U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 leesburg Pilce, Suite 2000

Falls Church, Virginia 22041

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Cheung, Rosana Kit Wai OHS/ICE Office of Chief Counsel - LOS
Law offices of Rosana Cheung 606 S. Olive Street, 8th Floor
617 South Olive Street Los Angeles, CA 90014
915
Los Angeles, CA 90014

Name: C ,J S A 869

Date of this notice: 11/6/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Malphrus, Garry D.

' .' I '

Userteam: Docket

For more unpublished BIA decisions, visit

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

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 869-Los Angeles, CA Date: NOV -

6 2017
In re: J S C

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Rosana K. Cheung, Esquire

APPLICATION: Cancellation of removal

This matter was last before us on June 12, 2015, when we dismissed the respondent's appeal
of the Immigration Judge's January 21, 2014, decision finding the respondent inadmissible as
charged and denying the respondent's application for cancellation of removal under section
240A(a) of the Immigration and Nationality Act, 8 U.S.C. 1229b(a). This case is presently before
us pursuant to a September 25, 2015, order of the United States Court of Appeals for the Ninth
Circuit, which granted the Government's unopposed motion to remand. The record will be
remanded to the Immigration Judge for further proceedings and for the entry of a new decision.

We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. 1003.1 (d)(3)(i). We review
all other issues, including issues of law, discretion, or judgment, under a de novo standard.
8 C.F.R. 1003. l (d)(3)(ii).

In its motion to remand, the Government directed the Board to reassess whether the
respondent's 1988 and 2006 convictions for the offense of infliction of corporal injury in violation
of California Penal Code section 273.5(a) are crimes involving moral turpitude in light of the Ninth
Circuit's decision in Olivas-Motta v. Holder, 146 F,3d 907 (9th Cir. 2013), which abrogated
Matter of Silva-Trevino, 24 l&N Dec. 687 (A.G. 2008). In her decision, the Immigration Judge
applied the modified categorical approach in concluding that the respondent's statutes of
convictions were crimes involving moral turpitude, but, in so holding, the Immigration Judge did
not first determine whether the offenses are categorically crimes involving moral turpitude and, if
necessary, whether the statue of conviction is divisible (U at 2).

Due to evolving legal precedent since the time of the respondent's removal hearing in 2014
and since the Ninth Circuit granted the Government's motion to remand in 2015, we will remand
proceedings to the Immigration Judge to allow her to first determine whether the respondent's
convictions under Cal. Penal Code 273.S(a) are categorically crimes involving moral turpitude
and, if not, whether the statutes are divisible under current precedent from the United States
Supreme Court, the Ninth Circuit, and the Board.

In this regard, we note that, while this appeal was pending on remand from the Ninth Circuit,
the Supreme Court issued Mathis v. United States, 136 S. Ct. 2243 (2016), which applied the
categorical approach to a state burglary statute that contained alternative means to satisfy one of
its elements. In so doing, Mathis provided helpful guidance for determining whether a predicate
 869

statut of conviction is divisible. Also during the pendency of this appeal on remand from the
Ninth Circuit, we decided Matter of Silva-Trevino ("Silva-Trevino Ill"), 26 I&N Dec. 826
(BIA 2016), in which we held that the categorical and modified categorical approaches provide
the proper framework for determining whether a conviction is for a crime involving moral
turpitude. We further held that, unless the controlling case law of the governing Federal court of
appeals (here the Ninth Circuit) expressly dictates otherwise, the realistic probability test, which

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focuses on the minimum conduct that has a realistic probability of being prosecuted under the
statute of conviction, should be applied in determining whether an offense is a categorical crime
involving moral turpitude. See id.; see also Leal v. Holder, 771 F.3d 1140, 1145 (9th Cir. 2014)
(adopting the realistic probability test). Thus, on remand, the Immigration Judge should apply our
decision in Matter of Silva-Trevino III along with the Supreme Court's decision in Mathis in
deciding whether the respondent's offenses are crimes involving moral turpitude.1

We further note that in a recent unpublished decision involving Cal. Penal Code 273.5, the
Ninth Circuit directed the Board to reassess whether the alien's 2014 conviction for the offense of
infliction of corporal injury in violation of Cal. Penal Code 273.5(a) is a crime involving
moral turpitude under the Supreme Court's intervening decision in Mathis v. United States,
such that it bars his eligibility for voluntary departure. See Sandoval v. Lynch, No. 14-73749,
2016 WL 4245512 (9th Cir. Aug. 11, 2016) (unpublished). In Sandoval, the court also cited to
People v. Burton, 196 Cal. Rptr. 3d 392 (Cal. C,t. App. 2015), which disagreed with the Ninth
Circuit's conclusion in Morales-Garcia v. Holder, 561F.3d 1058 (9th Cir. 2009), that 273.5 is
not categorically a crime involving moral turoitude

On remand, the Immigration Judge should allow the respondent the opportunity to present
additional evidence pertaining to any and all applications for relief. Accordingly, the following
order will be entered.

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

FOR THE BOARD

1 We note that Cal. Penal Code 273.5 has been amended numerous times. Thus, it is crucial that

the Immigration Judge apply her analyses to the statutes in effect at the time of the respondent's
convictions.