U.S.

Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Office of the Clerk
5107 Leesburg Pike. Suite 2000
Falls Church, Virginia 2204 J

OHS/ICE Office of Chief Counsel - LOS

606 S. Olive Street, 8th Floor
Los Angeles, CA 90014

Name: BONE MANZANARES, DONALD ...

A 047-542-190
Date of this notice: 12/9/2015

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

DOWtL C

t1/Vt.)

Donna Carr
Chief Clerk
Enclosure
Panel Members:

Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Donald Josue Bone Manzanares, A047 542 190 (BIA Dec. 9, 2015)

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Sturman, David Michael, Esq.

David M. Sturman, APC
16530 Ventura Blvd.,
Suite 312
Encino, CA 91436

U.S. :Qepartment of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Fa11s Church, Virginia 22041

File: A047 542 190 - Los Angeles, CA

Date:

In re: DONALD JOSUE BONE MANZANARES

DEC - 9 2015

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: David Michael Sturman, Esquire
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 (contested)

Sec.

237(a)(2)(E)(i), I&N Act [8 U.S.C. 1227(a)(2)(E)(i)] Convicted of crime of domestic violence, stalking, or child abuse, child
neglect, or child abandonment (withdrawn)

Sec.

237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony (withdrawn)

APPLICATION: Termination; remand

The respondent, a native and citizen of Nicaragua, appeals the Immigration Judge's
January 15, 2015, decision ordering him removed from the United States. 1 During the pendency
of the appeal, the respondent submitted a Motion to. Remand and Terminate based on a state
court modification of the criminal conviction underlying the charge of removability. The motion
will be granted in part, and the record will be remanded for further proceedings.
The respondent was admitted to the United States as a lawful permanent resident on
March 13, 2001 (Exh. 1; I.J.1 at 2). On January 12, 2006, the respondent was convicted oflewd
or obscene conduct-indecent exposure in violation ofCAL. PENAL CODE 314(1) (I.J.l at 2-3;
Exhs. IA & 3). 2 The respondent was a repeat offender under this offense, and was therefore
convicted of a felony rather than a misdemeanor (I.J.l at 4-5; Exh. 4 at Tab A; Resp. Motion to
Remand and Terminate). See CAL. PENAL CODE 314(1) ("Upon the second and each
subsequent conviction under subdivision I of this section . . . every person so convicted is guilty
of a felony, and is punishable by imprisonment in state prison."). Based on the respondent's
1

The Immigration Judge's January 15, 2015, oral decision shall be cited to as "I.J.2." The
Immigration Judge's March 12, 2014, oral decision shall be cited to as "I.J.l."
2

The respondent was also convicted of annoying and molesting a child under CAL. PENAL CODE
647.6(a) (Exh. 1; I.J. l at 2).

Cite as: Donald Josue Bone Manzanares, A047 542 190 (BIA Dec. 9, 2015)

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IN REMOVAL PROCEEDINGS

A047 542 19Q

conviction, the Department of Homeland Security (DHS) charged the respondent as removable
from the United States as an alien convicted of a crime involving. moral turpitude (CIMT),
committed within 5 years after the date of admission and for which a sentence of 1 year or longer
may be imposed, under section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C.
1227(a)(2)(A)(i) (Exhs. 1 & IA; I.J.1 at 2-3). 3

On appeal, the respondent relies on Nunez v. Holder, supra, and maintains that his indecent
exposure offense does not categorically qualify as a CIMT (Resp. Brief at 3-9). In the
alternative, he argues that the analysis in Matter of Cortes Medina, supra, should not apply
retroactively to his conviction (Resp. Brief at 9-13). During the pendency of his appeal, the
respondent submitted evidence that on July 24, 2015, the Superior Court of California, County of
Riverside, purported to modify the respondent's felony conviction under CAL. PENAL CODE
314(1) to a misdeJ;Ueanor conviction (Resp. Motion at Tab A). The respondent therefore
argues that he is no longer removable under section 237(a)(2){A)(i) because his conviction is not
one for which a sentence of 1 year or longer may be imposed (Resp. Motion at 3-4).
Based on the evidence submitted by the respondent concerning his conviction under
CAL. PENAL CODE 314(1), we find that a remand is appropriate for further consideration as to
the respondent's removability. Upon remand, the Immigration Judge should consider whether
the California court's decision purports to modify the respondent's sentence or his actual
conviction. Compare Matter of Cota-Vargas, 23 I&N Dec. 849 (BIA 2005) (holding that a
court's decision to modify or reduce an alien's criminal sentence nunc pro tune is entitled to full
faith and credit by the Immigration Judge, regardless of the court's reasons for effe9ting the
modification or reduction), with Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), rev 'd on
other grounds by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006) (explaining that a
conviction vacated for rehabilitative purposes or solely to avoid immigration consequences does
not nullify the conviction for immigration purposes). Because of the potentially dispositive
character of the respondent's motion, and to avoid a piecemeal review of the respondent's
3

The DHS also charged the respondent as removable under section 237(a)(2)(E)(i) of the Act, as
an alien convicted of a crime of domestic violence, stalking, or child abuse, and under section
237(a)(2)(A)(iii) of the Act, as an alien convicted of an aggravated felony under section
101(a)(43)(F) of the Act, 8 U.S.C. 1101(a)(43)(A), sexual abuse of a minor (Exh. 1; I.J.l at 2).
The DHS later withdrew these two charges of removability (1.J.l at 2; Tr. at 28).

2
Cite as: Donald Josue Bone Manzanares, A047 542 190 (BIA Dec. 9, 2015)

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The Immigration Judge found that the respondent's conviction under CAL. PENAL CODE
314(1) categorically qualified as a CIMT and sustained the charge of removability under
section 237(a)(2)(A)(i) of the Act (I.J .1; I.J.2; Exh. 10). In making her determination, the
Immigration Judge relied on Matter of Cortes Medina, 26 I&N Dec. 79 (BIA 2013), wherein the
Board invoked its authority to interpret ambiguous statutory provisions under Nat 'l Cable
& Telecomms. Ass 'n v. Brand X Internet Servs., 545 U.S. 967 (2005), and found that a violation
of CAL. PENAL COPE 314(1) categorically qualifies as a CIMT despite Nunez v. Holder,
594 F.3d 1124 (9th Cir. 2010), which held otherwise. Because the respondent submitted no
applications for relief, the Immigration Judge ordered him removed to Nicaragua (I.J.2).

A047 542 190

arguments on appeal, we decline to address whether the respondent's offense under CAL. PENAL
CODE 314(1) categorically qualifies as a CIMT. The Immigration Judge may certify the record
to the Board, if appropriate, upon the conclusion of the proceedings on remand. See 8 C.F.R.
1003.l(c).

ORDER: The respondent's motion is granted in part, and the record is remanded to the
Immigration Court for further proceedings consistent with the foregoing opinion and for the
entry of a new decision.

FOR THE BOARD

===

Cite as: Donald Josue Bone Manzanares, A047 542 190 (BIA Dec. 9, 2015)

40.

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Accordingly, the following order will be entered.

File: A047-542-190

January 15, 2015

In the Matter of

DONALD JOSUE BONE MANZANARES

RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGES:

Section 237(a)(2)(A)(i) of the Immigration and Nationality Act,

Section 237(a)(2)(E)(i) of the Immigration and Nationality Act,
Section 237(a)(2)(A)(III) of the Immigration and Nationality Act

APPLICATIONS:

Motion to terminate

ON BEHALF OF RESPONDENT: David M. Sturman

Law Offices of David Sturman
16530 Ventura Boulevard Suite 310
Encino, CA 91436
ON BEHALF OF OHS: Laura Pena, Assistant Chief Counsel
Office of the Chief Counsel
606 South OliveHolland Street 8th Floor
Los Angeles, CA 90014
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a male, native and citizen of Nicaragua. The United
States Department of Homeland Security commenced the proceedings with the service
of the charging document with the Executive Office of Immigration Review on November

.&4iii!!BiiJ&ii

Immigrant & Refugee Appellate Center, LLC | www.irac.net

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LOS ANGELES, CALIFORNIA

9, 2012. See Exhibit 1. Based on the service of the charging document, jurisdiction
vested in immigration court. See 8 C.F.R. Section 3.142A (2014).
allegations 1, 2 and 3, denied the factual allegations 4 and 5 and denied the charge of
removability.
At a prior hearing, I sustained, based on Exhibit 3, the factual allegations 4
and 5 and the charge of removability. Parties asked for more time to brief the issues of
removability. I gave additional time. Numerous documents have been submitted,
including conviction records and they have!.ve been marked and admitted as Exhibits 1
through 9.
Today, I gave the parties, a decision and order on the issue of
removability which basically sustains the charge of removability pursuant to Section
237(a)(2)(A)(i) of the Immigration and Nationality Act. See Exhibit 10.
Based on the fact that I have sustaineds the charge on Exhibit 10, the
decision today, we have to move on to the relief stage.
Respondent, through counsel states that he has no relief available.
Counsel states for respondent, and he has no relief available to him, that he does not
wish to be qualified for voluntary departure. Respondent told me he is not afraid of
going back to Nicaragua that his dad is deceased and that is how he got his green card
that he has a mother in Nicaragua but the mother has never had status in the United
States. He is married to a person who has overstayed their visa. He has two United
States citizen children. He is currently employed but it does not look like they have
petitioned anything on his behalf and again, he does not want to be qualified for
voluntary departure.
I have no applications before me. I have sustained one of the charges
A047-542-190

January 15, 2015

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Respondent moved to have the case terminated, admitted factual

and not all. In other words, I have again sustained the charge pursuant to Section
237(a)(2)(A)(i) of the Immigration and Nationality Act. Respondent refuses to have

choice but to move to order a removal.

Based on the above analysis, the following is the order.
ORDERS
It is hereby ordered that the motion to terminate be denied.
It is further ordered that the charge of removability pursuant to Section
237(a)(2)(A)(i) of the Immigration and Nationality Act be sustained based on Exhibit 10.
It is further ordered that the respondent be ordered removed to the country
of Nicaragua.

Please see the next page for electronic

siqnatureGita Vahid-Tehrani reviewed on3/16/15 without the benefit of the ROP.
GITA VAHID-TEHRANI
Immigration Judge

A047-542-190

January 15, 2015

Immigrant & Refugee Appellate Center, LLC | www.irac.net

voluntary departure, so. There being no other relief applications before me, I have no

.!'
'11.

/Isl/
Immigration Judge GITA VAHID-TEHRANI

A047-542-190

Immigrant & Refugee Appellate Center, LLC | www.irac.net

vahidg on March 16, 2015 at 4:13 PM GMT

January 15, 2015