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Immigrant & Refugee Appellate Center, LLC | www.irac.net U.S. Department of Justice Executive Office for Immigration

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

Hurtado, Peter Peter Hurtado Attorney at Law 119 1st Avenue South Suite 450 Seattle, WA 98104

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Law 119 1st Avenue South Suite 450 Seattle, WA 98104 Name: O -R , J S

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1st Avenue South Suite 450 Seattle, WA 98104 Name: O -R , J S ••. 5107

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Avenue South Suite 450 Seattle, WA 98104 Name: O -R , J S ••. 5107 Leesburg

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5107 Leesburg Pike, Suite 2000 Falls Church, Virgm1a 22041

OHS/ICE Office of Chief Counsel - SEA 1000 Second Avenue, Suite 2900 Seattle, WA 98104

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- SEA 1000 Second Avenue, Suite 2900 Seattle, WA 98104 A 814 Date of this notice:

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Date of this notice: 10/25/2017

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

Sincerely,

decision and order in the above-referenced case. Sincerely, Enclosure Panel Members: Guendelsberger, John Donna Carr

Enclosure

Panel Members:

Guendelsberger, John

Donna Carr

Chief Clerk

Userteam: Docket
Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index

Cite as: J-S-O-R-, AXXX XXX 814 (BIA Oct. 25, 2017)

more unpublished BIA decisions, visit www.irac.net/unpublished/index Cite as: J-S-O-R-, AXXX XXX 814 (BIA Oct. 25, 2017)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

tJ.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:

In re:

Decision of the Board of Immigration Appeals File: In re: 814 - Seattle, WA J S

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of Immigration Appeals File: In re: 814 - Seattle, WA J S O -R IN REMOVAL

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of Immigration Appeals File: In re: 814 - Seattle, WA J S O -R IN REMOVAL

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Immigration Appeals File: In re: 814 - Seattle, WA J S O -R IN REMOVAL PROCEEDINGS

IN REMOVAL PROCEEDINGS

Date:

APPEAL

ON BEHALF OF RESPONDENT:

Peter Hurtado, Esquire

OCT 2 5 2017

APPLICATION:

Cancellation of removal under section 240A(b) of the Act

: Cancellation of removal under section 240A(b) of the Act T h i s c a

This case is before the Board pursuant to a July 29, 2015, order of the United States Court of Appeals for the Ninth Circuit, which granted the Government's unopposed motion to remand. The appeal will be sustained in part, and we will remand the record to the Immigration Judge.

This matter was last before the Board on August 18, 2014, when we dismissed the respondent's appeal from the Immigration Judge's decision, dated February 7, 2013, denying the respondent's application for cancellation of removal under section 240A(b)(1) of the Immigration and Nationality Act, 8 U.S.C.§ 1229b(b)( l ). In our decision, we agreed with the Immigration Judge's determination that the respondent had not established that his removal would result in exceptional and extremely unusual hardship to a qualifying relative. 1

The Immigration Judge found that the respondent's conviction under Wash. Rev. Code § 9.41.270 is a firearms conviction under section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C), which rendered him statutorily ineligible for cancellation pursuant to section 240A(b)( l )(C) of the Act (IJ at 3-4). However, substantial intervening caselaw issued since the Immigration Judge's decision warrants reconsideration of this issue. See Mathis v. United States, 136 S. Ct. 2243 (2016); Descamps v. United States, 133 S. Ct. 2276 (2013); Matter ofChairez­ Castrejon, 26 l&N Dec. 819 (BIA 2016).

At all relevant times, Wash. Rev. Code§ 9.41.270 has provided as follows, in pertinent part:

(1) It shall be unlawful for any person to carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circwnstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.

1 We declined to address whether the respondent's criminal record prevents him from establishing his eligibility for cancellation of removal.

Cite as: J-S-O-R-, AXXX XXX 814 (BIA Oct. 25, 2017)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net 814 Wash. Rev. Code§ 9.41.270 is "categorically

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Wash. Rev. Code§ 9.41.270 is "categorically overbroad" relative to the definition of "certain fireann offenses" under section 237(A)(2)(C) of the Act. Because the state statute of conviction includes conduct not covered by section 237(A)(2)(C) of the Act, which covers only misconduct

involving fireanns as defined in 18 U.S.C.§ 921, we consider whether the statute is divisible. See

United States v. Arriaga-Pinon,

852 F.3d 1195, 1198-99 (9th Cir. 2017).

In Descamps, the Supreme Court explained that a criminal statute is divisible only if it (1) 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 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. See Descamps, 133 S. Ct. at 2281, 2283.

generic standard. See Descamps, 133 S. Ct. at 2281, 2283. Mathis reaffirms Descamps while clarifying an

Mathis reaffirms Descamps while clarifying an important point: disjunctive statutory language does not render a criminal statute divisible unless each statutory alternative defmes an independent "element" of the offense, as opposed to a mere "brute fact" describing various means or methods by which the offense can be committed. Mathis, 136 S. Ct. at 2248.5. The Mathis Court explained they need neither be found by a jury nor admitted by a defendant. Elements are ''those circumstances on which the jury must unanimously agree." United Statesv. Vega-Ortiz, 822 F.3d 1031, 1035 (9th Cir. 2016). Here, the pertinent statute describes various means by which the offense can be committed.

In addition, Washington's pattern jury instructions for criminal cases (WPIC) also demonstrate that Wash. Rev. Code § 9.41.270 lists alternative "means." l l A WPIC is entitled "Unlawful Display of a Weapon-Elements" and states, in relevant part: "(l) That on or about (date), the defendant [carried] [exhibited] [displayed] [or] [drew] a [fireann] [dagger] [sword] [knife] [cutting or stabbing instrument] [club] [or] [any [other] weapon apparently capable of producing bodily hann]." Thus, as the statute lists alternative means, the statute is not divisible. Only when a state statute is both overbroad and divisible do we employ the modified categorical approach. See Marinelarena v. Sessions, 14-72003, 2017 WL 3611589, at 3 (9th Cir. Aug. 23, 2017).

2017 WL 3611589, at 3 (9th Cir. Aug. 23, 2017). Consequently, as the Immigration Judge and

Consequently, as the Immigration Judge and this Board are not permitted to employ the modified categorical approach, the respondent's conviction does not render him statutorily ineligible under section 237(A)(2)(C) of the Act.2 See U.S. v. Ochoa, 861 F.3d 1010 (9th Cir. 2017) (federal statute that illegal reentry defendant was previously convicted of having conspired

2 While the Immigration Judge found the respondent had not met his burden to show eligibility for relief, citing Youngv. Holder, 697 F.3d 976, 990 (9th Cir. 2012) (en bane), that Court held that a "petitioner cannot carry the burden of demonstrating eligibility for cancellation of removal by establishing an inconclusive record of conviction." Here, however, while the respondent admitted at his immigration hearing that his offense involved a fireann (U at 3; Tr. at 15-17), Moncrieffe acknowledged that its analysis for determining whether a particular crime of conviction is categorically a crime involving moral turpitude "is the same in both" the removal and cancellation contexts and Moncrieffe therefore cannot be read to inform the relevant dispute in Young, which pertained only to the operation of the burden of proof when the modified categorical approach applies. See Marinelarenav. Sessions, 14-72003, 2017 WL 3611589, at 6 (9th Cir. Aug. 23, 2017).

2

Cite as: J-S-O-R-, AXXX XXX 814 (BIA Oct. 25, 2017)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net 814 t o violate, merely provided alternative means
Immigrant & Refugee Appellate Center, LLC | www.irac.net 814 t o violate, merely provided alternative means

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& Refugee Appellate Center, LLC | www.irac.net 814 t o violate, merely provided alternative means of

to violate, merely provided alternative means of committing single crime; thus, court could not employ "modified categorical" approach in deciding whether alien's conviction qualified as predicate offense).

Because the respondent is not statutorily ineligible for cancellation due to his conviction under Wash. Rev. Code§ 9.41.270 and the statutory cap had been met for the fiscal year in which the Immigration Judge adjudicated the respondent's application, the Immigration Judge is required to reserve his decision until such time as a grant becomes available under the annual limitation in a subsequent fiscal year (Tr. at 46). See 8 C.F.R§ 1240.21 (c)(l).

We will therefore vacate the Immigration Judge's decision finding the respondent ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act due to his conviction under Wash. Rev. Code§ 9.41.270 and will remand the record for further proceedings. In so remanding, we intimate no opinion regarding the respondent's ultimate eligibility for relief.

Accordingly, the following orders will be entered.

ORDER: The appeal is sustained in part.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

"1
"1

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the foregoing opinion and for the entry of a new decision. "1 3 Cite as: J-S-O-R-,

Cite as: J-S-O-R-, AXXX XXX 814 (BIA Oct. 25, 2017)