U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike. Suite 2000

Falls Church, Virginia 22041

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Phipps, Charles A. OHS/ICE Office of Chief Counsel - CHL
Charles A. Phipps, LLC 5701 Executive Ctr Dr., Ste 300
6156 St. Andrews Road Charlotte, NC 28212
Suite 106
Columbia, SC 29212

Name: E C , D A 856

Date of this notice: 3/10/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Cole, Patricia A.
Greer, Anne J.
Wendtland, Linda S.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: D-E-C-, AXXX XXX 856 (BIA March 10, 2017)
'

U.S. Department of Justice . Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 856 - Charlotte, NC Date:

MAR 1 0 2017
In re: D E C

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Charles A. Phipps, Esquire

CHARGE:

Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] -

Present without being admitted or paroled

APPLICATION: Cancellation of removal

The respondent, a native and citizen of Mexico, appeals the March 30, 2016, denial of his
application for cancellation of removal under section 240A(b) of the Immigration and
Nationality Act, 8 U.S.C. 1229b(b). The Immigration Judge determined that the respondent
did not establish that he has not been convicted of an offense under section 237(a)(2)(E)(i) of the
Act, 8 U.S.C. 1227(a)(2)(E)(i). See section 240A(b)(l)(C) of the Act; 8 C.F.R. 1240.8(d).
The appeal will be sustained and the record will be remanded.

The Board reviews an Immigration Judge's findings of fact for clear error. 8 C.F.R.
1003.l(d)(3)(i). We review issues.of law, discretion, or judgment de novo. 8 C.F.R.
1003.l(d)(3)(ii).

It is undisputed that on September 22, 2003, the respondent was convicted of criminal
domestic violence in violation of section 16-25-20(A) of the Code of Laws of South Carolina
("CLSC") (I.J. at 1; Respondent's Exhibits, Tab D at 39). Likewise, the respondent does not
challenge the finding that on March 16, 2005, he was again convicted of violating CLSC
16-25-20(A) (l.J. at 1; Respondent's Exhibits, Tab D at 42).

As an initial matter, the respondent asserts that we should hold that section 237(a)(2)(E)(i) of
the Act is void for vagueness pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015). We
express no opinion on this question as we lack the authority to determine the constitutionality of
the statutes that we administer. See Matter o/Cruz de Ortiz, 25 I&N Dec. 601, 605 (BIA 2011).

The respondent further argues that the Immigration Judge erroneously held that a conviction
under CLSC 16-25-20(A) necessarily involves facts equating to the generic definition of
"crime of violence." See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). In this regard, a
crime constitutes a domestic violence offense for immigration purposes only if: (1) it is a "crime
of violence," as defined by 18 U.S.C. 16; and (2) the crime was committed by an individual
who was in a domestic relationship with the victim. Hernandez-Zavala v. Lynch, 806 F.3d 259,
263 (4th Cir. 2015). A "crime of violence" is defined in 18 U.S.C. 16(a) as any crime which

Cite as: D-E-C-, AXXX XXX 856 (BIA March 10, 2017)
A206 278 856

"has as an element the use, attempted use, or threatened use of physical force against the person
or property of another." The level of force necessary is violent force, i.e., force "capable of
causing physical pain or injury to another person." United States v. Montes-Flores, 736 F.3d
357, 369 (4th Cir. 2013) (quoting Johnson v. United States, 559 U.S. 133, 140 (2010)); Matter of
Velasquez, 25 I&N Dec. 278, 281-82 (BIA 2010) (quoting Johnson v. United States, 559 U.S. at
140).

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On appeal, the respondent observes that the Court of Appeals of South Carolina has held that
simple assault is a lesser included offense of criminal domestic violence, and that the latter
"merely includes the additional element that the [assaulted person] be a household member."
State v. LaCoste, 553 S.E.2d 464, 471-72 (S.C. Ct. App. 2001). Furthermore, the court noted
that assault and battery has been defmed in South Carolina as "any touching of the person of an
individual in a rude or angry manner, without justification." Id at 471 (internal quotation and
citations omitted). We thus agree with the respondent that CLSC 16-25-20(A) does not
necessarily require violent force as an element. As a result, we reverse the holding that the
respondent's conviction under CI:..SC 16-25-20(A) necessarily involved facts equating to the
generic definition of"crime of violence" at 18 U.S.C. 16(a) (I.J. at 2-3). See also United States
v. Montes-Flores, supra, at 368-69 (holding that a defendant's South Carolina conviction for
assault and battery of a high and aggravated nature was not for a categorical crime of violence
because the common law offense does not require actual bodily harm or force against the
victim); United States v. White, 606 F.3d 144, 148, 153 (4th Cir. 2010) (holding that Virginia
misdemeanor domestic violence does not constitute a crime of domestic violence under
18 U.S.C. 921(a)(33)(A) because the offense encompasses common law assault and battery,
which may be committed "with the slightest touch and no physical injury"); Matter of Guzman
Polanco, 26 I&N Dec. 713 (BIA 2016) (holding that the crime of aggravated battery under the
Puerto Rican Penal Code, which may be committed by means which do not require the use of
violent physical force, is not categorically a crime of violence under 18 U.S.C. 16(a)); Matter
of Velasquez, supra, at 283 (holding that Virginia assault and battery is not categorically a crime
involving the use of violent physical force). 1

The parties do not assert that a violation of CLSC 16-25-20(A) constitutes a felony. The
records of conviction further do not indicate that the respondent was sentenced as a felon
(Respondent's Exhibits, Tab D at 39, 42). We therefore need not determine whether the
respondent's conviction otherwise comes within the definition of crime of violence at 18 U.S.C.
16(b).

1 The Immigration Judge relied upon an unpublished Board decision reaching a contrary
conclusion (I.J. at 2-3). However, as she acknowledged, unpublished decisions are not binding
authority (I.J. at 2-3). See Matter of Echeverria, 25 I&N Dec. 512, 519 (BIA 2011).
Furthermore, while the United States Court of Appeals for the Fourth Circuit affirmed the
unpublished decision in question, it did so in a short, unpublished opinion without analyzing the
question of law at issue (l.J. at 2-3). See Caceres-Marroquin v. Lynch, No. 15-1775, 2016 WL
626073 (4th Cir. Feb. 17, 2016). We fmd persuasive the published authority cited by the
respondent on appeal.

Cite as: D-E-C-, AXXX XXX 856 (BIA March 10, 2017)
 856

For these reasons, we will sustain the respondent's appeal and reverse the holding that he is
ineligi15le for cancellation of removal under section 240A(b)( 1)(C) of the Act. We will remand
the record for the Im.migration Judge to determine whether the respondent has otherwise satisfied
his burden of proving eligibility for relief. See 8 C.F.R. 1240.8(d). On remand, the parties
may submit additional evidence and argument.

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Accordingly, the following order is entered.

ORDER: The appeal is sustained and the record is remanded for further proceedings and the
entry of a new decision consistent with this opinion.

Cite as: D-E-C-, AXXX XXX 856 (BIA March 10, 2017)
 ....... ' .... -.
'

IMMIGRATION COURT
5701 EXECUTIVE CENTER DR. #400
j CHARLOTTE, NC 28212
In the Matter of
Case No.: 856
E C , D
sp t IN REMOVAL PROCEEDINGS
. '
,
p
.-;......

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I' ' I
I
ORDER OF THE IMMIGRATION JUDGE
_..,

This is a summary of the oral decision entered on

This memorandum i s solely for the convenience o f the parties If the
proceedings should be appealed or reopened, the oral decision will become
the official opinion in the case.
( ] The respondent was ordered removed from the United States to
MEXICO o in the alternative to .
Respondent's application for voluntary departure was denied and
respondent was ordered removed to MEXICO or in the
r t:?'
alternative to . .
Respondent's application for voluntary deps granted
upon posting a bond in the amount of $ ..:::> OO l(,,,J
with an alternate order of removal to MEXICO.
Respondent's application for:
[ ] As'yium was ( } granted } denied( } withdrawn. ;:
[
[
]
]
Withholding of removal was
A Waiver under Section
)granted ( )denied
was ( )granted ( )denied
)withdrawn.
)withdrawh.
.. '
- [ ] Cancellation of removal under section 240A(a) was ( )grantd )denied
( )withdrawn.
' endent IS application for:

. :. n .

y Cancellation under section 240A(b)(1) was ( ) granted ( denied-\- p-e.>:

( ) withdrawn. If granted, it is ordered that the resp nt be issued :
all appropriate documents necessary to give effect to this order.
Cancellation under section 240A(b) (2) was ( )granted ( )denied
( )withdrawn. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this prder.
Adjustment of Status under Section was ( )granted ( )denied
( )withdrawn. If granted it is ordered that the respondent\be issued
all appropriated documents necessary to give effect to; this order.
Respondent's application of ( ) withholding of removal ( ) deferral of
removal under Article III oft, tne Convention Against Torture was\
( ) granted ( ) denied '( . ) withdrawn. .

Respondent's status was rescinded under section 246.

Respondent is admitte"tl to the United States as a until
As a condition of admission, respondent is to post a $ nd. ----
Respondent knowingly filed a frivolous asylum application after proper
notice.
Respondent was advised of the limitation on discretionary relief for
failure to appear as ordered in the Immigration Judge's oral decision.

t;JA\::::
Proceedings were terminated.
- 0
== 3-+-3<}
} --j ,--.- )o --- __ --
--__.____._
-

THERESA HOLMES-SIMMONS
Immigration Judge
Appeal: Waive d Appeal Due By:
"
r .
;

Pi 4f,/1b .
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
CHARLOTTE, NORTH CAROLINA

IN THE MATTER OF ) IN REMOVAL PROCEEDINGS

)

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E C , D ) File No: A 856
)
Respondent. ) MINUTE ORDER
)
) March 30, 2016
)

COMES NOW the Court and renders its decision on Respondent's application for Cancellation
of Removal for Certain Nonpermanent Residents ("Form EOIR-428") of October 22, 2014.
After review of the record of proceedings, the Court finds the following:

I. That at a master calendar hearing held on October 22, 2014, Respondent through counsel
admitted the factual allegations and conceded the charge of removability contained in the
Notice to Appear (NTA) served on April 3, 2014. Notice to Appear (filed May 7, 2014).
DHS designated Mexico as the country of removal. The Court, therefore, finds by clear
and convincing evidence that Respondent is removable as charged to the country of
Mexico. INA 240(c)(3)(A).

2. That on October 22, 2014, Respondent filed a Form EOIR-428 application for relief with
supporting documents. Form EOIR-428 Application for Cancellation of Removal and
Adjustment of Status for Certain Nonpermanent Residents (filed October 22,
2014)(hereinafter "Form EOIR-428"); Respt's Exhibits (filed October 22, 2014).

3. That on September 22, 2003, Respondent was found guilty of criminal domestic violence
1
by bench trial in South Carolina for an offense that occurred on June 26, 2003. Respt's
Exhibits, Tab D at 39 (filed October 22, 2014).

4. That on March 16, 2005, Respondent was found guilty for a second time of criminal
domestic violence by bench trial in South Carolina for an offense that occurred on
2 3
February 19, 2005. Respt's Exhibits, Tab D at 42 (filed October 22, 2014).

1 Respondent's case history document shows that Respondent has a conviction under South Carolina Criminal
Docket Report Code ("CDR") 2671. The Court takes administrative notice that CDR Code 2671 corresponds to a
violation of S.C. Code 16-25-20(A). CDR Code Search, South Carolina Judicial Department (Mar. 30, 2016,
I 0:57 AM), http://www.sccourts.org/cdr/displayCDRcode.cfm?CDRcode=267 I.
2 Id footnote I.
3 The Court observes that Respondent filed evidence that two additional charges of criminal domestic violence that

occurred in September 2003, were disposed of as not guilty by bench trial. Respt's Exhibits, Tab D at 40-41 (filed
October 22, 2014).
 Cancellation of Removal

Section 240A(b)( l ) of the Act provides that the Attorney General may cancel removal
and adjust the status of an alien who is inadmissible or deportable from the United States to that
of a lawful permanent resident if the alien can demonstrate that he or she: 1) has been
continuously present in the U.S. for not less than ten years immediately preceding the date of
such application; 2) has been a person of good moral character during that ten year period; 3) has

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not been convicted of an offense under sections 212(a)(2), 237(a)(2), or 237(a)(3) of the Act,
except if a waiver is granted for a victim of domestic violence under section 237(a)(7) of the Act;
and 4) establishes that his or her removal would result in exceptional and extremely unusual
hardship to the alien's U.S. citizen or lawful permanent resident spouse, parent, or child.

A conviction of a crime of domestic violence renders an alien statutorily ineligible for

cancellation of removal. INA 240A(b)(l )(C); 237(a)(2)(E)(i). When there is evidence that an
alien may be statutorily barred from relief, the alien has the burden to prove by a preponderance
of the evidence that such bar does not apply. INA 240(c)(4)(A); 8 C.F.R. 1240.S(d); Garcia
v. Holder, 132 F.3d 308, 313 (4th Cir. 2013) (citing Salem v. Holder, 641 F.3d 111, 116 (4th Cir.
2011)). An Immigration Judge may pretermit those cancellation of removal applications in
which the applicant has failed to establish statutory eligibility for relief. 8 C.F.R.
1240.21(c)( l ).

South Carolina Crime of Domestic Violence

Respondent was found guilty of criminal domestic violence under S.C. Code 16-25-20
4
on September 22, 2003, and March 16, 2005. Respt's Exhibits, Tab D at 39, 42 (filed October
22, 2014). The issue is whether these convictions render him statutorily ineligible for
cancellation of removal.

Both the Board of Immigration Appeals and the Fourth Circuit Court of Appeals have
considered South Carolina convictions for criminal domestic violence finding that such a
conviction is for a criminal offense described under INA 237(a)(2)(A) that renders an alien
inadmissible, and therefore ineligible for cancellation of removal. INA 237(a)(2)(E),
240A(b)( l )(C); Manuel Caceres-Marroquin, A205 025 176 (BIA June 12, 2015); Caceres
Marroquin v. Lynch, No. 15-1775, 2016 WL 626073 (4th Cir. Feb. 17, 2016). This Court
acknowledges that both the Board and the Fourth Circuit issued unpublished decisions on the

4 The relevant statute states:

"(A) It is unlawful to: (l)cause physical hmm or injury to a person's own household member; or
(2)offer or attempt to cause physical hmm or injury to a person's own household member with
apparent present ability under circumstances reasonably creating fear of imminent peril ... (B)
Except as otherwise provided in this section, a person who violates the provisions of subsection
(A) is guilty of the offense of criminal domestic violence and, upon conviction, must be punished
as follows: ... (l) for a first offense, the person is guilty of a misdemeanor and must be fined not
less than one thousand dollars nor more than two thousand five hundred dollars or imprisoned not
more than thirty days."

S.C. Code 16-25-20 (emphasis added).

2
856
matter. Manuel Caceres-Marroquin, A205 025 176 (BIA June 12, 2015), petition denied per
curiam, Caceres-MarroquifJ v. Lynch, No. 15-1775, 2016 WL 626073 (4th Cir. Feb. 17, 2016).

The Fourth Circuit determined in its unpublished decision that the "Board properly
concluded that Caceres-Marroquin's South Carolina conviction constituted a crime of violence
5
under 18 U.S.C. 16(a) (2012) that rendered him ineligible for cancellation of removal."
Caceres-Marroquin Lynch, No. 15-1775, 2016 WL 626073 (4th Cir. Feb. 17, 2016) (citing 8
v.

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U.S.C. 1227(a)(E)( l ); 8 U.S.C. 1229b(b)(l)(C) (2012)).

In its decision, the Board previously found that "The use or threatened use of force
sufficient to cause harm or injury is categorically present in South Carolina Code 16-25-20.
We therefore conclude that in South Carolina Code 16-25-20 is categorically a crime of
violence. As the statute also includes as an element that the victim be a member of the accused's
household, we likewise conclude that the statute is categorically a crime of domestic violence
6
within the meaning of section 237(a)(2)(E) of the Act." Manuel Caceres-Marroquin, A205 025
176 at 2 (BIA June 12, 2015).

Conclusion

Though the two decisions are not binding precedent on this Court, the Court finds that the
decisions are persuasive in their reasoning such that pretermission of Respondent's application
for cancellation of removal for certain nonpermanent residents is appropriate given the state of
the law. An Immigration Judge may pretermit those cancellation of removal applications in
which the applicant has failed to establish statutory eligibility for relief. 8 C.F.R.
1240.21(c)(l).

The Court finds that Respondent's criminal domestic violence convictions under S.C.
Code 16-25-20 are for a criminal offense described under INA 237(a)(2)(A) that renders him
inadmissible, and therefore ineligible for cancellation of removal. INA 237(a)(2)(E),
240A(b)(l)(C); Manuel Caceres-Marroquin, A205 025 176 (BIA June 12, 2015); Caceres
Marroquin v. Lynch, No. 15-1775, 2016 WL 626073 (4th Cir. Feb. 17, 2016).

Accordingly, the Court enters the following:

s Based on this finding, the Fourth Circuit Court of Appeals denied the petition for review. Caceres-Marroquin v.

Lynch, No. 15-1775, 2016 WL 626073 (4th Cir. Feb. 17, 2016).
6 To Board also considered whether the South Carolina statute requires any specific mental state. In response, the
Board determined:

[N]othing in South Carolina's jurisprudence supports the respondent's

contention that this statute can be violated through reckless of negligent conduct
which merely results in unintended harm or injury. South Carolina utilizes the
general principle that "under statutes that do not disclose a contrary legislative
purpose, to constitute a crime, the act must be accompanied by criminal intent."
State v. Ferguson, 395 S.E.2d 182, 183 (S.C. 1990). We are unable to find any
contrary instance in which this statute was held to criminalize merely negligent
or reckless conduct.

Manuel Caceres-Marroquin, A205 025 176 at 2 (BIA June 12, 2015).

3
856
 ORDERS

IT IS HEREBY ORDERED that Respondent's application for Cancellation of Removal for

Certain Nonpermanent Residents (Form EOIR-42B) is pretermitted and DENIED.

IT IS FURTHER ORDERED that Respondent's application for Voluntary Departure be

GRANTED, and in lieu of an order of removal, such departure is to take place on or before May

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31, 2016, at Respondent's own expense and under such conditions as may be imposed by the
Department of Homeland Security.

IT IS FURTHER ORDERED that, should Respondent fail to comply with any of the above
orders, the voluntary departure order shall lapse without further notice or proceedings and this
order shall become effective at once: Respondent shall be removed from the United States to
Mexico on the charge contained in the Notice to Appear.

IT IS FURTHER ORDERED that Respondent shall post a voluntary departure bond in the
amount of $500.00 with the Department of Homeland Security within five business days from
the date of this order to ensure that they depart voluntarily, when and as required. If said bond is
not posted within five business days, the voluntary departure order shall lapse, and the order of
removal shall take effect the following day.

IT IS FURTHER ORDERED that, should Respondent fail to depart voluntarily when and as

required, Respondent shall then become subject to a civil penalty of up to $5,000.00, and will
become ineligible for a period of ten years for any further relief, cancellation of removal,
voluntary departure, adjustment of status, change of status and registry.

Theresa Holmes-Simmons
United States Immigration Judge
Charlotte, North Carolina

Voluntary Departure Bond Advisal: If you appeal this decision, you are required to submit
sufficient proof of having posted this bond. This proof must be filed with the Board of
Immigration Appeals within 30 days of filing the appeal. If you fail to do so, the Board of
Immigration Appeals will not reinstate voluntary departure in its final order. See 8. C.F.R.
1240.26(c)(3)(ii).

4
856
 NOTICE TO RESPONDENTS
GRANTED VOLUNTARY DEPARTURE

You have been granted the privilege of voluntarily departing from the United States of America. The
Court advises you that, if you fail to voluntarily depart the United States within the time period specified,
a removal order will automatically be entered against you. Pursuant to section 240B(d) of the Immigration
and Nationality Act, you will also be subject to the following penalties:

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1. You will be subject to a civil penalty of not less than$1,000 and not more than$5,000; and
2. You will be ineligible, for a period of l 0 years, to receive cancellation of removal,
adjustment of status, registry, voluntary departure, or a change of nonimmigrant status.

The Court further advises you that:

0 You have been granted pre-conclusion voluntary departure.

1. If you file a motion to reopen or reconsider during the voluntary departure period, the grant
of voluntary departure will be terminated automatically, the alternate order of removal will
take effect immediately, and the penalties for failure to depart voluntarily under section
240B(d) of the Act will not apply. 8 C.F.R. 1240.26(b)(3)(iii).
2. There is a civil monetary penalty if you fail to depart within the voluntary departure period.
In accordance with the regulation, the Court has set the presumptive amount of$3,000 (or
__ instead of the presumptive amount). 8 C.F.R. 1240.26(j).

You have been granted post-conclusion voluntary departure.

1. If the Court set any additional conditions, you were advised of them, and were given an
opportunity to accept or decline them. As you have accepted them, you must comply with
the additional conditions. 8 C.F.R. 1240.26(c)(3).
2. The Court set a specific bond amount. You were advised of the bond amount, and were
given an opportunity to accept or decline it. As you have accepted it, you have a duty to
post that bond with the Department of Homeland Security, hnmigration and Customs
Enforcement, Field Office Director within 5 business days of the Court's order granting
voluntary departure. 8 C.F.R. 1240.26(c)(3)(i).
3. If you have reserved your right to appeal, then you have the absolute right to appeal the
decision. If you do appeal, you must provide to the Board of Immigration Appeals, within
30 days of filing an appeal, sufficient proof of having posted the voluntary departure bond.
The Board will not reinstate the voluntary departure period in its final order if you do not
submit timely proof to the Board that the voluntary departure bond has been posted.
8 C.F.R. 1240.26(c)(3)(ii).
4. If you do not appeal and instead file a motion to reopen or reconsider during the voluntary
departure period, the period allowed for voluntary departure will not be stayed, tolled, or
extended, the grant of voluntary departure will be terminated automatically, the alternate
order of removal will take effect immediately, and the penalties for failure to depart
voluntarily under section 240B(d) of the Act will not apply. 8 C.F.R. 1240.26(c)(3)(iii),
(e)( l ).
5. There is a civil monetary penalty if you fail to depart within the voluntary departure period.
In accordance with the regulation, the Court has set the presumptive amount of$ 3,000 (or
__ instead of the presumptive amount). 8 C.F.R. 1240.26(j).