U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Piibe, Alary OHS/ICE Office of Chief Counsel - LOS
Hill & Piibe, Immigration Attorneys 606 S. Olive Street, 8th Floor
523 West 6th Street Los Angeles, CA 90014
Suite 737
Los Angeles, CA 90014-1225

Name: D E , N ... A 335

Date of this notice: 10/30/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Cole, Patricia A.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: N-D-E, AXXX XXX 335 (BIA Oct. 30, 2017)
;'

U.S. Department of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 335 - Los Angeles, CA Date:

OCT 3 0 2017
In re: N D E

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Alary Piibe, Esquire

APPLICATION: Cancellation of removal

This case was last before us on February 24, 2012, when we affirmed the hnm.igration Judge's
decision finding that the respondent's conviction for intimidation of witnesses and victims in
violation of California Penal Code 136.l(a) constitutes a crime involving moral turpitude and
renders him ineligible for cancellation of removal under section 240A(b) of the hnmigration and
Nationality Act, 8 U.S.C. 1229a(b) (2012). The respondent thereafter sought judicial review
before the United States Court of Appeals for the Ninth Circuit, which has remanded the matter to
us to consider whether CAL. PENAL CODE 136.l(a) is divisible and, if so, to conduct a modified
categorical analysis. The record will be remanded for further proceedings.

The respondent, a native and citizen of El Salvador, was convicted on April 19, 2001, of
intimidation of witnesses and victims in violation of CAL. PENAL CODE 136.1(a) (Exh. 4L). The
Ninth Circuit has held that this offense is not categorically a crime involving moral turpitude
because it requires neither an intent to defraud nor the actual or intended infliction of injury upon
a victim. See Escobar v. Lynch, 846 F.3d 1019, 1027-28 (9th Cir. 2017). However, the Ninth
Circuit remanded for the Board to determine whether the statute is divisible and to conduct a
modified categorical analysis if necessary. Id. at 1028.

We conclude that CAL. PENAL CODE 136.l(a) is not a divisible statute. The statute does not
contain alternative elements defining multiple crimes. Mathis v. United States, 136 S. Ct. 2243,
2249 (2016). Indeed, the statute does not even enumerate various factual means of committing a
single element and does not restrict the means a defendant selects to comm.it the offense. Id;
People v. Foster, 65 Cal. Rptr. 869, 871 (Cal. Ct. App. 2007). The prosecution simply must prove
that the defendant's acts or statements are intended to affect or influence a potential witness' or
victim's testimony or acts. Id Th.us, a jury does not need to fmd any particular factual means of
committing the offense and could convict as long as all the jurors agree that the defendant
prevented or dissuaded or attempted to prevent or dissuade any witness or victim from attending
or giving testimony at any trial, proceeding, or inquiry authorized by law.

Because we conclude that 136.l(a) is not a divisible offense, we do not employ a modified
categorical approach to determine which of multiple alternative elements the respondent was
convicted of. Mathis v. United States, 136 S. Ct. at 2249; see also Marine/arena v. Sessions, 869
F.3d 780, 785-86 (9th Cir. 2017) (the modified categorical approach is used only when a state
statute is both overbroad and divisible to determine which statutory phrase was the basis for the
conviction). Given that we now hold that the respondent's offense is not a crime involving moral
Cite as: N-D-E, AXXX XXX 335 (BIA Oct. 30, 2017)
 335

turpitude, the Immigration Judge's decision to pretennit the respondent's application for
cancellation of removal under section 240A(b)(l)(C) of the Act was incorrect. Thus, a remand is
warranted for further proceedings regarding the respondent's application for cancellation of
removal. The parties should have the opportunity to submit evidence regarding the application.
The respondent also should have the opportunity to apply for any other relief for which she may
be eligible.

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Accordingly, the following order will be entered.

ORDER: The record is remanded for further proceedings consistent with the foregoing opinion
and for the entry of a new decision.

Cite as: N-D-E, AXXX XXX 335 (BIA Oct. 30, 2017)