U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 l.eesb11rg Pike. S11ite 2000 Falls Cl111rcl1. Virgi11ia Z2041

CORRAL-CHAVIRA, JESUS MANUEL A092800-902 3075 N. MAIN SPANISH FORK, UT 84660

OHS/ICE Office of Chief Counsel - LVG 3373 Pepper Lane Las Vegas, NV 89120

Immigrant & Refugee Appellate Center | www.irac.net

Name: CORRAL-CHAVIRA, JESUS MANUEL

A092-800-902

Date of this notice: 2/1/2011

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Pauley, Roger

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Jesus Manuel Corral-Chavira, A092 800 902 (BIA Feb. 1, 2011)

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U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:
In re:

A092 800 902 - Las Vegas, NV JESUS MANUEL CORRAL-CHAVIRA

Date:

FEB -1 20H

IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Pro se Peter Eitel Assistant Chief Counsel CHARGE: Notice: Sec. 237(a)(2)(A)(iii) , l&N Act [8 U.S.C. Convicted of aggravated fe lony

Immigrant & Refugee Appellate Center | www.irac.net

1227(a)(2)(A)(iii)] -

The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's decision dated September 29, 2010. further proceedings. As found by the Immigration Judge, the respondent was admitted to the United States as a lawful permanent resident on December 1, 1990. On April 27 , 2010, the respondent was convicted of burglary in violation ofNevada Revised Statutes section 205.060, and given a variable sentence of 12 to 48 months of incarceration. We are unable to affirm Immigration Judge's decision in this matter. The respondent was convicted under a divisible statute and the record contains no evidence to support the Immigration Judge's determination that the respondent is subject to removal as an alien convicted of an aggravated felony burglary or theft offense for which a term of imprisonment of at least I year has been imposed, as defined under section 10l(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. N.R.S. 205.060, broadly defines burglary to include entry into a variety of structures to commit theft offenses, assault or battery, "any fe lony,"and obtaining money or property by false pretenses. The respondent's offense canno t qualify as a generic aggravated felony burglary offense because it lacks the element of unlawful or unprivileged entry. See United States
v.

The record will be returned to the Immigration Court for

l 10l(a)(43)(G) .

The statute

under

which

the

respondent was convicted,

Aguila-Montes De Oca,

553 F.3d 1229, 1233 (9th Cir. 2009) (ruling a that substantially similar statute, California Penal Code

459, did not qualify as a generic burglary offense) .

covers a wide range of non-theft offenses.

A violation of the statute also would not be a

categorical aggravated felony theft crime under section 10l(a)(43)(G) of the Act because the law

Cite as: Jesus Manuel Corral-Chavira, A092 800 902 (BIA Feb. 1, 2011)

A092 800 902

Although the respondent conceded that he was removable because he had been convicted of "a theft offense including burglary," he appeared before the Immigration Court prose and cann ot be considered knowledgeable about whether he was convicted of burglary or theft. Because no conviction documents were submitted by the government, a modified categorical analysis cannot be undertaken to determine whether the respondent was actually convicted of a qualifying theft offense. Under the circumstances, we will return to record to the Immigration Judge for further proceedings to determine what portion of the statute the respondent was actually convicted of violating. Accordingly, the following order will be entered.

Immigrant & Refugee Appellate Center | www.irac.net

ORDER: The record is remanded to the Immigration Judge for further proceedings consistent
with the foregoing opinion.

Cite as: Jesus Manuel Corral-Chavira, A092 800 902 (BIA Feb. 1, 2011)

U.S. DE PARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT Las Vegas, Nevada

File A 092 800 902

September 29,

2010

Immigrant & Refugee Appellate Center | www.irac.net

In the Matter of

JESUS MANUEL CORRAL-CHAVIRA, Respondent

IN REMOVAL PROCEEDINGS

CHARGE:

Section 237 (a) (2) (A) (iii) of the Immigration and Nationality Act (Act), as amended; at any time after admission to the United States the alien has been convicted of an aggravated felony, as defined in Section lOl (a) (43) (G) of the Act; a law relating to a theft offense (including the receipt of stolen property) or a burglary offense for which the term of imprisonment at least one year was imposed.

A P PLICATION:

None.

ON BEHALF OF THE RESPONDENT:

ON BEHALF OF THE DE PARTMENT OF HOMELAND SECURITY: Peter F. Eitel Assistant Chief Counsel

Pro se

ORAL DECISION OF THE IMMIGRATION JUDGE It was on September 29, 2010 that a hearing most On this

recently was convened regarding this removal proceeding. occasion

ft, -a-A Immigration Court initially recognized that the /tt fett;e,,.-f respondent presented a voluntarAand knowing waiver of his right

-f'/..e.
"

to legal representation.

With this

Immigration Court went

(.' \

nrng forward on the same date to obtain from the respondent pleadings concerning the contents of his August 23, Exhibit 1. In reliance on those pleadings 2010 Notice to Appear. the Immigration Court pursuant to clear and

determined the respondent to be removable, c onvincing evidence, removable charge.

Immigrant & Refugee Appellate Center | www.irac.net

with reference to the aforementioned the

The respondent then designated Mexico,

country of citizenship, prove necessary. Further,

should removal from the United States

during the September 29,

2010 hearing

the

Immigration Court addressed the expression of interest by the respondent that he be allowed to lawfully remain in the United States.
a.'1y av, '/le This led the Immigration Court to evaluate furtfier

opportunities for him to lawfully remain in the United States occur. But, at the end of this evaluation. it became the

conclusion of the Immigration Court that there is no relief from removal the respondent qualifies to receive. Consequently, it is

the decision of the Immigration Court that respondent be removed from the United States to Mexico. ORDER IT IS HEREBY ORDERED that the respondent shall be removed from the United States to Mexico.

flt

Immigration Judge A 092 800 902 2 September 29, 2010

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CERTIFICATE PAGE

I hereby certify that the attached proceeding

before RONALD L.

MULLINS in the matter of:

JESUS MANUEL CORRAL-CHAVIRA

Immigrant & Refugee Appellate Center | www.irac.net

A 092 800 902

Las Vegas,

Nevada

was held as herein appears,

and that this is the original

transcript thereof for the file of the Executive Office for

Immigration Review.

Gourley

Deposition Services, Inc. 12321 Middlebrook Road, Suite 210 Germantown, Maryland 20874 (301} 881-3344

November 3. 2010 {Completion Date}