U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Office ofthe Clerk
5107 Leesburg Pike. S1111e 2000
Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel -BLM

(MSP)
1 Federal Drive, Suite 1800

190 Mondale Hall

229 19th Ave. S.
Minneapolis, MN 55455

Name:

Ft. Snelling, MN 55111

B---. ---

A--14481

Date of this notice: 11/25/2014

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

DCYutL Cwvu
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Cole, Patricia A.

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: B-G-, AXXX XXX 481 (BIA Nov. 25, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

Evans, Katherine L., Esq.

University of Minnesota

U.S. Department of Justice

for Immigration Review

Decision of the Board of Immigration Appeals

Executive Office

Falls Church, Virginia

File:

481 - Bloomington, MN

Date:

NOV J 5 2014

G-

In re:
IN

20530

REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT: Katherine L. Evans, Esquire

CHARGE:

Notice: Sec.

2 l 2(a)(6)(A)(i), l&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Cancellation of removal

This case was last before the Board on August 5, 2013, when we denied the respondent's
motion to reconsider our May 2, 2013, decision dismissing his appeal of the Immigration Judge's
October 2, 2012, decision denying his application for cancellation of removal under section
240A(b) of the Immigration and Nationality Act, 8 U.S.C. 1229b(b). This case is now before
us pursuant to a remand order from the United States Court of Appeal.s for the Eight Circuit,
where it arises, dated March 7, 2014. The record will be remanded to the Immigration Judge for
further proceedings consistent with this opinion and entry of a new decision.
On March 7, 2014, the Eight Circuit granted the government's unopposed motion to remand.
In its motion, the government asks the Board to consider the impact, if any, of the Fifth Circuit's
recent decision vacating the Attorney General's decision in Matter of Silva-Trevino, 24 I&N
Dec. 647 (A.G. 2008). See Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014). The
government also asks the Board to reconsider the effect, if any, of the Supreme Court's decision
in Descamps v. United States, 133 S. Ct. 2276 (2013), on the respondent's case. In his brief on
remand, the respondent argues that, under Descamps, his offense is not a "categorical" crime
involving moral turpitude because it lacks the "element" of "intent to harm" the victim and that
we cannot proceed to the second and third steps of Silva-Trevino. The respondent also argues
that the Supreme Court's decision in Descamps has abrogated the Attorney General's decision in
Silva-Trevino such that it no longer applies.
First, we note that, subsequent to its March 7, 2014, remand order in this case (and, therefore,
subsequent to the Fifth Circuit's decision vacating the Attorney General's decision in
Silva-Trev;no), the Eight Circuit has continued to apply the Attorney General's Silva-Trevino
analysis in cases involving the issue of whether a particular offense is a crime involving moral
2014 WL 5420051 (8th Cir. Oct. 27, 2014)
turpitude. See Avendano v. Holder,_ .3d
(applying Silva-Trevino analysis to alien's Minnesota conviction for making terroristic threats);
Villatoro v. Holder, 760 F.3d 872 (8th Cir. 2014) (applying Silva-Trevino analysis to alien's
Iowa conviction for tampering with records). Thus, arguably the Eighth Circuit itself has
_,

Cite as: B-G-, AXXX XXX 481 (BIA Nov. 25, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL

determined that the Fifth Circuit's decision vacating the Attorney General's decision in Silva
Trevino has no effect on the application of Silva-Trevino in the Eight Circuit.
However, in its most recent decision in Avendano v. Holder, supra, the Eighth Circuit
employed the "divisibility" analysis in Descamps in applying the first-step of the Silva-Trevino

turp

applied to resolve the issue. See id. at 2 (finding statute prohibiting making terroristic threats is

"divisible" in the "Descamps sense" because it provides alternative culpable menta!

statutes and
.
concluding an offense under the statute is a categorical crime involving moral turpitude).

In this regard, we note that section 236 of the California Penal Code, which generally defines

false imprisonment as the "unlawful violation of the personal liberty of another," is a "wobbler"
statute, meaning it punishes both misdemeanor and felony offenses under the same statute.

See Cal. Penal Code

17(b) (defining "wobbler" offense as a crime that is, in the discretion of

the court, punishable either as a felony or as a misdemeanor). The Ninth Circuit has found that
neither misdemeanor nor felony false imprisonment is a "categorical" crime involving moral

turpitude because each offense is broader than the relevant generic definition.

See Turijan

v. Holder, 744 F.3d 617, 621-22 (9th Cir. 2014) (felony false imprisonment under section 236 is
not categorical crime involving moral turpitude because it lacks intent to injure, actual injury, or

a protected class of victims and has been applied in a non-generic manner); Saavedra-Figueroa
(9th Cir. 2010) (misdemeanor false imprisonment under section 236 is
not a categorical crime involving moral turpitude because it lacks the intent to harm).
v. Holder, 625 F.3d 621

It is not disputed here that the respondent has been convicted of a misdemeanor offense.

A misdemeanor offense of false imprisonment under section 236 of the California Penal Code
has only two elements: (1) the violation of another's personal liberty; and (2) the unlawfulness
of that violation. See Saavedra-Figueroa v. Holder, supra. Under Descamps the statutory

definition of misdemeanor false imprisonment under the statute is not "divisible." See id. at
2281, 2283 (a statute is "divisible" only if it: (I) is "divisible" in the sense that it lists multiple
discrete offenses as enumerated alternatives or defines a single offense by reference to
disjunctive sets of elements, more than one combination of which could support a conviction;

and (2) some (but not all) of those listed offenses or combinations of disjunctive elements are

a categorical match to the relevant generic standard). It is also a "general intent" crime because

"its definition includes only a description of the particular act without any reference to an intent
to do a further act or achieve a further consequence." See Saavedra-Figueroa v. Holder, supra.
We have found that, where a statute can be violated with general intent only, it follows
that the underlying offense may be committed without the evil intent, depraved or vicious
motive, or corrupt mind associated 'With moral turpitude. See Maller ofSolon, 24 I&N Dec . 239,
241 (BIA 2007) (finding simple assault offenses are not generally considered to be crimes
involving moral turpitude because they require general intent only).

Further, the offense of

misdemeanor false imprisonment under the statute is not an inherently dangerous offense.
Henderson, 19 Cal.3d 86 (Cal. Sup.Ct. 1977).
Thus, under Descamps,

See People v.

a misdemeanor offense of false imprisonment under section 236 of the California Penal Code is
categorically not a crime involving moral turpitude, e.g., the entirety of the offense as defined by

Cite as: B-G-, AXXX XXX 481 (BIA Nov. 25, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

itude
analysis to determine whether a particular statute is a categorical crime involving moral
and/or whether the statute is divisible such that the modified categorical approach may be

its elements does not punish conduct that is morally turpitudous, and thus we cannot apply the
modified categorical approach to determine whether the respondent's actual conduct involved

moral turpitude. See Descamps v. US., supra at 2285-86, 2290-92 (the modified categorical
approach does not apply merely because the elements of the crime can sometimes be proved by
reference to conduct that fits the generic federal standard; such crimes are "overbroad," but not

is not a disqualifying offense for purposes of his eligibility for cancellation of removal.
Accordingly, the record will be remanded to the Immigration Judge for further proceedings
consistent with this opinion and for entry of a new decision.

ORDER:

The record is remanded to the Immigration Judge for further proceedings

consistent with this opinion and for entry of a new decision.

Cite as: B-G-, AXXX XXX 481 (BIA Nov. 25, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

"divisible"). As such, the we find that the respondent has met his burden in establishing that his
conviction for misdemeanor false imprisonment under section 236 of the California Penal Code