U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 leesburg Pike, Suite 2000

Falls Church. Virginia 22041

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

Shipley, Marietta OHS/ICE Office of Chief Counsel - MEM
The Mediation Group of Tennessee 80 Monroe Ave., Ste 502
2809 Wimbledon Dr. Memphis, TN 38102
NASHVILLE, TN 37215

Name: R -C ,I D A 214

Date of this notice: 10/27/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

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

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: I-D-R-C-, AXXX XXX 214 (BIA Oct. 27, 2017)
' U.S:Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

falls Church, Virginia 2204 l

File: 214 - Memphis, TN Date:

OCT 2 7 2017
In re: I D R -C

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

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Marietta M. Shipley, Esquire

APPLICATION: Cancellation of removal

The respondent, a native and citizen of Mexico, appeals the Immigration Judge's
September 22, 2014, decision denying his application for cancellation of removal under section
240A(b)(l) of the Immigration and Nationality Act, 8 U.S.C. 1229b(b)(l). The appeal will be
sustained and the record remanded. The respondent's request for oral argument is denied.

We review for clear error the findings of fact, including any determination of credibility, made
by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003.l(d)(3)(ii).

The respondent concedes removability by virtue of his unlawful presence in the United States
(Tr. at 2; Exh. 1). He challenges only the Immigration Judge's determination that he is statutorily
ineligible for cancellation of removal because his 2013 domestic assault conviction under
Tenn. Code Ann. 39-13-111 is for a crime involving moral turpitude ("CIMT'') under section
212(a)(2)(A)(i)(I) of the Act, 8 U.S.C. l 182(a)(2)(A)(i)(I). See section 240A(b)(l)(C) of the
Act.

The phrase "crime involving moral turpitude" describes a class of offenses involving
reprehensible conduct committed with a culpable mental state. See Matter of Silva-Trevino
("Silva-Trevino Ill'), 26 l&N Dec. 826, 834 (BIA 2016). Conduct is "reprehensible" in the
pertinent sense if it is "inherently base, vile, or ,depraved, and contrary to the accepted rules of
morality and the duties owed between persons or to society in general." Id. at 833 (citation
omitted). To determine whether the respondent's offense is a CIMT, we employ the "categorical
approach," which requires a focus on the minim.um conduct that has a realistic probability of being
prosecuted under the statute of conviction, rather than on the actual conduct which led to the
respondent's particular conviction. Id at 831-33.

This Board has held that some convictions for domestic violence offenses, such as willful
infliction of corporal injury on a spouse resulting in a traumatic condition, constitute convictions
for a CIMT. Matter of Tran, 21 l&N Dec. 291, 294 (BIA 1996). However, the fact that a battery
or assault crime is willfully committed upon a person whom society views as deserving of special
protection is not, in and of itself, sufficient to establish that the crime involves moral turpitude.
Matter of Sanudo, 23 I&N Dec. 968, 972-73 (BIA 2006). For example, we have held that a
Virginia state conviction for assault and battery against a family or household member, which does
Cite as: I-D-R-C-, AXXX XXX 214 (BIA Oct. 27, 2017)
 214

not require the actual infliction of physical injury, does not categorically constitute a CIMT
conviction. Matter ofSejas, 24 I&N Dec. 236, 236 (BIA 2007).

Tenn. Code Ann. 39-13-111 incorporates the definition of "assault" set forth in Tenn. Code
Ann. 39-13101 (Exhs. 3(S), 6(A)-(B)). Tenn. Code Ann. 39-13- lOl (a) provides that assault
occurs when a person:

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

(1) Intentionally, knowingly or recklessly causes bodily injury to another;
(2) Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or
(3) Intentionally or knowingly causes physical contact with another and a reasonable person
would regard the contact as extremely offensive or provocative.

In Matter ofSolon, this Board cited Tenn. Code Ann. 39-13-101 as an example of a state statute
that prohibits a wide range of conduct or harm that is not ordinarily considered to be inherently
vile, depraved, or morally reprehensible. Matter of Solon, 24 I&N Dec. 239, 241 (BIA 2007).
Indeed, subsections (2) and (3) prohibit conduct that is not morally turpitudinous under this
Board's caselaw. See Matter ofSanudo, 23 I&N Dec. at 972-73 (concluding that although victim
was a spouse, domestic battery was not a CIMT because the statute required only minimal contact
and no injury). See also State v. Smiley, 38 S.W.3d 521, 525 (Tenn. 2001) ("extremely offensive
or provocative" contact includes such acts as "kissing without one's consent, cutting one's hair
without consent, or spitting in one's face."); Smith v. Thornburg, 136 F.3d 1070, 1076
(6th Cir. 1998) (finding pulling victim by shirt or pants qualifies as "physical contact" under
subsection (a)(3) of the Tennessee statute).

Although subsection (1) presents a closer case, we conclude that it also prohibits conduct that
does not categorically define a CIMT. Tenn. Code Ann. 39-13-101(a)(l ). The minimum conduct
punished under Tenn. Code Ann. 39-13-lOl(a)(l )-recklessly causing physical pain to
another-does not define a CIMT. Matter of Fualaau, 21 I&N Dec. 475, 477-78 (BIA 1996)
(concluding that assault defined as recklessly causing bodily injury is not a CIMT and stating that
the reckless state of mind must be coupled with the infliction of serious bodily injury to constitute
a CIMT); see also Tenn. Code Ann. 39-11-106(a)(2) ("Bodily injury" includes "a cut, abrasion,
bruise, burn or disfigurement; physical pain or temporary illness or impairment of the function of
a bodily member, organ or mental faculty"); State v. Barnes, 954 S.W.2d 760, 766
(Tenn. Crim. App. 1997) (distinguishing between bodily injury and serious bodily injury). Indeed,
in Matter ofSejas, this Board held that a conviction for assault and battery against a family member
in Virginia did not constitute a CIMT, even where the statute required an intent to cause injury,
because the statute did not require the actual infliction of such injury. Matter of Sejas, 24 I&N
Dec. at 238. In sum, because an individual may commit an offense under Tenn. Code Ann.
39-13- lOl (a)( l ) without committing a CIMT, the statute is overbroad. Thus, the respondent's
conviction under that statute can only disqualify him from cancellation of removal if (1) the statute
is divisible vis-a-vis the CIMT concept, and (2) his conviction record is inconclusive or shows that
the elements of his particular offense of conviction involved moral turpitude.

Upon review of Tennessee law, we conclude that Tenn. Code Ann. 39-13-lOl (a)(l ) is
indivisible. In State v. Hammonds, 30 S.W.3d 294, 298 (Tenn. 2000), the Tennessee Supreme
Court concluded that it was not necessary for the indictment to specify the type of simple assault

2
Cite as: I-D-R-C-, AXXX XXX 214 (BIA Oct. 27, 2017)
 214

committed because the three ways to commit assault under 39-13-101 were merely different
"means" of fulfilling the second element of aggravated assault. Id. at 300. Under Tennessee law,
an indictment need not allege the specific theory or means by which the State intends to prove
each element of an offense. Id Therefore, this subsection-which punishes one who intentionally,
knowingly or recklessly causes bodily injury to another-is not divisible as it provides "mental
states [that] are interchangeable means of satisfying a single mens rea element."

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

Mathis v. United States, 136 S. Ct. 2243, 2253 n.3 (2016). As such, Tenn. Code Ann.
39-13-lOl(a)(l) does not define a CIMT because it is overbroad and indivisible}

Under these circumstances, we will vacate the Immigration Judge's decision finding the
respondent ineligible for cancellation of removal under section 240A(b)(l)(C) of the Act and
remand the record for further proceedings. Because we have decided the appeal on the preceding
basis, it is not necessary to address the applicant's remaining contentions on appeal. INS
v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating as a general rule, courts and agencies are not

required to make findings on issues the decision of which is unnecessary to the results they reach).
On remand, the parties should be permitted to introduce additional evidence pertinent to any
outstanding issues bearing on the respondent's claims, including voluntary departure and whether
the petty offense exception under section 212(a)(2)(A)(ii)(ll) of the Act applies to the respondent's
theft of property conviction (Exh. 3(HH)). We express no opinion at this time as to whether the
respondent is otherwise eligible for, or deserving of, cancellation of removal or any other form of
relief. Accordingly, the following order will be entered.

ORDER: The appeal is sustained, the Immigration Judge's decision is vacated, and the record
is remand for further proceedings consistent with the foregoing opinion.

FOR BOARD E

1As Tenn. Code Ann. 39-13-lOl(a) is overbroad and indivisible vis-a-vis the CIMT concept,
we have no occasion to consider the record of conviction under the modified categorical approach.

3
Cite as: I-D-R-C-, AXXX XXX 214 (BIA Oct. 27, 2017)
. '

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

MEl\-fPHIS, TENNESSEE

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

September 22, 2014

In The Matter Of ) In Removal Proceedings

I D R -C ) 214

ORDER PRETERMITTING APPLICATION

For Respondent: For DHS:

John S. Richbourg, Esq. Rook Moore, Esq.

Statement of the Case

Respondent, a native and citizen of Mexico, filed an application for cancellation of removal (Form 428),
at Exhibit 2, with supplemental documents at Exhibit 3. On June 9, 2014, a hearing was held on the
application in which Respondent testified. The Department moved to pretermit the application based on
Respondent's convictions. Through counsel, Respondent orally opposed pretermission. The Immigration
Judge ordered the submission of a written motion and response. The motion is at Exhibit 5, and the
Respondent's opposition to the motion to pretermit is at Exhibit 6, both exhibits sua sponte applied by the
Immigration Judge. For the reasons set forth below, the Immigration Judge GRANTS the motion for
pretermission.

Analysis

On August 4, 2011, Respondent was convicted upon his plea of guilty in the State of Tennessee, General
Sessions Court of the County of Davidson, of the offense of Assault, Domestic Bodily Injury, in violation
of Tennessee Code Annotated (TCA) 39-13-111. Exhibit 6A & B; Exhibit 3S. The issue before the
Court is whether this constitutes a crime of moral turpitude (CIMT) which would oust Respondent of
eligibility for cancellation of removal.

Respondent bears the burden of showing eligibility for cancellation of removal. Matter of
Almanza, 24 I&N Dec. 771 (BIA 2009). Thus, he must show that he has not been convicted of a CIMT;
issues concerning the Department's burden of demonstrating inadmissibility are irrelevant.

1
' .

The starting point for this analysis is found in Matter of Silva-Trevino, 24 l&N Dec. 687 (A.G.
2008), which is not cited by Respondent. The approach set out in Silva-Trevino has been generally
approved by the Sixth Circuit in Kellennann v. Holder, 592 F.3d 700, 704(6th Cir 2010).

Applying this analysis, the Immigration Judge is first to look at the statute of conviction under the
categorical inquiry and detennine whether there is a "realistic probability" that the State or Federal statute

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

under which the Respondent was convicted could be applied to reach conduct that does not involve moral
turpitude. If the categorical inquiry does not resolve the question, then the Immigration Judge is to
engage in a modified categorical inquiry and examine the record of conviction, including such documents
as the indictment or information, the judgment of conviction, jury instructions, a signed guilty plea and
the plea transcript. If the record of conviction is inconclusive, then the Immigration Judge is to consider
additional evidence which the Immigration Judge deems necessary or appropriate to accurately resolve
the moral turpitude question.

In this case, the record establishes that Respondent was convicted under TCA 39-13-111, which
is a divisible statute. That is to say, this section of the Tennessee Code reaches conduct that might or
might not be considered a CIMT. See Matter of Solon, 24 I&N Dec. 239, 241(BIA2007), in which the
Board noted that the Tennessee simple assault statute, TCA 39-13-101, does not categorically constitute
a CIMT. This section under which Respondent was convicted incorporates Tennessee's crime of assault,
TCA 39-13-101; simple assault is not generally considered a CIMT.

The Immigration Judge then looks to the documents constituting the conviction record. The
affidavit signed by a Metro Nashville Police Officer, states that Respondent's wife got in a car to go to a
convenience store to purchase beer. Respondent followed her, and she pulled over. He then approached
the driver's side car window and attempted to grab the keys from the ignition. When he was unable to do
so, he punched his wife with a closed fist, leaving a large bruise under her left eye and bloodying her
nose. The parties then returned home, and the officer found them and arrested Respondent.

The third step under Silva-Trevino is to consider other evidence, including testimony of the
parties. Respondent's version at the hearing was, not surprisingly, different. He testified that he did
follow his wife and reached inside her window to grab the keys. He testified that she accelerated to get
away, and Respondent hit her with his ann .

The Immigration Judge finds that the Conviction record establishes that Respondent was
convicted of a crime involving moral turpitude. While Respondent argues that the affidavit is non
reliable hearsay, it is part of the record of conviction. Matter of Louissaint 24 l&N Dec. 754, 757 (BIA
2009). The affidavit establishes that Respondent punched his wife with a closed fist, leaving her with a
bloody nose and a large bruise under her right eye. The Immigration Judge finds that this is intentional
conduct which is inherently reprehensible, the requirement for finding that an act constitutes a CIMT.

In Matter of Tran, 21 I&N Dec. 291(BIA 1996), The Board of Immigration Appeals held that
willful infliction of corporeal injury on a spouse can constitute a CIMT. Respondent attempts to
distinguish his case from Tran, citing Matter of Sanudo, 23 I&N Dec. 968(BIA2006). This attempt to
distinguish his case fails, because Respondent struck his wife, leaving her with a bloody nose and a large
bruise under her left eye. This action, and the injuries cause thereby, do not fall within the ambit of

2
 .

Sanudo's finding that the unprivileged touching of a spouse of cohabitant does not constitute a CIMT.
Respondent states the proposition correctly; it does not apply to his actions, however.

The Immigration Judge therefore grants the Department's motion to pretermit the application.
Under 8 C.F.R. 1240.21 ( c )(1), the Immigration Judge can enter an order pretermitting an application
for cancellation of removal for want of statutory eligibility. The effect is to deny the application, without

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

reference to the annual cap for cancellation of removal cases.

To the extent that Respondent is seeking voluntary dparture, that application is also denied.
Respondent's conviction renders him to be a person lacking good moral character in the five year period
preceding the application. INA 240B(b); lOl(f).

The Immigration Judge offers no opinion on the merits of Respondent's application for
cancellation of removal.

ORDER

In light of all the foregoing, the Immigration Judge enters this order:

The motion to pretermit is GRANTED;

Respondent's application for cancellation of removal is DENIED, for want of statutory eligibility;

Respondent's application for voluntary departure is DENIED;

Respondent is hereby ordered REMOVED to Mexico.

d
Entered this 22n day of September, 2014.

Io /z.->ft4t

Immigration Judge