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MELO, MANUEL EMILIO DHS LIT.Nork Co. Prison/VCR
70425-054/A043-691-095 3400 Concord Road
MOSHANNON VALLEY Cl York, PA 17402
555 GEO DRIVE
PHILIPSBURG, PA 16866

Name: MELO, MANUEL EMILIO A 043-691-095

Date of this notice: 2/ 15/ 2017

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

Sincerely,

DOYUtL C t1AA)

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Manuel Emilio Melo, A043 691 095 (BIA Feb. 15, 2017)
U.S. Dpartment of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A043 691 095 - York, Pennsylvania Date: FEB 1 5 2017

In re: MANUEL EMILIO MELO a.k.a. Manuel Gago a.k.a. Manuel Melo

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Pro se

ON BEHALF OF DHS: Jeffrey T. Bubier

Assistant Chief Counsel

CHARGE:

Notice: Sec. 2 l 2(a)(2)(A)(i)(I), I&N Act [8 U.S.C. l182(a)(2)(A)(i)(I)] -

Crime involving moral turpitude

Sec. 212(a)(2)(A)(i)(II), I&N Act [8 U.S.C. 1182(a)(2)(A)(i)(II}] -

Controlled substance violation (withdrawn)

Sec. 212(a)(2)(C), I&N Act [8 U.S.C. 1182(a)(2)(C)] -

Controlled substance trafficker (withdrawn)

APPLICATION: Termination

The respondent timely appeals from an Immigration Judge's September 27, 2016, decision,
ordering him removed from the United States. The record will be remanded to the Immigration
Court for further proceedings consistent with this opinion and the entry of a new decision.

The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, and the likelihood of future events, under the "clearly erroneous''
standard. See 8 C.F.R. I003.1(d)(3)(i); Matter of Z-Z-0-, 26 I&N Dec. 586 (BIA 2015;
Matter of R-S-H-, 23 I&N Dec. 629 (BIA 2003); Matter of S-H-, 23 I&N Dec. 462 (BIA 2002).
The Board reviews questions of law, discretion, judgment, and all other issues in an appeal from
an Immigration Judge's decision de novo. See 8 C.F.R. 1003.l(d)(3)(ii).

The respondent is a native and citizen of the Dominican Republic, and lawful permanent
resident of the United States since November 1992. The record reflects that on March 9, 2009,
th respondent was convicted, upon a plea of guilty, in the United States District Court for the
Southern District of New York, of two counts for Hobbs Act Robbery and I count for
Conspiracy to Commit Hobbs Act Robbery, in violation of 18 U.S.C. 1951, and sentenced to a
term of imprisonment of 70 months in the custody of the Bureau of Prisons (Exh. 2). In a
decision dated September 27, 2016, the Immigration Judge found the respondent inadmissible
and subject to removal, as charged in the Notice to Appear ("NTA") (Form 1-862) (Exh. 1),
. pursuant to section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C.
Cite as: Manuel Emilio Melo, A043 691 095 (BIA Feb. 15, 2017)
A043 691 095

1182(a)(2)(A)(i)(I), as an alien convicted of a crime involving moral turpitude ("CIMT"), and

denied the respondent's motion to terminate.

The phrase "crime involving moral turpitude" describes a class of offenses involving
"reprehensible conduct" committed with some form of "scienter"-that is, with a culpable
mental state, such as specific intent, deliberateness, willfulness, or recklessness. See, e.g., Matter
ofLeal, 26 I&N Dec. 20, 21 (BIA 2012); see also Matter ofSilva-Trevino, 26 I&N Dec. 826, 828

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n.2, 833-34 (BIA 2016). Conduct is "reprehensible" if it is "inherently base, vile, or depraved,
and contrary to the accepted rules of morality and the duties owed between persons or to society
in general." Matter of Leal, supra, at 25 (quoting Matter of Ruiz-Lopez, 25 I&N Dec. 551, 553
(BIA 2011)). To determine whether an offense is a crime involving moral turpitude, we employ
the categorical approach, which requires us to focus on the elements of the crime, rather than the
conduct of the respondent. See Matter of Diaz-Lizarraga, 26 I&N Dec. 847, 849 (BIA 2016)
(citing Matter ofSilva-Trevino, supra, at 831-33).

In the matter before us, it appears the Immigration Judge explicitly made his determination
that the respondent had been convicted of a crime involving moral turpitude based on the
respondent's "conduct" charged in the indictment and the superseding indictment in this case,
which he found to be "vile and debas[ing]." See I.J. at 2. The Immigration Judge did not apply
the proper legal analysis necessary to determine whether the respondent's convictions
categorically qualify as convictions for a crime involving moral turpitude, i.e., by examining the
elements of the respondent's statute of conviction to see if they correspond to a crime involving
moral turpitude, rather than the conduct of the respondent supporting his conviction thereunder.
See Matter ofSilva-Trevino, supra, at 831-33. Therefore, the record will be remanded to the
Immigration Court for further proceedings consistent with this opinion and the entry of a new
decision. 1

Accordingly, the following order will be entered.

ORDER: The record is remanded to the Immigration Court for further proceedings
"
consistent with this opinion and the entry of aiiw decision.

1
Although, the respondent contends the Immigration Judge erroneously found him removable
based on all the charges in the Notice to Appear ("NTA") (Exh. 1), it is clear from the record,
and acknowledged by the respondent at the hearing (Tr. at 31), that the Department of Homeland
Security ("DHS") withdrew the two charges of removability in the NTA under
sections 212(a)(2)(A)(i)(II) and 212(a)(2)(C) of the Act, electing to only proceed with the
remaining charge under section 212(a)(2)(A)(i)(I) of the Act.
2

Cite as: Manuel Emilio Melo, A043 691 095 (BIA Feb. 15, 2017)
 -

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
YORK, PENNSYLVANIA

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File: A043-691-095 September 27, 2016

In the Matter of

)
MANUEL EMILIO MELO ) IN REMOVAL PROCEEDINGS
A/KIA MANUEL GAGO )
)
RESPONDENT )

CHARGE: Crime involving moral turpitude, Section 212(a)(2)(A)(i)(I).

APPLICATIONS:

ON BEHALF OF RESPONDENT: PRO SE

ON BEHALF OF OHS: JEFFREY T. BUBIER

ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE

On or about August 23, 2016, the Department of Homeland Security filed a

Notice to Appear against the respondent charging him with multiple charges. The one

before the Court is the crime involving moral turpitude under 212(a)(2)(A)(i)(I), as an

alien who is inadmissible due to committing a crime involving moral turpitude. See

Exhibit 1. The respondent admitted allegations 1 through 5 in the Notice to Appear and

with some hesitation admitted parts of Exhibit 6. 1

1
Please see Exhibit 2, Tab B, page 7 through 43.

1
 -

The respondent designated Dominican Republic as the country for removal. The

respondent applied for no forms of relief. The respondent filed a motion to terminate

regarding the Notice to Appear. The Court will hereby deny that motion to terminate as

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it relates to the crime involving moral turpitude.

LEGAL ANALYSIS

The Court has carefully examined the Notice to Appear, marked s Exhibit 1, as

well as the Department of Homeland Security's evidentiary package consisting of Tabs

A through F within Exhibit 2. Government has provided evidence of the respondent's

conviction in the United States District Court, Southern District of New York for a variety

of Hobbs Act robbery offenses. In addition, the respondent was found guilty of

possessing a firearm in relation to a crime of violence. The respondent was

sentenced to a term of imprisonment of 130 months.

In looking at the indictment and superseding indictment in this case, it is clear

that the respondent has been convicted of conduct which would be vile and debase

under any stretch of the imagination. The Court believes that the conduct the

respondent has been convicted of exhibits behavior which society would find

reprehensible. Therefore, based upon the Court's review of Exhibit 2, as well as

admissions made by the respondent, the Court believes that the CIMT charge has been

sustained by the Government. The Court would find specifically that the Government has

met its burden of proof.

Therefore, based upon the foregoing, all exhibits in the record of trial, the

admissions by the respondent, and analysis by the Court, the Court would order the

respondent be removed to the Dominican Republic.

ORDERS

A043-691-095 2 September 27, 2016

 IT IS HEREBY ORDERED the respondent be removed to the Dominican

Republic.

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Please see the next page for electronic
signature
JOHN P. ELLINGTON
Immigration Judge
York, Pennsylvania

A043-691-095 3 September 27, 2016

 -, /Isl/
Immigration Judge JOHN P. ELLINGTON
ellingj on November 23, 2016 at 12:49 PM GMT

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A043-691-095 4 September 27, 2016