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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5/07 leesb11rg Pike, S11ite 2000


Falls Church. Virginia 22041

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Strickland, Barbara Kay OHS/ICE Office of Chief Counsel - SEA
Stephanie Alcala Law Office 1000 Second Avenue, Suite 2900
2209 Highland Avenue Seattle, WA 98104
National City, CA 91950

Name: ALVARADO-GONZALEZ, ALFRE... A 090-853-184

Date of this notice: 3/30/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index

Cite as: Alfredo Hilario Alvarado-Gonzalez, A090 853 184 (BIA March 30, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Offi for Immigration Review
.
Falls Church Virginia 22041
y

File: A090 853 184 - Seattle, WA Date:


MAR 3 0 2017
In re: ALFREDO HILARIO ALVARADO-GONZALEZ

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Barbara K. Strickland, Esquire

ON BEHALF OF DHS: Brent D. Campbell


Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -


Convicted of aggravated felony (as defined in section 10l(a)(43)(F) of the
Act (not sustained)

Lodged: Sec. 237(a)(2)(A)(i), I&N Act [8 U.S.C. 1227(a)(2)(A)(i)] -


Convicted of crime involving moral turpitude (not sustained)

APPLICATION: Reconsideration

The Department of Homeland Security (DHS) appeals from the August 11, 2016, decision of
the Immigration Judge granting the respondent's motion to reconsider, finding the respondent
not removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C.
1227(a)(2)(A)(iii), and terminating proceedings. The appeal will be dismissed.

We review the findings of fact made by the Immigration Judge, including the determination
of credibility, for clear error. 8 C.F.R. 1003.l(d)(3)(i). We review all other issues, including
questions ofjudgment, discretion, and law, de novo. 8 C.F.R. 1003.l(d)(3)(ii).

On February 11, 2013, the DHS filed a Notice to Appear with the Immigration Court alleging
that the respondent is removable from the United States under section 237(a)(2)(A)(iii) of the
Act, because he has been convicted of an aggravated felony under section 10l(a)(43)(F) of the
Act, 8 U.S.C. 1101(1)(43)(F), as an alien who has been convicted of a crime of violence as
defined under 18 U.S.C. 16 for which a term of imprisonment of at least 1 year was imposed
(Exh. 1). On June 14, 2013, the respondent filed a motion to terminate, contending he was not
removable based on the sole lodged charge. On June 21, 2013, the DHS filed a form 1-261
(Additional Charges of lnadmissibility/Deportability) alleging that the respondent is removable
from the United States under Section 237(a)(2)(A)(i)(l) of the Act, as an alien who was
convicted of a crime involving moral turpitude committed within 5 years of admission for which
a sentence of 1 year or longer may be imposed (Exh. IA). On July 1, 2013, the respondent filed
a second motion to terminate addressing the charge set forth in the 1-261. The DHS filed an
Cite as: Alfredo Hilario Alvarado-Gonzalez, A090 853 184 (BIA March 30, 2017)
A090 853 184

opposition to the respondent's motions to terminate on July 15, 2013, to which the respondent
replied on August 5, 2013. In a decision dated October 30, 2013, the Immigration Judge denied
the respondent's motions to terminate, concluding that the charge under section 237(a)(2)(A)(i)
of the Act, 8 U.S.C. 1227(a)(2)(A)(i), was not sustained but sustaining the charge under section
237(a)(2)(A)(iii) of the Act.

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On February 26, 2016, the respondent filed a motion to reconsider the denial of the motion to
terminate. 1 In his motion, the respondent contended that in light of the intervening precedents
Quijada-Agular v. Lynch, 799 F.3d 1303 (9th Cir. 2015) (holding that because a person may be
convicted of voluntary manslaughter under California Penal Code 192(a) for reckless conduct,
conduct that falls outside the definition of a crime of violence set forth in 18 U.S.C. 16, it is not
categorically a crime of violence), and Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015) (holding
that 18 U.S.C. 16(b) is unconstitutionally vague), cert. granted, No. 15-1498, 2016 WL
3232911 (U.S. Sept. 29, 2016) (No. 15-1498), proceedings should be terminated. On August 11,
2016, the Immigration Judge granted the motion to reconsider and terminated proceedings,
agreeing that Quijada-Agular, supra, controlled and compelled a finding that that the respondent
has not been convicted of a crime of violence.

On appeal, the OHS argues that the United States Court of Appeals for the Ninth Circuit's
decision in Quijada-Agular, supra, has been implicitly overturned by the Supreme Court's
decision in Voisine v. United States, 136 S. Ct. 2272 (2016), in which the Court held that the
mens rea of recklessness is sufficient to satisfy the "use of force" element set forth in 18 U.S.C.
92l(a)(33)(A)(ii). The OHS argues that by analogy, this holding abrogates the holding of
Quijada-Agular, supra, that recklessness is insufficient to satisfy the "use of force" element set
forth in 18 u.s.c. 16.

We are unpersuaded by the OHS's argument. We conclude that we are bound by the Ninth
Circuit's decision in Quijada-Agular, supra. First, we observe that the Supreme Court explicitly
indicated in Voisine, supra, that its interpretation of the term "use" did not extend to 18 U.S.C.
16, notwithstanding the fact that it uses nearly identical language as is found in 18 U.S.C.
921(a)(33)(A). Id. at 2280 n.4. Second, while the Ninth Circuit has since recognized in dicta
that Voisine, supra, may undermine the circuit's prior holdings because the Supreme Court's
interpretation of a similarly worded statute suggests that "reckless conduct indeed can constitute
a crime of violence," it has not issued a decision explicitly reaching that decision. United States
v. Benally, 843 F.3d 350, 354 (9th Cir. 2016). Thus, we conclude that we are bound by Quijada
Agular, supra. As that case compels a determination that the respondent's conviction under
California Penal Code 192(a) is not a crime of violence under 18 U.S.C. 16, that conviction
cannot be an aggravated felony under section 101(a)(43)(F) of the Act.

Accordingly, the following order will be entered.

1
Proceedings before the Immigration Judge were still open and the respondent's applications for
relief were pending.

2
Cite as: Alfredo Hilario Alvarado-Gonzalez, A090 853 184 (BIA March 30, 2017)
I .
A090 853 184

ORDER: The DHS 's appeal is dismissed.

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3
Cite as: Alfredo Hilario Alvarado-Gonzalez, A090 853 184 (BIA March 30, 2017)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIE"f
IMMIGRATION COURT i
SEATTLE, WASHINGTON L

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In the Matter of:

Alfredo Hilario File Number:


ALVARADO-GONZALEZ, A090-853-184

Respondent. IN REMOVAL PROCEEDINGS

CHARGE: INA 237(a)(2)(A)(iii)-Aggravated Felony

APPLICATION: Motion to Reconsider

ON BEHALF OF RESPONDENT ON BEHALF OF ICE


Barbara Kay Strickland, Esq. Eric Pedersen, Esq.
Barbara K. Strickland, Attorney Assistant Chief Counsel
4540 Kearny Villa Road, Suite 118 I 000 Second Avenue, Suite 2900
San Diego, CA 92123 Seattle, WA 98104

DECISION OF THE IMMIGRATION JUDGE

I. Introduction and Procedural History

The Department of Homeland Security ("DHS") initiated removal proceedings against


Respondent, Alfredo Hilario Alvarado-Gonzalez, on February 11, 2013, by filing a Notice to
Appear ("NTA") with the Seattle Immigration Court. Exh. 1. OHS alleges that Respondent is a
native and citizen of Mexico whose status was adjusted to that of a lawful pennanent resident on
December 1, 1990, as a S26 Special Agriculture Worker. Id OHS also alleges that Respondent
was convicted on January 24, 1994, of voluntary manslaughter in the Superior Court of
California, County of San Diego in violation of subsection I 92(a) of the California Penal Code
("CPC") and was sentenced to a term of imprisonment of 365 days. Id Based on these
allegations, OHS charges Respondent as removable under 101(a)(43)(F) and 237(a)(2)(A)(iH)
of the Immigration and Nationality Act C'INA"), as an alien who has been convicted of a crime
0

of violence" aggravated felony. Id.

At his initial master calendar hearing on June 14, 2013, Respondent appeared with
counsel, admitted the allegations but contested removability and submitted a motion to terminate.
See Respondent's Motion to Terminate (filed June 14, 2013) [hereinafter "Mot. Terminate"]. On
June 21, 2013, OHS filed a Form 1-261 Additional Charges of Inadmissibility/Deportability,
charging Respondent as removable as having been convicted of a crime involving moral
turpitude within five years of admission, pursuant to INA 212(a)(2)(A)(i)(I). See Exh. IA.
Respondent then submitted a second motion to terminate, arguing he was not removable under

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this charge. See Respondent's Motion to Tenninate With Respect To Alternative Charge (filed
July 1, 2015) [hereinafter "Mot. Terminate II"]. DHS subsequently responded to Respondent's
second motion, and Respondent replied thereafter. See DHS Notice of Evidence and Response to
Motion to Terminate (filed July 15, 2013) [hereinafter "DHS Response"]; Respondent's Reply to
Government Opposition to Motion to Trminate (filed Aug. 5, 2013) [hereinafter "Resp.
Reply"].On October 30, 2013, the Court issued a written decision on the motions, in which it
sustained the aggravated felony charge, and did not sustain the crime involving moral turpitude
charge. See Decision of the Immigration Judge (issued Oct. 30, 2013) [hereinafter "IJ Order"].

On Febmary 26, 2016, Respondent filed a motion requesting the Court reconsider its
October 30, 2013 decision on the motions to terminate. See Respondent's Motion to Reconsider
Motion to Terminate (filed Feb. 26, 2016) [hereinafter "Mot. Recon.'"]. For the following
reasons,Court sua sponte reconsiders its prior decision and terminates the instant proceedings.

IL Motion to Reconsider

An Immigration Judge may reconsider any case in which he has made a decision, unless
jurisdiction is vested with the Board. 8 C.F.R. 1003.23(b)(l) ("An Immigration Judge may
upon his or her motion at any time ... reconsider any case in which he or she has made a
decision, unless jurisdiction is vested with the Board of Immigration Appeals."). "A motion to
reconsider is a 'request that the [Court] reexamine its decision in light of additional legal
arguments, a change in law, or perhaps an argument or aspect of the case which was
overlooked."' Matter of Ramos, 23 I&N Dec. 336,338 (BIA 2002) (quoting Matter of Cerna, 20
l&N Dec. 399, 402 n.2 (BIA 1991)). Respondent asserts changes in controlling case law which
directly affect the determinative issue in the instant matter, and thus, the Court elects to sua
sponte reconsider its prior decision. See 8 C.F.R. 1003.23(b)(l).

In 2013, this Court found that Respondenf s 1994 conviction for voluntary manslaughter
in violation of CPC l 92(a) constituted a crime of violence aggravated felony, and thus
sustained the INA 237(a)(2)(A)(iii) removability charge. See IJ Order at 3-4. Specifically, the
Court found the conviction met the definition of a crime of violence in 18 U.S.C. 16(b). Jd.
However, in 2015, the Ninth Circuit held that voluntary manslaughter under CPC I 92(a) is not,
and has never been, a crime of violence aggravated felony, and struck down the definition of a
crime of violence in 18 U.S.C. 16(b) as unconstitutionally vague. See Quijada-Aguilar v.
Lynch, 799 F.3d 1303, 1306-07 (9th Cir. 2015) (0Because a person may be convicted of

090-853-184 2

. .,.

voluntary manslaughter under California Penal Code l 92(a) for reckless conduct-conduct that
falls outside the definition of a crime of violence set forth in 1 8 U.S.C. 16-we conclude that
l 92(a) is not categorically a crime of violence."); Dimaya v. Lynch, 803 F.3d 1 110, 111 5 (9th
Cir. 2015) (citing Johnson v. U.S. , 135 S. Ct. 2551 (201 5)). Accordingly, the Court finds that
Respondent's 1994 conviction under CPC 192(a) is not a crime of violence aggravated felony.

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For the foregoing reasons, Respondent's motion to reconsider is granted, the sole remaining
removability charge is not sustained and the instant proceedings are terminated.

ORDER

IT IS HEREBY ORDERED that the motion to reconsider is GRANTED;

IT IS FURTHER ORDERED that the removability charge under INA 237(a)(2)(A)(iii) is


NOT SUSTAINED;

IT IS FURTHER ORDERED that the proceedings are TERMINATED.

1
Date 1 Paul A . DeFonzo
Immigration Judge

090-853- 1 84 3