Cite as 25 I&N Dec. 465 (BIA 2011) Interim Decision #3709
1 After conceding that he entered the United States on August 15, 1995, the respondent later
testified that he actually entered in 1987.
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Matter of Julio Cesar AHORTALEJO-GUZMAN, Respondent
Decided April 19, 2011
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Evidence outside of an alien’s record of conviction may properly be considered
in determining whether the alien has been convicted of a crime involving moral turpitude
only where the conviction record itself does not conclusively demonstrate whether the alien
was convicted of engaging in conduct that constitutes a crime involving moral turpitude.
Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), followed.
FOR RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: Lauren A. Henault, Assistant
Chief Counsel
BEFORE: Board Panel: COLE, PAULEY, and GREER, Board Members.
PAULEY, Board Member:
In a decision dated March 22, 2010, an Immigration Judge found the
respondent removable on his own admissions under section 212(a)(6)(A)(i)
of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2006),
as an alien who is present in the United States without being admitted
or paroled. The Immigration Judge also found that the respondent was
ineligible for cancellation of removal under section 240A(b) of the Act,
8 U.S.C. § 1229b(b) (2006), and denied him the privilege of voluntary
departure. The respondent has appealed from that decision. The appeal will
be sustained and the record will be remanded to the Immigration Judge.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico. He arrived in the
United States on or about August 15, 1995, without being admitted or paroled.1
On September 7, 1999, the respondent was convicted of assault in El Paso,
Texas, based on his guilty plea to the crime. Cite as 25 I&N Dec. 465 (BIA 2011) Interim Decision #3709
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On June 3, 2009, the Department of Homeland Security (“DHS”) filed
a Notice to Appear (Form I-862), charging the respondent with removability
based on his unlawful presence in the United States. At removal proceedings,
the respondent conceded that he is removable and applied for cancellation
of removal for nonpermanent residents. The Immigration Judge found that the
respondent’s assault offense involved domestic violence and was therefore
a crime involving moral turpitude. Consequently, the Immigration Judge
concluded that the respondent was ineligible for cancellation of removal
because his conviction was for an offense included in section 240A(b)(1)(C)
of the Act.
II. ISSUE
The issue on appeal is whether the Immigration Judge properly ruled that
the respondent’s assault conviction was for a crime involving moral turpitude.
The respondent argues that he was not convicted of assault involving family
violence but was, instead, convicted only of simple assault, which is not
a crime involving moral turpitude. The answer to this question requires
us to address an aspect of the Attorney General’s decision in Matter
of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).
III. ANALYSIS
Section 240A(b)(1)(C) of the Act provides that an alien may be eligible for
cancellation of removal if he or she “has not been convicted of an offense
under section 212(a)(2) [or] 237(a)(2).” A conviction for a crime involving
moral turpitude may be included in either section 212(a)(2)(A)(i)(I) or section
237(a)(2)(A)(i) of the Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2006).
The general parameters for determining whether an assault offense
is a crime involving moral turpitude are discussed in Pichardo v. INS, 104 F.3d
756, 759-60 (5th Cir. 1997), Matter of Sanudo, 23 I&N Dec. 968, 970-73 (BIA
2006), and Matter of Perez-Contreras, 20 I&N Dec. 615, 617-19 (BIA 1992).
Simple assault or battery is generally not considered to involve moral turpitude
for purposes of the immigration laws. See Matter of Fualaau, 21 I&N Dec.
475, 477 (BIA 1996); Matter of Short, 20 I&N Dec. 136, 139 (BIA 1989).
This general rule does not apply, however, where an assault or battery
necessarily involves some aggravating factor that indicates the perpetrator’s
moral depravity, such as the use of a deadly weapon or the infliction of serious
injury on a person whom society views as deserving of special protection,
such as children, domestic partners, or peace officers. See Garcia v. Att’y
Gen. of the U.S., 329 F.3d 1217, 1222 (11th Cir. 2003); Pichardo v. INS,
104 F.3d at 760; Grageda v. U.S. INS, 12 F.3d 919, 921-22 (9th Cir. 1993);Cite as 25 I&N Dec. 465 (BIA 2011) Interim Decision #3709
2 To date, the two circuits that have ruled on the Attorney General’s methodology
have reached conflicting conclusions. Compare Jean-Louis v. Att’y Gen. of the U.S.,
582 F.3d 462, 469-84 (3d Cir. 2009) (declining to give deference to Silva-Trevino),
with Mata-Guerrero v. Holder, 627 F.3d 256, 260-61 (7th Cir. 2010) (deferring
to the Attorney General’s methodology in Silva-Trevino).
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Matter of Sanudo, 23 I&N Dec. at 970-72; Matter of Tran, 21 I&N Dec. 291,
294 (BIA 1996); Matter of Danesh, 19 I&N Dec. 669, 673 (BIA 1988);
Matter of Medina, 15 I&N Dec. 611, 612 (BIA 1976).
To support its assertion that the respondent’s assault conviction was for
a crime involving moral turpitude, the DHS entered a number of documents
into the record, including the police department report, the complaint, the
information, and the judgment and sentence. The Immigration Judge based his
conclusion that the offense was a crime involving moral turpitude on the police
department report, which indicated that the respondent was charged with
assault pursuant to section 22.01 of the Texas Penal Code and that the victim
of the assault was the respondent’s common law wife. The respondent also
testified at his hearing that the victim was his common law wife. We observe,
however, that these sources were not part of the record of conviction, which
was silent as to the relationship of the victim to the respondent. See Matter
of Teixeira, 21 I&N Dec. 316 (BIA 1996) (stating that a police report is not
part of the record of conviction and that while it may be considered
in exercising discretion with regard to an application for relief, it may not
be used to establish the elements of the offense of which the alien was
convicted for purposes of determining deportability).
In Matter of Silva-Trevino, 24 I&N Dec. at 696-704, the Attorney General
established a new methodology for making determinations regarding crimes
involving moral turpitude. That methodology, which departed from the
categorical approach that previously governed such determinations, included
an opportunity for Immigration Judges to consult sources outside the record
of conviction in some situations. Specifically, the Attorney General stated,
“In my view, when the record of conviction fails to show whether the alien
was convicted of a crime involving moral turpitude, immigration judges should
be permitted to consider evidence beyond that record if doing so is necessary
and appropriate to ensure application of the Act’s moral turpitude provisions.”
Id. at 699.2
In this case, the Immigration Judge appeared to conclude that Matter
of Silva-Trevino allowed him to consider evidence outside of the record
of conviction as determinative in showing that the victim was the respondent’s
common law spouse. Based on this evidence, the Immigration Judge found
that the respondent’s assault conviction was one involving domestic violenceCite as 25 I&N Dec. 465 (BIA 2011) Interim Decision #3709
468
and therefore that his offense was a crime involving moral turpitude.
We consider this question of law de novo, and on this record, we disagree with
the Immigration Judge. See 8 C.F.R. § 1003.1(d)(3)(ii) (2010).
The police report does reflect that the respondent was charged with assault
involving family violence. However, none of the respondent’s conviction
documents indicates that he was convicted of a family violence assault. Both
the complaint and the information indicate only that the offense was an assault.
Moreover, the judgment and sentence specifically states, “The Court finds that
this offense did not involve family violence.” Given this finding by the trial
judge, we must determine whether under Matter of Silva-Trevino, the
Immigration Judge was permitted to examine evidence outside of the record
of conviction to reach a contrary conclusion. We hold that he was not.
Under Matter of Silva-Trevino, the Attorney General adopted a hierarchical
or sequential approach to the consideration of evidence in determining whether
an alien has been convicted of a crime involving moral turpitude. See Matter
of Silva-Trevino, 24 I&N Dec. at 704. Specifically, the Attorney General
stated,
In short, . . . adjudicators should: (1) look first to the statute of conviction under the
categorical inquiry . . . ; (2) if the categorical inquiry does not resolve the question,
look to the alien’s record of conviction . . . ; and (3) if the record of conviction does
not resolve the inquiry, consider any additional evidence the adjudicator determines
is necessary or appropriate to resolve accurately the moral turpitude question.
Id.
The Attorney General recognized that a hierarchical approach to evidence
not only assures administrative efficiency but also prevents Immigration
Judges from engaging in a retrial of the alien’s prior crime. Id. at 703.
In addition, although it is not mentioned in the Attorney General’s decision,
the hierarchical approach serves the important function of recognizing and
preserving the results of a plea bargain, where the parties, with the consent
of a trial judge, agree to allow the defendant to plead to a less serious crime.
By recognizing that the evaluation of a crime involving moral turpitude is not
an invitation to relitigate a conviction, Matter of Silva-Trevino indicates that
it does not intend to allow Immigration Judges to undermine plea agreements
by going behind a conviction to use sources outside the record of conviction
to determine that an alien was convicted of a more serious turpitudinous
offense.
The interpretation of Matter of Silva-Trevino that the Immigration Judge
appears to have utilized is contrary to the Attorney General’s hierarchical
approach. It would allow Immigration Judges to leapfrog over the second step
of the analysis to rely on sources outside the record of conviction, even though
the record of conviction evidence fully resolves the issue. Where the record
of conviction conclusively shows that a conviction does not involve familyCite as 25 I&N Dec. 465 (BIA 2011) Interim Decision #3709
469
violence, the fact that other evidence outside of the record of conviction may
indicate that the victim was part of the offender’s family does not establish
that the offender was convicted on that basis (i.e., that such fact was
found beyond a reasonable doubt for purposes of the guilty plea), which
is required for a finding of ineligibility for cancellation of removal under
section 240A(b)(1)(C) of the Act. Therefore, the third stage analysis outlined
in Matter of Silva-Trevino is properly applied only where the record
of conviction does not itself resolve the issue, that is, where the record does
not conclusively demonstrate whether an alien was convicted of engaging
in conduct that constitutes a crime involving moral turpitude.
We conclude that the respondent has met his burden to show that he has not
been convicted of a crime involving moral turpitude. The Immigration Judge
erred in finding that the respondent is statutorily ineligible for cancellation
of removal as an alien who has been convicted of an offense included
in section 240A(b)(1)(C) of the Act. Accordingly, we will sustain the
respondent’s appeal and remand the record for further consideration of his
application for cancellation of removal.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with this order and for the entry of a new
decision.