U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 leesburg Pike, Suite 2000

Falls Church. Virg1ma 22041

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Heier, David C OHS/ICE Office of Chief Counsel - SLC
Heier Law, PLLC 2975 Decker Lake Or. Stop C
PO Box 1245 West Valley City, UT 84119
Provo, UT 84603

Name: ROMERO-RAMIREZ, ENRIQUE A 205-788-636

Date of this notice: 4/28/2017

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.
Pauley, Roger

Userteam: Docket

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U.S. Departmet of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A205 788 636 - Salt Lake City, UT Date:

APR 2 8 2017
In re: ENRIQUE ROMERO-RAMIREZ a.k.a. Enrique Romero

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: David C. Heier, Esquire

ON BEHALF OF DHS: P. Michael Truman

Assistant Chief Counsel

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 (conceded)

APPLICATION: Cancellation of removal; voluntary departure

The respondent, a native and citizen of Mexico, appeals from an Immigration Judge's
October 29, 2015, decision denying his application for cancellation of removal under section
240A(b)(l) of the Immigration and Nationality Act, 8 U.S.C. 1229b(b)(l), and denying his
request for voluntary departure under section 240B(b) of the Act, 8 U.S.C. 1229c(b). The
Department of Homeland Security ("DHS") opposes the appeal. The appeal will be sustained
and the record will be remanded.

We review findings of fact for clear error, including credibility findings. See 8 C.F.R.
1003.l(d)(3)(i); Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007); Matter of S-H-,
23 I&N Dec. 462 (BIA 2002). We review issues of law, discretion, or judgment, and all other
issues de novo. See 8 C.F.R. 1003.l(d)(3)(ii).

The respondent concedes removability by virtue of his unlawful presence in the United States
(Exh. l; Tr. at 5). See section 212(a)(6)(A)(i) of the Act, 8 U.S.C. 1182(a)(6)(A)(i). As the
respondent's removability is undisputed, the only issue before us on appeal is whether his
criminal record renders him ineligible for cancellation of removal and/or voluntary departure.

The Immigration Judge found that the respondent is ineligible for cancellation of removal
because he has a 2015 conviction for attempted possession of a motor vehicle part without
identification number, in violation of sections 76-4-101 1 and 41-1a-1313 of the Utah Code
(hereafter "section 76-4-101" and "section 41-la-1313," respectively)-an offense which the

1 Although the conviction record does not list the specific attempt statute, the parties do not
dispute the Immigration Judge's factual finding that section 76-4-101 applies (l.J. at 3).
A205 788 636

Immigration Judge deemed a crime involving moral twpitude ("CIMT'') under the immigration
laws (l.J.at 4). See section 240A(b)(l)(C) of the Act (requiring an applicant for cancellation of
removal to prove that he has not been convicted of.-among other things-a CIMT under
sections 212(a)(2) or 237(a)(2) of the Act, 8 U.S.C. 1227(a)(2)). Upon de novo review, we
reverse.

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To be statutorily eligible for cancellation of removal, the respondent must demonstrate that
his conviction was not for a CIMT, or "an attempt . ..to commit such a crime," under section
212(a)(2)(A)(i)(I) of the Act. A CIMT requires both ''reprehensible conduct and a culpable
mental state." Matter of Silva-Trevino ("Silva-Trevino IIf'), 26 I&N Dec. 826, 834 (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 Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016) (quoting Matter of Leal,
26 I&N Dec. 20, 25 (BIA 2012)). In detennining whether an offense is a CIMT, we apply the
categorical approach, which examines the elements of the crime and the minimum conduct that
has a "realistic probability'' of being prosecuted under those elements, rather than the
respondent's actual conduct. See Matter of Silva-Trevino III, supra, at 831-33; see also
Rodriguez-Heredia v. Holder, 639 F.3d 1264, 1267 (10th Cir. 2011). Although the respondent
was convicted under section 76-4-101 of an attempt to violate section 41- l a-1313, "it is well
established that for immigration purposes, with respect to moral twpitude, there is no meaningful
distinction between an inchoate offense and the completed crime." See Matter of
Gonzalez Romo, 26 I&N Dec. 743, 746 (BIA 2016); Matter of Vo, 25 I&N Dec. 426, 428
(BIA 2011).

At the time of the respondent's offense and conviction, section 41-la-1313 provided that:

(1) It is a third degree felony for a person to have in his possession any motor vehicle,
trailer, or semitrailer, or any part or parts of a motor vehicle, trailer, or semitrailer, from
which any identification number has been removed, defaced, destroyed, obliterated, or so
covered as to be concealed, or where the identification number has been altered or
changed in any manner.
(2) A person having possession of any motor vehicle, trailer, or semitrailer or part of
them under this section is presumed prima facie to have knowledge of this condition.

A conviction for an attempt to commit this offense is a "class A misdemeanor," punishable by a

maximum term of imprisonment of 12 months. See sections 76-4-102( l )(t), 76-3-204(a) of the
Utah Code. Here, the record reflects that the respondent was given a 365-day suspended
sentence (Respondent's Br. at 2; see l. J.at 2, 4; Tr. at 15).

The DHS argues that the offense suggests possession of a stolen item, and thus moral
twpitude should be inferred to inhere (Respondent's Br. at 3). We are unpersuaded. Unlike the
cases cited by the OHS, the language in section 41-1a-1313 does not require that the vehicle or
vehicle part be "stolen," nor are we aware of any Utah case imposing such a requirement. Cf
Matter of Serna, 20 I&N Dec. 579, 585 n.10 (BIA 1992) (discussing cases involving the
knowing possession of stolen goods or mail); Matter ofSalvai/, 17 I&N Dec. 19, 20 (BIA 1979)
(possession of stolen goods); Matter of R-, 6 l&N Dec. 772, 776 (BIA 1955) (receiving stolen

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A 205 788 636

goods). As there are no reported Utah cases applying section 41-la-1313, we will assume the
statute is applied in accordance with its literal terms, which do not require a stolen vehicle or
vehicle part.

The OHS also relies on State v. Brown, 577 P.2d 135, 136 (Utah 1978), to support the
proposition that the plain language of the statute suggests possession of a stolen item. We are

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unconvinced, as Brown does not indicate under which statute the defendant was convicted. See
id. at 135-36. Moreover, the decision indicates that one of the defendant's convictions was for
"selling a motor vehicle with an altered identification number," which appears to correspond
with section 41-la-1317 of the Utah Code, see infra note 3, rather than section 41- l a-1313.
State v. Brown, supra, at 135.

Accordingly, we find an offense under section 41-l a-1313 to be more akin to the crime at
issue in Matter of Serna, supra, than crimes involving the possession of stolen goods. In
Matter of Serna, supra, we held that a conviction under 18 U.S.C. 1546 for possessing an
altered immigration document with knowledge that it was altered, without using the document or
proof of any intent to use it unlawfully, was not a CIMT. In reaching this conclusion, we
discussed a variety of crimes involving the possession of stolen property and distinguished the
statute at issue because it did not specifically include the element of fraud, even though it
required knowledge that the document had been altered. Id. at 584-85. We further reasoned that
knowingly possessing an altered immigration document differed significantly from the crimes of
knowingly possessing stolen goods or mail, as those offenses ''perpetuate[d] the tumn already
inflicted by continuing to possess goods which are known or should be known to be stolen." Id.
at 586 n.10 (emphasis added). Under section 41- l a-1313, no such harm has necessarily been
inflicted, as the statute does not require a stolen vehicle or vehicle part.

Further, like the statute at issue in Matter of Serna, supra, section 41- l a-1313 does not, on its
face, require an element of fraud or intent to use the altered item unlawfully. On the contrary,
the Utah legislature has articulated other distinct offenses relating to vehicle identification
2
numbers that do require fraud or deceptive intent. See sections 41-1a-1317, 41-1a-1318(1) of
the Utah Code. 3 Because section 41-1a-1313 does not indicate that either fraud or possession of

2
Section 41-l a-1317 prohibits "knowingly buy[ing], receiv[ing], dispos[ing] of, sell[ing],
offer[ing] for sale, or hav[ing] in his possession any motor vehicle, trailer, semitrailer, or engine
removed from a motor vehicle, from which the identification number has been removed, defaced,
covered, altered, or destroyed for the purpose of concealing or misrepresenting the identity of
the motor vehicle or engine" (emphasis added).

3 Section 41-1a-1318(1) provides:

It is a second degree felony for a person with fraudulent intent to:

(a) deface, destroy, or alter the identification number or state assigned identification
number of a motor vehicle, trailer, or semitrailer;
(b) place or stamp, without authority by the division, something other than the original
identification or state assigned identification number upon a motor vehicle, trailer, or
semitrailer; or
(continued ...)

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A205 788 636

stolen goods is an element necessary for conviction, and we have uncovered no case law
indicating otherwise, we conclude the minimum conduct that has a realistic probability of being
prosecuted under section 41-1a-1313 does not involve moral turpitude. Thus, section
41-1a-1313 is an overbroad statute vis-a-vis the CIMT concept.

Moreover, based on the foregoing, even if the statutory alternatives listed in section

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41-la-1313 are various "elements," none of them would constitute a categorical match to a
generic CIMT. See Matter of Chairez ("Chairez Ill'), 26 I&N Dec. 819, 823-24 (BIA 2016)
(distinguishing "means" from "elements" in criminal statutes) (citing Mathis v. United States,
136 S. Ct. 2243, 2256-57 (2016)). Accordingly, the statute is indivisible vis-a-vis the CIMT
concept and a modified categorical inquiry does not apply. Cf Matter of Chairez Ill, supra, at
822 (citing Descamps v. United States, 133 S. Ct. 2276, 2283 (2013) (explaining that where a
single offense is defined by reference to disjunctive sets of elements, and one (but not all) of
those listed elements is a categorical match to the relevant generic standard, the statute is
divisible); see also Matter ofSilva-Trevino Ill, supra, at 833.

Therefore, the respondent has carried his burden of proving the absence of a disqualifying
CIMT conviction for cancellation of removal purposes. See Matter of Chairez Ill, supra, at 825
& n.7. Accordingly, we will vacate the Immigration Judge's decision and remand the record for
further consideration of the respondent's eligibility for cancellation of removal and any other
relief that may now be available to him.

ORDER: The appeal is sustained.

FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new decision.

.

. FO

(...continued)
(c) sell or offer for sale a motor vehicle, trailer, or semitrailer bearing an altered or
defaced identification or state assigned identification number other than the original or
the state assigned identification number.

4
 J ).

"

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
SALT LAKE CITY, UT AH

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File No: A20S-788-636 Date of Decision: October 24, 2015

In the Matter of:

IN REMOVAL PROCEEDINGS
Enrique ROMERO-RAMIREZ
WRITTEN DECISION OF THE
The respondent. IMMIGRATION JUDGE DENYING THE
RESPONDENT'S APPLICATION FOR
CANCELLATION OF REMOVAL AND
ORDERING THE RESPONDENT REMOVED

Cancellation of Removal for Certain Non-permanent Residents (42B);

APPLICATIONS:
Voluntary Departure

ON BEHALF OF THE RESPONDENT: ONBEHALF OF THE DEPARTMENT

OF HOMELAND SECURITY:
David Heier, Esq. Mike Truman
Heier Law, PLLC Assistant Chief Counsel
PO Box 1245 2975 S. Decker Lake D r., Stop C
Provo, Utah 84603 West Valley City, Utah 84119

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. INTRODUCTION AND PROCEDURAL HISTORY

The respondent is a 37-year-old (DOB: 04/03/1978) male native and citizen of Mexico.

(Exh. I.) The United States Department of Homeland Security (DHS) brought these removal

proceedings against the respondent under the authority of the Immigration and Nationality Act

(INA or Act) pursuant to the filing of a Notice to Appear (NTA), which is marked in the record

as the first Exhibit. 8 C.F.R. 1003.14(a); (Exh. 1.) The NTA is dated March 5, 2014. (/d.)

The NTA contains four allegations. The allegations set forth in the NTA are: (I) the

respondent is not a citizen or national of the United States; (2) the respondent is a native of

Mexico and a citizen of Mexico; (3) the respondent arrived in the United States at or near an

unknown place, on or about an unknown date; ( 4) the respondent was not then admitted or
I
A: 205-788-636


'

paroled after inspection by an immigration officer. (Exh. 1.)

On May 15, 2015, the respondent pled guilty to and was convicted ofAttempted

Possession ofMotor Vehicle Parts Without ID Number, a class A misdemeanor, under Utah

Code section 41-1a-1313, for which the respondent was given a 365-day sentence. On June 25,

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2015, the respondent filed an application for cancellation ofremoval for certain non-permanent

residents (Form EOIR-42B).

At issue in this case is whether the respondent's conviction for Attempted Possession of

Motor Vehicle Parts Without ID Number constitutes a crime involving moral turpitude and

curtails the respondent's eligibility for cancellation of removal.

For the reasons set forth below, the Court PRETERMITS the respondent's application for

cancellation ofremoval and orders the respondent removed from the United States.

II. SUMMARY OF EVIDENTIARY RECORD

The record of proceedings comprises only one (1) exhibit. Documents have also been
submitted subsequent to the first exhibit, which were not officially marked as exhibits by the

Court.

A. Documentary Evidence Considered

Exhibit 1 is the NTA and custody determination document, releasing the respondent on

$3,000 bond.

Subsequent to the first exhibit, the respondent submitted documents with the Court: The

respondent submitted his signed plea statement in his Attempted Possession of Motor Vehicle

Parts Without ID Number criminal case. He also submitted EOIR Form 428, application for

cancellation ofremoval. Finally, the respondent filed a briefarguing eligibility for 42B

cancellation ofremoval.

B. Testimony Considered

Respondent has not provided testimony in this case. These proceedings are adjudicated as

a matter oflaw.

III. STATEMENT OF LAW

A. Cancellation of Removal for Certain Non-permanent Residents

An alien who has been convicted ofa crime involving moral turpitude is not eligible for

42B cancellation ofremoval. INA 240A(b)(l)(C), 212(a)(2)(A)(i)(I).

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 I

B. Crimes Involving Moral Turpitude

A crime involving moral turpitude "refers to conduct which is inherently base, vile, or

depraved, contrary to accepted rules of morality and duties owed between man and man, either

one's fellow man or society in general." Efagene v. Holder, 642 F.3d 918, 921 (10th Cir. 2011).

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'According to the Attorney General, moral turpitude is intrinsic to an offense that necessarily

involves 'reprehensible conduct' committed with a form of 'scienter,' such as specific intent,

knowledge, willfulness, or recklessness." Matter ofEdgar Leal, 26 I&N Dec. 20, 21 (BIA 2012).

Furthermore, where there is no intent required for conviction, nor any conscious disregard of a

substantial and unjustifiable risk, the BIA finds that moral turpitude is not inherent in the statute.

See Matter ofPerez-Contreras, 20 I&N Dec. 615, 619 (BIA 1992). As a general rule, crimes

with an element of fraud involve moral turpitude. See Jordan v. DeGeorge, 431 U.S. 223 (1951).

C. Utah Attempt Statute

(1) For purposes of this part, a person is guilty of an attempt to commit a crime if he:
(a) engages in conduct constituting a substantial step toward commission of the crime;
and
(b) (i) intends to commit the crime; or
(ii) when causing a particular result is an element of the crime, he acts with an

awareness that his conduct is reasonably certain to cause that result.

Utah Code Ann. 76-4-101.

D. Utah Possession of Motor Vehicle Parts Without ID Number Statute

(1) It is a third degree felony for a person to have in his possession any motor vehicle, trailer, or
semitrailer, or any part or parts of a motor vehicle, trailer, or semitrailer, from which any
identification number has been removed, defaced, destroyed, obliterated, or so covered as to be
concealed, or where the identification number has been altered or changed in any manner.

Utah Code Ann. 41-1a-1313( I).

E. Voluntary Departure
The Court may not permit an alien voluntarily to depart the United States at the

conclusion of a proceeding if the alien has not been a person of good moral character for at least

5 years preceding the alien's application for voluntary departure. INA 240B(b)(l)(B). The

Court may not find an alien to be of good moral character who has been convicted of a crime

involving moral turpitude. lNA 10l(f)(3); 212(a)(2)(A).

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A: 205-788-636
 )

IV. ANALYSIS

A. The Court Pretermits the Respondent's Application for Cancellation of Removal

The respondent's conviction for Attempted Possession of Motor Vehicle Parts Without

ID Number constitutes a crime involving moral turpitude (CIMT) and precludes his eligibility

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for 42B cancellation of removal.

The respondent argues that his conviction is categorically not a CIMTbecause the statute

is a "purely regulatory offense." (See Respt's' Br. at 5.) The respondent argues it is not

inherently base, vile, depraved, and contrary to the accepted rules of morality to merely be in

possession of a vehicle that has an identification number that has been altered, removed, or

destroyed. (Id.)
However, the respondent was convicted of Attempted Possession of Motor Vehicle Parts

Without ID Number. In Utah, to be convicted of Attempt, an individual must (a) engage in

conduct constituting a substantial step toward the commission of the underlying crime and intend
to commit the underlying offense or (b) when causing a particular result is an element of the

crime, act with an awareness that his conduct is reasonably certain to cause that result. Attempt

involves intentional conduct unless the underlying crime is a result crime-it requires, as an
element, a certain result occur due to the conduct of the actor.

Possession of Motor Vehicle Parts Without ID Number does not require that a certain

result occur due to the conduct of actor; and, as such, it is not a result crime. Consequently, only

subsection (l)(b)(i) of the Attempt statute applies when the underlying crime is Possession of

Motor Vehicle Parts Without ID Number. Thus, a conviction for Attempted Possession of Motor

Vehicle parts Without ID Number inherently involves intent to possess a vehicle or vehicle parts

with identification numbers removed, covered, or concealed. Such conduct involves fraud and

sufficient scienter-intent-to constitute a CIMT. By pleading to Attempted Possession of Motor

Vehicle Parts Without ID Number, the respondent admitted to intending the conduct proscribed
by the statute.

Therefore, the respondent's conviction categorically constitutes a CIMT. Since his

conviction is categorically a CIMT, the Court need not-and is not permitted tlook beyond

the statutory elements in this case. Moreover, since the respondent was sentenced to 365 days,

the petty offense exception, INA 212(a)(2)(A)(ii)(II), does not apply; and the respondent is

statutorily ineligible for cancellation of removal pursuant to section 240A(b)(l)(C) of the Act.

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A: 205-788-636
,,...

B. The Court Denies the Respondent's Application for Voluntary Departure

The respondent's conviction for Attempted Possession of Motor Vehicle Parts Without

ID Number, since it constitutes a crime involving moral turpitude (see Part (IV)(A), supra), falls

under section 212(a)(2) and precludes the respondent from voluntary departure pursuant to

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section 240A(b)(l)(C) of the Act. A conviction for a CIMT also mandates a finding of lack of

good moral character under section 10l(t)(3) of the Act, such that the respondent is also

ineligible for 428 cancellation of removal pursuant to section 240A{b)(l )(B) of the Act.

V. CONCLUSION

The respondent's conviction is categorically a CIMT. As such, the Court pretermits the

respondent's application for 42B cancellation of removal.

Accordingly, the following orders are entered:

VI. ORDERS

IT IS HEREBY ORDERED that the respondent's application for cancellation of removal be

PRETERMITTED.

IT IS FURTHER ORDERED that the respondent be REMOVED from the United States to
Mexico, pursuant to the charge in the NTA.

IT IS FURTHER ORDERED that the respondent's application for voluntary departure be

DENIED.

Appeal is reserved for both parties. The parties have 30 days from the date this decision is issued
to appeal this case.

October , 2015

Date Signed DAVID ANDERSON

Immigration Judge

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A: 205-788-636