U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 20530

Eric H. Singer Law Office of Eric Singer, LLC 4915 Saint Elmo Avenue, Suite 300 Bethesda, MD 20814

OHS/ICE Office of Chief Counsel - SOC 146 CCA Road Lumpkin, GA 31815

Immigrant & Refugee Appellate Center | www.irac.net

Name: QUINTERO-MADRIGAL; PABLO

A 090-394-871

Date of this notice: 10/4/2013

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

Donna Carr Chief Clerk

Enclosure Panel Members: Creppy, Michael J.

Trane Usertea m: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Pablo Quintero-Madrigal, A090 394 871 (BIA Oct. 4, 2013)

IJ

'

U.S. Department of Justice

Executive Office for I=igration Review Falls Church, Virginia
22041

Decision of the Board ofl=igration Appeals

File:

A090 394 871 - Lumpkin, GA

Date:

OCl

4?013

In re: PABLO QUINTERO-MADRIGAL IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Eric H. Singer, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

R. Reid McKee --xssistant ChiefCounsel

CHARGE: Notice: Sec. 237(a)(2)(A)(ii), I&N Act [8 U.S.C.

1227(a)(2)(A)(ii)] -

Convicted of two or more crimes involving moral turpitude (not sustained) Sec. 237(a)(2)(C), I& N Act [8 U.S.C.

1227(a)(2)(C)] -

Convicted of firearms or destructive device violation (not sustained) APPLICATION: Termination

The Department of Homeland Security (the "DHS") appeals from an Immigration Judge's decision dated April 24, 2013, terminating removal proceedings against the respondent. respondent opposes the appeal. The appeal will be dismissed. We review for clear error the findings of fact 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

the relevant.burden.of proof, and issues of discretion. 8 C.F.R.

1003.1(d)(3)(ii).

The Immigration Judge terminated proceedings after finding that the DHS failed to establish by clear and convincing evidence that the respondent is removable under section 237(a)(2)(A)(ii) of the Act, 8 U.S.C.

1227(a)(2)(A)(ii), because the respondent' 2007 and 2009 convictions for

being a habitual violator under O.C.G.A.

involving moral turpitude ("CIMT") (I.J. at 2).

40-5-58 (Exhs. 3-4), do not constitute crimes

the following notations.

We adopt and affirm the Immigration Judge's decision for the reasons set forth therein, with lvfatter ofBurbano, 20 I&N Dec. 872, 874 (BIA 1994). The

Immigration Judge properly found that the DHS did not establish that the respondent's convictions qualify as CIMTs.

8 U.S.C.

The Immigration Judge also did not sustain the charge under section 237(a)(2)(C) of the Act, 1227(a)(2)(C); however, on appeal the DHS expressly declined to challenge this

finding (DHS Brief at 1,

n.l).

Cite as: Pablo Quintero-Madrigal, A090 394 871 (BIA Oct. 4, 2013)

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A090 394 871

There is a "realistic probability" that O.C.G.A. 40-5-58 will be applied to offenses that do not intrinsically involve moral tnrpitude. Matter of Silva-Trevino, 24 I&N Dec. 687, 689-90, 696-98 (A.G. 2008). The respondent persuasively points to Tarvestad v. State, 403 S.E.2d 446 (Ga. App. 1991), rev'd by, 409 S.E.2d 513 (Ga.), 413 S.E.2d 51 1 (Ga. App. 1991). In Tarvestad, an individual was convicted under 0.C.G.A. 40-5-58; however, the Georgia Supreme Court reversed the conviction after finding that the defendant was entitled to an affirmative defense jury charge based on evidence that he was driving his pregnant \Vife to the doctor, and that his driving was justified out of necessity because his wife was in labor and could not drive. We conclude that O.C.G.A. 40-5-58 has been applied in situations not involving moral tnrpitude. Further, O.C.G.A. 40-5-58 lacks the requisite scienter. Matter of Silva-Trevino, supra, at 689 n.1, 706 n.5. Although the statute requires that an individual be sent notice that their license has been revoked, there is a rebuttable presumption of receipt and actual notice is not required. See, e.g., King.v. State,345 S.E.:2d_9Qbj!Q3-04: (G_a. A E _ p. 19.62:_
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Immigrant & Refugee Appellate Center | www.irac.net

Accordingly, the follov.cing order will be entered. The DHS's appeal is dismissed; the Immigration Judge's termination of ORDER: proceedings is affrrmed.

Cite as: Pablo Quintero-Madrigal, A090 394 871 (BIA Oct. 4, 2013)