A.

MERCEDES RYDEN, ESQUIRE

3300 N. Central Avenue, Ste 650
Phoenix, A 85012
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Jeesb11rg Pike, S11ite 2000
Fals C1 rc1, Vrginia 2204/
OHS/ICE Ofice of Chief Counsel - FLO
P .0. Box 25158
Phoenix, A 85002
Name: VALENZUELA-GARCIA, EDGAR ARMANDO A079-651-539
Date of this notice: 3/10/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Cole, Patricia A.
Filppu, Lauri S.
Pauley, Roger
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Edgar Armando Valenzuela-Garcia, A079 651 539 (BIA March 10, 2011)
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5/07 leesb11rg Pike, S11i1e 2000
Fals Ch11rch, Vrginia 22041
V ALENZUELAGARCIA, EDGAR ARMANDO
3250 N PINAL PARKWAY AVE
A079-651-539
OHS/ICE Ofice of Chief Counsel FLO
P .0. Box 25158
Phoenix, A 85002
FLORENCE, A 85132
Name: VALENZUELA-GARCIA, EDGAR ARMANDO A079-651 539
Date of this notice: 3/10/2011
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a couresy. Your attorney or representative has been sered with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be removed
from the United States or affirms an Immigration Judge's decision ordering that you be
removed, any petition for review of the attached decision must be filed with and received by the
appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Cole, Patricia A.
Filppu, Lauri S.
Pauley, Roger
Sincere Iv.
Do Ct
Donna Carr
Chief Clerk
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Cite as: Edgar Armando Valenzuela-Garcia, A079 651 539 (BIA March 10, 2011)
.
.
U.S. Department of Justice
Executive Ofce fr Immigation Review
Decision of the Board of Immigration Appeals
Falls Church, Virginia 22041
File: A079 651 539 - Florence, A
I re: EDGAR ARMANDO VALENZUELA-GARCIA
IN BOND PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: A. Mercedes Ryden, Esquire
ON BEHALF OF OHS: Victoria Levin
Assistant Chief Counsel
APPLICATION: Custody redetermination
MAR l 0 2011
The respondent, a native and citizen of Mexico, has appealed fom an Immigration Judge's
September 13, 2010, decision denying his request fr a chage in custody status. On October 13,
2010, the Immigration Judge issued a bond memorandum seting frth the reasons fr the bond
decision. The Immigration Judge fund that he lacked jurisdiction to consider the respondent's
request fr a change in custody status, inasmuch as the respondent is subject to the mandator
detention provisions under section 236(c) of the Immigation and Nationality Act, 8 U.S.C.
1226(c). The Department of Homeland Security ("DHS
,,
) has fled a motion fr summar
afrmance. The respondent's appeal will be sustained.
The record refects that the respondent was convicted in 2004 fr the ofense of possession of
burglary tools in violation of sections 13-1501, 13-1505, 13-610, 13-701, 13-702, 13-702.1, 13-707,
and 13-802 of the Arzona Revised Statutes. The respondent also was convicted in 2006 of flse
reporting to a law enfrcement agency in violation of sections 13-2907 .1, 13-707, and 13-802 of the
Arizona Revised Statutes. The respondent was charged with removability under section
237(a)(2)(A)(ii) of the Act fr having been convicted of two or more crimes involving moral
turpitude.
With regard to the respondent's conviction fr flse reporting to a law enfrcement agency, the
Immigration Judge held that, under a modifed categorical approach, the conviction documents raise
the "possibility" that the respondent's conviction stemmed fom his desire to intentionally mislead
police ofcers fom carying out an arrest (l.J. at 7). The Immigration Judge specifcally cited the
release questionnaire, which contains a probable cause statement fom the arresting ofcer that, upon
arrest fr possession of marijuana, the respondent provided a flse name and date of birth and that
once a real name was fund, a warrant was fund fr a probation violation.
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Cite as: Edgar Armando Valenzuela-Garcia, A079 651 539 (BIA March 10, 2011)
. , , ,
{079 651 539.
A.R.S. section 13-2907.01 provides:
A. It is unlawfl fr a person to knowingly make to a law enfrcement agency of either this
state or a political subdivision of this state a false, faudulent or unfunded report or
statement or to knowingly misrepresent a fct fr the purpose of interfering with the orderly
operation of a law enfrcement agency or misleading a peace ofcer.
B. Violation of this section is a class 1 misdemeanor.
The Arizona statute under which the respondent was convicted is not categorically a crime
involving moral turpitude because a conviction does not necessarily require a showing of intent to
defaud. The Immigration Judge concluded that the conviction documents in the bond record "raise
the possibility" that the respondent's conviction stemmed fom his desire to intentionally mislead
police ofcers fom carrying out an arest, and thus his conviction potentially is within the ambit of
the defnition of a crime involving moral turpitude (l.J. at 7). We stated in Matter of Joseph, 22 l&N
Dec. 799, 806 (BIA 1999), that the Immigration Judge "must necessarily look frward to what is
likely to be shown during the hearing on the underlying removal case" in deterining whether an
alien is properly included in a mandatory detention category. Id. at 807.1 In this case, we fnd that
the fct that the bond record raises the "possibility" that the respondent's conviction stemmed fom
intentionally misleading a police ofcer is not sufcient to support a fnding that the respondent has
not met his burden of proof to show that the DHS is substantially unlikely to prevail on the removal
charge. Thus, we fnd that the respondent is not properly included in a mandatory detention categor
and is eligible fr bond. Therefre, we need not address the respondent's argument that his
conviction fr possession of burglar tools is not a crime involving moral turpitude.
Accordingly, the fllowing orders are entered.
ORDER: The Immigration Judge's bond decision is vacated.
FURTHER ORDER: The record is remanded fr a bond deterination under section 236(a) of
the Act.
FOR THE BOA <:
1 In so stating we refred as an example to the likelihood that DHS would be able to produce
cerifed conviction records. But that is a far cr fom engaging in speculation that DHS will be able
to show the tpitudinous nature of a conviction where the statute is divisible. We note that the DHS
in this case filed to make a profer of evidence admissible under the third stage inquir peritted
by Matter of Silva-Trevino, 24 l&N Dec. 687 (A.G. 2008).
2
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Cite as: Edgar Armando Valenzuela-Garcia, A079 651 539 (BIA March 10, 2011)
r
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
3260 North Pinal Parkway
Florence, Arizona 85132
IN THE MATTER OF:
VALENZUELA-GARCIA, Edgar
Armando
On Behalf of the Respondent:
A. Mercedes Ryan, Esq.
3300 North Central A venue
Suite 650
Phoenix, Arizona 85012
In Bond Proceedings
File No.: A079-651-539
Date: October 13, 2010
On Behalf of the DUS:
Victoria Levin, Esq.
Assistant Chief Counsel
Department of Homeland Security
3250 North Pinal Parkway
Florence, Arizona 85132
BOND MEMORANDUM OF THE IMMIGRATION JUDGE
I. Background
On August 19, 2010, the Department of Homeland Security (OHS) issued a Notice to Appear
(NTA) that charged the Respondent with removability pursuant to section 237(a)(2)(A)(i) of the
Immigration and Nationality Act (IA or Act), as amended. (Removal Ex. 1.) In support of this
removal charge, OHS alleges that on April 11, 2006, the Respondent was convicted fr the ofense
of flse reporting to a law enfrcement ofcer, in violation of sections 13-2907.11, 13-707, and 13-
802 of the Arizona Revised Statutes (A.R.S.). (Id.) More recently, on September I 0, 2010, OHS fled
a Form 1-261 (Additional Charges of Inadmissibility/Deportability) that additionally charged the
Respondent with removabilit pursuant to INA section 23 7( a)(2)(A)(ii). (Removal Ex. 2.) In support
of this second removal charge, OHS separately alleges that on October 18, 2004, the Respondent was
convicted fr the ofense of possession of burglary tools, in violation of A.R.S. 13-1501, 13-1505,
13-610, 13-701, 13-702, 13-702.01, 13-707, 13-801, and 13-802. (Id)
On August 27, 20 I 0, the Respondent fled a motion fr custody redetermination, and a bond
hearing was convened on September 13, 2010, to consider this motion. (Bond Exs. l (a) and (b).)

,
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In re Edgar Armando Valuela-Garcia, A079-651-539 IJ Taylor Bond Memo & Order 10-13-2010
II. Applicable Law
Generally, an alien who is in the custody of DHS may apply to an Immigration Cour fr a
redeterination of his or her custody status at any time befre a deportation or removal order
r
becomes administratively fnal. 8 C.F.R. 1236.l(d). The Immigration Court, however, has no
custody redetermination authority over aliens subject to the mandatory detention provisions of
section 236( c) of the Act. See Matter of Rojas, 23 I&N Dec. 117, 127 (BIA 200 I) ("The regulations
do not give Immigration Judges bond jurisdiction over aliens who are properly subject to mandatory
detention."). The Immigration Judge has limited jurisdiction to resolve whether an alien is "properly
included" within the mandatory detention provisions. See 8 C.F.R. 1003. 19(h)(l )(ii) & (iii). In
Matter of Joseph, 22 I&N Dec. 799, 802 (BIA 1999) the Boad of Immigration Appeals (BIA or
Board) held that an alien is not "properly included" within a mandatory detention categor if the
Immigation Court determines that DHS is "substantially unlikely" to be able to establish or prove
a charge of removability that subjects the alien to mandatory detention.
III. Analysis
DHS has charged that the Respondent is removable under sections 237(a)(2)(A)(i) and (ii).
Accordingly, pursuant to sections 236(c)(l )(B) and (C), he is only subject to mandator detention
if he has been convicted of two crimes involving moral turpitude or if either of his convictions can
be recognized as a crime involving moral turpitude accompanied by "a term of imprisonment of at
least 1 year." INA 236(c)(l )(B) & (C).
1
A. Crime Involving Moral Turpitude Framework
The United States Cour of Appeals fr the Ninth Circuit has held that "[a] crime of moral
turitude is one 'involving conduct that is inherently base, vile, or depraved, and contra to te
private and social duties man owes to his fellow men or to society in general."' Alvarez-Reynaga v.
Holder, 596 F.3d 534, 536 (9th Cir. 2010) (quoting Navarro-Lopez v. Gonzales, 503 F.3d 1063,
1068 (9th Cir. 2007) (en bane)). The Attorey General has also provided a new famework fr
deterining whether a particular conviction constitutes a crime involving moral turpitude, holding
that an IJ may consider reliable evidence outside the strict record of conviction in order to determine
if a conviction is one that has the characteristics of a CIMT. The A.G. also gave a short-hand
summar of a CIMT, which is not inconsistent with the CIMT tests employed by the BIA and Ninth
Circuit in the past: "[T]o qualif as a crime involving moral turpitude fr purposes of the Act, a
crime must involve both reprehensible conduct and some degree of scienter, whether specifc intent,
deliberateness, willflness, or recklessness." Matter of Silva-Trevino, 24 l&N Dec. 687, 689 n. l
'While a alien is removable under section 237(a)(2)(A)(i) of the Act if he has been "convicted ofa crime
fr which a sentence of one year or longer may be imposed," this ground of removability only subjects an alien to
mandator detention if the actual criminal sentence is a "ter of imprisonment of at least I year." IA
236( c )( I )( C).
2
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In re Edgar Armando Valenzuela-Gare/a, A079-65 l-5J9 IJ Taylor Bond Memo & Order 10-13-2010
(A. G. 2008) (citing precedent fom other circuits as to the scienterlmens rea element), though
recklessness has been held to be outside the scope of a CIMT in the Ninth Circuit and cannot suppor
a CIMT under the INA, as held in Ferandez-Ruiz v. Gonzales, 468 F.3d 1159, 1165-66 (9'
h
Cir.
2006), and Uppal v. Holder, 576 F.3d 1014, 1020 (91
h
Cir. 2009).
1
In Marmolejo-Campos v. Holder, 558 F.3d 903, 910 (91
h
Cir. 2009) (en bane), the Ninth
Circuit held that because the Attorey General's defnition of a crime involving moral turitude
"fils to 'particularize' the term in any meaningfl way . . . giving [it] Chevron defrence . . . has no
practical signifcance." (citations and quotations omitted); Nunez v. Holder, 594 F.3d 1124, 1130 n.3
(9
t
Cir. 2010) ("We have held that, at this stage of our analysis, we 'rel(y] on our own generalized
defnition' of the term moral turpitude because the BIA has filed to provide any generic
defnition to which we could meaningflly defer.") (emphasis added) (quoting i\armolejo-Campos,
558 F.3d at 910). Instead, it is the Board's moral turpitude analysis conducted through a
"case-by-case adjudication" that receives Ninth Circuit deference. Marmolejo-Campos, 558 F.3d
at 903, 911; Ramos-Lopez v. Holder, 563 F.3d 855, 859 (9'
h
Cir. 2009) ("[T]he BIA's constrction
of 'moral turpitude' though a process of case-by-case adjudication is entitled to Chevron
deference.").
Nevertheless, the Ninth Circuit has recognized that its working defnition of a CIMT is not
materially diferent fom the BIA 's working defnition, see Uppal v. Holder, supra, 576 F .3d I 014,
at 1019 n. I (9
t
Cir. 2009):
As we noted in Marmolejo-Campos, to date, the Board's defnition of "moral
turitude" has been so vague and generalized as to render Chevron deference meaningless.
Marmolejo-Campos, 558 F.3d at 910. Accordingly, we have relied on our defnition of the
term. Id. The two defnitions do not "difer materially," id., and any diference is irrelevant
to the present case.
Therefre, this Cour perceives no signifcant diference and will look fr the characteristics
of a CIMT discussed in the Circuit's decisions, such as Navarro-Lopez and Marmolejo-Campos,
supra, as well as the histor of similar discussions of the nature of a CIMT by the Board and AG.
To determine "whether an alien's prior ofense is one that categorically involves moral
turitude, immigration judges must determine whether there is a 'realistic probability, not a
theoretical possibility,' that the State or Federal criminal statute pursuant to which the alien was
convicted would be applied to reach conduct that does not involve moral turpitude." J\atter o/Silva
Trevino, 24 I&N Dec. 687, 689-90 (A.G. 2008).
As recognized by both the Board and the Ninth Circuit, "where [the] categorical analysis does
not resolve the moral turpitude inquiry in a particular case, an adjudicator should proceed with a
'modifed categorical' inquiry." Matter o/Silva-Trevino, 24 I&N Dec. at 689-90; Nunez, 594 F.3d
1129-30. Under the modifed categorical approach the Immigration Court conducts an examination
of"the statutor defnition, charging document, written plea agreement, transcript of plea colloquy,
and any explicit fctual fnding by the trial judge to which the defendant assented." Shepard v.
3
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In re Edgar Armando Valenzela-Garcia, A079-651-SJ9 IJ Taylor Bond Memo & Order 10-13-2010
United States, 544 U.S. 13, 16 (2005). This list is simply illustrative, and other "documents of equal
reliability may also be considered." United States v. Snellenberger, 548 F.3d 699, 701 (9th Cir.
2008) (en bane); United States v. Strickland, 601 F.3d 963, 968 (9th Cir. 2010) (en bane).
As the Attorey General frther instructed in Matter of Silva-Trevino, "[w]hen the record of
conviction is inconclusive, judges may, to the extent they deem it necessary and appropriate,
consider evidence beyond the frmal record of conviction. The goal of this inquiry is to discer the
nature of the underlying conviction where a mere examination of the statute itself does not yield the
necessar infrmation; it is not an occasion to relitigate fcts or determinations made in the earlier
criminal proceeding." Maller of Silva-Trevino, 24 I&N Dec. at 690. Simply put, this Silva-Trevino
third-step inquir permits an examination of documents that would not necessarily be considered
when analyzing a conviction under a second-step modifed categorical approach.
2
8. Possession of Burglar Tools
In the instant case, DHS has presented a record of conviction that discloses the Respondent
was convicted fr the ofense of possession of burglar tools, in violation of A.R.S. 13-1501, 13-
1505, 13-610, 13-701, 13-702, 13-702.01, 13-707, 13-801, and 13-802. (Bond Ex. 3.) Section 13-
1505 of the Arizona Revised Statutes provides the defnition fr this particular criminal ofense, in
pertinent part, as fllows:
A. A person commits possession of burglar tools by:
1. Possessing any explosive, tool, instrument or other article adapted or
commonly used fr committing any frm of burglar as defned in
13-1506, 13-1507 and 13-1508 and intending to use or perit the use of such
an item in the commission of a burglary.
2. Buying, selling, transferring, possessing or using a motor vehicle
manipulation key or master key.
On this topic, the Boad has held that an ofense involving the possession of burglar tools
could constitute a crime involving moral turpitude where the possession of the tools is to commit
a morally turpitudinous burglar, such as one accompanied by an intent to commit larceny or other
2
Unless and except when historically required to look beyond the criminal court's
conviction documents fr proof of a fct or fctor that is required under the IA fr immigration
law purposes that would not have been required or necessary fr the criminal court to consider in
determining the fct of conviction, such as the $10,000 loss element of a faud related
Aggravated Felony, or the profteering nature of a pimping fr prostitution related conviction, or
the type of violation of a domestic violence protection order, under precedent such as Nihawan
v. Holder, 129 S.Ct. 2294 (2009); Ferreira v. Ashcrof, 390 F. 3d 1091 (91h Cir. 2004); Matter of
Babaisakov, 24 l&N Dec. 306 (BIA 2007); Matter ofGertsenshteyn, 24 l&N Dec. 111 (BIA
2007); and Szalai v. Holder, 572 F.3d 975 (91h Cir. 2009).
4
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In re Edgar Armando Valenzuela-Garcia, A079-65J-539 IJ Taylor Bond Memo & Order 10-13-2010
turpitudinous crime or combination of crimes. Mater of Sera, 20 I&N Dec. 579, 584 (BIA 1992).
By contrast, a defendant can be convicted under A.R.S. l 3-l 505A(2) fr merely "[b ]uying, selling,
transfring, possessing or using a motor vehicle manipulation key or master key." Because the
possession of such items does not "necessarily involve moral turpitude," Mater of Serna, 20 I&N
Dec. at 585, a conviction under A.R.S. 13-1505 would not be recognized as a "categorical" crime
involving moral turpitude.
Still, in support of the contention that this conviction could qualif as a crime involving
moral turitude, DHS has submitted a criminal complaint, criminal infrmation, release
questionnaire, and various Docket sheets. (Bond Ex. 3.) The Docket sheets specif that the
Responde_ nt entered a plea of guilty to the fllowing:
(Id.)
OFFENSE: Count II Possession of Burglar Tools
Class Six (6) Undesignated
A.R.S. 13-1502, 1505, 610, 701, 702, 702.01, 707, 801, and 802
Date of Ofense: 08/25/2004
Non Dangerous - Non Repetitive
In tu, count two of the underlying criminal Infrmation provides the fllowing fctual basis
fr the Respondent's guilty plea:
(Id)
EDGAR ARMANDO VALENZUELA-GARCIA aka EDGAR A GARCIA, on or
about the 1st day of August 2004, possessed A SCREWDRVER, an explosive, tool,
instrument or other aricle, adapted or commonly used fr committing any frm of
burglar and intended to use or permitted its use in the commission of a burglar, in
violation of A.R.S. 13-1501, 13-1505, 13-301, 13-302, 13-303, 13-304, 13-701, 13-
702, 13-702.01, and 13-801.
Further detailing the fctual basis of the Respondent's conviction is the afrementioned
release questionnaire:
THE BURGLARY OCCURD AT 525 W. SOUTHERN, TEMPE. HE WAS
IDENTIFIED BY A WITNESS AS BEING THE PERSON WHO "LOOKED OUT"
WHILE THE OTHER SUBJECT BROKE INTO THE CAR AS WELL AS
IDENTIFIED AS THE DRIVER OF THE VEHICLE USED TO FLEE. A PIPE
WITH WHAT APPEARED TO BE METHAMPHETAMINE RESIDUE WAS
FOUD UNDER HIS SEAT I HIS VEHICLE AND A SCREWDRVER WAS
ALSO LOCATED IN THE VEHICLE. ENTRY INTO THE VEHICLE WAS MADE
USING A SCREWDRIVER TO BREAK THE WINDOW. HE WAS BOOKED
AND HELD TO SEE A JUDGE.
5
.... . - f T. . . P. P....... . Y- . .P~~.P *.. H. .....% .^F ... v . . .
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In re Edgar Armando Valen'e/a-Garca, A079-651-539 IJ Taylor Bond Memo & Order 10-13-2010
(Id. )
The Immigration Court need not determine at this time whether the release questionnaire may
be permissibly relied on in the removal proceeding to help resolve the moral turpitude inquiry.
Rather, as this is a bond proceeding, "any infrmation that is available" should be considered under
8 C.F.R. 1003.l 9(d). Based on these underlying conviction documents, it appears that the
Respondent's intended use of the burglar tools was to burglarize another vehicle. As such conduct
is potentially morally turpitudinous, the Immigration Court concludes that DHS is not "substantially
unlikely" to establish that the Respondent's conviction fr the ofense of possession of burglar tools
qualifes as a crime involving moral turpitude. See Ye v. INS, 214 F.3d 1128, 1135 n.5 (9th Cir.
2000) ("Ye was convicted of two counts of vehicle burglar, which is a crime of moral turpitude that
caries a possible sentence of one year or longer"); see also Matter of Louissaint, 24 l&N Dec. 754,
758 (BIA 2009) (applying the Silva-Trevino famework to a burglar ofense and concluding that
moral turitude is inerent in the act of burglary of an occupied dwelling).
C. False Reporting to a Law Enfrcement Agency
DHS has presented fher evidence that the Respondent was also convicted fr the ofense
of flse reporting to a law enfrcement agency, in violation of A.R.S. 13-2907.01, 707, and 802.
(Bond Ex. 4.) Section 13-2907.01 of the Arizona Revised Statutes provides in pertinent part that "[i]t
is unlawfl fr a person to knowingly make to a law enfrcement agency of either this state or a
political subdivision of this state a flse, fludulent or unfunded report or statement or to knowingly
misrepresent a fct fr the purpose of interfring with the orderly operation of a law enfrcement
agency or misleading a peace ofcer."
Still, citing Blanco v. Muksey, 518 F.3d 714 (9th Cir. 2008), the Respondent contends that
his conviction fr the ofense of flse reporting to a law enfrcement agency canot be recognized
as a crime involving moral turpitude. In Blanco the Ninth Circuit interreted whether Cal. Penal
Code 148.9(a) constitutes a crime involving moral turpitude. Cal. Penal Code 148.9(a) provides
as fllows:
Any person who flsely represents or identifes himself or herself as another person
or as a fctitious person to any peace ofcer . . . upon a lawfl detention or arest of
the person, either to evade the process of the court, or to evade the proper
identifcation of the person by the investigating ofcer is guilty of a misdemeanor.
The Ninth Circuit ultimately concluded that Cal. Penal Code 148.9(a) is not categorically
a crime involving moral turpitude because an "intent to defaud'' is neither'" explicit in the statutor
defnition' of the crime [n]or 'implicit in the nature' of the crime." See Blanco, 518 F.3d at 719
(citing Go/deshtein v. INS, 8 F.3d 645, 648 (9th Cir. 1993)). The Court frst deterined that faud
was not explicit in the statutor defnition because its text only requires a "kowing provision of
flse infrmation." Id. The Court frther held that an intent to defaud is not part of the crime's
"essential nature" since there is no requirement that a defendant "obtain something tangible,"
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In re Edgar Armando Valenzuela-Garca, A079-651-539 IJ Taylor Bond Memo & Order I0-13-2010
"induce another to act to his or her detriment," or express a "specifc intent to avoid arest." Id. at
719-20.
While A.R.S. 13-2907.01 is not identical to Cal. Penal Code 148.9(a), it could be said
to contain some of the same characteristics fund by the Ninth Circuit in Blanco as lacking moral
turpitude. For instance, if a defndant could be convicted under A.R.S. 13-2907.01 fr merely
making any flse or unfunded statement or report to a law enfrcement agency, then some such
conduct may not be a CIMT. Such behavior may constitute a "knowing provision of flse
infration," which might not be morally turpitudinous. See Blanco, 518 F .3d at 719. However, as
the Board has held, even unswor flsifcation to authorities can be a CIMT. Mater of Jurado, 24
.
I&N Dec. 29, 34-35 (BIA 2006).
An examination of the statutory text, however, does not end the Immigration Court's moral
turpitude inquir, as both the criminal inforation and release questionnaire provide infrmation that
potentially assist in clarifing the fctual basis of the Respondent's criminal conviction. Te criminal
infration provides that the Respondent "knowingly made to the TEMPE POLICE
DEPARTMENT I OFFICER M. Carleton, #14619, a flse, faudulent, or unfunded repor or
statement, or knowingly misrepresented a fct, fr the purpose of interfring with the orderly
operating of a law enfrcement agency or misleading an ofcer, in violation of A.R.S. 13-
2907.01, 13-707, and 13-802." More imporantly, the release questionnaire discloses that the
Respondent provided a flse name and date of birth at the time he was arested fr possession of
marijuana:
[E]DGAR VALENZUELA-GARCIA WAS ARRSTED FOR POSS OF
MARJUAA. AFTER BEIG ARRESTED, IT WAS LEARED THAT GARCIA
WAS GIVING FALSE NAME & D.O.B. ONCE A REAL NAME WAS FOUD,
A WARRNT WAS FOUND FOR PROBATION VIOLATION.
These conviction documents.raise the possibility that the Respondent's conviction fr the
ofense of flse reporting to a law enfrcement agency stemmed fom the Respondent's desire to
intentionally mislead police ofcers fom carring out an arest. The Immigration Court concludes
that such conduct potentially brings the Respondent's conviction within the ambit of the Ninth
Circuit's and BIA's defnitions ofa crime involving moral turitude. As Mater of Joseph compels
mandator detention so long as DHS is not substantially unlikely to prevail on the ultimate removal
charge, the Immigration Court may not assume the present record comprises the only evidence that
DHS will be able to present at the removal hearing in seeking to resolve the moral turpitude
question. See Mater of Joseph, supra at 806-07.
Therefre, because of those fctors, the Immigration Court determines that DHS is not
substantially unlikely to establish that the Respondent's conviction fr the ofense of flse reporing
to a law enfrcement agency is a crime involving moral turpitude. Thus, it fllows that the
Respondent's conviction fr the ofense of flse reporting to a law enfrcement agency in
combination with his separate conviction fr the ofense of possession of burglary tools subjects him
to mandatory detention under section 236(c)(I )(B) of the Act.
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In re Edgar Armando Va/e11zuela-Garca, A079-6SJ-S39
D. Conclusion
IJ Taylor Bond Memo & Order 10-13-2010
The Immigration Court has concluded that OHS is not substantially unlikely to establish that
the Respondent's conviction fr the ofense of possession of burglar tools is crime of moral
turpitude, and that OHS is not substantially unlikely to establish that the Respondent's conviction
fr the ofense of flse reprting to a law enfrcement agency is a crime involving moral turpitude,
thus subjecting the Respondent to mandator detention under INA section 236(c)(l)(B).3
Therefre, the fllowing order shall be entered:
IT IS HERBY FOUND, exercising only the inherent jurisdiction to determine jurisdiction,
that the Immigration Court currently lacks jurisdiction to redetermine the conditions of the
Respondent's custody, because it appears that he is subject to the mandator detention provisions
of section 236(c)(l )(B) of the Act.
Bruce A. Taylor
U.S. Immigration Judge
CERTIFICATE OF SERVICE
SERVICE BY: Mail (I Personal Service (R
TO: 0 OHS [ ] Alien f Alien's Attorey
DATE: lO-/
-lo
BY: Court Staf "c.
3As neither of the Respondent's convictions is accompanied by an actual criminal sentence ofa "ten of
imprisonment of at least I year," mandator detention under section 236(c)(I )(C) is not applicable in this case.
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