U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 leesburg Pike, Suite 2000

Falls Church. Virg1ma 22041

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Reszko, Seth L OHS/ICE Office of Chief Counsel - LVG
Reza Athari & Associates 3373 Pepper Lane
3365 Pepper Lane, #102 Las Vegas, NV 89120
Las Vegas, NV 89120

Name: S -R ,J A 154

Date of this notice: 10/18/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Pauley, Roger
Greer, Anne J.
Wendtland, Linda S.

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Userteam: Docket

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Cite as: J-S-R-, AXXX XXX 154 (BIA Oct. 18, 2017)
 Depart'lle'1t of Justice
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U.S. Decision of the Board of Immigration Appeals

Executive Otfice for Immigration Review

Falls Church, Virginia 22041

File: 154 Las Vegas, NV Date:

OCT 18 2017
-

In re: J S -R

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IN REMOVAL P ROCEEDINGS

APPEAL

ON BEHAL F OF RESPONDENT: Seth L. Reszko, Esquire

ON BEHALF OF DHS: An Mai Nguyen

Assistant Chief Counsel

APPLICATION: Cancellation of removal for non-permanent residents

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
May 6, 2015, decision finding him ineligible for cancellation of removal under section 240A(b)(1)
of the Immigration and Nationality Act, 8 U.S.C. 1229b(b)( l). The Department of Homeland
Security (DHS) opposes the appeal. The appeal will be sustained and the record will be remanded
to the Immigration Court for further proceedings consistent with this decision.

We review for clear error the findings of fact, including the determination of credibility, made
by the Immigration Judge. 8 C.F.R. l003.l(d)(3)(i). We review de novo all other issues,
including issues of law, judgment, and discretion. 8 C.F.R. l003.l(d)(3)(ii).

The Immigration Judge found that the respondent was removable for having entered without
having been admitted or paroled, and the respondent applied for cancellation of removal
(U at l; Exhs. l, 2). The Immigration Judge denied the application because he found that:
(1) the respondent had been convicted for battery domestic violence, in violation of section
200.485.l(a) of the Nevada Revised Statutes; (2) this conviction was not categorically a crime of
domestic violence under section 237(a)(2)(E)(i) of the Act; and (3) under the modified-categorical
approach, the conviction was a crime of domestic violence such that he was ineligible for
cancellation of removal under section 240A(b)(1)(C) of the Act (U at 2-3; Exh. 4). The respondent
challenges all of these findings.

First, we agree that the respondent has not met his burden of demonstrating that he was not
convicted of domestic battery for purposes of section l0 l(a)(48)(A) of the Act.
See 8 C.F.R. 1240.8(d). The respondent's conviction records show that he was subject to a
"Submittal," in which the state court prescribed certain conditions that he must satisfy in order for
his domestic battery case to be dismissed (Exh. 4). The records further indicate that, if the
respondent did not comply with these conditions, he would automatically be found guilty and
sentenced to 90 days in jail (Exh. 4). The respondent has not presented any evidence, such as an
affidavit from his public defender or a copy of the regulation outlining the "Submittal" procedure,
to support his contention that he did not in fact admit sufficient facts to warrant this finding of
guilt. Accordingly, the Immigration Judge did not clearly err in his conclusion that the respondent

Cite as: J-S-R-, AXXX XXX 154 (BIA Oct. 18, 2017)
A J54
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"admitted certain facts necessary for a finding of guilt," such that he was convicted for purposes
of the Act (U at 3). See section 10l(a)(48)(A)(i) of the Act.

Second, we agree that the respondent's conviction is not categorically for a crime of domestic
violence as defined in section 237(a)(2)(E)(i) of the Act. The Immigration Judge found that the
respondent had been convicted under section 200.485.l(a) of the Nevada Revised Statutes, and

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that such a conviction is described under sections 200.485, 200.481, and 33.018 (U at 2).

The respondent's statutes of conviction state, as relevant:

[A] person convicted of a battery which constitutes domestic violence pursuant to

[NEV. REV. STAT.) 33.018

NEV. REV. STAT. 200.485.

Domestic violence occurs when a person commits one of the following acts against
or upon the person's spouse or former spouse, any other person to whom the person
is related by blood or marriage, any other person with whom the person is or was
actually residing, any other person with whom the person has had or is having a
dating relationship, any other person with whom the person has a child in common,
the minor child of any of those persons, the person's minor child or any other person
who has been appointed the custodian or legal guardian for the person's minor
child:

(a) A battery.

NEV. REV. STAT. 33.018.

"Battery" means any willful and unlawful use of force or violence upon the person
of another.

NEV. REV. STAT. 200.481.

The Nevada courts have held that a conviction under these statutes may be sustained without
proof of injury, as a battery is defined very broadly. See Hobbs v. State, 251 P.3d 177, 179
(Nev. 2011) (holding that the "force need not be violent or severe and need not cause bodily pain
or bodily harm" and concluding that spitting on a spouse constituted domestic battery);
see also United States v. Castleman, 134 S.Ct. 1405, 1419 n.5 (2014) (Scalia, J.) (concurring)
(observing that only 10 states had battery statutes that were worded such that "offensive touching
was indivisible from physical violence" and citing 200.481). Because a "battery" under section
200.485 of the Nevada Revised Statutes may be committed using nonviolent force, the
respondent's conviction under this statute does not categorically qualify as a crime of domestic
violence under section 237(a)(2)(E)(i) of the Act. See Matter o/Velasquez, 25 I&N Dec. 278, 283
(BIA 2010) (concluding that the "physical force" necessary to establish that an offense is a "crime
of domestic violence" for purposes of section 237(a)(2)(E)(i) of the Act must be ''violent" force,
that is, force capable of causing physical pain or injury to another person).

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Cite as: J-S-R-, AXXX XXX 154 (BIA Oct. 18, 2017)
 .154

Third, the respondent's statute is not divisible. A statute is divisible if the statute "list[s]
elements in the alternative, and thereby define[s] multiple crimes." Mathis v. United States,
136 S.Ct. 2243, 2249 (2016). An "element" is one of "the things the prosecution must prove to
sustain a conviction." Id. at 2248 (internal quotations and citation omitted). Here, the statute of
conviction is indivisible because a jury need not agree on whether a defendant's violation of
section 200.485 of the Nevada Revised Statutes involved violent force. See Rendon v. Holder,

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764 F.3d 1077, 1086 (9th Cir. 2014) (finding that a disjunctively worded statute is composed of
divisible elements only if a jury must unanimously agree the defendant committed a particular
substantive offense contained within the disjunctively worded statute). Thus, the
Immigration Judge's examination of the record of conviction to determine if violent force was
involved was improper. Id.

Because the respondent's statute of conviction, section Nev. Rev. Stat. 200.485, is overbroad
and indivisible relative to the generic definition of a crime of domestic violence under section
237(a)(2)(E)(i) of the Act, the Immigration Judge erred in holding the respondent's cancellation
of removal application barred under section 240A(b)(l)(C) of the Act. Accordingly, the record
will be remanded to the Immigration Court to consider whether the respondent has demonstrated
eligibility on the other elements of the application, and whether he merits relief as a matter of
discretion. Section 240A(b)(l) of the Act.

ORDER: The appeal is sustained.

FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings
consistent with this decision.

FOR THE BOARD <

Cite as: J-S-R-, AXXX XXX 154 (BIA Oct. 18, 2017)
\

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LAS VEGAS, NEVADA

FILE: 154 )

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)
IN THE MATIER OF ) IN REMOVAL PROCEEDINGS
)
J S - , Respondent )
)

CHARGE: 212(a)(6)(A)(i) of the Immigration and Nationality Act (the Act)--Alien

present in the United States without having been admitted or paroled

APPLICATIONS: Cancellation of Removal for non-permanent residents; Voluntary Departure

ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE OHS:

Maya Timis, Esquire An Mai Nguyen

Assistant Chief Counsel

WRITTEN DECISION OF THE IMMIGRATION JUDGE

The respondent is a 42-year-old married male who is a native and citizen of Mexico. The
Department of Homeland Security ("OHS") issued a charging document, the Notice to Appear
(NTA) dated December 23, 2011, charging the respondent with inadmissibility pursuant to section
212(a)(6)(A)(i) of the Immigration and Nationality Act ("the Act"). The OHS alleged in the NTA
that the respondent is an alien who is present in the United States without having been admitted or
paroled. A copy of the NTA is included in the Record of Proceedings as Exhibit 1.

The NTA was filed with the Immigration Court in Las Vegas on December 28, 2011. The
respondent through counsel admitted all factual allegations in the NTA, and he conceded that he is
subject to removal as charged in the NTA. The Court finds that the respondent's inadmissibility
has been established pursuant to section 240(c)(2) of the Act. The respondent designated Mexico
as the country for removal.
 STATUTORY ELIGIBILITY FOR CANCELLATION OF REMOVAL

The respondent's Form EOIR-42B, application for cancellation of removal, was filed with
the Court on February 8, 2013. See Exhibit 2. A hearing on the merits of the application was
conducted on April 16, 2015. Following the hearing, the proceedings were adjourned to provide
the respondent with the opportunity to submit the criminal complaint relating to the battery

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domestic violence offense that he committed on June 16, 2013. See Exhibit 4.

The respondent bears the burden of establishing statutory eligibility for cancellation of
removal, to include that he has not been convicted of a domestic violence offense described in
section 237(a)(2)(E)(i) of the Act. See sections 240(c)(4)(A) and 240A(b)(l)(C) of the Act. In
Matter of Cortez, 25 I&N Dec. 301 (BIA 2010), the Board reiterated and clarified that an alien
convicted of a domestic violence offense described in section 237( a)(2)(E)(i) of the Act is
statutorily precluded from receiving cancellation of removal for certain nonpermanent residents
under section 240A(b)(l)(C) of the Act, regardless of whether the domestic violence offense fits
within the "petty offense" exception. See id. at 308-09 n.5; see also Vasquez-Hernandez v.
Holder, 590 F.3d 1053 (9th Cir. 2010); Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649 (9th Cir.
2004).

The record reflects that the respondent received a deferred adjudication, on June 19, 2013,
in the Justice Court for Las Vegas Township. The Register of Actions reflects that the
respondent was charged with domestic battery in violation of Nevada Revised Statutes (N.R.S.)
200.485. l(a)..i. Under Nevada law, the offense of battery domestic violence is generally
described under N.R.S. 200.481, 200.485, and 33.018. In Hobbs v. State, 251P.3d 177, 182
(Nev. 2011), the Nevada Supreme Court held that under N.R.S. 200.481, "battery is the
intentional and unwanted exertion of force upon another, however slight."

The respondent has not met his burden to prove that his June 2013 offense should not be
considered as a conviction for "domestic violence" as described in section 237(a)(2)(E)(i) of the
Act. Specifically, the respondent has not established that the offense did not involve the use of
force "capable of causing physical pain or injury to another person." Matter of Velasquez, 25 I&N
Dec. 278, 283 (BIA 2010).

I The record reflects that the respondent had a previous battery domestic violence offense in December 2000, for
which he also received a deferred adjudication. See Exhibit 3, at 116-18. The criminal complaint underlying this
offense is apparently no longer available.

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 Moreover, although the respondent received a deferred adjudication for this offense, the
Immigration Court finds that the respondent's offense nonetheless constitutes a"conviction"
within the meaning of section 10l(a)(48)(A) of the Act. The minutes from the Justice Court for
this criminal proceeding describe the respondent's plea as a"Submittal." See Exhibit 4.
However, the respondent does appear to have"admitted sufficient facts to warrant a finding of
guilt" [Section 10l(a)(48)(A)(i) of the Act], because the Justice Court minutes provide that if the

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respondent fails to comply with the conditions of his deferred adjudication, he would"be found
Guilty and Sentenced to 90 days jail." Exhibit 4. The offense also qualifies as a"conviction"
because the Justice Court placed a restraint on the respondent's liberty (domestic violence
counseling and community service). See Section 10l(a)(48)(A)(ii) of the Act.

The Immifation Court has also considered the Ninth Circuit's decision in Retuta v. Holder,
591 F.3d 1181 (9 Cir. 2010), in reaching the conclusion that the respondent's offense is a
"conviction" within the meaning of the Act. In Retum, the Ninth Circuit held that the petitioner's
offense did not constitute a conviction for a controlled substance offense, where the only form of
punishment imposed was a fine, which was stayed by the sentencing criminal court. Here, by
contrast, the respondent was ordered to attend 6 months of domestic violence counseling, perform
48 hours of community service, and pay court costs of $345. See Exhibit 4. These restraints on
the respondent's liberty were factors not present in the Retuta case. The Immigration Court
therefore concludes that the respondent has been"convicted" of a battery domestic violence
offense, notwithstanding that the deferred adjudication procedure included conditions that
resulted in the dismissal of the criminal charge against him, on January 24, 2014.

The Immigration Court has further applied a modified categorical approach to the
respondent's battery domestic violence offense. In Descamps v. U.S.,_ U.S._, 133 S.Ct. 2276
(2013), the Supreme Court held that lower courts may not employ the modified categorical
approach when the crime has a single, indivisible set of elements. The Supreme Court also stated
in Descamps as follows: "When a state law is drafted in the alternative, the court merely resorts to
the approved documents [indictment, jury instructions, plea colloquy, and plea agreement] and
compares the elements revealed there to those of the generic offense." Id. at 2285 n.2. Here, the
Immigration Court finds that the Nevada domestic violence statute is a divisible one, because
N.R.S. 200.481 includes the elements of unlawful use of"force or violence" [emphasis added].
Moreover, to conclude that the statute is not divisible impresses the Immigration Court as being
contrary to Congressional intent. That is, the Hobbs case stands for the proposition that persons
who have engaged in only offensive touching may be found guilty of battery domestic violence
under Nevada law. However, the result of the legal conclusion that the statute is not divisible
would be that no person convicted under N.R.S. 200.481 would be barred from receiving
cancellation of removal, and applicants who did use violent force would thereby escape the
statutory preclusion for persons who have committed domestic violence offenses as described in
section 237(a)(2)(E)(i) of the Act.

The criminal complaint which charged the respondent with battery constituting domestic
violence plainly reveals that in the commission of the offense, he used force capable of causing pain
or injury to the victim. Specifically, the charge was that he had pushed, punched, and/or kicked the
victim. The use of such force in the commission of the offense satisfies the federal standard for a

3
"

"crime of domestic violence." Matter ofVelasquez, supra. The respondent is statutorily

precluded from receiving cancellation of removal for certain nonpermanent residents under
section 240A(b)(l)(C) of the Act, resulting from his conviction for a domestic violence offense
under section 237(a)(2)(E)(i) of the Act, and his application will be pretermitted on this basis.

The respondent does appear statutory eligible for post-conclusion voluntary departure under

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section 240B(b) ofthe Act, and the Court will approve the respondent's application for this minimal
form of relief in the exercise of discretion, subject to his posting the $500 bond. Based on the
foregoing, the Court will enter the following orders.

ORDERS

IT IS HEREBY ORDERED that the respondent's application for cancellation ofremoval be

DENIED.

IT IS FURTHER ORDERED that the respondent be granted voluntary departure under

safeguards, in lieu of removal, and without expense to the United States Government, on or before
July 6, 2015.

IT IS FURTHER ORDERED that the respondent shall post a voluntary departure bond in
the amount of$500.00 with the DHS on or before May 13, 2015 (or within five business days from
receipt of this order).

IT IS FURTHER ORDERED that, ifrequired by the DHS, the respondent shall present to
the DHS all necessary travel documents for voluntary departure within 60 days.

IT IS FURTHER ORDERED that, ifthe respondent fails to comply with any of the above
orders, the voluntary departure order shall without further notice or proceedings vacate the next
day, and the respondent shall be removed from the United States to Mexico on the charge contained
in the NTA.

APPEAL RIGHTS: Both parties have the right to appeal the decision in this case. Any appeal is
due at the Board of Immigration Appeals on or before 30 calendar days from the date of service of

this decision.

J-
DATE:
Ad fo, )o15 Jeffrey L. Romig
Immigration Judge