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Matter of AL WAZZAN, 25 I&N Dec. 359 (AAO 2010)

October 22, 2010 by Thomas Esparza  
Filed under Attorneys

<<(1) Although section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j)(2000), provides that an employment-based immigrant visa petition shall remain valid with respect to a new job if the beneficiary’s application for adjustment of status has been filed and remained unadjudicated for 180 days, the petition must have been “valid”
to begin with if it is to “remain valid with respect to a new job.”

(2) To be considered “valid” in harmony with related provisions and with the statute as a whole, the petition must have been filed for an alien who is “entitled” to the requested classification and that petition must have been “approved” by a U.S. Citizenship and Immigration Services (“USCIS”) officer pursuant to his or her authority
under the Act.

(3) Congress specifically granted USCIS the sole authority to make eligibility determinations for immigrant visa petitions under section 204(b) of the Act.

(4) An unadjudicated immigrant visa petition is not made “valid” merely through the act of filing the petition with USCIS or through the passage of 180 days.

Matter of AL WAZZAN

Decided October 20, 20101

U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Administrative Appeals Office

(1) Although section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j)
(2000), provides that an employment-based immigrant visa petition shall remain valid

with respect to a new job if the beneficiary’s application for adjustment of status has
been filed and remained unadjudicated for 180 days, the petition must have been “valid”

to begin with if it is to “remain valid with respect to a new job.”

(2) To be considered “valid” in harmony with related provisions and with the statute

as a whole, the petition must have been filed for an alien who is “entitled” to the
requested classification and that petition must have been “approved” by a U.S.
Citizenship and Immigration Services (“USCIS”) officer pursuant to his or her authority
under the Act.
(3) Congress specifically granted USCIS the sole authority to make eligibility
determinations for immigrant visa petitions under section 204(b) of the Act.
(4) An unadjudicated immigrant visa petition is not made “valid” merely through the act
of filing the petition with USCIS or through the passage of 180 days.
ON BEHALF OF APPLICANT: Angelo Paparelli, Esquire, Irvine, California
BEFORE: Perry Rhew, Chief, Administrative Appeals Office

Click to read for more.

New Asista Newsletter

August 12, 2010 by Thomas Esparza  
Filed under Attorneys

Dear Readers:

This edition of the ASISTA Newsletter includes a Q&A with VSC from April of this year, as well as the second of a two-part article on U Visa applicants with criminal histories by ASISTA consultants Annie Benson and Jonathan Moore of the Washington Defender’s Immigration Project.

Our Updates section includes information on the two draft memos from CIS that affect U Visas, and several other recent events with practice pointers and summaries. Finally, our FAQ features a questions on VAWA cancellation of removal and adjustment.

Click here to read more.

USCIS Updates on Filing Location Changes

August 10, 2010 by Thomas Esparza  
Filed under Attorneys

Greetings:

 The below messages as well as the attached may be of interest to you.  Please feel free to share with you affiliates, members, partners, associates, colleagues, and constituents.

Best regards,

Jack Jaggers – Community Engagement Officer

USCIS Texas Service Center

Dear Stakeholders –

As part of an overall effort to transition the intake of benefit forms from Service Centers to USCIS Lockbox facilities, USCIS has announced revised filing instructions for forms I-129F, I-140, I-539, I-817, I-130 and I-526.  Centralizing form and fee intake to a Lockbox environment allows USCIS to provide customers with more efficient and effective initial processing of applications and fees.  Please see the attached Updates for more information.

In addition, the Office of Public Engagement invites you to a listening session with the Office of Intake and Document Production on Tuesday, August 24, 2010 at 2:00pm (EDT). The Office of Intake and Document Production is responsible for the intake of petitions/applications and fees through the USCIS Lockbox facilities, the approval or denial of fee waiver requests, and the generating of acceptance or rejection notices. USCIS is interested in hearing your suggestions and concerns on these topics.  If you are interested in participating, either in person or via telephone, you can RSVP by responding to this email or find additional information on the Upcoming National Engagements page at www.uscis.gov.    

Kind regards,

Office of Public Engagement

U.S. Citizenship and Immigration Services (USCIS)

www.uscis.gov/publicengagement

Hello everyone,

USCIS has experienced some technical difficulties with the Form I-797C, Notice of Action – Fingerprint Notification.  Between July 8 and August 4, 2010, USCIS did not print and mail this form to asylum applicants living in California and Arizona.

What You Should Do:

Go to the nearest USCIS Application Support Center (ASC) for fingerprinting and biometrics collection before your asylum interview if you:

§         Live in California or Arizona

§         Received an Asylum Interview Notice for an interview scheduled for August 2010

§         Have not received a Fingerprint Notification

§         Have not had your fingerprints and biometrics collected in the last 60 days for your asylum application. 

You should take the following with you to the ASC:

§         Your Asylum Interview Notice

§         Any dependent family members included on your asylum case

§         Photo identification, such as a passport, valid driver’s license, national ID, military ID, State-issued photo ID, or USCIS-issued ID, for you and all family members (if any) 

More information can be found on our website:  

Fingerprint Notification for California and Arizona Asylum Applicants

Please share with your colleagues and affiliates.

Regards,

Mary Herrmann

Office of Public Engagement, Community Relations

U.S. Citizenship and Immigration Services

Washington DC 20529

Hello everyone,

Please see below a list of Federal Register notices from July 26 – August 9, 2010. A list with links to these notices is also available in the Laws section of the USCIS website at USCIS Federal Register Announcements. Proposed form revisions are generally posted along with the notice and are available at www.regulations.gov.

July 26, 2010

   Comment period expires 8/25/2010

 

August 9, 2010

   Effective date of 8/9/2010

         Comment period expires 9/8/2010

         Comment period expires 9/8/2010

The following notices will expire in the next two weeks:

   Comment period expires 8/9/2010

   Comment period expires 8/9/2010

   Comment period expires 8/9/2010

         Comment period expires 8/9/2010

         Comment period expires 8/16/2010

         Comment period expires 8/16/2010

         Comment period expires 8/16/2010

         Effective date of 8/23/2010

Thank you,

Courtney

Courtney A. Winship

U.S. Citizenship & Immigration Services

Office of Public Engagement

ROSELLER OSICOS NOLOS v. ERIC HOLDER JR ATTORNEY GENERAL

July 21, 2010 by Thomas Esparza  
Filed under Attorneys

ROSELLER OSICOS NOLOS, Petitioner v. ERIC H. HOLDER, JR., U S ATTORNEY
GENERAL, Respondent

No. 08-60786

– July 09, 2010

Before JOLLY and DENNIS, Circuit Judges, and JORDAN, District Judge.*

Roseller Osicos Nolos (“Nolos”) petitions for review of the Board
of Immigration Appeal’s (“BIA”) decision to uphold the immigration
judge’s (“IJ”) order of removal and the BIA’s subsequent denial of
his separate motions to reconsider and to reopen.   Nolos argues that
he is not removable because (1) he derives United States citizenship
from his parents, who he claims acquired United States citizenship by
virtue of their births in the Philippine Islands (“Philippines”)
while the country was a United States territory, and (2) the Nevada
theft conviction that forms the basis of the removal order does not
qualify as an aggravated felony under 8 U.S.C. § 1101(a)(43)(G).  
For the following reasons, we DENY the petition for review.

I.

Nolos was admitted to the United States in 1983 as a lawful permanent
resident.   In 2003, he pleaded guilty to a theft offense pursuant to
Nevada 1

Nolos, proceeding pro se, admitted the DHS’s allegations and conceded
his removability.   In August 2006, the IJ determined that Nolos was
removable because his Nevada conviction constituted an aggravated
felony under 8 U.S.C. § 1101(a)(43)(G) and ordered him removed to
the Philippines.   Nolos timely appealed the IJ’s order to the BIA.
After an initial dismissal and a subsequent grant of Nolos’s motion to
reopen in light of newly discovered evidence, the BIA determined that
not all of the subsections of Nevada Revised Statutes § 205.0832
constituted aggravated felonies and that the judgment of conviction-
the record of conviction the Government submitted to prove Nolos was
convicted of a theft offense-did not specify which provision of Nevada
Revised Statutes § 205.0832 Nolos was convicted of violating.   As
a result, it vacated its initial dismissal of Nolos’s appeal and
remanded the case to the IJ.

On remand, the DHS submitted the Nevada information charging Nolos
with theft under Nevada Revised Statutes § 205.0832. After a review
of this additional material, the IJ determined that Nolos was
convicted under § 205.0832(1)(b);  § 205.0832(1)(b) met the
requirements of theft under the Immigration and Nationality Act
(“INA”);  and Nolos was removable as an aggravated felon.   The
BIA agreed with the IJ’s determination and dismissed Nolos’s appeal.

Nolos filed a timely petition for review and also filed with the BIA a
timely motion for reconsideration and a motion to reopen, asserting in
part that he was a citizen of the United States.   After the BIA’s
denial of those motions, Nolos filed an additional timely petition for
review of this BIA decision.

II.

Although our review of a final order of removal is limited under 8
U.S.C. § 1252, Marquez-Marquez v. Gonzales, 455 F.3d 548, 553-54
(5th Cir.2006), we have jurisdiction to consider the purely legal
questions of whether Nolos is a United States citizen and whether he
was convicted of an aggravated felony, see Larin-Ulloa v. Gonzales,
462 F.3d 456, 460-61 (5th Cir.2006);  Alwan v. Ashcroft, 388 F.3d
507, 510 (5th Cir.2004).   We also have jurisdiction to review the
BIA’s denial of Nolos’s motions to reopen and reconsider under 8
C.F.R. § 1003.2(b) and (c).  See Kucana v. Holder, 130 S.Ct. 827,
838-40 (2010).

While we owe deference to the BIA’s interpretation of the INA under
the principles of Chevron USA, Inc. v. NRDC, 467 U.S. 837 (1984), our
review of the legal questions posed here is de novo.   See Patel v.
Mukasey, 526 F.3d 800, 802 (5th Cir.2008);  Larin-Ulloa, 462 F.3d at
460-61;  Omari v. Gonzales, 419 F.3d 303, 306 (5th Cir.2005);  
Alwan, 388 F.3d at 510.

III.

The Government argues initially that Nolos’s petition should be
dismissed in part on the procedural ground that he failed to comply
with 8 C.F.R. § 1003.2 because he did not present an application for
relief and did not raise citizenship as a defense before the IJ. The
BIA’s decision, however, did not deny Nolos’s motion on the ground of
noncompliance with 8 C.F.R. § 1003.2. Although the BIA noted that
Nolos “could and should have raised this claim during proceedings
before the [IJ]” and “failed to support his claim with any evidence
or to attach an application for the relief requested,” it went on to
consider and reject Nolos’s claim that he was a United States citizen.
  Against this background, we decline the Government’s invitation to
dismiss in part Nolos’s petition on the basis of noncompliance with 8
C.F.R. § 1003.2. Accord Lopez-Dubon v. Holder, _ F.3d _, 2010 WL
2384010 (5th Cir.2010).

IV.

There are two sources of citizenship:  birth and naturalization.  
Bustamante-Barrera v. Gonzales, 447 F.3d 388, 394-95 (5th Cir.2006).
  Nolos asserts that he derives United States citizenship from his
parents, who he claims became United States citizens at birth because
they were born in the Philippines when the country was a United States
territory.   We have not previously decided this question.  
However, the Second, Third and Ninth Circuits have held that birth in
the Philippines at a time when the country was a territory of the
United States does not constitute birth “in the United States”
under the Citizenship Clause, and thus did not give rise to United
States citizenship.  Lacap v. INS, 138 F.3d 518, 518-19 (3d Cir.
1998);  Valmonte v. INS, 136 F.3d 914, 915-21 (2d Cir.1998);  
Rabang v. INS, 35 F.3d 1449, 1450-54 (9th Cir.1994).2  The courts of
appeals explained that the term “United States” as it is used in
the Citizenship Clause of the Fourteenth Amendment did not, without
more, include “United States territories simply because the
territories [were] ‘subject to the jurisdiction’ or ‘within the
dominion’ of the United States.”  Id. at 1453 & n.8;  see also
Valmonte, 136 F.3d at 920.   In reaching their holdings, the courts
found guidance from the Supreme Court’s Insular Cases jurisprudence on
the territorial scope of the term “the United States” as used in
the Citizenship Clause of the Fourteenth Amendment.  Valmonte, 136 F.
3d at 918-19;  Rabang, 35 F.3d at 1452.   The Insular Cases were a
series of Supreme Court decisions that dealt with various challenges
to duties on shipments from Puerto Rico to the United States mainland.
 Rabang, 35 F.3d at 1452;  Valmonte, 136 F.3d at 918.

In Downes v. Bidwell, 182 U.S. 244 (1901), one of the Insular Cases,
“[t]he Court held that Puerto Rico was ‘not a part of the United
States within the revenue clauses of the Constitution.’ ”  Id.
at 287.   The Court reached this conclusion by considering the
territorial scope of the term “the United States” in various
clauses of the Constitution.  Valmonte, 136 F.3d at 918;  Rabang,
35 F.3d at 1452-53 (citing Downes, 182 U.S. at 251).   The Court
compared the revenue clause language “all duties ․ shall be uniform
throughout the United States,” United States Constitution, art.  
I, § 8, with the Thirteenth Amendment’s prohibition of slavery and
involuntary servitude “within the United States, or any place subject
to their jurisdiction, “ id. amend.   XIII, § 1 (emphasis
added), and that of the Citizenship Clause of the Fourteenth Amendment
providing that persons “born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside,” id. amend.   XIV, § 1
(emphasis added).   See Downes, 182 U.S. at 251 (cited in Rabang, 35
F.3d 1452;  Valmonte, 136 F.3d at 918).   The Court then concluded
that the disjunctive “or” in the Thirteenth Amendment showed that
“there may be places within the jurisdiction of the United States
that are no part of the Union” to which the Thirteenth Amendment
would still apply, while citizenship under the Fourteenth Amendment
“is not extended to persons born in any place ‘subject to [the
United States'] jurisdiction’ ” (but instead limited to those
born or naturalized in the states of the Union).  Id. See Rabang, 35
F.3d at 1452-53 (discussing Downes, 182 U.S. at 251);  Valmonte, 136
F.3d at 919 (discussing Downes, 182 U.S. at 251).

Relying on Downes, the Rabang and Valmonte courts observed that
“[l]ike the revenue clauses, the Citizenship Clause has an express
territorial limitation which prevents its extension to every place
over which the government exercises its sovereignty.”  Rabang, 35 F.
3d at 1453 (citing United States v. Verdugo-Urquidez, 494 U.S. 259,
291 n.11 (1990) (Brennan, J., dissenting));  see also Valmonte, 136 F.
3d at 918-19.   The courts of appeals further noted the Court’s
subsequent statement that “ ‘in dealing with foreign
sovereignties, the term ‘United States’ has a broader meaning than

when used in the Constitution, and includes all territories subject to
the jurisdiction of the Federal government, wherever located.’ ”
 Rabang, 35 F.3d at 1453 (quoting Downes, 182 U.S. at 263);  
Valmonte, 136 F.3d at 919 (citing Downes, 182 U.S. at 263).   They
observed that “[i]n other words, as used in the Constitution, the
term ‘United States’ does not include all territories subject to the
jurisdiction of the United States government.”   Rabang, 35 F.3d at
1453 (citing as see also Examining Bd. of Eng’rs, Architects and
Surveyors v. Flores de Otero, 426 U.S. 572, 588 n.19

(1976));  Valmonte, 136 F.3d at 919 (citing Downes, 182 U.S. at 263).3

Against this background, the Rabang, Lacap and Valmonte courts held
that “[i]t is ․ incorrect to extend citizenship to persons living
in United States territories simply because the territories are
‘subject to the jurisdiction’ or ‘within the dominion’ of the
United States, because those persons are not born ‘in the United
States’ within the meaning of the Fourteenth Amendment.”  
Valmonte, 136 F.3d at 920 (citing Rabang, 35 F.3d at 1453);  Rabang,
35 F.3d at 1453;  Lacap, 138 F.3d at 519 (citing Rabang, 35 F.3d at
1454;  Valmonte, 136 F.3d 914).4

Notwithstanding the Supreme Court authority starting with the Insular
Cases and the persuasive precedent from three of our sister circuits,
Nolos counters that Downes, as one of the central cases of Rabang,
Valmonte and Lacap, should not be followed because it never defined
the phrase “the United States” in the context of the Fourteenth
Amendment.   Relying on United States v. Wong Kim Ark, 169 U.S. 649
(1898), he argues that the Fourteenth Amendment codified the
principles of the English common law that birth within a sovereign’s
territory confers citizenship.   On that basis, Nolos urges that his
parents acquired United States citizenship at birth because the
Philippines were under the dominion and control of the United States
at the time of their births.   But as have the Ninth and the Second
Circuits before us, see Rabang, 35 F.3d at 1454;  Valmonte, 136 F.3d
at 920, we decline to give Wong Kim Ark such an expansive
interpretation.   As the Second Circuit explained, the question of
the territorial scope of the Citizenship Clause of the Fourteenth
Amendment was not before the Court in Wong Kim Ark:

The issue in Wong Kim Ark was whether a child born to alien parents in
the United States was a citizen under the Fourteenth Amendment.  
That the child was born in San Francisco was undisputed and “it [was
therefore] unnecessary to define ‘territory’ rigorously or decide
whether ‘territory’ in its broader sense (i.e. outlying land
subject to the jurisdiction of this country) meant ‘in the United
States’ under the Citizenship Clause.”

Valmonte, 136 F.3d at 920 (brackets in original) (quoting Rabang, 35 F.
3d at 1454).

Against this background, we find the reasoning of our sister circuits

persuasive and hold that “persons born in the Philippines during its
status as a United States territory were not ‘born ․ in the United
States’ under the Fourteenth Amendment.”  Valmonte, 136 F.3d at 920
(quoting Rabang, 35 F.3d at 1453).   Accordingly, given that Nolos’s
parents did not acquire United States citizenship by virtue of their
birth in the Philippines when it was a United States territory, Nolos
could not have derived United States citizenship from them and is
therefore removable if he is found to have been convicted of an
aggravated felony.

V.

Nolos argues next that even if he were not a United States citizen he
is not removable because his conviction under Nevada Revised Statutes
§ 205.0832 does not qualify as an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(G).  Nolos and the Government agree that Nevada
Revised Statutes § 205.0832 is divisible and describes crimes, of
which only some qualify as aggravated felonies.   But the Government
argues that Nolos was convicted under a subsection of the statute that
qualifies as an aggravated felony.

“Federal immigration law provides that any ‘alien who is convicted
of an aggravated felony at any time after admission is
deportable.’ ”  Nijhawan v. Holder, 129 S.Ct. 2294, 2297 (2009)
(emphasis in original) (quoting 8 U.S.C. § 1227(a)(2)(A)(iii)).  
Section 1101(a)(43)(G) defines an aggravated felony offense as
including a theft offense for which the term of imprisonment is at
least one year.   To determine if an offense constitutes theft, we
compare it to our generic definition of a theft offense, which is “a
taking of property or an exercise of control over property without
consent with the criminal intent to deprive the owner of rights and
benefits of ownership, even if such deprivation is less than total or
permanent.”  Burke v. Mukasey, 509 F.3d 695, 697 (5th Cir.2007)
(citations omitted) (collecting cases).   To determine whether an
offense qualifies as an aggravated felony, we employ a categorical
approach by “look[ing] at the statute under which the alien was
convicted rather than at the particular underlying facts.”  Omari,
419 F.3d at 307.   However, as in the instant matter, “[i]f the
statute of conviction defines multiple offenses, at least one of which
does not describe an aggravated felony,” we apply a modified
categorical approach.  Larin-Ulloa, 462 F.3d at 464 (citing Shepard
v. United States, 544 U.S. 13, 20-21, 26 (2005)).   The modified
categorical approach allows for examination of the record of
conviction to determine under which subsection of a divisible statute
the individual was convicted.  Omari, 419 F.3d at 308.   For guilty
plea convictions, this “may include consideration of the ‘charging
document, written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defendant
assented.’ ”  Id. (quoting Shepard, 544 U.S. at 16).

To prove that Nolos was convicted of an aggravated felony theft
offense, the Government submitted a copy of the Nevada information and
judgment of conviction.   After a review of the documents, the BIA
determined that Nolos was convicted under Nevada Revised Statutes § 
205.0832(1)(b) and that the provision qualified as an aggravated
felony under 8 U.S.C. § 1101(a)(43)(G).  The single-count
information confirms this conclusion.   It provides several examples
of Nolos creating phony merchandise refunds that he would pay to his
own credit card while he was employed as a salesperson at a
Nordstrom’s store and states that Nolos “did then and there
knowingly, feloniously, and without lawful authority, commit theft by
using services or property of another person entrusted to him or
placed in his possession for a limited use, having a value of $250.00,
or more, lawful money of the United States, belonging to
Nordstrom’s,” thus tracking Nevada Revised Statutes § 205.0832(1)
(b).  Nevada Revised Statutes § 205.0832(1)(b) in turn meets our
generic definition of theft.   See Burke, 509 F.3d at 697
(“ ‘[T]heft offense (including receipt of stolen property)’ is
a taking of property or an exercise of control over property without
consent with the criminal intent to deprive the owner of rights and
benefits of ownership, even if such deprivation is less than total or
permanent.” (citations omitted)).   This finding is also supported
by the plea agreement which Nolos submitted into the record.   Nolos
appears to suggest that the guilty plea agreement fails to indicate
the prong of the statute to which he had pleaded guilty.   But it
states that Nolos pleaded guilty to theft under Nevada Revised
Statutes § 205.0832, “as more fully alleged in the charging
document.”   Therefore, it incorporates by reference the more
specific description of Nolos’s offense in the information which
tracks the language of Nevada Revised Statutes § 205.0832(1)(b).

In sum, given that Nolos’s term of imprisonment was over one year, the
record of conviction establishes that Nolos was convicted of a theft

offense pursuant to 8 U.S.C. § 1101(a)(43)(G) and is removable as an
aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii).

VI.

For the foregoing reasons, we DENY Nolos’s petition for review.

FOOTNOTES

FOOTNOTE. FN*.  District Judge, Southern District of Mississippi,
sitting by designation.

1. FN1. The notice was issued by the Immigration and Naturalization
Services, whose services and responsibilities have since between

transferred to the DHS. See Zaidi v. Ashcroft, 374 F.3d 357, 358 n.1
(5th Cir.2004).

2. FN2. The Supreme Court also observed, although without deciding
the issue, that persons born in the Philippines at the time the
Philippines were a territory of the United States were not United
States citizens.   See Rabang v. Boyd, 353 U.S. 427, 430-31 (1957)
(“The inhabitants of the Islands acquired by the United States during
the late war with Spain, not being citizens of the United States, do
not possess right of free entry into the United States.” (citation
and quotation marks omitted));  Barber v. Gonzales, 347 U.S. 637, 639
n.1 (1954) (stating that although the inhabitants of the Philippines
during the territorial period were “nationals” of the United
States, they were not “United States citizens”).

3. FN3. The Valmonte court found further support in Hooven & Allison
Co. v. Evatt, 324 U.S. 652 (1945), in which the Court held that the
Philippines were “not a part of the United States in the sense that
they are subject to and enjoy the benefits or protection of the
Constitution, as do the states which are united by and under it.”  
Id. at 678 (cited in Valmonte, 136 F.3d at 919).   The Second Circuit
also referenced Barber, 347 U.S. 637, and Rabang, 353 U.S. 427, in
which the Court “observed, without deciding, that persons born in the
Philippines prior to its independence in 1946 [were] not citizens of
the United States.”   Valmonte, 136 F.3d at 919 (citing Barber, 347
U.S. at 639 n.1;  Rabang 353 U.S. at 432 n.12).

4. FN4. Most recently, the District Court for the District of
Columbia, relying on the reasoning in Rabang, Valmonte and Lacap, held
that a Filipino Navy shipyard worker who was born in the Philippines
when it was a United States territory was not a United States citizen
under the Citizenship Clause.   See Licudine v. Winter, 603 F.Supp.2d
129, 134-35 (D.D.C.2009).

Model brief citingMatter of Silva-Trevino, with order of ij.

July 20, 2010 by Thomas Esparza  
Filed under Attorneys

DM2\2053873.2
Denyse Sabagh, Esq. DETAINED
Andres C. Benach, Esq.
Duane Morris LLP
505 9th Street, N.W., Suite 1000
Washington, DC 20004
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
ARLINGTON, VIRGINIA
____________________________________
In the Matter of: )))
File No.
)
RG ))
Respondent. ))
In Removal Proceedings )
____________________________________)
Immigration Judge Wayne Iskra Next Hearing: September 15, 2009 at 3:30
pm.
RESPONDENT’S MOTION TO TERMINATE
2
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
ARLINGTON, VIRGINIA
____________________________________
In the Matter of: ) DETAINED
))
File No.
)
RG ))
Respondent. ) Next hearing:
) September 15, 2009 at 3:30 pm
In Removal Proceedings ) Immigration Judge Wayne Iskra
____________________________________)
RESPONDENT’S MOTION TO TERMINATE
Respondent, Mr. RG, through undersigned counsel, respectfully moves
this Court to
terminate removal proceedings against him, as he is not subject to
removal. Specifically, Mr.
G’s conviction for simple assault in violation of Va. Stat. 18.2-57
cannot be construed as a crime
involving moral turpitude under INA §237(a)(2)(A)(i) or a crime of
domestic violence under
INA §237(a)(2)(E)(i). These are the only charges against Mr. G.
Therefore, if the Court finds
that this offense does not meet either of these charges, the Court
must terminate removal
proceedings against Mr. G.
Mr. G had a video bond hearing on September 1, 2009 and was
represented by former
counsel. It is undersigned counsel’s understanding that the Court re-
scheduled the bond hearing
and combined it with the merits hearing to hear testimony as it
relates to the police report to
determine whether Mr. G’s conviction for simple assault is a crime
involving moral turpitude. It
is counsel’s understanding that this Court, relying upon the Attorney
General’s decision in
Matter of Silva-Trevino, 24 I&N Dec. 687 (Att’y Gen. 2008), seeks to
review materials such as
the police report and to take testimony regarding the facts underlying
the respondent’s
3
conviction. Mr. G submits that this Court must utilize the categorical
approach in evaluating
whether his offense of simple assault is a crime involving moral
turpitude and may not look
beyond the statute to the facts underlying the conviction. Once the
Court performs the correct
categorical analysis, it should find that his conviction is not a
crime involving moral turpitude
nor a crime of domestic violence.
I. Matter of Silva-Trevino Does not Permit the Immigration Judge to
Consider
Evidence Beyond the Record of Conviction and the Plain Language of the
Virginia
Statute Does Not Require the Court to go Behind the Statute and
Examine Extrinsic
Evidence
In determining whether an offense involves moral turpitude,
Immigration Courts have
relied upon the so-called categorical approach the Supreme Court set
forth in Taylor v. U.S., 495
U.S. 575 (1990), Under this analysis, a court seeking to determine
whether a particular
conviction falls within a ground of removal should only look to the
state statute defining the
crime of conviction and “not to the facts of the particular prior
case.” Gonzales v. Duenas –
Alvarez, 549 U.S. 183, 186 (2007). This starting point for analysis
remains unchanged even
since the Attorney General’s decision in Matter of Silva-Trevino, 24
I&N Dec. 687 (Att’y Gen.
2008). In Matter of Silva-Trevino, the Attorney General significantly
modified the analysis
courts are to follow in determining whether a particular offense
involves moral turpitude and
held that there are certain circumstances where the trier of fact may
go beyond the language of
the statute and consider extrinsic evidence in reaching this
conclusion. Although the Attorney
General modified this analysis, he was clear that the starting point
of the analysis remains the
traditional categorical approach. “The Department and the Federal
courts agree that, to
determine whether a crime involves moral turpitude, immigration judges
should first engage in a
“categorical” inquiry and look to the statute of conviction rather
than to the specific facts of an
4
alien’s crime.” Silva-Trevino, 24 I.&N. Dec. at 696. Therefore, even
under Silva-Trevino, this
Court must first perform traditional categorical analysis and look to
the elements of the statute of
conviction to determine whether it necessarily involves moral
turpitude before applying the new
fact-based inquiry.
Under the categorical approach, it is the elements of the statutory

offense itself that
control in determining whether a crime involves moral turpitude. “It
is the inherent nature of the
crime as defined by statute and interpreted by the courts and as
limited and described by the
record of conviction which determines whether the offense is one
involving moral turpitude.”
Matter of Short, 20 I. & N. Dec. 136, 137 (BIA 1989). Moreover, “only
where the statute …
includes some offenses which involve moral turpitude and some which do
not do we look to the
record of conviction, meaning the indictment, plea, verdict, and
sentence, to determine the
offense for which the respondent was convicted.” Id. (citing Matter of
Esfandiary, 16 I. & N.
Dec. 659 (BIA 1979)). Thus, this Court must first turn to the language
of the statute of
conviction.
It is firmly established by Board of Immigration Appeals (BIA)
precedent that “[s]imple
assault is not considered to be a crime involving moral turpitude.”
See Short, 20 I. & N. Dec. at
137; see also Matter of Danesh, 19 I&N Dec. 669 (BIA 1988). Matter of
Perez-Contreras, 20
I&N Dec. 615, 618 (BIA 1992) (assault based on negligence where
reckless or intentional
conduct is excluded from definition); Matter of Fualaau, 21 I&N Dec.
475 (BIA 1996) (assault
where recklessness could be an element but without serious bodily
harm); Matter of S, 9 I&N
Dec. 688 (BIA 1962) (simple assault); Matter of B, 5 I&N Dec. 538 (BIA
1953); Matter of E, 1
I&N Dec. 505 (BIA 1943).
5
The plain language of Va. Stat. §18.2-57 identifies the offense as
“simple assault” and
does not demonstrate that this section involves moral turpitude. The
statute provides that “[a]ny
person who commits a simple assault or assault and battery shall be
guilty of a Class 1
misdemeanor.” Va. Stat. §18.2-57. This definition does not allude to
the perpetrator’s intent or
the infliction of bodily harm on the victim, factors that could give
rise to a crime involving moral
turpitude classification if they were present as elements of the
statute. See Matter of Ajami, 22
I&N Dec. 949, 950 (BIA 1999); Matter of Tran, 21 I&N Dec. 291 (BIA
1996). In Silva-
Trevino, the Attorney General recognized the primacy of intent in

determining whether an
offense involves moral turpitude. “The [reprehensible] definition [of
moral turpitude] also
faithfully implements the Act’s distinction between crimes involving
moral turpitude (which
trigger specific immigration consequences) and criminal conduct
generally (which the
government has a valid interest in punishing whether or not it
qualifies as morally offensive or
involves scienter) by more clearly articulating the subjective, or
intent, element that has long
characterized judicial and administrative recognition of crimes
involving moral turpitude.”
Silva-Trevino, 24 I.&N. Dec. at 689, n.1. As the Virginia statute of
conviction makes no
reference, whatsoever, to the intent of the perpetrator, the statute
may not be said to be any
different from the simple assault statutes cited in Fualaau, Short,
Danesh and Perez-Contreras,
which were held not to be CIMTs in the absence of an intent element in
the statute.
Nor does the statute require for conviction the infliction of serious

bodily harm. In
Matter of Sejas, which dealt with a different Virginia statute,
18.2-57.2, the BIA affirmed, “A
conviction for assault and battery in Virginia does not require the
actual infliction of physical
injury and may include any touching, however slight.” Matter of Sejas,
24 I&N Dec. 236, 238
(BIA 2007) (citing Adams v. Commonwealth, 534 S.E.2d 347, 351 (Va.
App. 2000) (“In
6
Virginia, it is abundantly clear that a perpetrator need not inflict a
physical injury to commit a
battery.”). As the simple assault statute lacks an intent element or
the infliction of serious bodily
harm, it is indistinguishable from the many other simple assault
statutes that have been held not
to involve moral turpitude.
While bringing substantial change to the analysis of determining
whether a specific
offense is a crime involving moral turpitude, Silva-Trevino only
alters the analysis after the
traditional categorical approach fails to yield a result. This is not
such a case. The traditional
categorical approach has long treated simple assault offenses, as this
one, as not involving moral
turpitude. Decades of caselaw have held that simple assault is not a
CIMT and Silva-Trevino
honors the categorical approach and does not allow for wholesale re-
evaluation of settled
offenses. Therefore, a departure from the categorical approach is
plainly not warranted here.
II. Mr. G’s Conviction Of Virginia Simple Assault Does Not Qualify as
a Crime of

Domestic Violence under INA §237(a)(2)(E)(i)
Again, Mr. G was not convicted of a crime of domestic violence under
Va. Stat. §18.2-
57.2 (Assault and battery against a family or household member). He
was solely convicted of
simple assault under Va. Stat. §18.2-57. This section makes no mention
of the identity of the
victim and, therefore, cannot be said to be a crime of domestic
violence. See, e.g. Singh v.
Ashcroft, 383 F.3d 144 (3d Cir. 2004) (statute’s silence on age of the
victim made statute not
“sexual abuse of a minor”). The Attorney General stated clearly in
Silva-Trevino that his
enhanced analysis does not “extend beyond the moral turpitude issue”
and, therefore, cannot
apply to an inquiry as to whether a crime qualifies as a crime of
domestic violence. Silva-
Trevino at 704. The court is limited to the language of the statue and
cannot go beyond the
statute to assess underlying factual circumstances as described in
ancillary documents, such as
7

police reports, to determine whether the offense is a crime of
violence for purposes of
removability under INA §237(a)(2)(E)(i). Matter of Medina-Lopez, 10
I&N Dec. 7 (BIA 1962).
Moreover, because the Virginia statute may be violated with even the
slightest touching,
it cannot be construed to be a crime of violence and Mr. G would not
be removable under this
section. The BIA has held, in an unpublished decision, that Virginia
domestic assault is not
categorically a crime of violence. See attached unpublished decision
from BIA dated 4/5/07,
citing Koffman v. Garnett, 574 S.E.2d 258 (Va. 2003)(the tort of
battery is an unwanted touching
which is neither consented to, excused, or justified); see also
Zimmerman v. Commonwealth, 266
Va. 438 (2003)(victim need not be touched to be assaulted). The BIA –
applying the categorical

approach necessary to evaluate the respondent’s removability — held,
“[B]ecause an assault and
battery under section 18.2-57.2(a) of Virginia’s Criminal Code does
not require the requisite
element of force to fall within the definition of a crime of violence
under 18 U.S.C. § 16(a), the
respondent’s conviction could not be considered a crime of domestic
violence under section
237(a)(2)(E)(i) of the Act. (Apr. 5, 2007).” Id.
Thus, for no fewer than two reasons, conviction under this section may
not establish
deportability as a crime of domestic violence. First, there is nothing
in the statute about the
identity of the victim and, therefore, the offense cannot
categorically relate to domestic violence.
Second, the statute, which may be violated with the slightest
offensive touching, cannot be held
to be a crime of violence to establish deportability under this ground.
IV. Conclusion
It is the government’s burden to establish through clear and
convincing evidence that the
respondent is removable. Woodby v. INS, 385 U.S. 276 (1999); INA
§240(c)(3)(A). Where the
categorical approach plainly demonstrates that Mr. G’s conviction does
not qualify as a crime
8
involving moral turpitude, the government cannot go beyond the record
of conviction and view
the underlying circumstances or the conduct involved. Matter of Torres-
Varela, 23 I&N Dec.
78, 84 (BIA 2001). This court must apply a formal categorical approach
in determining whether
Mr. G’s conviction is a crime involving moral turpitude under INA
§237(a)(2)(A)(i) or a crime
of domestic violence under INA §237(a)(2)(E)(i). Utilizing the

categorical approach, it cannot
be found that Mr. Gis removable and, therefore, this Court should
GRANT this motion to
terminate proceedings.
Respectfully submitted,
_________________________
Denyse Sabagh
Andres C. Benach
DUANE MORRIS LLP
505 9th Street, NW
Washington, DC 20004
T: 202-776-7812
F: 202-478-1799

9
Denyse Sabagh, Esq. DETAINED
Andres C. Benach, Esq.
Duane Morris LLP
505 9th Street, N.W., Suite 1000
Washington, DC 20004
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
ARLINGTON, VIRGINIA
____________________________________
In the Matter of: )))
File No.
)
R G ))
Respondent. ))
In Removal Proceedings )
____________________________________)
Immigration Judge Wayne Iskra Next Hearing: September 15, 2009 at 3:30

pm.
CERTIFICATE OF SERVICE
On September 15, 2009 I, Andres C. Benach, served a copy of this
Respondent’s Motion to
Terminate and any attached pages to the Office of Chief Counsel,
Immigration and Customs
Enforcement, U.S. Department of Homeland Security at the following
address: 901 North Stuart
Street, Suite 700, Arlington, Virginia via hand delivery.
_____________________________ _____________________________

Andres C. Benach Date
DUANE MORRIS LLP
505 9th Street, NW
Washington, DC 20004
T: 202-776-7812
F: 202-478-1799
10
Denyse Sabagh, Esq. DETAINED
505 9th Street, N.W., Suite 1000
Washington, DC 20004
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
ARLINGTON, VIRGINIA
____________________________________
In the Matter of: ))
File No.
)
R G ))

Respondent. ))
In Removal Proceedings )

____________________________________)
Immigration Judge Wayne Iskra Next Hearing: September 15, 2009 at 3:30
pm.
ORDER OF THE IMMIGRATION JUDGE
Upon consideration of the Respondent’s Motion to Terminate, it is
HEREBY ORDERED that
the motion be [ ] GRANTED [ ] DENIED because:
[ ] DHS does not oppose the motion.
[ ] The respondent does not oppose the motion.
[ ] A response to the motion has not been filed with the court.
[ ] Good cause has been established for the motion.
[ ] The court agrees with the reasons stated in the opposition to the
motion.
[ ] The motion is untimely per _____________________.
[ ] Other:
Deadlines:
The application(s) for relief must be filed by _____________________.
The respondent must comply with DHS biometrics instructions by
__________________.
____________________________ _____________________________
Date Wayne R. Iskra
U.S. Immigration Judge
Certificate of Service
This document was served by: [ ] Mail [ ] Personal Service
To: [ ] Alien [ ] Alien co/Custodial Officer [ ] Alien’s Atty/Rep [ ]
DHS
Date: _________________________ By: Court Staff

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This information provided is not intended to replace the advice of an attorney but is merely provided as a public service. Each immigration case is different. For more information, consult with Thomas Esparza, Jr., Board Certified Specialist in Immigration and Nationality Law with more than 32 years of experience.