Khanh Ngoc Nguyen, Esquire

Khanh Nguyen Law Office

8120 Penn Ave. South
Suite 549
Bloomington, MN 55431
U.S. Department of Justice
Executive Offce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530
OHS/ICE Office of Chief Counsel -BLM
(MSP)
1 Federal Drive, Suite 1800
Ft. Snelling , MN 55111
Name: ENRIQUEZ-ALVAREZ, EDUARDO A 070-731-338
Date of this notice: 9/22/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Greer, Anne J.
Malphrus, Garry D.
Pauley, Roger
Sincerely,
Donna Carr
Chief Clerk
1.(ISd
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Eduardo Enriquez-Alvarez, A070 731 338 (BIA Sept. 22, 2014)
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ENRIQUEZ-ALVAREZ, EDUARDO
A070-731-338
C/O ICE/OHS
2901 METRO DR. 100
BLOOMINGTON, MN 55425
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Fals Church, Virginia 20530
OHS/ICE Office of Chief Counsel -BLM
(MSP)
1 Federal Drive, Suite 1800
Ft. Snelling , MN 55111
Name: ENRIQUEZ-ALVAREZ, EDUARDO A 070-731-338
Date of this notice: 9/22/2014
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 served 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 afrms an Immigration Judge's decision ordering that you
be removed, any petition fr review of the attached decision must be fled with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Greer, Anne J.
Malphrus, Garry D.
Pauley, Roger
Sincerely,
Dom1a Carr
Chief Clerk
lucasd
Useream: Doc
Cite as: Eduardo Enriquez-Alvarez, A070 731 338 (BIA Sept. 22, 2014)
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U.S. Department of Justice
Executive Offce for Immigration Review
Falls Church, Virginia 20530
File: A070 731 338 - Bloomington, MN
In re: EDUARDO ENRIQUEZ-ALVAREZ
IN REMOVAL PROCEEDINGS
APPEAL
Decision of the Board oflmmigration Appeals
Date:
ON BEHALF OF RESPONDENT: Ka Ngoc Nguyen, Esquire
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
APPLICATION: Termination
The respondent appeals from an Immigration Judge's April 22, 2014, decision ordering him
removed from the United States.
1
The appeal will be sustained and the record will be remanded
fr frther proceedings consistent with this order.
The respondent, a native and citizen of Mexico and a lawful permanent resident of the
United States since 2009, sustained a 2012 conviction for stalking under section 609.749(2)(1) of
the Minnesota Statutes (Exh. 3). The Immigration Judge sustained the charge of removal, denied
the respondent's motion to terminate, and ordered his removal fom the United States. This
timely appeal fllowed.
We review an Immigration Judge's factual determinations, including credibility
determinations, fr clear error. See 8 C.F.R. 1003.l(d)(3)(i). The Board uses a de novo
standard of review for questions of law, discretion, judgment, and all other issues in appeals from
decisions of Immigration Judges. See 8 C.F.R. 1003. l (d)(3)(ii). On appeal, the respondent
maintains that the Department of Homeland Security ("DHS") did not prove his removability by
clear and convincing evidence. See section 240(c)(3)(A) of the Act, 8 U.S.C. 1229a(c)(3)(A).
The phrase "moral turpitude" refers to conduct that is inherently base, vile, or depraved, and
contrary to the accepted rules of morality and the duties owed between persons or to society in
general. Matter of Ortega-Lopez, 26 I&N Dec. 99, 100 (BIA 2013). Thus, to involve moral
turpitude, a crime requires two essential elements: a culpable mental state and reprehensible
conduct. Id. (citing Matter of Louissaint, 24 I&N Dec. 754, 756-57 (BIA 2009)). Where a state
statute can be violated with general intent only, it follows that the underlying ofense may be
1
The Immigration Judge also issued a written order on March 27, 2014, addressing the
respondent's motion to terminate.
Cite as: Eduardo Enriquez-Alvarez, A070 731 338 (BIA Sept. 22, 2014)
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A070 731 338
committed without the evil intent, depraved or vicious motive, or corrupt mind associated with
moral turpitude. Matter of Solon, 24 I&N Dec. 239, 241 (BIA 2007).
The Immigration Judge used the approach adopted by the Attorney General in Matter of
Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008) to determine whether the underlying ofense is a
crime involving moral turpitude. In that decision, the Attorey General held that a crime
involving moral turpitude is a crime that "involves both reprehensible conduct and some frm of
scienter," whether specifc intent, deliberateness, willflness, or recklessness. Id at 706 & n.5.
Furthermore, the Attorney General determined that if all cases that have a "reasonable
probability" of being prosecuted under the statute of conviction involve the requisite
"reprehensible conduct" and "scienter," then the offense qualifies categorically as a crime
involving moral turpitude, notwithstanding the "theoretical possibility" that some non
turpitudinous crimes could also be prosecuted under the same statute. Id. at 697-98 (quoting
Gonzales v. Duenas Alvarez, 549 U.S. 183, 193 (2007)) see also Bobadilla v. Holder, 679 F.3d
1052, 1056 (8th Cir. 2012). Afer concluding that the Minnesota statute requires proof of
intentional or purposefl conduct, the Immigration Judge noted that it also "encompasses a large
number of unlawfl actions, some of which may not be conduct that qualifies as a CIMT." See
I.J. at 2. Therefore, the court proceeded to examine the complaint, which contained an allegation
that the respondent was involved in a physical attack in which he threatened the victim by
indicating that he had "the heat," which he intended would place the victim in fear of using a gun
against him. See I.I. at 3 (citing Exh. 7). The Immigration Judge concluded that this statement
indicated that the respondent had a "purpose to cause extreme fear in the victim," and that the
respondent's conviction fr stalking under Minnesota law was a crime of moral turpitude.
We observe that although the Immigration Judge's citation to Matter of Silva-Trevino, supra,
reflects the current guidance from the Eighth Circuit with regard to analysis of whether an
offense is a crime involving moral turpitude, 2 the Immigration Judge's consideration of the
complaint was in error. That is because the complaint contains only thee counts (and associated
factual allegations), and it did not initially appear to charge the respondent with stalking under
section 609. 7 49 of the Minnesota statutes. Although Exhibit 7 contains a handwritten notation
adding "count IV," the allegations in the complaint appear to pre-date this amendment and
pertain only to the other thee counts under which the respondent was initially charged and do
not (on their fce) relate to a charge of stalking. See Exh. 7.
Accordingly, we fnd that remand of this matter is required fr further fct-finding with
regard to the conviction documents that are associated with the respondent's offense of stalking
under Minnesota law, and we will remand this record for frther proceedings to permit the
Immigration Judge to make relevant fctual findings.
2 In Descamps v. United States, 133 S. Ct. 2276 (2013), the United States Supreme Court held
that a modified categorical analysis applies only if the statute that defnes the offense of
conviction is "divisible" vis-a-vis the generic offense or concept to which it must correspond (in
this case, the CIMT concept).
2
Cite as: Eduardo Enriquez-Alvarez, A070 731 338 (BIA Sept. 22, 2014)
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A070 731 338
Furthermore, additional analysis is required to determine the extent that the Minnesota statute
requires the requisite scienter. In Matter of Ajami, 22 I&N Dec. 949 (BIA 1999), we held that
"the intentional transmission of threats" by means of a "course of conduct" is morally
turpitudinous when the threats are made willflly and place the victim in great far. "Stalking"
under Minnesota law requires that the perpetrator "engage in conduct which the actor knows or
has reason to know would cause the victim under the circumstances to feel fightened,
threatened, oppressed, persecuted, or intimidated, and causes this reaction on the part of the
victim regardless of the relationship between the actor and victim." See Minn. Stat. 609.749(1)
(providing general description of actus reus). Although this statute at one time was interpreted as
requiring specific intent, in 1997, the legislature amended the statute to provide that proof of
specifc intent was not required for a conviction. See King v. State, 649 N.W.2d 149, 159 (Minn.
2002). Specifically, the statute provides that "the state is not required to prove that the actor
intended to cause the victim to fel fightened, threatened, oppressed, persecuted, or intimidated,
or except as otherwise provided in subdivision 3, paragraph (a), clause (4), or paragraph (b), that
the actor intended to cause any other result." See Minn. Stat. 609. 7 49(1 a). The respondent's
conviction arose under subdivision 2(1) of the statute, and, therefre, the state did not have to
prove any specifc intent to obtain a conviction.
We therefre fnd fher analysis is appropriate as to whether the Minnesota statute requires
the requisite level of scienter, which is a prerequisite to a determination that an ofense is a crime
involving moral turpitude, pursuant to Matter of Silva-Trevino, supra. See also Matter of Solon,
supra.
We therefre will sustain the respondent's appeal and remand this record fr frther
proceedings as discussed herein. The fllowing order will be entered.
ORER: The appeal is sustained and the record is remanded for frther proceedings
consistent with this order.
3
Cite as: Eduardo Enriquez-Alvarez, A070 731 338 (BIA Sept. 22, 2014)
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BLOOMINGTON, MINNESOTA
File: A0?0-731-338
In the Matter of
April 22, 2014
EDUARDO ENRIQUEZ-ALVAREZ
)
)
)
)
IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES: Section 237(a)(2)(A)(ii) of the Immigration and Nationality Act -
controlled substance conviction.

APPLICATIONS: None.
ON BEHALF OF RESPONDENT: KHANH NGUYEN
Khanh Nguyen Law Office
8120 Penn Avenue S., Suite 549
Bloomington, Minnesota 55431
ON BEHALF OF OHS: COLIN JOHNSON
Assistant Chief Counsel/ICE
2901 Metro Drive, Suite 100
Bloomington, Minnesota 55425
ORAL DECISION OF THE IMMIGRATION JUDGE
Background
The respondent is a 25-year-old unmarried, male, native and citizen of
Mexico, who initially entered the United States at or near San Ysidro, California on or
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about April 15, 1988. At that time, he entered without inspection. On August 21, 2009,
the respondent was adjusted to that of a lawful permanent resident under Section 245
of the Act.
The Department of Homeland Security (hereinafer "the Government") has
commenced removal proceedings against the respondent by the issuance of a Notice to
Appear (hereinafter "NTA") dated January 9, 2014, charging the respondent with being
removable pursuant to the above-captioned section of the Immigration and Nationality
Act (hereinafter "the Act").
Removability
At the respondent's removal hearing, respondent appeared with the
above-referenced counsel and conceded to the service of the NTA (Exhibit 1). The
respondent has admitted all the factual allegations, but denied removability. Therefore,
removability is at issue in these proceedings.
The Court has issued a written decision dated March 27, 2014, finding the
respondent removable as charged. The Court will incorporate by reference that
decision as though fully set forth herein.
The respondent has designated Mexico as the country of removal should
that become necessary.
Relief
The respondent has not sought any relief in this country. The Court notes
that the respondent is not eligible for relief.
The respondent is not eligible for cancellation of removal pursuant to
Section 240A(b) of the Act because he does not have the requisite seven years'
residence after admission in any status. See Section 240A(a)(2).
The respondent is not eligible to adjust status because no petitions have
A070-731-338 2 April 22, 2014
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been filed on his behalf that would allow him to adjust status. Even if one had been, the
respondent would not be eligible for adjustment of status because he does not have the
requisite seven years' residence, as required in Section 212(h) of the Act. Therefore,
since he cannot waive his conviction, he cannot adjust status. The respondent has not
sought voluntary departure.
The respondent has made no claim to citizenship, either through himself
or through his parents. It appears that he would not be eligible for derivative citizenship
because he became a permanent resident after he turned 18 years of age.
Respondent has made no claims to have any fears of persecution or
torture if he returns back to Mexico and has not sought that form of relief.
Respondent has made no claim to having been the victim of a crime or
human trafficking, nor that he is eligible for relief under DACA.
The respondent sought a continuance of this case to afford him an
opportunity to have his conviction vacated. Respondent has indicated that he has an
attorney working on that case but at this time has not filed a motion for a continuance,
and no hearings have been set on the motion to vacate the conviction. The Court notes
that the Board has admonished Immigration Judges not to continue cases solely for the
purpose of seeking post-conviction relief. See Matter of Gabrelsky, 20 l&N Dec. 750
(BIA 1993).
Therefore, there being no other relief available to the respondent, the
following orders shall be entered:
A070-731-338 3 April 22, 2014
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ORDER
IT IS HEREBY ORDERED that respondent be removed from the United
States to Mexico.
A0?0-731-338
WILLIAM J. NICKERSON, JR.
Immigration Judge
4
April 22, 2014
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CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE WILLIAM J.
NICKERSON, JR., in the matter of:
EDUARDO ENRIQUEZ-ALVAREZ
A070-731-338
BLOOMINGTON, MINNESOTA
was held as herein appears, and that this is the original transcript thereof for the file of
the Executive Office for Immigration Review.
GRACE SHIPPS (Transcriber)
DEPOSITION SERVICES, lnc.-2
JUNE 19, 2014
(Completion Date)
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