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

DOUGLAS STEVEN LUX, ESQUIRE 1699 Coral Way, Suite 508 Miami, FL 33145-0000

OHS/ICE Office of Chief Counsel 333 South Miami Ave., Suite 200 Miami, FL 33130

MIA

Name: RAMIREZ

( R) ,

EDDY JOSE

A028859292

Date of this notice: 1/20/2011

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Pauley, Roger

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Eddy Jose Ramirez, A028 859 292 (BIA Jan. 20, 2011)

i U.S. Department of Justice Executive bffice for Immigration Review

Falls Church, Virginia 22041 Decision of the Board of Immigration Appeals

File:

A028 859 292 - Miami, FL

Date:

JAN 2 0 2011

In re: EDDY JOSE RAMIREZ IN REMOVAL PROCEEDINGS

,

APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF OHS: Douglas Steven Lux, Esquire

Thomas M. Ayze Assistant Chief Counsel

CHARGE: Notice: Sec. 237(a)(2)(A)(i), I&N Act [8 U.S.C. 1227(a)(2)(A)(i)] Convicted of crime involving moral turpitude

APPLICATION:

Termination

The Department of Homeland Security (OHS) appeals from the Immigration Judge's decision, entered March 13, 2009, terminating proceedings. The respondent, a native and citizen ofNicaragua, opposes the appeal, which will be dismissed. We review the findings of fact, including the determination of credibility, made by the Immigration Judge under a "clearly erroneous" standard. 8 C.F.R. 1003. l(d)(3)(i). We review all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion, under a de novo standard. 8 C.F.R. 1003.l(d)(3)(ii); Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209, 211 (BIA 2010). Relying on Matter ofDanesh, 19 I&N Dec. 669 (BIA 1988), the Immigration Judge determined that the respondent's conviction for battery of a law enforcement officer under FLA. STAT. 784.07 is not categorically a crime involving moral turpitude (CIMT). Finding that the record ofconviction merely restated the language of the statute of conviction, the Immigration Judge proceeded to the third step of Matter a/Silva-Trevino, 24 l&N Dec. 687 (A.G. 2008). The Immigration Judge found the arrest affidavit"[a]t no point ... indicate[s] the Respondent struck an officer or inflicted any kind of bodily harm on an officer," that the respondent's "testimony about the incident was largely consistent with the information contained in the arrest affidavit," and that "the affidavit and the testimony do not suggest that Respondent actually struck an officer or even attempted to strike an officer" (1.J. at 4-5). Accordingly, the Immigration Judge held the conviction was not a CIMT and terminated the proceedings.

Cite as: Eddy Jose Ramirez, A028 859 292 (BIA Jan. 20, 2011)

A028 8-59 292

The DHS acknowledges the categorical and modified categorical approaches are "not determinative" (DHS Brief at 8), but argues the Immigration Judge erred by holding the lack of bodily injury to the law enforcement officer was dispositive. On these facts, however, we agree with the Immigration Judge that the respondent's conviction is not a CIMT. A simple battery committed against a peace officer or other specially-protected person is a CIMT when the battery causes bodily harm to the victim. See Matter ofDanesh, supra (finding that an aggravated assault against a peace officer, which results in bodily harm to the victim and which involves knowledge by the offender that his force is directed to an officer who is performing an official duty, constitutes a crime involving moral turpitude); see also Garcia-Meza v. Mukasey, 5 16 F.3d 535, 536-38 (7th Cir. 2008) (holding aggravated battery of a peace officer under Illinois law not a CIMT absent bodily injury to the victim). As the Immigration Judge found, there is no evidence showing that the officer suffered any actual injury as a result of the respondent's battery. Moreover, the statute of conviction did not require, and the Immigration Judge did not find, evidence of malicious intent or the use of a weapon. Accordingly, we affirm the Immigration Judge's dismissal of the charge of removability under section 237(a)(2)(A)(i) of the Act. ORDER: The appeal is dismissed.

Cite as: Eddy Jose Ramirez, A028 859 292 (BIA Jan. 20, 2011)

EXECUTIVE OFFI(:E FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT MIAMI, FLORIDA

UNITED STATES DEPARTMENT OF JUSTICE

IN MATTER OF: RAMIREZ, Eddy Jose A# 028-859-292 RESPONDENT

) ) ) ) ) ) )

IN REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT Douglas Lux, Esq. 1699 Coral Way, Suite 6 09 Miami, Florida 33135

ON BEHALF OF DEPARTMENT Thomas Ayze, Esq. Asst. Chief Counsel Department of Homeland Security 333 South Miami Avenue, Suite 2 0 0 Miami, Florida 3313 0

CHARGE:

Section 237(a)(2)(A)(i) of the Immigration and Nationality Act, as amended, as an alien who has been convicted of a crime involving moral turpitude committed within five years of admission for which a sentence of one year or longer may be imposed.

APPLICATION:

Motion to Terminate

WRITTEN DECISION AND ORDER OF THE IMMIGRATION JUDGE Respondent. Eddy Jose Ramirez. is a native and citizen of Nicaragua. He was admitted to the United States as a lawful permanent resident at Miami, Florida on February 22, 1999. In March of2003, Respondent was convicted in the Eleventh Judicial Circuit for Miami-Dade County Florida for the offense of battery of a police officer/firefighter/intake officer in violation of Fla. Stat. 784.07. The Department issued

a Notice to Appear charging the Respondent as removable under section 237(a)(2)(A}(i)

of the Immigration and Nationality Act ('"Act"), in that he had committed a crime involving moral turpitude within five years after admission for which a sentence of one year or longer may be imposed. Respondent argues there is insufficient evidence upon which to conclude that his conviction under Fla. Stat. 784. 07 was a crime involving moral turpitude. Accordingly, he moves to terminate proceedings. Florida Statute section 784.07 provides, in pertinent part: (2) Whenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer ...while the officer .. .is engaged in the lawful performance of his or her duties, the offense for which the person is charged shall be reclassified as follows: (b) In the case of battery. from a misdemeanor of the first degree to a felony of the third degree. According to Florida law, a battery occurs when a person: l. Actually and intentionally touches or strikes another person against the will of the other; or 2. Intentionally causes bodily harm to another person.

Fla.Stat. 784.03. The Board has described a crime involving moral turpitude as a "nebulous concept, which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one's fellow man or society in general. '' Matter of PerezContreras, 20 l&N Dec. 615, 617-18 (BIA 1992). In determining whether a particular conviction reflects a crime involving moral turpitude, the Court must first engage in a categorical"' inquiry and look exclusively to the elements of the statute rather than the

specific facts of the Respondent 's crime. Matter of Silva-Trevino, 24 l&N Dec. 687, 688 (BIA 2008). If it appears there is a "realistic probability" that one may be convicted under the statute in question for conduct that does not involve moral turpitude, the Court should then engage in a 'modified categorical" inquiry in which it examines the record of conviction, and where that fails, any other evidence the Court deems "necessary and appropriate." Id. at 697-99. The Board of Immigration Appeals and various cicuit courts have held that assault on a law enforcement officer is not a crime involving moral turpitude absent elements of bodily harm, malicious intent, or use of a weapon. See Matter of Danesh, l&N Dec. 669 (BIA 1988); see also Partyka v. Att'y Gen., 417 F.3d 408, 411-17 (3d Cir. 2005); Zaffarano v. Corsi, 63 F.2d 757 (2d Cir. 1933). In Matter of Danesh, supra, the Board held that assault on a police officer is only definitively a crime involving moral turpitude where: 1) the battery results in bodily harm, 2) the alien knew the victim was a law enforcement officer at the time of the battery, and 3) the law enforcement officer is performing official duties at the time of the battery. The Board has also held that "mere offensive touching" may not be considered morally turpitudinous. Matter of Solon, 24 l&N Dec. 239, 242 (BIA 2007). Florida case law demonstrates that one can be convicted under Fla. Stat. 784.07 without inflicting "bodily harm" on an officer. See. State v. Weaver, 957 So. 2d 586 (Fla. 2007 ). Accordingly, moral turpitude docs not necessarily inhere in all cases that have a "realistic probability" of being prosecuted. See Silva Trevino, supra at 697. The Court thus proceeds to the 'modified categorical" approach in order to determine whether

Respondent's particular crime resulted in bodily harm or was otherwise a crime involving moral turpitude. Id. Insofar as the record of conviction in Respondent's case (the judgment and information) merel y restates the language of the statute of conviction, the Court deems it necessary and appropriate to consider other evidence. In particular, the Court has reYiewed the arrest affidavit completed by the arresting officer and has taken testimony from the Respondent and his brother, who was with him at the time of the arrest. Based on the information in the arrest report, the Respondent first encountered police officers when his vehicl e was stopped in the middl e of the road obstructing traffic. See Arrest Report. The officers ordered Respondent to stand in front of his vehicle and Respondent refused. The officers then told Respondent that he was under arrest and instructed him to place his hands on his car. Again the Respondent refused. When the officers attempted to handcuff Respondent, he "was too combative to restrain, therefore [Respondent] had to be re-directed to the ground. Once on the ground, the defendant continued to kick and prevent these officers from placing cuffs on his hands:' Id. Eventually, the officers were able to cuff the Respondent's hands behind his back. Id. At no point does it indicate the Respondent struck an officer or inflicted any kind of bodily harm on an officer. Respondent's testimony about the incident was l argely consistent with the information contained in the arrest affidavit. However, based on Respondent's account of the facts, his car was parked on the side of the road and was not obstructing traffic. Respondent claimed that police officers approached him and treated him aggressively

because he was in a high drug use area at the time. He denied punching, striking, or hitting the officer. Neither the arrest affidavit, nor Respondent's testimony reveal any facts indicating that Respondent's battery on a law enforcement officer was a crime involving moral turpitude. While the arrest affidavit suggests that Respondent was struggling to resist arrest, the affidavit and the testimony do not suggest that Respondent actually struck an officer or even attempted to strike an officer. Nor do they suggest that Respondent ever inflicted any form of bodily harm on an officer. The Court thus finds that Respondent's conviction for battery on a law enforcement officer in violation of Fla. Stat. 784.07 was not a crime involving moral turpitude. In light of the foregoing, the following orders will be entered:

ORDER IT IS HEREBY ORDERED that Respondent's motion is GRANTED.

IT IS FURTHER ORDERED that these proceedings hereby TERMINATED.

cc:

Douglas Lux, Esq. 1699 Coral Way, Suite 609 Miami, Florida 33135 Thomas Ayze, Esq. Assistant Chief Counsel Department of Homeland Security 333 South Miami Avenue, Suite 200 Miami, Florida 33130