L".S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 Leesburg Pike, Suite 1000 Falls Chruch. Virginia 22041

Esparza, Sylvia L., Esq. Law Office of Sylvia L. Esparza 3340 E. Pepper Lane, Suite 105 Las Vegas, NV 89120

OHS/ICE Office of Chief Counsel- LVG 3373 Pepper Lane Las Vegas, NV 89120

Immigrant & Refugee Appellate Center | www.irac.net

Name: GOLTZ, DHYANA ADERNE

A 045-296-896

Date of this notice: 11/5/2012

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

DonttL ct1/1.AJ
Donna Carr Chief Clerk

Enclosure
Panel Members: Pauley, Roger

Userteam: Docket

Cite as: Dhyana Aderne Goltz, A045 296 896 (BIA Nov. 5, 2012)

..

US. Department of Justice Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:
In re:

A045 296 896 - Las Vegas, NV DHYANA ADERNE GOLTZ

Date:

NOV 0 5 l01l

IN REMOVAL PROCEEDINGS MOTION ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Sylvia L. Esparza, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Christian Parke Assistant Chief Counsel

APPLICATION:

Reconsideration

The Department of Homeland Security (''the DHS") has filed a timely motion to reconsider our June 12, 2012, decision affirming an Immigration Judge's decision to terminate these removal proceedings on the grounds that the DHS failed to present adequate evidence to prove by clear and convincing evidence that the respondent had been convicted of violating a state law that would render her removable as charged. The motion will be denied. At issue in the appeal of this matter was the Immigration Judge's decision that the conviction record as submitted by the DHS was insufficient to show that the respondent was convicted for a battery/domestic violence crime in violation ofsections200. 481and200. 485 ofthe Nevada Revised Statutes, as alleged in the Notice to Appear. In its appeal, the DHS had argued, inter alia, that the minute order and criminal complaint, taken together, were sufficient to show that the respondent had been so convicted, since

(I) the criminal complaint listed the relevant sections of Nevada law (i.e.,

sections 200.481 and 200.485 of the Nevada Revised Statutes), and (2) the minute order referenced the criminal complaint as relating to "battery domestic violence" and noted the respondent's "guilty" plea. See DHS Appeal Brief at 8-91 (citing Retuta v. Holder, 591 F.3d 1181 (9th Cir. 2010), US.
v.

Snellenberger, 548 F.3d 699 (9th Cir. 2008),2 United States v. Strickland, 601 F.3d 963 (9th Cir.

2010)).

Neither the DHS's brief on appeal nor the motion to reconsider include page numbers. We note

that certain sections of the appeal brief are cited in the DHS's motion to reconsider by reference to specific pages of the "argument" section. See, e.g., DHS's Motion at 4 (referencing "Argument section" of brief at pp. 2-3). For clarity, when citing pages of the DHS's brief or motion, we will refer to page numbers starting from the first page (i.e., the caption page) of the document.
2

We note that

U.S. v. Snellenberger, supra, was reversed in part by Young v. Holder,_ F.3d _,

2012 WL 4074668 (Sept. 17, 2012) (reversing Snellenberger to extent it held that guilty plea to conjunctively worded charge admitted all allegations therein and that alien can show eligibility for relief by pointing to inconclusive record of conviction).

Cite as: Dhyana Aderne Goltz, A045 296 896 (BIA Nov. 5, 2012)

A0 45 296 896

In its motion, the DHS argues that the Board's decision did not "explain how the evidence

presented by the DHS in the instant case is distinguishable from the evidence considered in Retuta v. Holder and U.S. v. Snellenberger." See DHS Motion at 3-4. The motion also argues that the Board did not "consider the applicability of the third case cited by the DHS: U.S. v. Strickland." Id. at 4. Finally, the DHS motion also challenges the Board's finding that even if a conviction pursuant to sections 200.481 and 200.485 ofNevada statute had been shown, the DHS failed to prove that the respondent's conviction contains the elements of a crime of domestic violence-i.e., that the conviction was marked by the use of violent force indicative of a crime of violence.

Immigrant & Refugee Appellate Center | www.irac.net

With regard to our analysis of the sufficiency of the conviction record to reflect a conviction of the respondent under sections 200.481 and 200.485 of Nevada statute, we disagree that we failed to provide the DHS with adequate basis for our denial of the appeal. First, we noted that our decision to dismiss the appeal was based on "the reasons stated in the Immigration Judge's order." See Board's June 12, 2012, Order at I. As the Immigration Judge's order stated (a finding that we expand on below), "the minute order at issue in . . . this case makes no reference to the statutory citation forming the basis of the respondent's guilty plea." I.J. at 4. Instead, it indicates that the respondent was charged with "battery constituting domestic violence," a mere "label" for the offense that is insufficient, standing alone, to reflect that the conviction is for a removable offense. Id. at 5. We emphasized the Immigration Judge's finding above, by noting in our order that in

the

respondent's case, the minute order"contains no reference to . .. any specific section of theNevada statute" throughout its provisions referencing the respondent's initial "not guilty" plea and then his final plea of"guilty." Board's June 12, 2012, Order at 1-2. We further indicated that the absence of the statutory reference was "[u ]nlike the evidence described in" Retutav. Holder, supra, and U.S. v. Snellenberger, supra, each of which involved convictions evidenced by minute orders. Specifically, for clarity, we note here that in both Retuta and Snellenberger, the minute orders contained reference to the relevant section of the state statute under which the defendant was convicted. See Retuta
v.

Holder, supra, at 1185; U.S. v. Snellenberger, supra, and U.S. v.

Snellenberger, 49 3 F.3d 1015, 1019 (9th Cir. 2007) (reversed by preceding decision) (referencing the defendant's guilty plea to"459 penal code"). As to the DHS's citation to U.S. v. Strickland. supra, we note that we find this decision inapposite. In that case, the United States Court of Appeals for the Ninth Circuit approved the examination of the contents of a docket sheet to determine the nature of a conviction for purposes of a sentencing enhancement. 601 F.3d at 968-71. However, we note that in that case, the specific state statute under which the conviction arose was not in question. The defendant's conviction arose under article 27, chapter 3SC of the Maryland Code, which then proscribed "child abuse." Id at 966. The question in U.S.
v.

Strickland, supra, related to whether the docket entries could be examined

to determine the nature of the child abuse conviction, since at that time, both sexual abuse and physical abuse were covered by the same section of Maryland law.

Id. at 967-68. In examining

evidence reflecting that the defendant was required to register pursuant to sex offender statutes, the court construed the nature of the conviction under a modified categorical approach, and was not concerned with determining if clear and convincing evidence of the specific conviction was presented.

Cite as: Dhyana Aderne Goltz, A045 296 896 (BIA Nov. 5, 2012)

A0 45 296 896 Finally, even if the conviction pursuant to sections 200.481and 200.485 of the Nevada statutes was shown, we reiterate that "for the reasons stated in the Immigration Judge's order," we find the 3 DHS's arguments inadequate to show the use of violence. See l. J. at 11. Accordingly, the following order will be entered. ORDER: The motion is denied.

roh!.

Immigrant & Refugee Appellate Center | www.irac.net

3 v.

Unlike in the recent cases ofCabantac v.

Holder, 693 F.3d 825 (9th Cir. 2012), and United States Leal-Vega, 680 F.3d 1160 (9th Cir. 2012), the minute order here does not reflect that the

respondent pied guilty to the facts set forth in the complaint. Moreover, the Immigration Judge correctly construed the term "force or violence" in the Nevada statute of conviction as extending to non-violent force. See Hobbs v. State, 251 P.3d 177 (Sup. Ct. Nev. 2011) (battery includes spitting in victim's face). 3

Cite as: Dhyana Aderne Goltz, A045 296 896 (BIA Nov. 5, 2012)