U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5/07 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - KAN

2345 Grand Blvd., Suite 500
Kansas City, MO 64108

Name: GIRON, JUAN EMIGDIO

A 060-304-016

Date of this notice: 9/14/2015

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

DCinltL c
Sincerely,

t1ftA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley. Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Juan Emigdio Giron, A060 304 016 (BIA Sept. 14, 2015)

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Willmoth, Jonathan James, Esq.

Willmoth Immigration Law, LLC
215 W. 18th St., Suite 101
Kansas City, MO 64108

 U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A060 304 016 - Kansas City, MO

In re: JUAN EMIGDIO GIRON

Date:

SEP 14 2015

APPEAL
ON BEHALF OF RESPONDENT: Jonathan James Willmoth, Esquire
ON BEHALF OF DRS: Jennifer A. May
Assistant Chief Counsel
CHARGE:
Notice: Sec.

237(a)(2)(A)(i), l&N Act [8 U.S.C. 1227(a)(2)(A)(i)] Convicted of crime involving moral turpitude

Sec.

237(a)(2)(A)(iii), l&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony

Sec.

237(a)(2)(C), I&N Act [8 U.S.C. 1227(a)(2)(C)] Convicted of firearms or destructive device violation

APPLICATION:

Termination

The Department of Homeland Security ("DHS") appeals from an Immigration Judge's

August 11, 2014, decision terminating removal proceedings against the respondent. The
respondent has filed a brief in opposition to the appeal. The appeal will be dismissed.
The respondent, a native and citizen of El Salvador, was admitted to the United States as a
lawful permanent resident in 2009. In 2010 the respondent was convicted of felony burglary in
violation of section 21-3715 of Kansas Statute Annotated ("KSA"), for which he was sentenced
to a 4 month prison term. In 2014 the respondent was convicted of possession of a firearm. On
June 17, 2014, the United States Court of Appeals for the Tenth Circuit granted a joint motion to
vacate conviction, on the grounds that the felony burglary conviction did not constitute a crime
punishable by imprisonment for a term exceeding 1 year (I.J. at 1; Exh. 3, Tab A). The
Immigration Judge found that since the felon in possession of a firearm conviction has been
vacated, the respondent no longer has a conviction under which he can be removed pursuant to
sections 237(a)(2)(C) and 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C.
1227(a)(2)(C), 1227(a)(2)(A)(iii) (I.J. at 3, 4).
The respondent contends that his conviction and sentencing for felony burglary does not
constitute a crime for which a sentence of 1 year or longer may be imposed, and the respondent
sought to have the removal proceedings terminated. The DRS contends that while KSA section
Cite as: Juan Emigdio Giron, A060 304 016 (BIA Sept. 14, 2015)

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IN REMOVAL PROCEEDINGS

A060 304 016

The sole issue on appeal is whether the respondent's crime is one "for which a sentence of
one year or longer may be imposed" within the meaning of section 237(a)(2)(A)(i)(II) of the Act.
The Immigration Judge concluded that it was not because, under the Kansas Sentencing Grid,
KSA 21-4704, the crime of felony burglary committed with the respondent's particular lack of
criminal history carried a maximum prison sentence of only 7 months.
In determining whether the respondent is removable under section 237(a)(2)(A)(i) of the Act,
the Immigration Judge considered U.S. v. Brooks, 751 F.3d 1204 (10th Cir. 2014), as well as
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) and U.S. v. Haltiwanger, 637 F.3d 881
(8th Cir. 2011). The Immigration Judge noted that while Carachuri held that a simple
possession charge was not an aggravated felony under the Act when a respondent's previous
convictions were not part of the record, the present situation is analogous (I.J. at 4). Further, the
Immigration Judge noted that as in Carachuri, there was no finding of fact at trial that would
have allowed the court to impose a sentence of I year or more on the respondent, and the Kansas
court, at no time during the trial had the discretion to sentence the respondent to more than
7 months of incarceration, the maximum allowable under the KSA sentencing guidelines (I.J. at
4; Exh. 5, Tab E). In Carachuri, the Court looked to the conviction itself, not to what might
have or could have been charged.
In the present case, the Information provides the crime is for a security level 9, non-person
felony with no prior criminal record yielding a category 1 classification, with a maximum
sentence of 7 months, according to the sentencing grid (Exh. 2, Tab C; Exh. 5, Tab E). In U.S.
v. Brooks, supra, at 1213, the Tenth Circuit held that courts must consider the defendant's
particular prior record level and not merely the worst possible prior record level in determining
whether a conviction was for an offense "punishable" by a term exceeding 1 year. Applying the
Carachuri line of cases, the Immigration Judge determined that the respondent's 2010 felony
burglary conviction does not constitute a crime for which a 1 year or greater sentence may have
been imposed, and that the respondent is therefore not removable under section 237(a)(2)(A)(i)
of the Act (I.J. at 4).
We are not convinced that the Immigration Judge committed reversible error when he
concluded that the respondent had not been convicted of a crime for which a sentence of 1 year
or longer may be imposed within the meaning of section 237(a)(2)(A)(i)(II). 1 Accordingly, the
1

We do not agree, however, with the respondent's argument that Matter of Ruiz-Lopez, 25 l&N
Dec. 551 (BIA 2011), is no longer good law. That case did not involve a state sentencing system
that required guideline enhancements to be charged and proved to the factfinder beyond a
reasonable doubt.
2
Cite as: Juan Emigdio Giron, A060 304 016 (BIA Sept. 14, 2015)

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21-4704 provides a sentencing range of 5 to 7 months for the respondent's felony burglary, the
Kansas court could have considered aggravating factors, and the respondent could have
hypothetically received a sentence with a prison term of up to 17 months on the non-drug Kansas
sentencing grid (Exh. 5, Tab E). The DHS asserts that this crime renders the respondent
removable as an alien convicted of a crime involving moral turpitude, committed within 5 years
after the date of admission, for which a sentence of 1 year or longer may be imposed. See
section 237(a)(2)(A)(i) of the Act, 8 U.S.C. 1227(a)(2)(A)(i).

,_,I

'

A060 304 016

DHS appeal from the Immigration Judge's decision granting the respondent's motion to
terminate proceedings will be dismissed. Accordingly, the following order shall be issued.
ORDER: The appeal is dismissed.

<.:..

3
Cite as: Juan Emigdio Giron, A060 304 016 (BIA Sept. 14, 2015)

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FOR THE BOARD

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT

IN THE MATTER OF
GIRON, JUAN EMIGDIO

'><f

FILE A 060-304-016

DATE: Aug 13, 2014

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION

IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF !MIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
BOARD OF IMMIGRATION APPEALS
MUST BE MAILED TO:
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B{c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3} IN DEPORTATION PROCEEDINGS OR SECTION 240{c} (6),
8 U.S.C. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
OTHER:

CC:

FF

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Willrnoth Immigration Law, LLC

Willrnoth, Jonathan James
215 W. 18th St., Suite 101
Kansas City, MO 64108

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
2345 GRANDBOULEVARD, SUITE 525
KANSAS CITY, MISSOURI 64108
)
)

Juan Emigdio GIRON

RESPONDENT

Augustl!_, 2014
File No. 060-304-016
IN REMOVAL PROCEEDINGS

Section 237(a)(2)(C) of the Immigration and Nationality Act (Act), as

amended: Alien convicted of certain firerum violations.

CHARGES:

Section 237(a)(2)(A)(iii) of the Act: Alien convicted of an aggravated

felony as defined in section 101 (a)(43)(E), a law relating to firearms
offenses.
Section 237(a)(2)(A)(i) of the Act: Alien convicted, within five years after
admission, of a crime involving moral turpitude.
ONBEHALF OF THE RESPONDENT
Jonathan Willmouth, Esq.
Attorney at Law
215 W. 18th Street, Suite 101
Kansas City, MO 64108

ONBEHALF OF THE GOVERNMENT

Jennifer May, Esq.
Immigration and Customs Enforcement
2345 Grand Boulevard, Suite 500
Kansas City, MO 64108

WRITTEN DECISION OF THE IMMIGRATION JUDGE

I.

Procedural History

The respondent, a twenty-five year old native and citizen of El Salvador, was admitted to
the United States as a lawful permanent resident at Kansas City, Missouri, on April 11, 2009.
Group Exhibit 2, Tab A. On March 29, 2010, the respondent was convicted of Felony Burglary
in violation of Kansas Statute Annotated (K.S.A.) section 21-3715 in Wyandotte County,
Kansas, and sentenced to a four month prison term. Id. at Tab C. On January 8, 2014, the
respondent was convicted of Felon in Possession of a Firearm in violation of 18 U.S.C.
922(g)(l) and 924(a)(2) (1994) in the U.S. District of Kansas. Id. at Tab B.
Respondent proceeded to appeal his fireann possession conviction, which was ultimately
successful when the 10th Circuit Court of Appeals (10th Circuit) granted a joint motion to vacate
conviction on June 17, 2014. The judgment was vacated on the grounds that the felony burglary
conviction did not constitute a crime for which a maximum sentence of one year or longer may
have been imposed, as required by 18 U.S.C. 922(g)(l). See Group Exhibit 3, Tab A.
Juan Emigdio GIRON

060-304-016

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN THE MATIER OF

Draft II

The respondent argues that his conviction and subsequent sentencing for felony burglary
does not constitute a crime for which a sentence of longer than one year may be imposed, and
seeks to have the removal proceedings terminated. See Exhibit 4. The Department, however,
contends that although K.S.A. section 21 -4704 provided a sentencing range of five to seven
months for respondent, the Kansas court, had it chosen to do so, would have been able to
consider aggravating factors. Exhibit 5. Respondent, therefore, could have hypothetically
received a sentence with a prison term of up to seventeen months, as provided by the K.S.A.
guidelines, if certain aggravating factors had been proven beyond a reasonable doubt in the
Kansas court. See Id. at 2-3. The Court must determine whether the respondent's felony burglary
conviction for which he received a prison term of four months constitutes a crime for which a
sentence of one year or longer may be imposed within the definition of section 237(a)(2)(A)(ii)
of the Act.
II.

Documentary Evidence

The documentary evidence presented consists of the following exhibits, which are
marked into the record via this decision.

III.

Exhibit 1:

Respondent's Notice to Appear, dated July 7, 201 4.

Group Exhibit 2:

Departments Supplemental Documents in Support of

Removal, Tabs A-D, filed July 7, 2014.

Group Exhibit 3:

Respondent's Supplemental Documents,' Tabs A-D, filed

July 1 0, 2014.

Exhibit 4:

Respondent's Motion to Terminate, filed July 1 0, 2014.

Exhibit 5:

Department's Opposition to Respondent's Motion to

Terminate, filed July 1 4, 201 4.

Exhibit 6:

Order of the Immigration Judge administratively closing

the case, ordered July 15, 2014.

Certain Firearm Offenses under Section 237(a)(2)(C)

Under section 237(a)(2)(C) of the Act, an alien is removable, if, at any time after
admission, he is convicted under any law of owning, possessing, or carrying any firearm defined
Juan Emigdio GIRON

060-304-016

Immigrant & Refugee Appellate Center, LLC | www.irac.net

On July 7, 2014, the Department of Homeland Security (Department) served the

respondent with a Notice to Appear (NTA) charging him with removability pursuant to sections
237(a)(2)(C), 237(a)(2)(A)(iii), and 237(a)(2)(A)(i) of the Act. Exhibit 1 . On July 1 0, 2014, the
Court received the respondent's motion to tenninate, through counsel, wherein he denied all
charges of removability contained in the NTA. Exhibit 4. On July 1 4, 2014, the Department filed
an opposition to respondent's motion to tenninate. Exhibit 5.

Draft II

under 1 8 U.S.C. 921(a). This includes pure firearms offenses even if no other crime is
committed. See Lemus-Rodriguez v. Ashcroft, 3 50 F.3d 562, 655-56 (7th Cir. 2003); Valerio
Ochoa v. INS, 241 F.3d 1092 (9th Cir. 2001). The term "firearm" is defined at 1 8 U.S.C.
921 (a) as:

Respondent is also charged under section 237(a)(2)(A)(iii) of the Act, which provides
that "any alien who is convicted of an aggravated felony at any time after admission is
deportable." Section 1 01 (a)(43 )(E) of the Act defines aggravated
to a firearms
felony as relating

offense as defined in 1 8 U.S.C. 922.

IV.

Maximum Sentence Under 237(a)(2)(A)(i)

Under section 237(a)(2)(A)(i) of the Act, an alien convicted of a crime involving moral
turpitude within five years of obtaining lawful permanent resident status is removable if a
sentence of one year or longer may have been imposed. In making a dete1mination whether a
maximum sentence of one or more years may have been imposed for a respondent's previous
criminal conviction, the "maximm11 amount of prison time a particular defendant could have
received" is controlling. U.S. v. Brooks, 751 F.3d 1 204, 121 3 (1 0th Cir. 201 4) (emphasis added).
This is in contrast to "look[ing] to the hypothetical worst possible offender to determine whether
a state offense was punishable by more than a year in prison." Id.
V.

Analysis

Respondent's charged violation of sections 237(a)(2)(C) and 237(a)(2)(A)(i) of the Act

are predicated on his criminal conviction for being a felon in possession of a firearm in violation
of 18 U.S.C. 922(g)(l) and 924(a)(2) (1994). In turn, respondent's conviction for possessing a
firearm is dependent on his burglary conviction being considered a crime for which a maximum
sentence of one year of more may have been imposed.
Although the district coui1 ruled that the conviction was one which carried a maximum
sentence of a year or longer, the 1 0th Circuit vacated respondent's conviction under U.S.C.
922(g)(l) and 924(a)(2) in a June 1 9, 2014 order in response to a joint motion to vacate. Group
Exhibit 3, Tab A. Since the felon in possession of a fireann conviction has been vacated,
respondent no longer has a conviction under which he can be removed via sections 237(a)(2)(C)
and 237(a)(2)(A)(i) of the Act.
To detennine whether respondent is removable under section 23 7(a)(2)(A)(i) of the Act,
the Court must conduct the same inquiry as was used in the U.S. v. Brooks line of cases. See
United States v. Brooks, 751 F.3d 1 204 (1 0th Cir. 201 4); Carachuri-Rosendo v. Holder, 1 30 s. ct.
2577 (20 1 0) at 2586-87; United States v. Haltiwanger, 637 F.3d 881 (8th Cir. 2011).

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060-304-01 6

Juan Emigdio GIRON

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.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

(A)
any weapon (including a starter gun) which will or is designed to or may readily be
converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such
weapon; (C) any firearm muffler or firearm silencer; or {D) any destructive device. Such term does
not include an antique firearm.

Draft U

Although Carachuri held that a simple possession charge was not an aggravated felony
under the Act when a respondent' s previous convictions were not part of the record, the situation
is analogous. See generally Carachuri-Rosendo v. Holder. In the instant case, the Department
argues that the hypothetical existence of aggravating factors in respondent's prior conviction is
enough to find that the maximum sentence that could have been imposed was equal to or longer
than a year. Like Carachuri, there was no finding of fact at trial that would have allowed the
court to impose a sentence of a year or more on respondent. Indeed, the state prosecutor would
have been required to give 30 days' notice to impanel a jury in order for the court to even
consider aggravating factors for purposes of increasing the sentence beyond that provided in the
K.S.A. See K.S.A. section 21-47 1 8(b)( l ). In other words, the Kansas court at no time during the
trial had the discretion to sentence respondent to more than 7 months of incarceration, the
maximum allowable under the K.S.A. Sentencing Guidelines.
VI.

The Court's Finding

The charges against respondent of violating sections 237(a)(2)(C) and 237(a)(2)(A)(iii) of

the Act are both predicated on a prior firearms conviction. Since the required conviction was
vacated by the 10th Circuit after a joint motion to vacate, the Court finds that respondent is not
removable under either section 237(a)(2)(C) or section 237(a)(2)(A)(iii) of the Act.
Further, the clear instruction of the Carachuri line of cases is that "the maximum amount
of prison time a pruticular defendant could have received controls, rather than the amount of time
the worst imaginable recidivist could have received." U.S. v. Brooks at 1 213. Since the Kansas
court never had the discretion to impose a sentence longer than 7 months, the Court finds that the
respondent's March 29, 20 1 0 felony burglary conviction does not constitute a crime for which a
one year or greater sentence may have been imposed, and respondent, therefore, is not removable
under section 237(a)(2)(A)(i) of the Act.
Accordingly, after careful consideration, the following order is entered:
ORDER OF THE IMMIGRATION JUDGE
IT IS HEREBY ORDERED that the respondent's Motion to Terminate is GRANTED.
IT IS FURTHER ORDERED that the charge of removal under section 237(a)(2)(C) is
DISMISSED.
Juan Emigdio GIRON

060-304-0 1 6

Immigrant & Refugee Appellate Center, LLC | www.irac.net

The Department's analysis is correct. The Kansas court could have hypothetically
considered aggravating factors when sentencing respondent. See K.S.A. section 21-4704. The
use of any aggravating factors to increase the sentence, however, would have been required to be
proven beyond a reasonable doubt in a jury trial. Id 21 -4704(b). In Carachuri, the Supreme
Court states, "[i]ndisputably, Carachuri-Rosendo's record of conviction contains no finding of
the fact of his prior drug offense. [A federal immigration court] cannot, ex post, enhance the state
offense of record just because facts known to it would have authorized a greater penalty under
either state or federal law." Carachuri-Rosendo v. Holder, 1 30 s. ct. 2577, 2586-87 (2010).

Dra:H II

IT IS FURTHER ORDERED that the charge of removal under section 237(a)(2)(A)(iii) is

DISMISSED.

AugustJl, 20 1 4

J.oiu(R. O'Malley
K.
{Jp(
United States Immigration Judge.

All future hearings in this matter are cancelled.

The Court reserves the right of both parties to appeal this decision to the Bod of Immigration
Appeals (BIA). A Notice of Appeal (Fom1 EOIR-26) must be received by the BIA within 30
days of the entry of this decision.

CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY: MAIL (M) PERSO AL SERVICE (P)
TO: ( ) ALJ -t
'S ATTY/REP ( DHS
( ) L N C/0 CUSTODIAL OFFICER
BY: COURT STAFF -boL--1-1-.4..___DATE:
ATTACH _,
: ) EOIR-33 ( ) EOIR-28 ( ) LEGA
R ICES LIST ( ) OTHER

Juan Emigdio GIRON

060-304-0 1 6

M.....J..0.4.J.< , . . .'.I;!:

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IT IS FURTHER ORDERED that the charge of removal under section 237(a)(2)(A)(i) is

DISMISSED.