U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk

5J07 leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Palmer, Camila Sosman OHS/ICE Office of Chief Counsel - AUR
Elkind Alterman Harston PC 12445 East Caley Avenue
1600 Stout Street Centennial, CO 80111-5663
Suite 700
Denver, CO 80202

Name: DELGADILLO ARMAS, JOSE DE... A 092-411-542

Date of this notice: 4/27/2017

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For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A092 411 542 - Aurora, CO Date:

APR 2 7 2017
In re: JOSE DE JESUS DELGADILLO ARMAS

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IN REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Camila S. Palmer, Esquire

ON BEHALF OF DHS: Nathan L. Herbert

Assistant Chief Counsel

CHARGE:

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

Convicted of two or more crimes involving moral turpitude

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

APPLICATION: Termination of proceedings

The Department of Homeland Security (DHS) appeals from the Immigration Judge's
decision dated March 3, 2014, which found that the respondent was not removable as charged
and terminated proceedings. The parties have provided arguments on appeal. The appeal will be
dismissed, and the record will be remanded.

We review Immigration Judges' findings of fact for clear error, but we review questions of
law, discretion, and judgment, and all other issues in appeals de novo. 8 C.F.R.
1003.1(d)(3)(i), (ii).

The record shows that the respondent, a native and citizen of Mexico, became a lawful
permanent resident of the United States on February 1, 1988 (Exh. 3 at 5). On April 22, 1991,
the respondent was convicted in California State court of residential burglary under Cal. Pen.
Code 459, for which he was sentenced to 2 years in prison (Exh. 2 at 11). On December 14,
2009, the respondent was convicted in Colorado State court of burglary 2, building, for which he
was sentenced to 3 years of probation (Exh. 2 at 1). The DHS personally served the respondent
with a Notice to Appear on January 9, 2014, charging him as removable under section
237(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(ii) (convicted
of two or more crimes involving moral turpitude) (Exh. 1). The OHS subsequently lodged an
additional charge of removability under section 237(a)(2)(A)(i) of the Act (convicted of crime
involving moral turpitude within 5 years after admission) (Exh. 5). The respondent filed a
motion to terminate proceeding, which the DHS opposed. The Immigration Judge found that the
respondent was not removable under either charge, concluding that the respondent's
A092 411 542

1991 California conviction was not for a cnme involving moral turpitude, and terminated
removal proceedings (I.J. at 2-3).

On appeal, the DHS argues that the Immigration Judge did not engage in a complete analysis
of the conviction under Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008). DHS's Brief at
5-6. However, that decision was subsequently vacated pursuant to Matter of Silva-Trevino,

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26 I&N Dec. 550 (A.G. 2015). Thereafter, we issued a new decision for evaluating whether a
conviction is for a crime involving moral turpitude in Matter ofSilva-Trevino, 26 l&N Dec. 826
(BIA 2016).

In determining whether a conviction is for a crime involving moral turpitude, we compare the
elements of the offense to the elements of the generic crime involving moral turpitude to
determine if there is a categorical match. Flores-Molina v. Sessions, _ F.3d _, 2017 WL
894436 *4 (10th Cir. Mar. 7, 2017); Matter of Silva-Trevino, 26 I&N Dec. at 831. Generally,
"moral turpitude" refers to offenses involving fraud or deception and conduct that is inherently
vile, base, or depraved and violates accepted moral standards. Id. at * 5. An offense is broader
than the generic crime if there is a "realistic probability" that the statute would be applied to acts
not covered by the generic crime. Rodriguez-Heredia v. Holder, 639 F.3d 1264, 1267 (10th Cir.
2011). See Matter ofSilva-Trevino, supra, at 832 (stating that the "realistic probability" test will
be applied in deciding whether a conviction is for a crime involving moral turpitude unless
controlling circuit law expressly dictates otherwise).

If the statute of conviction includes some crimes that involve moral turpitude and some that
do not, we must determine if the statute is divisible. Matter of Silva-Trevino, supra, at 833. A
statute is divisible 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 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. Matter of Chairez, 26 I&N Dec. 819, 822 (BIA 2016), citing Descamps v. United
States, 133 S. Ct. 2276, 2281, 2283 (2013).

The statute of conviction at issue, Cal. Pen. Code 459, has three elements: (1) entry (2) into
any building, certain vehicles and vessels, or other listed structures or containers, (3) with the
intent to commit larceny or any felony. Hernandez-Cruz v. Holder, 651 F.3d 1094, 1101 (9th
Cir. 2011), and the cases cited therein. Thus, according to the record of conviction, the
respondent was convicted of the portion of the statute that criminalizes (1) entering (2) a
residence (3) with the intent to commit larceny or any felony.

Assuming, without deciding, that the generic crime of burglary is a crime involving moral
turpitude, burglary under Cal. Pen. Code 459 is broader than generic burglary, which requires
an unlawful entry, such as breaking and entering or similar conduct. Mathis v. United States,
136 S. Ct. 2243, 2248 (2016); Descamps, supra, at 2282. But see U.S. v. Maldonado, 696 F.3d
1095, 1102-04 (10th Cir. 2012) (finding that first degree burglary under Cal. Pen. Code 459
and 460 is "roughly similar" to the crime of generic burglary). In addition, as the United States
Court of Appeals for the Ninth Circuit found in addressing Cal. Pen. Code 459, there were
established crimes involving moral turpitude that were not a categorical match under

2
A092 411 542

circumstances similar to the respondent's case. Hernandez-Cruz, supra, at 1107-09 (discussing

unlawful entry to a residence with intent to commit theft or larceny, a completed generic theft
offense, fraudulent conduct, and conduct that is per se morally reprehensible).

Because a conviction for burglary under Cal. Pen. Code 459 is not categorically for a crime
involving moral turpitude, we may proceed to apply the modified categorical approach only if

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the statute is divisible. Mathis, supra, at 2249. The United States Supreme Court previously
determined that Cal. Pen. Code 459 is not divisible. Descamps, supra, at 2285, 2295 (J. Alito,
dissenting). Thus, the modified categorical approach is not applied to determine whether the
respondent was convicted of a crime involving moral turpitude.

In conclusion, under the current analytical framework, the respondent's 1991 conviction
under Cal. Pen. Code 459 is not for a crime involving moral turpitude. Therefore, neither the
original charge nor the lodged charge can be sustained (Exhs. 1, 5).

However, while the appeal was pending, the DHS filed a Motion to Accept Form 1-261, in
which the DHS seeks to lodge new allegations and charges against the respondent. The
respondent opposes the motion. The DHS may lodge additional charges at any time during
proceedings, limited only by the existence of a final administrative order. 8 C.F.R. 1003.30,
1003.39. The DHS's appeal of the Immigration Judge's decision preserves the ability to lodge
additional charges in these proceedings. The record will be remanded for the Immigration Judge
to consider whether the respondent is removable based on the newly-lodged allegations and
charges. Accordingly, the following orders will be entered.

ORDER: The DHS's appeal is dismissed.

FURTHER ORDER: The record is remanded to the Immigration Judge for further

uRB
proceedings consistent with the foregoing opinion.

3
 /

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DENVER, COLORADO

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File: A092-411-542 March 3, 2014

In the Matter of

)
JOSE DE JESUS DELGADILLO ARMAS ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGES:

APPLICATIONS:

ON BEHALF OF RESPONDENT: CAMILA PALMER

ON BEHALF OF OHS: NATHAN HERBERT

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is 43-years-old. He is a native and citizen of Mexico who was
adjusted to permanent residency on February 1, 1988. He was placed in removal
proceedings because of two convictions, they are burglary to a building in Jefferson
County District Court, Colorado on February 22, 2010, and residential burglary in the
superior court, Los Angeles County, California on June 11, 1991. The original charges
that the Government submitted is the respondent was convicted of two crimes involving
moral turpitude.
The Government then lodged Exhibit 5, stating that on June 11, 1991, the

1
sentence for the California case was two years and also that the respondent had been

convicted of a crime involving moral turpitude committed within five years after

admission for which a sentence of one year or more may be imposed.

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So the Government's case is based on crime involving moral turpitude and I have

considered the briefs and the documents submitted from both sides.

I will begin with the California conviction. The respondent was found guilty of

count one and that is on page 13 of Exhibit 3. Count one says that on October 16,

1990, the respondent did willfully and unlawfully enter an inhabited dwelling house and

trailer coach, an inhabited portion of a building occupied by the victim with the intent to

commit larceny and any felony.

However, that charge contains surplus language that does not appear to be in

the criminal code that was used in this case and the Government has submitted a copy

of the criminal code that was in effect at that time and the parties seem to agree that the

criminal code did not require an unlawful entry into the property.

The criminal code states that every person who enters any house, room,

apartment, tenement, shop, warehouse, etcetera, with intent to commit grand theft or

petty larceny is guilty of burglary. So it is obvious that when the respondent was

charged surplus language was put in there as to an unlawful entry.

Under the categorical approach and modified categorical approach the statute

must be examined on its four corners. I believe any surplus language in the charge

cannot be considered because it is not part of the statute. Under the scheme set forth

in matter of Silva-Trevino, 24 l&N Dec. 687 (Attorney General 2008), one must first look

to the statute under the categorical inquiry and determine whether there is a realistic

probability that the statute will sometimes reach conduct involving moral turpitude. If the

statute always does or never does then the inquiry ends. But if it does not resolve the

A092-411-542 2 March 3, 2014

question then one must go to the modified categorical approach.

I find that on the face of the statute, since it does not involve an unlawful entry,

the respondent is not deportable as charged. Whether the second crime is a crime

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involving moral turpitude is moot since the Government is trying to prove either one

crime within the period specified or two crimes involving moral turpitude at any time.

find that the conviction for entering a dwelling where there is no unlawful entry is not a

crime involving moral turpitude.

Accordingly, I find the charge is not sustained and it is ordered that these

proceedings be terminated.

J.P. VANDELLO
Immigration Judge

A092-411-542 3 March 3, 2014

 CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE J. P. VANDELLO, in

the matter of:

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JOSE DE JESUS DELGADILLO ARMAS

A092-411-542

DENVER, COLORADO

was held as herein appears, and that this is the original transcript thereof for the file of

the Executive Office for Immigration Review.

LINDA DOCK (Transcriber)

FREE STATE REPORTING, lnc.-2

APRIL 7, 2014
(Completion Date )