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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Vtrgm1a 22041

OHS/ICE Office of Chief Counsel - OMA


1717 Avenue H
Omaha, NE 68110

Name: PEREZ ALONZO, GERARDO

A 046-629-923

Date of this notice: 12122/2016

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

borutL ctl.!VLJ
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Cole, Patricia A.
Guendelsberger, John
Malphrus, Garry D.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: Gerardo Perez Alonzo, A046 629 923 (BIA Dec. 22, 2016)

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Maffitt, Jessica
Benzoni Law Office, P.L.C.
2912 Beaver Ave
Des Moines, IA 50310

U.S. Department of Justice


Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - OMA


1717 Avenue H
Omaha, NE 68110

Name: PEREZ ALONZO, GERARDO

A 046-629-923

Date of this notice: 12/22/2016

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 affirms 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 court of appeals within 30 days of the date of the decision.
Sincerely,

Doruu- ca.AA)
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Cole, Patricia A.
Guendelsberger, John
Malphrus, Garry D.

Userteam:

Cite as: Gerardo Perez Alonzo, A046 629 923 (BIA Dec. 22, 2016)

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

PEREZ ALONZO, GERARDO


A046-629-923
ETOWAH DETENTION
827 FORREST AVENUE
GADSDEN, AL 35901

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review


Falls Church, Virginia 22041

File:

Date:

A046 629 923 - Omaha, NE

DEC 2 2 2016

In re: GERARDO PEREZ ALONZO

APPEAL
Jessica Maffitt, Esquire

ON BEHALF OF RESPONDENT:
ON BEHALF OF OHS:

Donald W. Cassidy
Associate Legal Advisor

APPLICATION: Termination

This case is before us pursuant to the United States Court of Appeals for the Eighth Circuit's
April 22, 2016, decision, Alonzo

v.

Lynch, 821 F.3d 951 (8th Cir. 2016).

The respondent's

appeal will be sustained and the proceedings will be terminated.


We review fmdings of fact, including credibility findings, for clear error.

8 C.F.R.

1003.l(d)(3)(i). We review questions of law, discretion, or judgment, and all other issues de
novo. 8 C.F.R. 1003. l (d)(3)(ii).
The following procedural history and undisputed facts are relevant in this case.

The

Immigration Judge ordered the respondent removed from the United States in an order dated
February 12, 2014.

The respondent appealed the Immigration Judge's decision and on

August 19, 2014, we dismissed the respondent's appeal concluding that the Immigration Judge
properly found the respondent was removable as an alien who has been convicted of two or more
crimes involving moral turpitude pursuant to section 237(a)(2)(A)(ii) of the Immigration and
Nationality Act ("Act"), 8 U.S.C. 1227(a)(2)(A)(ii).
The respondent appealed our decision to the Eighth Circuit.

Pursuant to an unopposed

motion to remand filed by the Government, the Eighth Circuit remanded the case in order for us
to reconsider whether a conviction for domestic abuse assault, as codified under section
708.2A(4) of the Iowa Code, is categorically a crime involving moral turpitude ("CIMT''). On
May 6, 2015, we affirmed our August 19, 2014, decision, again determining that the
respondent's convictions in violation of section 708.2A(4) of the Iowa Code are categorically
CIMTs.
The respondent again appealed our decision to the Eighth Circuit. In Alonzo

v.

Lynch, supra,

at 963, the Eighth Circuit held that the respondent's "domestic-abuse assault convictions do not
categorically constitute CIMTs." The Eighth Circuit explained that Iowa ' s definition of assault,
codified under Iowa Code 708.1, sets "forth alternative ways in which one may violate the

Cite as: Gerardo Perez Alonzo, A046 629 923 (BIA Dec. 22, 2016)

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IN REMOVAL PROCEEDINGS

A046 629 923

statute" and"[s]ome of the alternatives provided for between and within the three subsections set

forth in 708.1 would constitute CIMTs, while others would not"1 Alonzo v. Lynch, supra,
at 961-62. Specifically, the Eighth Circuit found that" 708.1(2)(a) and (b) include"insulting or
offensive" physical contact, which constitutes de minimus harm and not the injurious touching
required for a CIMT." Id at 962. However,"other portions of 708.1(2)(a) and (b) contain the

In order to determine whether morally turpitudinous behavior formed the basis for the
respondent's two convictions under Iowa Code 708.2A(4), the Eighth Circuit determined that
Iowa Code 708.1 is a divisible statute because it "sets out one or more elements of the offense
in the alternative." Id at 961 (internal quotations omitted). The Eighth Circuit went on to
explain that"[n]ot only do the subsections of 708.1 set forth alternative ways in which one may
violate the statute, but each subsection also provides for various ways to violate the statute, as
indicated by the three subsections' use of 'or.' " Id. In light of the conclusion that Iowa Code
708.1 is a divisible statute, the Eighth Circuit ordered that the case be remanded so that we may
apply the modified categorical approach in order to determine whether the respondent's
convictions constitute CIMTs. Id at 963.

However, shortly following the Eighth Circuit's opinion in Alonzo v. Lynch, supra, the
United States Supreme Court issued their decision in Mathis v. United States, 136 S. Ct. 2243
(2016). Therein, the Supreme Court explained that the modified categorical approach only
applies when determining "which element[s] played a part" in the underlying conviction.
Mathis v. United States, supra, at 2253 (quoting Descamps v. United States, 133 S. Ct. 2276,
2283-85 (2013)). Further, a divisible statute is one ''that lists multiple elements disjunctively,"
not a statute that "enumerates various factual means of committing a single element." Id at
2249. "Elements are the constituent parts of a crime's legal definition - the things the
prosecution must prove to sustain a conviction . . . . what the jury must find beyond a reasonable
doubt to convict the defendant, . . . and at a plea hearing, . . . what the defendant necessarily
admits when he pleads guilty." Id at 2248 (internal quotations omitted). Therefore, the
Supreme Court concluded that ''the modified approach serves - and serves solely - as a tool to
identify the elements of the crime of conviction when a statute's disjunctive phrasing renders one

(or more) of them opaque." Id. at 2253.


Following the decisions in Alonzo v. Lynch, supra, and Mathis v. United States, supra, we
issued our decision in Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016)
("Matter of Silva-Trevino Ill'). 2 Therein, we held that use of the categorical and modified
categorical approach is the proper framework to employ when determining whether a conviction
1 Iowa Code 708.2A(4) states: "For the purposes of this chapter, "domestic abuse assault"
means an assault, as defined in section 708.1, which is domestic abuse as defined in section

236.2, subsection 2, paragraph"a","b","c", or"d"."


2

Matter of Silva-Trevino III arose pursuant to Matter of Silva-Trevino, 26 I&N Dec. 550
(A.G. 2015) ("Matter of Silva-Trevino If'), wherein the Attorney General vacated
Matter ofSilva-Trevino, 24 I&N Dec. 687 (A.G. 2008) ("Matter ofSilva-Trevino!').

Cite as: Gerardo Perez Alonzo, A046 629 923 (BIA Dec. 22, 2016)

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level of harm and state of mind necessary to constitute CIMTs." Id.

A046 629 923

In their briefs following remand, neither party argues that the statute at issue remains
divisible in light of the Supreme Court's decision in Mathis v. United States, supra. Rather, the
Department of Homeland Security ("DHS") urges us to break from the use of the categorical
approach in examining whether a conviction constitutes a CIMT (DHS Brief at 5-13).
Alternatively, the DHS asks us to expand our case law regarding the scope of conduct that would
be considered morally turpitudinous in a domestic violence context (DHS Brief at 13-15).
Although the Eighth Circuit has determined that the respondent's convictions under Iowa
Code 708.2A(4) are not categorically CIMTs, the Eighth Circuit's analysis concluding that the
statute is divisible is no longer valid in light of Mathis v. United States, supra. See
Alonzo v. Lynch, supra, at 961. Instead of finding that Iowa's assault statute is written using
disjunctive terms such as "or," it must be determined whether the statute lists multiple elements
disjunctively, some of which would require a jury to find that the respondent engaged in morally
turpitudinous behavior while others would not. Specifically, it must be determined whether a
jury must find, or a defendant must admit, that he engaged in, or placed a victim in fear of,
physical contact that was "insulting or offensive," which would not constitute a CIMT, or a form
of injurious touching, which would constitute a CIMT. Id. at 962; Iowa Code 708.1. An
examination of Iowa state law does not support the conclusion that its assault statute is divisible
in this regard.
Iowa's jury instructions for the elements of assault are as follows:
.......

The State must prove both of the following elements of the crime of Assault:
1. On or about the
day of
20__, the defendant did an act which
was intended to [cause pain or injury] [result in physical contact which was insulting or
offensive] [place (name of victim) in fear of an immediate physical contact which
would have been painful, injurious, insulting or offensive] to (victim).
__

2. The defendant had the apparent ability to do the act.


If the State has proved both of the elements, the defendant is guilty of Assault. If the
State has failed to prove either of the elements, the defendant is not guilty.
Iowa J.I. Crim. 800.l (2013).
In State v. Bedard, 668 N.W.2d 598, 600-01 (Iowa 2003), the Iowa Supreme Court explained
that "[i]n order for there to be a criminal assault, it must be shown that the act was either
3
Cite as: Gerardo Perez Alonzo, A046 629 923 (BIA Dec. 22, 2016)

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is for a CIMT. Matter of Silva-Trevino Ill, at 830-21. We further explained that "[a] criminal
statute is divisible so as to warran t a modified categorical inquiry only if (1) it lists multiple
discrete offenses as enwnerated alternatives or defines a single offense by reference to
disjunctive sets of "elements," more than one combination of which could support a conviction
and (2) at least one, but not all, of those listed offenses or combinations of disjunctive elements
is a categorical match to the relevant generic standard." Id at 833 (citing Matter of Chairez,
26 l&N Dec. 819, 822 (BIA 2016)).

A046 629 923

intened to cause pain or injury to, or ... intended to result in physical contact which will be
insulting or offensive to another, or intended to place another in fear -of immediate physical
contact, which will be painful, injurious, insulting, or offensive." The Iowa Supreme Court
further stated that "[a] reasonable trier of fact could have concluded .. .that Bedard's attempt to
strike the officer was intended to place the officer in fear of immediate physical contact, which

In State v. Keeton, 710 N.W.2d 531, 534 (Iowa 2006), the Iowa Supreme Court found that
the evidence was sufficient to sustain an assault conviction against the defendant where the
"evidence could support an inference of intent to place the clerk in fear of immediate physical
contact that would be painful, injurious, insulting, or offensive. "
In State v. Taylor,
689 N.W.2d 116, 132 (Iowa 2004), the Iowa Supreme Court explained that ''the State must prove
by evidence beyond a reasonable doubt that the defendant intended his act to cause pain or injury
to the victim or to result in physical contact that would be insulting or offensive to the victim."
The court explained that there was "abundant evidence the defendant intended to cause pain or
injury to Susan, or intended to have physical contact that would be insulting or offensive to her."
State v. Taylor, supra.

In State v. Fountain, 786 N.W.2d 260, 265 (Iowa 2010), the Iowa Supreme Court described
the elements of assault under Iowa Code 708.1 as follows:
The elements of assault under Iowa Code section 708.l have not changed ....
Under this section, a defendant must commit an act that he intends to cause pain
or injury to the victim or to result in physical contact that would be insulting or
offensive to the victim or to place the victim in fear of physical contact that will
be injurious or offensive. Iowa Code

708.1(1), (2). Because the elements of

these assault alternatives include an act that is done to achieve the additional
consequence of causing the victim pain, injury or offensive physical contact, the
crime includes a specific intent component.
Iowa state law interpreting the necessary findings to sustain a conviction for assault under
Iowa Code

708.1, does not suggest that a jury must find, or a defendant must admit, whether he

caused (1) physical pain or injury to the victim or (2) physical contact that is insulting or
offensive. Further, the parties have not presented us with evidence of such an interpretation of
the elements of Iowa Code

708.1. Therefore, we conclude that intending physical contact that

is either (1) injurious or (2) insulting or offensive to the victim are alternative means by which an
offender can violate Iowa Code 708.1, not alternative elements of distinct offenses. Thus,
because

the

statute

is

not

divisible

pursuant

to

the

Supreme

Court's

holding

in

Mathis v. United States, supra, the modified categorical approach is inapplicable.

In response to the DHS's arguments on appeal, we determined in Matter ofSilva-Trevino Ill,


that the categorical and modified categorical approach is the appropriate framework to employ
when examining whether a conviction is for a CIMT. Further, we decline to reconsider our
precedent

regarding

what constitutes a

CIMT in the assault context.

See generally

Matter of Solon, 24 l&N Dec.239 (BIA 2010); Matter of Sejas, 24 I&N Dec. 236 (BIA 2007);

Cite as: Gerardo Perez Alonzo, A046 629 923 (BIA Dec. 22, 2016)

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would be painful, injurious, insulting, or offensive. " State v. Bedard, supra.

A046 629 923

Matter of Sanudo, 23 l&N Dec. 968 (BIA 2006);

Matter of Fualaau, 21 l&N Dec. 475

(BIA 1996); Matter ofPerez-Contreras, 20 l&N Dec. 615 (BIA 1992).


Therefore,

as

the Eighth Circuit has determined that the respondent's convictions under Iowa

Code 708.2A(4) are not categorically CIMTs, and the statute is not divisible pursuant to the
removable

as

charged. Accordingly, the following orders will be entered.

ORDER: The Immigration Judge's February 12, 2014, removal order is vacated.
FURTHER ORDER: The removal proceedings are terminated.

Cite as: Gerardo Perez Alonzo, A046 629 923 (BIA Dec. 22, 2016)

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

analysis in Mathis v. United States, supra, and Matter of Silva-Trevino Ill, the respondent is not

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