U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk
5107 leesburg Pike. Suite 2000
Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - OAK

1010 East Whatley Road
Oakdale, LA 71463-1128

Name: BLANCO PEREZ, ROBERTO JA...

A 092-981-108

Date of this notice: 5/14/2015

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

DOYutL cwvu
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Greer, Anne J.
Wendtland, Linda S.
O'Herron, Margaret M

Userteam: Docket

For more unpublished BIA decisions, visit

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BLANCO PEREZ, ROBERTO JAVIER

1114 COUSHATTIA LANE
SPRING VALLEY, CA 91977

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

Date:

File: A092 981 108 - Oakdale, LA

MAY 1 2015

In re: ROBERTO JAVIER BLANCO-PEREZ

APPEAL
ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

Pro se

Lorraine L. Griffin
Assistant Chief Counsel

CHARGE:
Notice: Sec.

237(a)(2)(A)(i), I&N Act [8 U.S.C. 1227(a)(2)(A)(i)] Convicted of crime involving moral turpitude (not found)

Sec.

237(a)(2)(A)(iii), I&N Act [8 U.S.C. l 227(a)(2)(A)(iii)] Convicted of aggravated felony (as defined in section 101(a)(43)(F))
(not found)

Sec.

237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony (as defined in section 101(a)(43)(U))
(not found)

APPLICATION: Termination

The Department of Homeland Security (DHS) appeals from the Immigration Judge's
January 14, 2013, decision concluding that the respondent is not removable as charged and
terminating the instant proceedings. The appeal will be sustained, proceedings will be reinstated,
and the record will be remanded to the Immigration Judge for further proceedings consistent with
this decision.
We review factual findings, including credibility findings, for clear error. See 8 C.F.R.
1003.l(d)(3)(i); see also Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007); Matter of S-H-,
23 l&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all
other issues de novo. See 8 C.F.R. 1003.l(d)(3)(ii).
The following facts are not in dispute. The respondent, a native and citizen of Mexico,
entered the United States without inspection at an unknown place and time (I.J. at 1; Tr. at 7-8;
Exh. 1). Thereafter, he adjusted his status to that of a lawful permanent resident on March 21,
1990 (I.J. at 1; Tr. at 8; Exh. 1). Then, on June 2, 1993, he was convicted of attempted
kidnapping in violation of California Penal Code section 664/207(a) (I.J. at 2; Tr. at 8;
Exhs. 1-2).

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IN REMOVAL PROCEEDINGS

'

'

A092 981 108

Based on the foregoing, the DHS charged the respondent with deportability under section
237(a)(2)(A)(i) of the Act, 8 U.S.C. 1227(a)(2)(A)(i), for having been convicted of committing
a crime involving moral turpitude within 5 years of his admission to the United States, and
section 212(a)(2)(A)(iii) of the Act, for having been convicted of an aggravated felony as defined
in sections 101(a)(43)(F) and (U) of the Act, 8 U.S.C. 110l(a)(43)(F), (U) (Exh. 1).

On appeal, the OHS does not challenge the Immigration Judge's findings with respect to the
aggravated felony charges. Instead, the agency maintains that the Immigration Judge erred in
applying Martinez v. Mukasey, supra, to evaluate whether the respondent is deportable under
section 237(a)(2)(A)(i) of the Act. The OHS asserts that Martinez v. Mukasey is distinguishable
because it is limited to a discussion of the meaning of the terms "admission" and "admitted" as
used in section 212(h) of the Act, 8 U.S.C. 1l82(h) (DHS Brief at 3-8). As a result, the DHS
argues the Fifth Circuit's finding that an alien who adjusted has not been admitted for purposes
of section 212(h) of the Act is limited to that provision, and does not address the use of the term
in section 237 of the Act (DHS Brief at 5, 7). Instead, the DHS maintains that Matter of
Espinosa Guillot, 25 l&N Dec. 653 (BIA 2011) controls (OHS Brief at 6).
In Matter of Espinosa Guillot, supra, we held that an alien who entered without inspection
and subsequently adjusted status to that of a lawful permanent resident has been admitted to
the United States and is subject to charges of removability under section 237(a) of the Act.
See id. In so doing, we found that adjustment of status generally constitutes an admission.
See id. at 654. As a result, we concluded that a decision from the United States Court of Appeals
for the Eleventh Circuit that employed a similar analysis to that contained in Martinez
v. Mukasey, supra, was inapplicable under the circumstances, as the Eleventh Circuit case looks
to the specific language of section 212(h) of the Act notwithstanding the fact that the decision
considered such language in the context of the Act as a whole. See Matter of Espinosa Guillot,
supra, at 655, citing Lanier v. United States Attorney General, 631 F.3d 1363 (11th Cir. 2011).
Additionally, we explained in Matter of Espinosa Guillot, supra, that applying the definition of
the term "admission" as set forth in cases like Lanier v. United States Attorney General, supra,
beyond section 212(h) of the Act would create absurd results. See Matter of Espinosa Guillot,
supra, at 655-56, citing Matter ofAlyazji, 25 l&N Dec. 397, 399 & n.2 (BIA 2011), and Matter
ofRosas, 22 I&N Dec. 616, 621, 623 (BIA 1999).
2

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In declining to find the respondent deportable as an aggravated felon, the Immigration Judge
found that the respondent's attempted kidnapping conviction did not qualify as either a crime of
violence or a conspiracy to commit a crime of violence (l.J. at 2-4; Exhs. 1-2). See United States
v. Najera-Mendoza, 683 F.3d 627 (5th Cir. 2012). In declining to sustain the charge related to a
conviction for a crime involving moral turpitude, the Immigration Judge concluded that the
respondent was not deportable under section 237 of the Act because he had not previously been
admitted to the United States, notwithstanding his adjustment of status in 1990 (l.J. at 2-3;
Exhs. 1-2). In support of her analysis, the Immigration Judge relied on Martinez v. Mukasey,
519 F.3d 532, 542-46 (5th Cir. 2008), where the United States Court of Appeals for the Fifth
Circuit discussed certain circumstances in which an adjustment of status does not qualify as an
admission for purposes of section 212(h) of the Act, 8 U.S.C. 1182(h) (l.J. at 2-3). Because the
Immigration Judge did not sustain any of the charges contained on the Notice to Appear, she
terminated the instant proceedings (l.J. at 4).

A092 981 108

Accordingly, the following orders will be entered.

ORDER: The DHS appeal is sustained.
FURTHER ORDER: These proceedings are reinstated and the record is remanded to the
Immigration Judge for further proceedings consistent with this opinion and the entry of a new
decision.

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As a result, we disagree with the Immigration Judge's conclusion that the respondent may
not be found deportable under section 237 of the Act because he entered without inspection and
then adjusted his status. However, because the Immigration Judge did not consider whether
(1) the respondent's conviction for attempted kidnapping qualifies as a crime involving moral
turpitude and (2) the acts underlying the offense were committed within 5 years of the
respondent's adjustment of status, we conclude that remand of the record is required in order to
allow the Immigration Judge to further evaluate whether the charge under section 237(a)(2)(A)(i)
of the Act can be sustained. Should the charge of deportability be sustained, the respondent will
also have the opportunity to apply for any forms of relief from removal for which he may be
eligible.

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
OAKDALE, LOUISIANA

Roberto Javier BLANCO PEREZ

Respondent

CHARGES:

)
)
)
)
)
>

IN REMOVAL PROCEEDINGS
File No.: A092-981-108

Section 237(a)(2)(A)(i) of the Immigration and Nationality Act, as an

alien who has been convicted of a crime involving moral turpitude
committed within five years after admission for which a sentence of one
year or longer may be imposed.
Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, as an
alien, who at any time after admission, has been convicted of an

aggravated felony as defined in section 101(a)(43)(F) of the Act, a crime

of violence (as defined in section 16 of Title 18, United States Code, but
not including a purely political offense) for which the term of
imprisonment ordered is at least one year.
Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, as an
alien, who at any time after admission, has been convicted of an
aggravated felony as defined in section 101(a)(43)(U) of the Act, a law
relating to an attempt or conspiracy to commit an offense described in
section 101 (a)(43) ofthe Act.

On Behalf of Respondent

On Behalf of the Department

Pro Se

Assistant Chief Counsel

DHS/ICE/Litigation Unit
10 I 0 East Whatley Road
Oakdale, LA 71463
DECISION AND ORDER OF THE IMMIGRATION JUDGE

I.

Procedural and Factual History

The Respondent is a native and citizen of Mexico, who arrived in the United States at

an

unknown time and place. On November 21, 2012, the Department of Homeland Security
(''DHS") initiated immigration proceedings by issuing a Notice to Appear ("NTA'') which
alleged that on March 21, 1990, Respondent adjusted status to lawful permanent resident. DHS

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IN THE MATTER OF

/
also alleged that on June 2, 1993, Respondent was convicted in the Superior Court at Santa Ana,
California for the offense of Attempted Kidnapping, in violation of section 664/207(a) of the

California Penal Code. 1 In addition, DHS alleged that on October 8, 2012, Respondent arrived at
the San Ysidro Port of Entry, San Ysidro, California and applied for admission into the United
States from Mexico as a lawful permanent resident. See Exh. 1. Based on these allegations, DHS
ofthe Immigration and Nationality Act ("Act").
At the Initial Master Hearing on January 14, 2013, Respondent admitted the six factual
allegations set forth in the NTA. The Court reviewed the conviction records, determined that
Respondent was not removable as charged, and terminated proceedings. This decision addresses
the Court's findings at the hearing.
II.

Applicable Law and Analysis

A. Crime of Violence

The Immigration and Nationality Act ("Act") defines "aggravated felony" to include a
"crime of violence" (as defined in 18 U.S.C. 16, but not including a purely political offense)
for which the term of imprisonment is at least one year. INA 101(a)(43)(F). A "crime of
violence" is:
(a) an offense that has an element the use, attempted use, or
threatened use of physical force against a person or property of
another, or
(b) any other offense that is a felony and that, by its nature,
involves a substantial risk that physical force against the person
or property of another may be used in the course of committing
the offense.
See 18 U.S.C. 16.
In the Fifth Circuit, the "physical force" required in a crime of violence must be
"destructive or violent force." United States v. Rodriguez-Guzman, 56 F.3d 18, 20 n.8 (5th Cir.
1995). It does not encompass indirect acts, such as luring an unsuspecting swimmer into a strong
undertow. United States v. Villegas-Hernandez, 468 F.3d 874, 879 n.6 (5th Cir. 2006).
To determine whether a past conviction constitutes a crime of violence, the Fifth Circuit
applies the categorical approach. Taylor v. United States, 495 U.S. 575, 600-602 (1990). In
order to make a determination under the categorical approach, the first step is to look at the
criminal statute that the Respondent violated to analyze whether the crime fits within the
definition of "crime of violence." Larin-Ulloa v. Gonzales, 462 F.3d 456, 463 (5th Cir. 2006).
The categorical approach calls for the trier of fact to examine the elements of the offense, rather
1

The conviction records submitted indicate that a jury found Respondent guilty of Attempted Kidnapping on

September 17, 1993.

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charged the Respondent as removable pursuant to sections 237(a)(2)(A)(i) and 237(a)(2)(A)(iii)

than the facts underlying the conviction. United States v. Mendoza-Sanchez, 456 F.3d 479, 482
(5th Cir. 2006).
If the necessary element of "destructive or violent" force cannot be ascertained because
the statute defines more than one offense, then the court may use the modified categorical
may examine the "charging document, written plea agreement, transcript of plea colloquy, and
any explicit factual finding by the trial judge to which the defendant assented." Omari v.
Gonzales, 419 F.3d 303, 308 (5th Cir. 2005) (quoting Shepard v. United States, 544 U.S. 13, 2021 (2005)).
The Respondent was convicted of Attempted Kidnapping in violation of California Penal
Code section 664/207(a) which states that "every person who forcibly, or by any other means of
instilling foar, steals or takes, or holds, detains, or arrests any person in this state, and carries the
person into another country, state, or county, or into another part of the same county, is guilty of
kidnapping." See CAL. PENAL CODE 207(a) (West 1993). The Fifth Circuit has held that a
conviction for kidnapping in Oklal1oma was not a crime of violence, comparing the Oklahoma
statute to section 207(a) of the California Penal Code. See United States v. Najera-Mendoza, 683
F.3d 627, 630 (5th Cir. 2012). In United States v. Moreno-Florean, the Fifth Circuit held that the
California offense of kidnapping did not meet the "generic, contemporary definition" of
kidnapping because the section could be violated without proof of two elements that are part of
the definition:
(1) substantial inte1ference with the victim's liberty; and
(2) circumstances exposing the victim to substantial risk of bodily
injury or confinement as a condition of involuntary servitude.
542 F.3d 445, 452.. 456 (5th Cir. 2008).

Accordingly, in keeping with Fifth Circuit precedent, the Court finds Respondent's
California conviction for attempted kidnapping in violation of section 207(a) is not a crime of
violence.
B. Crime Involving Moral Turpitude

DHS also charged Respondent as removable pursuant to section 237(a)(2)(A)(i) of the

Act, which states that any alien convicted of a crime involving moral turpitude committed within
five years after the date of admission is deportable. The Fifth Circuit has held that an alien who
adjusted status to lawful permanent resident was not admitted as a lawful permanent resident
pursuant to the definition of"admitted" in section 101(a)(l3) of the Act, which is defined as the
lawful entry of the alien into the United States after inspection and authorization by an
immigration officer. See Martinez, 519 F.3d 532, 543 (5th Cir. 2008); INA 101(a)(l3). As the
Fifth Circuit has determined that adjustment of status is not an admission, Respondent was not
convicted of a crime involving moral turpitude within five years after the date of admission, as
required in section 237(a)(2)(A)(i) of the Act.

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approach. See Larin- Ulloa, 462 F.3d at 464. Under the modified categorical approach, the court

C. Conspiracy

With regard to the charge of removability under section 10l(a)(43)(U), the Board of
Immigration Appeals ("BIA") has determined that DHS must demonstrate by clear and
convincing evidence that Respondent was convicted of engaging in a "conspiracy" within the
meaning of section 101(a)(43)(U) of the Act. Thus, the proper analysis in a conspiracy case is

20 I&N Dec. 536, 544-45 (BIA 1992) (holding that a Maryland misdemeanor conviction for
conspiracy to distribute a controlled substance was an aggravated felony because the felony
distribution offense that was the object of the conspiracy would have been an aggravated felony
had it been completed). In this case, Respondent was not charged with being part of a broader
conspiracy. Accordingly, the Court finds Respondent's offense for attempted kidnapping does
not constitute a conspiracy contemplated within the meaning of section 101(a)(43)(U).
III.

Conclusion

Respondent is not removable for having committed a crime of violence or a conspiracy to

commit an aggravated felony. The Fifth Circuit has determined that a conviction for attempted
kidnapping in violation of section 207(a) of the California Penal Code is not a crime of violence
and Respondent was not charged as being part of a broader conspiracy. Respondent is not
removable pursuant to section 237(a)(2)(A)(i) of the Act because the conviction for attempted
kidnapping did not occur within five years of a date of admission.

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whether the substantive crime that was the object of the conspiracy would have fit within the
particular aggravated felony category had it been successfully completed. See Matter of Davis,