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Falls Church. Virginia 22041

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Acosta Jr., Mario DHS/ICE Office of Chief Counsel - ELC
Law Office of Mario Acosta Jr. 1115 N. Imperial Ave.
611 Wilshire Boulevard, Suite 1416 El Centro, CA 92243
Los Angeles, CA 90017

Name: CHAVEZ, DAVID A 070-911-147

Date of this notice: 4/17/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure
Panel Members:
Guendelsberger, John

Userteam: Docket

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Cite as: David Chavez, A070 911 147 (BIA April 17, 2017)
 U.S. Department of Justice Decision of the Board of Immigration Appeals
.. Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A070 911 147 - El Centro, CA Date: APR l 7 2017

In re: DAVID CHAVEZ a.k.a. Robert Cruz a.k.a. Bobby Cruz a.k.a. Alfonson Castillo

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

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Mario Acosta, Jr., Esquire

APPLICATION: Termination

By order filed January 21, 2016, the United States Court of Appeals for the Ninth Circuit
filed an amended memorandum decision granting the respondent's petition for review. The
Ninth Circuit held that because the modified categorical approach did not apply and a petty theft
conviction under California Penal Code 484(a) and 666 is not a categorical match to the
federal definition of a theft offense, the Board erred when it concluded that the respondent was
removable as charged under sections 10l(a)(43)(G) and 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 8 U.S.C. 1101(a)(43)(G) and 1227(a)(2)(A)(iii). The Ninth Circuit therefore
granted the petition for review.

In light of the Ninth Circuit's disposition, the respondent has now filed a motion with the
Board requesting termination of proceedings. The Department of Homeland Security (DHS) has
not filed a response or opposition to the respondent's motion. The motion to terminate will be
granted for the following reasons.

Since the Ninth Circuit granted the petition for review, the respondent is no longer removable
as charged for an aggravated felony conviction. The record indicates that DHS charged the
respondent with additional grounds of removability (Exhs. 1 and 2), and the Immigration Judge
did not address these charges against the respondent (I.J. Dec. at 3). However, we find no basis
to remand for further consideration of the additional charges of removability.

The respondent argued, and the D HS did not dispute, that since he was admitted as a lawful
permanent resident on September 18, 2003, his convictions for petty theft occurring before his
admission or 5 years after September 18, 2003, could not be considered for purposes of sections
237(a)(2)(A)(i) and (ii) of the Act, 8 U.S.C. 1227(a)(2)(A)(i) and (ii) (Motion to Terminate
filed 5/18/11 at p. 2; Supplement to Motion to Terminate filed 6/10/11 at p. 4, n. 1; Respondent's
Request for Issuance of Decision on Removability and Motion to Terminate filed 8/4/11 at p. 2).

There is no indication . that the government asked the Ninth Circuit to remand for
consideration of additional grounds of removability. Moreover, the DHS did not request a
remand to the Immigration Judge for consideration of additional charges of removability. Nor

Cite as: David Chavez, A070 911 147 (BIA April 17, 2017)
 q
A070 911 147

did DHS oppose the respondent's most recently filed motion for termination, or request a remand
for further consideration of removability.

Therefore, considering the current record before the Board, as well as the Ninth Circuit's
decision, we will grant the motion to terminate. Accordingly, the following order will be issued.

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ORDER: The proceeding is terminated without prejudice.

2
Cite as: David Chavez, A070 911 147 (BIA April 17, 2017)