, which resulted in
the Respondent punching the lieutenant in the face and a physical struggle with the other officer.
(Ex. 3, Tab E, p. 4 1-42). Thus, the evidence proffered by DHS proves by clear and convincing
evidence that he pled guilty to NYPL 1 10-120.05(3).
ii.

NYPL 110-120.05(3) is categorically a CIMT

Assault in the Second Degree under subsection (3) has four elements: (1) an intentional
act; (2) to prevent or obstruct a police officer, peace officers, firefighters, and other emergency
personnel; (3) from performing a lawful duty; and (4) an injury to the police officer, peace
officers, firefighters, and other emergency personnel that occurs as a result of the offender's
actions. NYPL 120.05(3) (Nov. 2006). In Danesh, the BIA found that a crime "involving [an]
assault against a peace officer, which results in bodily harm to the victim and which involves
knowledge by the offender that his force is directed to an officer who is performing an official
duty, constitutes a crime involving moral turpitude." 19 l&N Dec. 669, 670 (BIA 1988); but see
Zaransk 400 F. Supp. 2d p. 513-21 (conviction under NYPL 120.05(3) was not a CIMT
under the predecessor statute effective through October 31, 2006) (citing People v. Rojas, 97
N.Y.2d p. 40 ("a defendant's intent to injure is irrelevant to the crime of assault in the second
degree under Penal Law 120.05(3)); People v. Campbell, 72 N.Y.2d p. 604 ("Under the plain
wording of this subdivision it is evident that a defendant may be convicted even though the
injury caused is unintended or accidental. The only proviso is that the injury must occur while
the defendant is acting with the intention of preventing the police officer [] from perfonning a
lawful duty.").
NYPL 120.05(3) categorically matches the scienter and reprehensible conduct
requirements of a CIMT. First, the New York statute clearly has a scienter element as it requires
the offender to act with intent when preventing or obstructing a police officer from performing
his or her lawful duty. NYPL 120.05(3) (Nov. 2006); see Solon, 24 I&N Dec. p. 242. Second,
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dated April 8, 2011 and is signed by the court clerk. Id. The Respondent concedes that the
certificate of disposition is proof that the he pied to Attempted Assault in the Second Degree, but
denied that he pied guilty to subsection (3). Resp. Hmg., (Apr. 28 , 2015). OHS argues that the
only subsection that the Respondent could have pied guilty to under the statute was subsection
(3) based on the charges listed in his rap sheet that were satisfied as a result of his plea and his
statements in the plea minutes. (Exs. 2, Tab D, p. 1 6; 3, Tab G).

b. Obstructing Governmental Administration in the Second Degree,

NYPL 195.05
The Respondent pled guilty to violating NYPL 195.05, Obstructing Governmental
Administration in the Second Degree. (Ex. 3, Tab F, p. 44). A person is guilty of Obstructing
Governmental Administration in the Second Degree when he:
intentionally obstructs, impairs or perverts the administration of law or other
governmental function or prevents or attempts to prevent a public servant from
performing an official function, by means of intimidation, physical force or interference,
or by means of any independently unlawful act, or by means of interfering, whether or not
physical force is involved, with radio, telephone, television or other telecommW1ications
systems owned or operated by the state, or a county, city, town, village, fire district or
emergency medical service or by means of releasing a dangerous animal under
circumstances evincing the actor's intent that the animal obstruct governmental
administration.

NYPL 195.05. (emphasis added). The issue before the Court is whether the state statute for this
crime criminalizes conduct that does not constitute a CIMT.
i.

Divisibility

Applying the categorical analysis framework of CIMTs discussed above, NYPL 195.05
is divisible. First, NYPL 195.05 lists two discrete offenses as enumerated alternatives.
Namely, "intentionally obstructs, impairs or perverts the administration of law or other
governmental function" and "prevents or attempts to prevent a public servant from performing
,
an official function., NYPL 1 95.05. Second, one discrete offense is a categorical match to the
generic CIMT standard while the other discrete offense is not a categorical match.
"[I]ntentionally obstructs, impairs or perverts the administration of law or other governmental
function" is not a categorical match because it lacks the requisite reprehensible conduct that is
the hallmark of CIMTs. However, "[Intentionally] prevent[ing] or attempt[ing] to prevent a
public servant from perfonning an official function" is a CIMT because it has the requisite
scienter and involves reprehensible conduct. It is the Court's view that intentionally preventing a
"public servant from performing an official function" is contrary to the accepted rules of
morality and the duties owed to society in general. See Matter of Torres-Varel 23 I&N Dec. p.
83; In Re Lopez-Meza, 22 I. & N. Dec. 1188, 1193 (BIA 1 999) (citing 6 Charles Gordon, et al.,
Immigration Law and Procedure 71.05(l)(d) (rev. ed. 1999), and cases cited therein, which
note that "[ c]rimes involving acts of baseness or depravity have been found to be crimes
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pre;enting a police officer from performing a lawful duty is a violation of one's duty to society
and is likely to be deemed reprehensible conduct, especially in light of circumstances that result
in injury to the police officer. See Sanudo, 23 l&N Dec. p. 971 -72. Therefore, the Respondent's
conviction for Assault in the Second Degree in violation ofNYPL 120.05(3) is a CIMT.
Further, because an attempt to commit a CIMT also qualifies as a CIMT, his conviction for
Attempted Assault in the Second Degree in violation ofNYPL 110-120.05(3) is a CIMT. See
Matter of Vo (BIA 201 1).

r41

ii

invlving moral turpitude even though they have no element of fraud and, in some cases, no
explicit element of evil intent (e.g., murder, rape, robbery, kidnap[pJing, voluntary manslaughter,
some involuntary manslaughter offenses, aggravated assaults, mayhem, theft offenses, spousal
abuse, child abuse, and incest). Therefore, a modified categorical approach much be applied to
determine whether the Respondent's conviction under NYPL 195.05 qualifies as a CIMT.
Modified Categorical Approach

In applying the modified categorical approach as outlined above, the Court examined the
certificate of disposition, charging document for the Respondent's conviction pursuant to NYPL
195.05, and his rap sheet, all of which were submitted by DHS. (Exs. 3, Tab E; 2. Tab D); see
Nijhawan 557 U.S. p. 35. First, the certificate of disposition states that he pied guilty to NYPL
195.05 and was sentenced to one year of conditional discharge and an order of protection for five
years. (Ex. 3, Tab F, p. 44). The document is dated April 16, 2015 and is signed by the court
clerk. The Respondent conceded his conviction when he pied to the 1-261 dated April 28, 201 5,
but denied that the conviction amounted to a CIMT. Resp Hmg., (Apr. 28, 2015).
Second, the charging document includes a sworn statement from police officer Michael
Wigdzinski as to the facts of incident and alleges that he committed six offenses that are either
felonies or misdemeanors. Officer Wigdzinski 's statement is based on hearsay statements he
received from the complainant and two other officers who were present at the scene. The portion
of the charging document that is based on Officer Wigdzinski's conversations with the police
officers who were present at the scene is excepted from the hearsay rule. New York Civil
Procedure Law and Rules (''NYCPLR") Rule 4518 includes a hearsay exception for statements
made under a business duty obligation, including where a police officer is under a duty to report
to another officer. Lindsay v. Acad. Broadway Corp., 198 A.D.2d 641, 642, 603 N.Y.S.2d 622,
623 (1 993) ("The police report is hearsay but, contrary to plaintiffs contention, it is admissible
under the business record exception of NYCPLR Rule 4518(a) inasmuch as the witnesses who
gave the statements were police officers at the scene with a duty to report their observations to
the recording officer."). Accordingly, this portion of the charging document is based on non
hearsay and is considered an information. NYCPL 170.65(1) (a misdemeanor complaint is
converted into an information when it is supplemented by a "supporting deposition" and other
documents that "taken together satisfy the requirements for a valid information").
Looking to the charging document, it is clear that the Respondent's conviction is under
the second discrete offense of NYPL 195.05, "[Intentionally] prevents or attempts to prevent a
public servant from performing an official function." While trying to remove the Respondent
from the situation and place handcuffs on him, he punched a police sergeant "on his face and
ripped the shirt" of the sergeant. In addition, he elbowed another police officer who was trying to
assist the police sergeant to handcuff the Respondent. Both police officers suffered substantial
pain and physical injuries as a result of this altercation. (Ex. 3, Tab E, p. 49-50). Accordingly, he
specifically pied to the second discrete offense under NYPL 195.05 which, as explained above,
is a CIMT.
In sum, the Court finds that the crimes of Attempted Assault in the Second Degree under
NYPL 110-120.05(3) and Obstructing Governmental Administration in the Second Degree
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ii.

under NYPL 195.05 constitute CIMTs. Thus, OHS has met its burden to prove that the
Respondent is removable because it has established that he has been convicted of at least two
CIMTs not arising out of a single scheme of criminal conduct. INA 237(a)(2)(A)(ii).
2. Aggravated Felony "Crime of Violence," INA 10l(a)(43)(F)

In determining whether a conviction constitutes an aggravated felony, the Court begins

with a categorical approach whereby it examines whether ''the state statute defining the crime of
conviction" fits within the "generic" federal definition of a corresponding aggravated felony.
Moncrieffe, 133 S. Ct. p. 1684 (citing Duenas-Alvarez, 549 U.S. p. 186 ); see 101(a)(43)(F). The
state offense is a categorical match only if a conviction of that offense '"necessarily' involved . .
. facts equating to [the] generic [federal offense]." Id. p. 1 684 (citing Shepard v. United States,
544 U.S. 13, 24 (2005)). The categorical approach focuses on the ''minimal conduct criminalized
by the state statute'' that is necessary to sustain a conviction under that statute. Id. p. 1685
(conviction "rested upon [nothing] more than the least of th[e] acts" criminalized) (citing
Johnson v. United States, 559 U.S. 133, 137 (2010)); see Gertsenshteyn, 544 F.3d p. 143 (citing
Dalton v. Ashcroft, 257 F.3d p. 204). Under the categorical approach, the Court must look only
to the statutory elements without considering the facts underlying the conviction. Id. p. 1684
(citing Gonzales, 549 U.S. p. 186); see id.; Martinez v. Mukasey, 551 F.3d 113, 119 (2d Cir.
2008).
Under the categorical approach, the Court must look only to the statutory elements
without considering the facts underlying the conviction. Moncrieffe, 133 S. Ct. p. 1684 (citing
Gonzales, 549 U.S. p. 186); see Gertsenshteyn, 544 F.3d p. 143; Martinez v. Mukasey, 551 F.3d
at 119. To fail the categorical test, there must exist "a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct" that would .constitute an aggravated
felony. Moncrieffe, 133 S. Ct. p. 1685 (citing Duenas-Alvarez, 549 U.S. at 193); see Matter of
Ferreiri!, 26 I&N Dec. 415, 419 (2d Cir. 2014) (instructing that the "'realistic probability test' is
part of the initial inquiry that an IJ must undertake when applying the categorical approach");
Matter of Chairez-Castrejon (I), 26 l&N Dec. p. 357 (finding no realistic probability that a state
statute would be applied in a manner constituting a removable offense where the respondent
identified no decision where anyone had been so prosecuted).
The definition of the term "aggravated felony" includes a "crime of violence" (as defined
in 18 U.S.C. 16, but not including a purely political offense) for which the term of
imprisonment is at least one year. INA 10l (a)(43)(F). A "crime of violence" is defined as:
"(a) an offense that has as an element the use, attempted use, or threatened use of physical force
against the person or property of another, or (b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force against the person or property of another
may be used in the course of committing the offense." 18 U.S.C. 16; Dos Santos v. Gonzales,
440 F.3d 81 (2d Cir. 2006); Matter of Alcantar, 20 I&N Dec. 801 (BIA 1 994). Sections 16(a) and
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An alien convicted of an aggravated felony any time after admission is removable. INA
237(a)(2)(A)(iii). DHS bears the burden to establish by clear and convincing evidence that an
alien who has been admitted to the U.S. is removable as charged. See INA 240(c)(3)(A); 8
C.F.R. 1240.8(a).

(b) both involve the use of ''physical force against, , another's person or property, which requires
"a higher mens rea than the merely accidental or negligent conduct." See Leocal v. Ashcroft, 543
U.S. 1, 2 (2004).

The language of 18 U.S.C. 16(b) sweeps more broadly than 16(a) and includes
offenses that "naturally involve a person acting in disregard of the risk that physical force might
be used against another in committing an offense." Leocal, 543 U.S. p. 2. The Second Circuit
has concluded that a crime of violence under section 1 6(b) must present a substantial risk of the
intentional use of force. Vargas-Sanniento, 448 F.3d p. 172 (citing Jobson v. Ashcroft, 326 F.3d
p. 374 (2d Cir. 2003); see also Morris v. Holder, 676 F.3d 309, 314 (2d Cir 2012) (citing Vargas
Sanniento, 448 F.3d p. 169-170).2 The BIA has held that in determining whether a statute is a
crime of violence under 1 8 U.S.C. 1 6(b), the proper inquiry is whether the conduct
encompassed by the elements of the State offense present a substantial risk that physical force
may be used in the course of committing the offense in the "ordinary case." Francisco-Alonzo,
26 l&N Dec. p. 599-600 (rejecting Moncrieffe's "least culpable conduct" analysis in the context
of determining crimes of violence under 16(b)).
The term "physical force" in 1 8 U.S.C. 16 is defined as "power, violence, or pressure
directed against a person or thing." Morris, 676 F.3d at 314 (citing Vargas-Sarmiento, 448 F.3d
p.169). The force referenced in 18 U.S.C. 16(b) need not be "violent force." Morris, 676 F.3d
p. 314-15 (citing Vargas-Sarmiento, 448 F.3d p. 169). "Physical force" has been broadly
interpreted and includes acts such as poisoning food that the defendant intends someone to eat,
because the act of poisoning "intentionally avails h[im]self of the physical force exerted by
poison on a human body." Vargas-Sarmiento, 448 F.3d p. 174. When the underlying crime
requires that the defendant intend to inflict serious physical injury, there is inherently a
substantial risk that the perpetrator may intentionally use physical force to cause the injury
because the infliction of a serious physical injury is "likely to meet vigorous resistance from a
victim." Morris, 676 F.3d p. 315 (quoting Vargas-Sarmiento, 448 F.3d p. 173-74).
The Court previously determined that the Respondent could only have pied guilty to
NYPL 110-120.05(3) and not any other subsection of the statute. Accordingly, the Court will
apply the categorical approach to determine whether NYPL 110-120.05(3) constitutes an
aggravated felony under INA 1 0 1 (a)(43)(F). A person is guilty of Assault in the Second
Degree if "[w]ith intent to prevent a[ ] police officer...from performing a lawful duty...he causes
physical injury to such [ ] police officer." (emphasis added). NYPL 120.05(3) (Nov. 2006). An
attempt of this underlying crime occurs when a person "with intent to commit a crime, he
2 In Jobson, the Second Circuit stated with regard to l 6(b) that "an unintentional accident caused by recklessness
cannot properly be said to involve a substantial risk that a defendant will use physical force." 326 F.3d p. 373-74.

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To determine whether a State statute is a categorical match to 18 U.S.C. 16(a), the

Court must consider whether the ''use, attempted use, or threatened use of physical force against
the person or property of another'' is an element of the State offense. Francisco-Alonzo, 26 I&N
Dec. p. 596-97. Further, the key phrase within 16(a), "the use...of physical force against the
person or property of another," suggests "a higher degree of intent than negligent or merely
accidental conduct." Leocal, 543 U.S. p. 9-10 (citing United States v. Trinidad-Aquino. 259 F.3d
p. 1 145; Bazan Reyes v. INS. 256 F.3d p. 609.).

engages in conduct which tends to effect the commission of such crime" (emphasis added).
NYPL 110 (2015). For the reasons that follow, the Court finds that NYPL 110- 120.05(3) is
categorically a crime of violence and aggravated felony.

To constitute a crime of violence pursuant to 16(b), a statute must "inherently present []

'a substantial risk' that the perpetrator 'may' use physical force in the commission of the crime."
Vargas-Sarmiento, 448 F.3d p. 169. The proper inquiry is whether the conduct encompassed by
the elements of the State offense present a substantial risk that physical force may be used in the
course of committing the offense in the "ordinary case." Matter of Francisco-Alonzo, 26 I&N
Dec. 594, 599-600 (BIA 2015); see Leocal, 543 U.S. p. 10 (stating that analysis under 18 U.S.C.
16(b) is focused not on ''the possibility that harm will result from a person's conduct, but to the
risk that the use of physical force against another might be required in committing a crime").
The Second Circuit held in Canada v. Gonzales, 448 F.3d 560 (2d Cir. 2006), that a
conviction for assaulting a peace officer3 , in violation of Connecticut General Statutes ("COS")
53a-167c(a)(l ) was an aggravated felony "crime of violence" because the assault on a peace
officer involved a substantial risk of the use of physical force. A year later, in Blake v. Gonzales,
481 F.3d 152 (2d Cr. 2007), the Second Circuit found that a conviction under Massachusetts
General Law (M.G.L.) for assault and battery against a police officer constituted an aggravated
3 "A person is guilty of assault of [a] public safety [officer] ... when, with intent to prevent a reasonably identifiable
... officer ... from performing his or her duties, and while such ... officer ... is acting in the performance of his or her
duties, (l) such person causes physical injury to such ... officer .... " Canada v. Gonzales, 448 F.3d 560, 564 (2d Cir.
2006) {citing CGS 53a-1 67c(a)(l)). "Peace officer is defined elsewhere in the CGS as: a member of the Division
of State Police ... or an organized local police department, a chief inspector or inspector in the Division of Criminal
Justice, a state marshal while exercising authority granted under any provision of the general statutes, a judicial
marshal ... , a conservation officer or special conservation officer, ... a constable who performs criminal law
enforcement duties, a special policemen appointed under section 29-18, 29- 18a or 29-19, an adult probation officer,
an official of the Department of Correction authorized by the Commissioner of Correction to make arrests in a
correctional institution or facility, any investigator in the investigations unit of the State Treasurer or any special
agent of the federal government authorized to enforce the provisions of Title 2 1 of the United States Code." Id. p.
564-65 (citing COS 53a-3(9)).

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Neither the Second Circuit nor the BIA have directly ruled that Assault in the Second
Degree under NYPL 120.05(3), or its attempt crime under NYPL 110, is a "crime of
violence," although other subsections of that statute have been addressed by these courts. See
Morris, 676 F.3d 309 (held that a conviction for assault in the second degree, in violation of
NYPL 120.05(2), is a "crime of violence" as defined in 18 U.S.C. 1 6(b) because it sweeps
more broadly than 16(a)); Persaud v. McElroy, 225 F. Supp. 2d 420 (S.D.N.Y. 2002) (held that
a conviction for assault in the second degree, in violation of NYPL 120.05(6) does not
constitute a conviction of an "aggravated felony" under 8 U.S.C. 110l (a)(43)(F) and 8 U.S.C.
1227(a)(2)(A)(iii)). Here, the Court finds that NYPL 1 20.05(3) does not constitute a "crime
of violence" pursuant to 18 U.S.C. 16(a). While the statute is characterized by the intent to
interfere with, inter alia, a police officer, this intentional mens rea does not necessarily extend to
the resulting harm to the officer. In other words, the statute does not require a criminal
defendant to intend the hann he causes. Accordingly, NYPL 120.05(3) is not a crime of
violence pursuant to 18 U.S.C. 1 6(a) because the use of intentional force is not an element of
the statute. See NYPL 120.05(3). However, NYPL 120.05(3) is categorically a crime of
violence under 1 8 U.S.C. 1 6(b).

felony "crime of violence" because it required either an intentional use of force upon the other
person of another or the intentional commission of a wanton or reckless act against a policy
officer carrying out his or her official duties causing physical or bodily injury, which involved a
substantial risk that physical force against the person of another would be used in commission of
the offense.

The Court is persuaded that the conduct encompassed by the elements of NYPL
120.05(3) in the course of committing the offense in the "ordinary case" categorically
constitutes a ''crime of violence" under 18 U.S.C. 16(b) because it inherently involves a
. "substantial risk that physical force . . . may be used" in the commission of the crime (i.e. to
prevent, inter alia, a police officer from performing a lawful duty). 18 U.S.C. 16(b); see NYPL
110-120.05(3) (Nov. 2006). Therefore, the Respondent's conviction under the same is an
aggravated felony.
The Court is persuaded that the minimum conduct necessary to sustain a conviction under
NYPL 110-120.05 (3) categorically constitutes a "crime of violence" under 18 U.S.C. 16(b)
because it inherently involves a ''substantial risk that physical force . . . may be used" in the
commission of the crime (i.e. to prevent a police officer from performing a lawful duty). 18
U.S.C. 16(b); see NYPL 110-120.05(3) (Nov. 2006). Therefore, the Respondent's conviction
under the same is an aggravated felony.
3. Aggravated Felony, INA 10l(a)(43)(U)
An attempt or conspiracy to commit any offense described in INA 10l (a)(43)
constitutes an "aggravated felony." INA 1 0l (a)(43)(U). "[S]ubsection U does not use the word
'attempt' to mean conviction of an offense formally denominated as an attempt, but instead
means conduct that satisfies a generally accepted definition of an attempted offense." Pierre v.
Holder, 588 F.3d 767, 775 (2d Cir. 2009) (citing Ming Lam Sui, 250 F.3d 1 13, 115-16 (2d Cir.
2001). Although an attempted aggravated felony under subsection U can be charged alongside
its completed aggravated felony counterpart, a charge solely under another subsection does not
necessarily include an attempt or conspiracy to commit an offense under subsection U. Pierre,
588 F.3d p. 775.
The Court finds that since Attempted Assault in the Second Degree, in violation of NYPL
110-120.05(3), categorically constitutes an aggravated felony under INA 101(a)(43)(F), it
therefore also categorically constitutes an aggravated felony under INA 101 (a)(43)(U), as an

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The elements in NYPL 120.05(3) are directly analogous to the Connecticut and
Massachusetts statutes discussed in Canada and Blake. First, the statutes cover harm to a
substantially similar grouping of public safety and government officers. Compare NYPL
1 20.05(3) with COS 53a-3(9), and M.G.L. c. 265, l 3D. Second, the intent to prevent or
obstruct, inter alia, a police officer from performing a lawful duty and injury to, inter alia, the
police officer results from the substantial risk of force used by the offender in the commission of
the offense. See NYPL 110-120.05(3) (Nov. 2006); COS 53a-167c(a)(l }; M.G.L. c. 265,
l 3D.

' attempt to commit "a crime of violence . . . for which the term of imprisonment [is] at least one
year."
Accordingly, after a careful review of the evidence, the following Order is entered:

IT IS HEREBY ORDERED that the Respondent' s motion to tenninate proceedings 1s

DENIED.

Date

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ORDER