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Department of Justice
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:
O'Connor, Blair
Pauley, Roger
Wendtland, Linda S.
.:;1:w.:arzl!.
Userteam: Docket
Cite as: Gregoria Saucedo, A201 216 144 (BIA May 8, 2017)
. U.S. Department of Justice Decision of the Board of Immigration Appeals
Executlve .Office for Immigration Review
APPEAL
CHARGE:
This matter was last before the Board on June 12, 2015, when we dismissed the respondent's
interlocutory appeal. The respondent, a native and citizen of Mexico, now appeals from an
,
Immigration Judge s decision, dated October 28, 2015, ordering her removed from the United
States. 1The Department of Homeland Security ("DHS") has submitted a brief opposing the
appeal. The request for oral argument is denied. See 8 C.F.R.1003. l (e)(7). The appeal will be
sustained and the matter remanded for further proceedings.
We review findings of fact for clear error, including credibility findip.gs. See 8 C.F.R.
1003. l(d)(3)(i); see also Matter ofJ-Y-C-, 24 I&N Dec. 260 (BIA 2007); Matter ofS-H-, 23 I&N
Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all other issues
de novo. See 8 C.F.R.l003.l(d)(3)(ii).
As an initial matter, the respondent asserts that the Immigration Judge should have granted her
unopposed motion to terminate based on the DHS's failure to file a reply brief (Respondent's Brief
at 5-7). We disagree. Although section 5.12 of the Immigration Court Practice Manual allows an
Inunigration Judge to deem a motion "unopposed" if a timely response is not filed, deeming a
1 The Immigration Judge's decision incorporates by reference her prior decision that was entered
on March 25, 2015.
Cite as: Gregoria Saucedo, A201 216 144 (BIA May 8, 2017)
. A201Q16 144
motion unopposed is not the same as deeming it meritorious. See Immigration Court Practice
Manual, 5.12 (December 2, 2016), available at https://www.justice.gov/sites/
default/files/pages/attachments/2016/12/02/practice manual.pdf#page=102 ("Parties should note
_
that unopposed motions are not necessarily granted."). A party who fails to file a timely opposition
brief may lose the opportunity to be heard as to the propriety of the motion, but that failure does
not discharge the Immigration Judge of her independent obligation to evaluate the motion's merits.
Turning to the merits, the respondent argues on appeal that she is not removable under section
212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(2)(A)(i)(I), because
her conviction for driving without a valid driver's license resulting in death or serious bodily injury
does not constitute a crime involving moral turpitude ("CIMT') (l.J. at 2; Respondent's Brief at
7-11).
On July 1, 2013, the respondent was convicted on three counts of driving without a valid
driver's license resulting in death or serious bodily injury in violation of section 322.34(6) of the
Florida Statutes (l.J. at 2; Respondent's Brief at 3; Exh. 2). The court withheld adjudication and
sentenced the respondent to 5 years' probation (I.J. at 2; Exh. 2). At the time of the offense, Florida
Statute 322.34(6) (2012) provided, in pertinent part:
(b) While his or her driver's license or driving privilege is canceled, suspended, or
revoked pursuant to 316.655, 322.26(8), 322.27(2), or 322.28(2) or (4),
and who by careless or negligent operation of the motor vehicle causes the death of
or serious bodily injury to another human being is guilty of a felony of the third
degree, punishable as provided in 775.082 or 775.083.
The phrase "crime involving moral turpitude" describes a class of offenses involving
reprehensible conduct committed with a culpable mental state or "scienter." See Matter of
Silva-Trevino ("Matter ofSilva-Trevino Ill'), 26 I&N Dec. 826, 834 (BIA 2016). With regard to
the required mental state, the Attorney General has specified that the crime "must involve some
degree of scienter, whether specific intent, deliberateness, willfulness, or recklessness." Matter of
Silva-Trevino ("Matter ofSilva-Trevino f'), 24 l&N Dec. 687, 689 n.1 (2008), vacated on other
grounds, Matter ofSilva-Trevino ("Matter ofSilva-Trevino//"), 26 l&N Dec. 550 (A.G. 2015);
see also Cano v. U.S. Att'y Gen., 709 F.3d 1052, 1054 (11th Cir. 2013) (concluding that
"intentional violence" against a police officer '"exhibits a deliberate disregard for the law, which
we consider to be a violation of the accepted rules of morality and the duties owed to society"'
(quoting Matter of Danesh, 19 I&N Dec. 669, 671 (BIA 1988))).
2
Cite as: Gregoria Saucedo, A201 216 144 (BIA May 8, 2017)
A201216 144
also Malter ofSilva-Trevino III, supra, at 831. Following the controlling case law of the United
States Court of Appeals for the Eleventh Circuit, where this case arises, the categorical approach
requires us to focus not on the specific facts underlying the respondent's particular violation of
law, but rather upon the statutory elements which define the offense of conviction. Gelin v. U.S.
Att '.Y Gen., supra, at 1241. "In doing so, we ask 'whether the least culpable conduct necessary to
sustain a conviction under the statute meets the standard of a crime involving moral turpitude."'
Upon de novo review, we conclude that the respondent's conviction was not for a CIMT.
As observed by the Immigration Judge, the Florida courts have consistently ruled that a conviction
under this statute requires a showing that a defendant "knowingly and willfully drove without a
driver's license" (l.J. (3/25/2015) at 4). See State v. Smith, 638 So. 2d 509, 510 (Fla 1994)
("knowingly driving with a suspended, canceled, or revoked driver's license . . . is indeed a willful
act in clear violation of the law"); Waites v. State, 702 So. 2d 1373, 1376 (Fla. Dist. Ct. App. 1997)
("(W]e hold that the State had the burden below of establishing that appellant's operation of a
vehicle with an invalid license was willful."). While the respondent argues that section 322.34(6)
requires only "careless or negligent operation of the motor vehicle," the Florida courts have
interpreted this provision as an enhancement to the willful criminal offense (l.J. (3/25/2015) at 4;
Respondent's Brief at 7-9). See State v. Brown, 734 So. 2d 1187, 1188 (Fla. Dist. Ct. App. 1999)
(examining section 322.34(6) to conclude that "simple negligence can be used to enhance the
penalty for other conduct that constitutes a willful criminal act"); see also Waites v. State, supra,
at 1375.
On its own, we deem "knowingly and willfully driving without a driver's license" to be a
marginal offense, meaning that its classification as "not inherently involving moral turpitude"
is not a "clear cut" question. See Matter of To"es-Varela, 23 I&N Dec. 78, 98 (BIA 2001)
(concluding that simple driving under the influence ("DUI") is a marginal offense) (Cole, Board
Member, dissenting); cf Tarvestadv. State, 409 S.E.2d 513 (Ga. 1991) (finding that the defendant
was entitled to an affirmative defense to habitual driving on revoked license based on evidence
that he was driving his pregnant wife while she was in labor). When the penalty for a marginal
offense is enhanced by additional conduct or elements, we have looked to whether the elements
together "build to such a heightened deviance from accepted moral standards as to reach a level of
conduct deemed morally turpitudinous." Matter of Lopez-Meza, 22 I&N Dec. 1188, 1196 (BIA
1999).
In the present matter, the Immigration Judge cited to Matter ofLopez-Meza to conclude that
the respondent's statute of conviction presents a similar "building of elements" that together
"deviate further and further" from the "duties that persons owe to one another" (l.J. (3/25/2015) at
5). Id. In Matter of Lopez-Meza, we found that a person who drives while under the influence,
knowing that he or she is absolutely prohibited from driving due to a revoked or suspended license,
commits an offense "so base and so contrary to the currently accepted duties that persons owe to
one another and to society in general that it involves moral turpitude." Id., see also Matter of
Torres-Varela, supra.
3
Cite as: Gregoria Saucedo, A201 216 144 (BIA May 8, 2017)
'A20116 144
However, we agree with the respondent that the Florida statute under which she was convicted
may be distinguished from Matter of Lopez-Meza, supra, at 1196 (Respondent's Brief at 11).
Instead, we conclude that it is more analogous to the Arizona statute at issue in Matter of Torres
Varela, supra. In that case, we distinguished Matter of Lopez-Meza, noting that the aggravating
factor that rendered the DUI conviction a crime involving moral turpitude was the culpable mental
state showing that the defendant knew that his or her driver's license had been suspended and that
Here, the marginal offense of willfully operating a vehicle without a valid license is aggravated
by causing death or serious bodily injury through the careless or negligent operation of a motor
vehicle, which-while presenting serious public safety concerns-together do not aggregate to
reach a level of conduct that can be deemed morally turpitudinous. Even when combined with the
crime of willfully driving without a license, mere carelessness or negligence will not satisfy the
scienter requirement. Cf Matter of Perez-Contreras, 20 I&N Dec. 615, 618-20 (BIA 1992)
(concluding that a conviction for criminal negligence that causes bodily harm was not a crime
involving moral turpitude because ''there was no intent required for conviction, nor any conscious
disregard of a substantial and unjustifiable risk"). As stated by the Eleventh Circuit, "a person's
conduct must go far beyond mere negligence so as to constitute a 'gross deviation' from the
standard of care expected from a reasonable person." Keungne v. U.S. Atty Gen., supra, at 1286
(emphasis added).
Therefore, we follow Matter of Silva-Trevino III, supra, and conclude that the crime of driving
without a valid driver's license resulting in death or serious bodily injury, in violation of section
322.34(6) of the Florida Statutes, lacks sufficient scienter to constitute a categorical CIMT.
The respondent has not contested the remaining grounds of removability on appeal and we
deem them waived. See, e.g., Matter of J-Y-C-, supra, at 261 n.l. However, as the respondent is
not precluded from applying for cancellation of removal for nonpermanent residents, pursuant to
section 240A(b) of the Act, we will remand the matter to the Immigration Judge for consideration
of the application (Respondent's Brief at 12).
ORDER: The respondent's appeal is sustained, and the record is remanded to the Immigration
Court for further proceedings.
4
Cite as: Gregoria Saucedo, A201 216 144 (BIA May 8, 2017)
In the Matter of
)
GREGORIA SAUCEDO ALEGRE ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )
APPLICATIONS: None.
1
ORAL DECISION OF THE IMMIGRATION JUDGE
without a valid driver's license resulting in death or serious bodily injury in violation of
Section 322.34(6) of the Florida Statutes. Adjudication was withheld and the
occurred on July 1, 2013, in the Eleventh Judicial Circuit Court in and for Dade County,
Florida.
In a written decision dated March 25, 2015, the Court respectfully sustained the
Act and denied the respondent's motion to dismiss the charge of removability under
Interlocutory Appeal with the Board of Immigration Appeals. The Interlocutory Appeal
respondent declined to designate a country for removal and Mexico was designated by
the Court.
The Court incorporates herein its decision of March 25, 2015, sustaining the
Nationality Act. The Court has also sustained upon concession the charges of
and Nationality Act. The Court has found removability under all three charges of
ORDERS
signature
DENISE MARKS LANE
Immigration Judge
Miami, Florida
October 28, 2015
//s//