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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Neufeld, Michael Aaron OHS/ICE Office of Chief Counsel - PHO
The Neufeld Law Firm PLC 2035 N. Central Ave.
668 N. 44th Street Phoenix, AZ 85004
Suite 300
Phoenix, AZ 85008

Name: S -A , R A -165

Date of this notice: 7/25/2017

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

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Cole, Patricia A.
Greer, Anne J.
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: R-S-A-, AXXX XXX 165 (BIA July 25, 2017)
"

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

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 165 -Phoenix, AZ Date:

JUL 2 5 2017
In re: R S -A

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Michael Aaron Neufeld, Esquire

CHARGE:

Notice: Sec. 212(a)(2)(A)(i)(I), l&N Act (8 U.S.C. l182(a)(2)(A)(i)(I)] -

Crime involving moral turpitude

Sec. 212(a)(6)(A)(i), l&N Act (8 U.S.C. l182(a)(6)(A)(i)] -

Present without being admitted or paroled

APPLICATION: Cancellation of removal

The respondent, a native and citizen of Mexico, appeals from an Immigration Judge's
November 22, 2016, 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). The appeal will be
sustained and the record will be remanded.

The respondent concedes removability by virtue of his unlawful presence in the United States
(Tr. at 4). The main issue on appeal is whether the respondent's 2010 conviction for "misconduct
involving weapons" in violation of section 13-3102(A)(4) of the Arizona Revised Statutes
(hereafter "section 13-3102(A)(4)") disqualifies him from being granted cancellation of removal.
We review that legal issue de novo. See 8 C.F.R. 1003.l(d)(3)(ii).

Section 240A(b)(1)(C) of the Act requires an applicant for cancellation of removal to prove
that he has not been convicted of an "offense under" sections 212(a)(2) or 237(a)(2) of the Act,
8 U.S.C. l182(a)(2), 1227(a)(2). According to the Immigration Judge, the respondent did not
carry his burden of proof in that regard because his 2010 conviction was for an offense under
section 237(a)(2)(C) of the Act-i.e., "possessing . . . any weapon, part, or accessory which is a
firearm or destructive device (as defined in section 92l(a) of title 18, United States Code)." The
respondent challenges that determination on appeal.

To determine whether the respondent's conviction is for an offense under section 237(a)(2)(C),
we employ the "categorical approach," which focuses on the minimum conduct that has a realistic
probability of being prosecuted under the elements of the respondent's offense, rather than on the
particular facts for which he was prosecuted. See Matter of Chairez, 26 l&N Dec. 349, 355-58
(BIA 2014); see also Medina-Lara v. Holder, 771 F.3d 1106 (9th Cir. 2014); United States
v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014). In April 2010, when the respondent committed
his offense, section 13-3102(A)(4) provided that "(a] person commits misconduct involving

Cite as: R-S-A-, AXXX XXX 165 (BIA July 25, 2017)
 165

weapons by knowingly ... [p]ossessing a deadly weapon or prohibited weapon if such person is a
prohibited possessor." At all relevant times, Arizona has defined the term "deadly weapon" to
mean"anything that is designed for lethal use," including"a firearm." See ARIZ. R.Ev. STAT. ANN.
13-3 lOl(A)(l) (2009). Knives, for instance, count as '.'deadly weapons." See State v. Williams,
515 P.2d 849, 850 (Ariz. 1973);State v. Clevidence, 736P.2d 379, 385 (Ariz. Ct. App. 1987). The
term"prohibited weapon" has at all relevant times been defined by reference to a list of items that

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"includes" bombs, grenades, explosive rockets, incendiary or poison gas, automatic firearms,
short-barreled rifles and shotguns, or an item such as "a nunchaku, that consists of two or more
sticks, clubs, bars or rods to be used as handles, connected by a rope, cord, wire or chain, in the
design of a weapon used in connection with the practice of a system of self-defense." See
ARIZ. REV. STAT. ANN. 13-310l(A)(8)(a) (2009).

The foregoing definitions establish that section 13-3102(A)(4) is categorically overbroad

vis-a-vis section 237(a)(2)(C) of the Act because it prohibits the possession of some weapons
e.g., knives and nunchaku-that are neither "firearms" under 18 U.S.C. 92l(a)(3) nor
"destructive devices" under 18 U.S.C. 92l(a)(4). Consequently, the respondent's conviction
under section 13-3102(A)(4) cannot disqualify him from cancellation of removal unless the statute
is "divisible" into multiple discrete offenses, at least one of which categorically matches section
237(a)(2)(C). See generally Matter of Chairez, 26 l&N Dec. 819, 822, 825 (BIA 2016) (citing
Descamps v. United States, 133 S. Ct. 2276 (2013), and Mathis v. United States, 136 S. Ct. 2243
(2016)).

In Descamps, the Supreme Court explained that a criminal statute is divisible only if it (1) lists
multiple discrete offenses as enumerated alternatives or defines a single offense by reference to
disjunctive sets of "elements," more than one combination of which could support a conviction,
and (2) at least one (but not all) of those listed offenses or combinations of disjunctive elements is
a "categorical match" to the relevant generic standard. See Descamps, 133 S. Ct. at 2281, 2283.
Employing this standard, we conclude that section 13-3102(A)(4) is indivisible because, although
it is phrased in the disjunctive to encompass the possession of either a "deadly weapon" or a
"prohibited weapon," neither of those statutory alternatives is a categorical match to the
requirements of section 237(a)(2)(C).

As noted previously, the terms"deadly weapon" and"prohibited weapon" are both defined by
Arizona law to include items that are not "firearms" or "destructive devices" under federal law;
indeed, a single item (such as a nunchaku) could support a conviction under either statutory
alternative without being a "firearm" or a "destructive device." Hence, even if"deadly weapons"
and "prohibited weapons" define discrete elements of section 13-3102(A)(4), the statute remains
categorically overbroad vis-a-vis section 237(a)(2)(C).

In light of the foregoing, we conclude that the respondent has carried his burden of proving the
absence of a disqualifying "firearm offense" conviction because section 13-3102(A)(4) is
overbroad and indivisible vis-a-vis section 237(a)(2)(C) of the Act. Accordingly, we will vacate
the Immigration Judge's decision denying the respondent's application for cancellation of removal

Cite as: R-S-A-, AXXX XXX 165 (BIA July 25, 2017)
. .

165

on that basis.1 We express no present opinion as to whether the respondent is otherwise eligible
for (or deserving of) cancellation of removal or other relief, but we do note that his conviction
remains relevant as an adverse discretionary factor.

The following order will be issued.

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ORDER: The appeal is sustained, the Immigration Judge's decision is vacated in part, and the
record is remanded for further proceedings consistent with the foregoing opinion.

1 We acknowledge the respondent's appellate arguments regarding the propriety of administrative

closure and the Immigration Judge's determination that he had failed to file a trial brief. Given
the present disposition, however, we find it unnecessary to address those arguments.

Cite as: R-S-A-, AXXX XXX 165 (BIA July 25, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
PHOENIX, ARIZONA

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File: A -165 November 22, 2016

In the Matter of

)
R S -A ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGES: 212(a)(6)(A)(i) Present without admission or parole, and

212(a)(2)(A)(i)(I) - eConvicted of a crime involving moral turpitude
(withdrawn)

APPLICATIONS:

ON BEHALF OF RESPONDENT: MICHAEL NEUFELD, Esquire

668 North 44th Street Suite 300
Phoenix, Arizona 85008

ON BEHALF OF OHS: VICTORIA LEVIN, Esquire

2035 North Central Avenue
Phoenix, Arizona 85004

ORAL DECISION OF THE IMMIGRATION JUDGE

Respondent is a native and citizen of Mexico. He was brought into

proceedings with the filing of a Notice to Appear, marked as Exhibit 1, charging

removability as noted above. At pleadings_ !he responded.I. through counsel, admitted

A211egation 1, he admitted Allegation and 2,.:. l:leHe denied the entry date found on the
,

Notice to Appear at A211egation 37_. and admitted Allegation 4 that he has not admitted

v.as admitted. Allegation 5, regarding the criminal conviction, was denied. The illegal

entry charge was sustained. Again, the moral turpitude charge was withdrawn by trial

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attorney. Based upon respondent's pleadings the Court found removability established

by clear and convincing evidence for illegal entry. Respondent designated Mexico as

the country for removal should that have to occur.

The respondent in this case has filed an application for cancellation of

removal as a non-permanent resident with supporting documents. All marked exhibits,

Tabs 1 through a... were admitted. Also part of the record, but not marked as an exhibit,

respondent's brief denying removability under 237(a)(2)(C). Respondent has not been

charged with being removable under 237(a)(2)(C). The brief is not on point, but the

Court has considered the contents of that brief. The respondent has been convicted as

noticed on the Notice to Appear of a Class 4 felony of misconduct involving weapons in

Maricopa County Superior Court on June 8, 2010 and was sentenced to one-year

probation with the adult probation department. The conviction document is part of the

record that substantiates the allegation. It is respondent's burden to demonstrate that

he is eligible for cancellation of removal relief he seeks today. The respondent's

counsel, at a master calendar hearing, has admitted that the respondent is not eligible

for cancellation relief. At a subsequent master calendar hearing which he requested to

only seek voluntary departure, respondent's counsel decided that he would like to

change his mind and retract the concession. The Court-Ras ordered the respondent to

submit a brief regarding his eligibility for this relief despite his conviction. Respondent,

despite the Court's order, has failed to do that. It is the respondent's burden to

demonstrate that he is eligible for relief. He has neither done so by way of written legal

argument or by any other documentation in the record to show that this application

A -165 2 November 22, 2016

should not be pretermitted.

It is ordered that the respondent's application for cancellation of removal

as a non-permanent resident be pretermitted due to tAehis firearms offense he has

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been oonvioted of.conviction.

In the alternative the respondent has sought the privilege of voluntary

departure at conclusion of proceedings. The Department has indicated no opposition.

The Court, therefore, based upon foregoing and after consideration of all arguments

before this matter grants the respondent the privilege of voluntary departure at

conclusion of proceedings.

ORDER

Respondent IS ORDERED to depart the United States at his own expense

no later than January 22, 2017.

IT IS FURTHER ORDERED that the respondent post a voluntary

departure bond in the amount of $500.00 with the Department of Homeland Security on

or before November 30, 2016.

Should the respondent fail to comply with the above conditions the

voluntary departure grant in the alternative, the Court orders the respondent removed to

Mexico from the United States based upon the sustained charge herein.

Please see the next page for electronic

signature
LAMONTE S. FREERKS
Immigration Judge

November 22, 2016

A -165 3 November 22, 2016

/Isl/

Immigration Judge LAMONTE S. FREERKS

freerksl on February 28, 2017 at 6:11 PM GMT

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A -165 4 November 22, 2016