. .

Fogle, Jr., H. Glenn., Esq.

The Fogle Law Firm, LLC
4 Broad Street, N.W., Suite 700
Atlanta, GA 30303
Name: HERNANDEZ, RAMIRO
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg l'ik. Suite 2000
Ft1s Church. Vrgi11ie1 22041
OHS/ICE Ofice of Chief Counsel - SOC
146 CCA Road
Lumpkin, GA 31815
A079-350-585
Date of this notice: 6/27/2011
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Greer, Anne J.
Malphrus, Garry D.
Pauley, Roger
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Ramiro Hernandez, A079 350 585 (BIA June 27, 2011)
HERNANDEZ, RAMIRO
A# 079-350-585
146 CCA ROAD
LUMPKIN, GA 31815
Name: HERNANDEZ, RAMIRO
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike. Suite 1000
Fals C/111rch. Virginia 1204 /
OHS/ICE Ofice of Chief Counsel - SOC
146 CCA Road
Lumpkin, GA 31815
A079-350-585
Date of this notice: 6/27/2011
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been sered with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be removed
from the United States or afirms an Immigration Judge's decision ordering that you be
removed, any petition for review of the attached decision must be filed with and received by the
appropriate cour of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Greer, Anne J.
Malphrus, Garry D.
Pauley, Roger
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Ramiro Hernandez, A079 350 585 (BIA June 27, 2011)
' .
. U .&epartment of Justice
xte Oc fr Im igton Re
Deision of te Bo of Imigton Apps
FalChuh, Vir
g
2201
File: A079 350 585 - Lumpkin, GA
I re: RAO HAE
I RMOVA PROCEDIGS
APEAL
Date:
ON BEHLF OF RESPONDENT: H. Glen Fogle, Jr., Esquire
ON BEHAF OF DHS:
CHRGE:
Anthony M. Cacavio
Asistant Chief Counsel
JUN
J7 2on
Notice: Sec. 237(a)(2)(A)(i), I&N Act (8 U.S.C. 1227(a)(2)(A)(i)] -
Convicted of crme involving moral turpitude
Lodge: Se. 237(a)(2)(A)(iii), I&N Act [
8 U.S.C. 1227(a)(2)(A)(ili)] -
Convicted of aggvated felony
APLICATION: Terination of proceedings
The respondent ha appealed fom the decision of an Immigration Judge.1 The respondent's
request fr a waiver of the fling fee associated with the fling of a appeal is ganted. See 8 C.F.R.
1003.3(a)(l) ad 1003.8. The appeal will be sustained and the record remaded to the
Immigaion Cour.
On appeal, the respondent argues that the Immigation Judge ered by fnding he h been
convicted of a crme involving moral turpitude ("CI''). This Board reviews an Immigation
Judge's :ndings of fact under a "clealy eroneus" standad. 8 C.F.R. 1003. l(d)(3)(i). We review
a remaining issues under a d novo standard, such as whether the paries have met the relevant
burden of proof ad issues of discretion. 8 C.F.R. 1003.l(d)(3)(ii). There is no contention of clear
eror in any of the facts discussed below.
The Unite States Cour of Appeals for the Eleventh Circuit ("Eleventh Circuit") ad this Boad
intialy apply a categorca analysis of the elements of the statute to deterine whether a ofense
quaes as a CIT. See Keunge v. US. Att' Gen. , 561 F.3d 1281, 1284 (11th Cir. 2009);
1 The record does not clearly refect the date upon which the Immigation Judge enered her fal
decision in this cse. The summa order is dated Febrar 17, 2011, although the transcript indicte
tat the Immigaton Judge entered her decision on Febrar 1. The opinion addressing the
respondent's removabilit is dated December 1, 2010.
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Cite as: Ramiro Hernandez, A079 350 585 (BIA June 27, 2011)
A079 J50 585
'
,atter of Silva-Trevino, 24 l&N Dec. 687, 692-704 (A.G. 2008). This approach directs us to look
to the statutor language of the crime rather than the underlying facts. See id If the language of the
criminal statute is divisible, such that there is a "realistic possibility" that the law will be applied to
conduct that does not involve moral turpitude, then we engage in a modified categorc inquir to
examine cerain specifc conviction-related documents to determine i the paricular ofense in
question is a CIT. See id at 698-99 (permittig the consideration of documents such as the
indictment, the judgent of convction, jur instrctions, a siged guilty plea, ad the plea transcript).
I the convction record does not conclusively demonstrate whether the respondent has been
convicted of engagng in conduct that constitutes a CIT, we may then consider any other admissible
evidence bearng on that question. See id at 699-704; see also Matter of Ahorta/ejo-Guza,
25 l&N Dec. 465, 466-69 (BIA 2011).
On May 27, 2009, the respondent was convicted of simple assault, in violation of section 16-5-20
of the Ofcial Code of Georgia.2 See l.J. at 1-2 (Dec. 1, 2010); Tr. at 140. We agree wth the
Immigation Judge that simple assalt does not categorically involve moral tritude fr purposes of
our immigation laws. See Matter of Ahorta/ejo-Guza, spra, at 466; Mater of Fua/aau, 21 I&N
Dec. 475, 477 (BIA l996);Mater of Short, 20 l&N Dec. 136, 139 (IA 1989). A such, we must
t to the respondent's record of cnviction to decide if his paricular ofense qualifes as a CIT.
During the prior hearing, the Immigration Judge looked to the respondent's cr indictment
to conclude that he was convicted of a CI. See I.I. Dec. at 3-4 (ec. 1, 2010). The respondent,
however, was not convicted of aggavated assault, the crme fr which he was orgnally charged.
See Indictment at 1, 4 (Unarked Ex.). To the contrar, the record shows that he pied guilty to
simple assault, a lesser included ofense. See id; see also, e.g., Bosc v. State, 656 S.E.2d
546, 548 (G. Ct. App. 2008) (under Georga law, simple assault is a lesser included ofense to
aggavated assault).
The respondent's indictment does not specif under which subsection of the simple assault statute
he was charged. See Indicment (Unmarked Ex.); see generall Simpson v. State, 589 S.E.2d 90,
92-93 (G. 2003);McGuire v. State, spra, at 58 (a indicment fr aggravated assault need not tell
the defendant the specifc m er in which he is believed to have committed his simple assault). A
such, we cannot determine whether he was convicted of a specifc or generl intent crime based on
the curent record. See Jackon v. State, 284 S.E.2d 267, 270 (G. 1981) (holding that a violation
of Georga Code section 16-5-20(1) is a specifc intent crime, whereas a violation of secion16-5-
20(2) requires only general intent); see generaly Mater of Silva-Trevino, spra, at 689 (providing
that to qualif as a CIT, a crime must involve reprehensible conduct and "some degee of scienter,
whether specifc intent, deliberateness, w lness, or reckessness"). We likewise cannot establish
based on the curent record whether the respondent admitted aof the facts contained in his org
indicment, which the Imigation Judge may frher consider on remand. See State v. Eva, 454
2 According to Gorgia, "a person commits the ofense of simple assault when he or she
either (1) [a]ttempts to commit a violent injur to the person of another; or (2) [c]ommits an act
which places another in reasonable apprehension of imediately receiving a violent injur." GA.
CODE 16-5-20; see generall McGuire v. State, 598 S.E.2d 55, 57-58 (G. Ct. App. 2004)
(discussing the elements of Georga's simple assault ofense).
2
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Cite as: Ramiro Hernandez, A079 350 585 (BIA June 27, 2011)
. -079 350 585
.S.E.2d 468, 470-72 (G. 1995) (discussing the rle that precludes a tral cur fom entering a
judgent upon guilt ple without fst deterg on the record that there is a fctua bais for the
plea); see generally Simpson v. Stae, spra (requiring only that an indictment fr aggavated assault
indicate the aggavaing aspect of the defendant's simple assault).
Furtherore, the DHS previously lodged an additional charge against the respondent, which was
not addressed by the Imigaton Judge. See I.J. Dec. at 4, n.2 (e. 1, 2010); For 1-261
(Unked Exh.); see also DHS's Bref at 1 (reuesting a remand fr consideration of the lodged
chage). Upon remand, the Imigtion Judge should frst have the respondent to pled to the
inforation contained within his For 1-261. The parties should aso be gven an opportunity to
submit additona evdence peraining to the respondent's removabilit. The I igaton Judge
should then consider whether the respondent is removable under section 237(a)(2)(A){iii),
237(a)(2)(A)(i), or ay other section of the Act. I the Imgation Judge sustains any charge, the
respondent wlhave an opporunity to seek any relief fr which he may be eligble. 3
Base on these consideratons, the flowing orders wlbe entered.
ORE: The appeal is sustained.
FTIORER: Te reord is remded to the Imgation Cour fr frher proceeding
consistent with the fregoing opinion and fr the entr of a new decision.
FOR T BOA
3 O review of the reord also reveals that the Imigation Judge did not isse a fna oral or written
desion in the preset matter. Wile she did issue a written opinion fding the respondent
removable, ad summa decisions are permissible at times, the regulations prohibit them when, inter
alia, the respondent maes a application fr relief under 8 C.F.R. 1240.11, including a request fr
voluntar deparure. See Tr. at 136-39; 8 C.F.R. 1240.12(b); see also Respondent's Bref at 6.
Aso, it is advsable to incororate prel decisions on removability or other issues into the f
oral or wrtten decision.
3
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Cite as: Ramiro Hernandez, A079 350 585 (BIA June 27, 2011)
. .
In the Matter of
HERNADEZ, RMIRO
Respondent
IMIGRTION COURT
146 CCA ROA
LUPKIN, GA 31815
Case No.: A079-350-585
IN REMOVAL PROCEEDINGS
ORDER OF THE IMIGRATION JUDGE
This is a sumary of the oral decision entered on _ /
This memorandum is solely for the convenien e of the If the
proceedings should be appealed or reopened become
icial opinion in the case.
respondent was ordered removed ror the United States to
CO or in the alternative to
Al.'r
(

spondent's application for vol tlefrture w d
espondent was ordered reoved MXICO or in the

ternati ve to .
-
Res ondent's application for v untary departure was granted until
upon posting a bond in the aount of $
with an alternate order of removal to MXICO.
Respondent's application for:
[ ) Asylum was ( )granted )denied( )withdrawn.
[ 1 Withholding of removal was ( )granted ( )denied )withdrawn.
[ ] A Waiver under Section _was ( )granted ( )denied ( )withdrawn.
( ] Cancellation of removal under section 240A(a) was ( )granted ( )denied
( )withdrawn.
Respondent's application for:
[ ] Cancellation under section 240A(b) (1) was C ) granted ) denied
( ) withdraw. If granted, it is ordered that the respondent be issued
all appropriate documents necessary to give effect to this order.
Cancellation under section 240A(b) (2) was ( )granted ( )denied
( )withdrawn. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this order.
Adjustment of Status under Section _was ( )granted ( )denied
( )withdraw. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this order.
Respondent's application of ( ) withholding of removal ( ) deferral of
removal under Article III of the Convention Against Torture was
( ) granted ( ) denied ( ) withdrawn.
Respondent's status was rescinded under section 246.
Respondent is admitted to the United States as a
As a condition of admission, respondent is to post a $
until -
bond.
Respondent knowingly filed a frivolous asylum application after proper
notice.
Respondent was advised of the limitation on discretionary relief for
failure to appear as ordered in the Immigration Judge's oral decision.
Proceedings were terminated.
Other:
Date: Feb 1, 2011
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