U.S.

Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Office of the Clerk
5/07 Leesburg Pike, Suite 2000
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DHS/ICE Office of Chief Counsel - SND

880 Front St., Room 2246
San Diego, CA 92101-8834

Name: CRUZ TORRES, LUIS ANGEL

A 204-840-095
Date of this notice: 1/6/2017

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

DGnltL C

l1/V't)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Malphrus, Garry D.

Userteam: Docket

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Cite as: Luis Angel Cruz Torres, A204 840 095 (BIA Jan. 6, 2017)

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Bejar, Jan Joseph

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. U.S. Departmen of Justice

Decision of the Board of Immigration Appeals

, Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A204 840 095 - San Diego, CA

Date:

In re: LUIS ANGEL CRUZ TORRES a.k.a. Luis Angel Cruz

JAN - 6 2017

APPEAL
ON BEHALF OF RESPONDENT: Jan Joseph Bejar, Esquire
ON BEHALF OF DHS: Julia Contreras
Assistant Chief Counsel
APPLICATION: Voluntary departure; remand
The respondent, who is a native and citizen of Mexico, appeals the Immigration Judge's
March 30, 2016, decision denying his application for voluntary departure and ordering him
removed to Mexico. Section 240B(b) of the Immigration and Nationality Act ("Act"), 8 U.S.C.
1229c(b). The respondent has also filed a motion to remand these proceedings to the
Immigration Court. The Department of Homeland Secwity ("DHS") has filed a motion for
summary affirmance and did not respond to the request for remand. The appeal will be sustained
and the record will be remanded to the Immigration Judge for further proceedings.
The respondent contends on appeal that the Immigration Judge erred in proceeding with the
respondent's case on March 30, 2016, and that he was harmed by his prior counsel's failure to
file the records of his criminal conviction with the Immigration Court (Resp. Br. at 3-5). We find
no error with the Immigration Judge's decision to proceed with the hearing on August 30, 2016.
The respondent and his counsel had been put on notice, both orally and in writing, of the need to
file the respondent's criminal records by the Immigration Judge on January 28, 2015 (I.J. at 2;
Tr. at 10; IJ Record of Master Calendar Pre-Trial Appearance and Order, dated January 28,
2015). The case was continued several times over a period of almost 2 years for the respondent
to pursue prosecutorial discretion from the DHS initially, and later to permit adjudication of an
I-130 petition to classify the respondent as an immediate relative by his United States Citizen
wife, who married him while in proceedings, and to seek post-conviction relief (I.J. at 2; Tr. at 3,
5, 10). The case reconvened on March 30, 2016, and counsel informed the Court that the I-130
petition had been granted; however, the respondent did not file an application for adjustment of
status and is not eligible for that relief (I.J. at 2; Tr. at 15, 17).
The Immigration Judge found that the only application for relief was that of voluntary
departure and that the respondent did not establish eligibility for that relief because he did not
. establish that he had the requisite good moral character (I.J. at 2, 3). Section 240B(B)(l)(b) of
the Act. The respondent's prior counsel did not proffer any reason for his failure to file the
respondent's criminal records with the Immigration Judge after being on notice for over a year of
the necessity to provide them.

Cite as: Luis Angel Cruz Torres, A204 840 095 (BIA Jan. 6, 2017)

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IN REMOVAL PROCEEDINGS

A204 840 095

The Immigration Judge relied on the fact that the respondent was given a sentence
enhancement raising the conviction to a felony in finding the respondent had been convicted of a
crime of moral turpitude (Tr. at 10, 16-17). The Court of Appeals for the Ninth Circuit, the
jurisdiction in which this case arises, has held that the "gang enhancement does not provide a
sufficient 'evil intent' to transform an otherwise non-turpitudinous crime into one involving
moral turpitude." Hernandez-Gonzales v. Holder, 778 F.3d 793, 804 (9th Cir. 2015).
Consequently, the respondent's conviction under CPC 242, is not a crime of moral turpitude
rendering him ineligible for voluntary departure under section 240B(b)(l)(B) of the Act.
Under the totality of the circumstances, we find it appropriate to remand proceedings to
provide the parties with an opportunity to present testimony or other evidence solely relating to
the application for voluntary departure and for the Immigration Judge to make further findings of
fact and determine whether the respondent is statutorily eligible for voluntary departure and
would warrant voluntary departure in the exercise of discretion.
Accordingly, the following orders will be entered.
ORDER: The respondent's appeal is sustained.
FURTHER ORDER: The Immigration Judge's decision is vacated, and the record is
remanded for further proceedings consistent with the foregoing opinion and for the entry of a
new decision.

2
Cite as: Luis Angel Cruz Torres, A204 840 095 (BIA Jan. 6, 2017)

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

On appeal, new counsel has proffered the records that prior counsel failed to file. The
records show that the respondent was convicted pursuant to a guilty plea of battery for a
violation of CALIFORNIA PENAL CODE ("CPC") 242. "Battery" is defined in CPC 242
as "any willful and unlawful use of force or violence upon the person of another." A conviction
fr "battery" under CPC 242 requires neither the force capable of hurting or causing injury nor
violence in the usual sense of the term. Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir.
2006); Matter of Sanudo, 23 I&N Dec. 968, 973-74 {BIA 2006) (analyzing CPC 242 and
finding that under California law the requisite intent "pertains only to the commission of the
"touching" that completes the offense, and not to the infliction of harm on the victim." citing
People v. Mansfield, 245 Cal. Rptr. 800, 802-03 (Cal. Ct. App. 1988)). Thus, a violation of CPC
242 is not a crime of moral turpitude.

File: A204-840-095

March 30, 2016

In the Matter of
)
)
)
)

LUIS ANGEL CRUZ TORRES

RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGE:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act

alien present in the United States without having been properly
admitted or paroled.

APPLICATION:

Voluntary departure at the conclusion of proceedings.

ON BEHALF OF RESPONDENT: MURRAY D. HILTS

ON BEHALF OF OHS: JULIA C. CONTRERAS

ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE

The respondent is a married male native and citizen of Mexico. The United
States Department of Homeland Security brought these removal proceedings against
the respondent under the authority of the Immigration and Nationality Act. Proceedings
were commenced with the filing of the Notice to Appear. See Exhibit No. 1.
The respondent, through counsel, admits all the allegations contained in the
Notice to Appear and concedes that he is removable as charged as an alien present in

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

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
SAN DIEGO, CALIFORNIA

the United States without having been properly admitted or paroled. Based on the
respondent's admissions and concessions, the Court finds that removability as charged

In reviewing the records, including back to the Record of Master Calendar dated
December 10, 2013, the record will indicate that the respondent was given an
opportunity to seek prosecutorial discretion, as well as a Deferred Action for Childhood
Arrivals before the Department of Homeland Security. The respondent pursued those
requests and both the application for DACA and the request for prosecutorial discretion
were declined. This is represented in the Record of Master Calendar for June 4, 2014.
The respondent's case was continued to January 28, 2015, at which time it was
represented to the Court that the respondent had married a United States citizen and
wished to pursue a Form 1-130 visa petition. And it was at this hearing that it was
mentioned that the respondent had a conviction of an assault-type variety which was a
felony. The case was continued to give the respondent an opportunity to go forward on
the 1-130 and to provide conviction records. It says so right in the Record of Master
Calendar that the respondent is to provide conviction records.
At the next Master Calendar, which was August 26, 2015, the respondent
through counsel, indicated that he now had an appointment to meet with the
Department of Homeland Security with respect to the visa petition and that he would like
to seek post-conviction relief.
The case was continued to today and the respondent has indicated that the visa
petition has now been approved. But there is no conviction record offered to the Court.
Post-conviction relief, even the possibility of it, appears still to be in the future. The
respondent is not showing any eligibility for relief with respect to adjustment of status
and the only relief that the respondent now has pending before the Court is an
A204-840-095

March 30, 2016

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has been established.

application for voluntary departure.

The Court finds given the number of opportunities that the case has been

Homeland Security, as well as to give the respondent an opportunity to pursue the visa
petition and post-conviction relief that the time has come to adjudicate the only
application the respondent has before the Court, which is the request for post
conclusion voluntary departure. Good cause does not exist to continue this case yet
again.
In attempting to establish eligibility for voluntary departure at the conclusion of
proceedings, the respondent has failed to meet his burden. The Court has still not been
presented with sufficient information as to what the respondent was convicted of. He
admits it was a felony violation and, therefore, if the respondent was convicted of a
crime involving moral turpitude in 2013, he does not show statutory eligibility for
voluntary departure in that he is inadmissible and the petty offense exception would not
apply. It may be that the respondent is not convicted of a crime involving moral
turpitude, but certainly plenty of time has been given in this case for him to show one
way or another and the possibility of post-conviction relief in the future is insufficient to
continue this case further.
There is no other relief pending before the Court and, therefore, the Court finds
as follows.
ORDERS
IT IS HEREBY ORDERED that the respondent's application for voluntary
departure at the conclusion of the proceedings is denied and the respondent is ordered
removed from the United States to Mexico on the charge contained in the Notice to
Appear.
A204-840-095

March 30, 2016

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continued for the respondent to pursue collateral relief before the Department of

This decision was created extemporaneously and rendered orally at the end of
the hearing on March 30, 2016. It should not be confused with a written decision.

signature

A204-840-095

HENRY P. IPEMA
Immigration Judge

March 30, 201 6

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Please see the next page for electronic

/Isl/
Immigration Judge HENRY P. IPEMA

A204-840-095

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

ipemah on May 27, 2016 at 5:21 PM GMT

March 30, 2016