U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Q[fice of the Clerk

5/07 leesburg Pike. Suite 2000

Falls Church, Virginia 22041

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GUTIERREZ, JOSE DE JESUS MURILLO DHS LIT./York Co. Prison/VCR
A207-105-449 3400 Concord Road
c/o PIKE COUNTY CORRECTIONAL FAC York, PA 17402
175 PIKE COUNTY BOUEVARD
LORDS VALLEY, PA 18428

Name: GUTIERREZ, JOSE DE JESUS M... A 207-105-449

Date of this notice: 5/12/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure
Panel Members:
Malphrus, Garry D.
Creppy, Michael J.
Liebowitz, Ellen C

Usertea m: Docket

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Cite as: Jose de Jesus Murillo Gutierrez, A207 105 449 (BIA May 12, 2017)


U.S. Department of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A207 105 449 - York, PA Date: MAY 1 2 2017

In re: JOSE DE JESUS MURILLO GUTIERREZ

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Pro se

ON BEHALF OF DHS: Keith Hoppes

Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(E)(i), I&N Act [8 U.S.C. 1227(a)(2)(E)(i)] - Convicted

of crime of domestic violence, stalking, or child abuse, child neglect, or
child abandonment

APPLICATION: Termination

The respondent, a native and citizen of Mexico, and a lawful permanent resident of the
United States, appeals the December 21, 2016, decision of the Immigration Judge denying the
respondent's motion to terminate proceedings. The Department of Homeland Security ("DHS")
has filed a motion for summary affirmance. The appeal will be sustained, and the proceedings will
be terminated.

We review findings of fact determined by an Immigration Judge, including credibility findings,

under a "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). We review questions of law,
discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges de
nova. 8 C.F.R. 1003.l(d)(3)(ii).

On November 13, 2015, the respondent was convicted of endangering the welfare of a child in
violation of section 4304(a)(l) of Title 18 of the Pennsylvania Consolidated Statutes ("P.S.C.").
The question presented is whether the DHS has shown that the respondent's conviction under
18 P.S.C. 4304(a)(l) renders him removable pursuant to section 237(a)(2)(E)(i) of the
Immigration and Nationality Act ("Act"), 8 U.S.C. 1227(a)(2)(E)(i), applying the categorical
approach. See Moncrieffe v. Holder,_ U.S._, 133 S. Ct. 1678, 1684 (2013); Descamps
v. United States, 133 S. Ct. 2276, 2281 (2013); see also United States v. Brown, 765 F.3d 185,
188-91 (3d Cir. 2014) (discussing the application of the categorical and modified categorical
approaches in light of Descamps). We review this legal issue de nova. See 8 C.F.R.
1003.1(d)(3)(ii).

Cite as: Jose de Jesus Murillo Gutierrez, A207 105 449 (BIA May 12, 2017)
A207 105 449

. The respondent's child endangerment conviction does not categorically constitute "a crime of
child abuse" under the law of the United States Court of Appeals for the Third Circuit,the circuit
in which this case arises. To establish the respondent's removability under section 237(a)(2)(E)(i)
of the Act, the DHS must prove by clear and convincing evidence that the respondent's
Pennsylvania conviction was for "a crime of child abuse."

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The relevant statute of conviction provides:

A parent,guardian or other person supervising the welfare of a child under 18 years

of age, or a person that employs or supervises such a person, commits an offense if
he knowingly endangers the welfare of the child by violating a duty of care,
protection, or support.

18 P.C.S. 4304(a)(l). Citing Matter of Mendoza Osorio, 26 I&N Dec. 703 (BIA 2016), the
Immigration Judge concluded that 18 P.C.S. 4304(a)(l) "is a match" to section 260.10(1) of the
New York Penal Law as the Pennsylvania statute "reads almost identically to the New York
statute" (I.J. at 7). The Immigration Judge found that the statute was similar to that addressed in
Matter of Mendoza Osorio, supra, and therefore concluded that Matter of Mendoza Osorio, supra,
"is binding precedential authority" and therefore must sustain the charge of removability in the
instant matter (I.J. at 7). We cannot agree that the statues are identical. The Pennsylvania statute
punishes conduct which violates a duty of care,protection, or support,while the New York statute
punishes conduct likely to injure the physical, mental or moral welfare of a child.

In Matter of Soram, 25 I&N Dec. 378 (BIA 2010), and Matter of Mendoza Osorio, supra, the
Board emphasized that a key consideration in determining whether a child endangerment-type
offense constitutes a crime of child abuse is the likely risk of harm to the child. The Board found
that convictions under a Colorado statute requiring a "reasonable probability" of harm and a New
York statute requiring a person to act "in a manner likely to be injurious" were for crimes of child
abuse. See Matter of Mendoza Osorio, supra, at 705-10 (New York statute); Matter of Soram,
supra, at 384-85 (Colorado statute).

To sustain a conviction under 18 P.C.S. 4304(a)(l), Pennsylvania courts require proof that:
(1) the accused is aware of his or her duty to protect the child; (2) the accused is aware that the
child is in circumstances that could threaten the child's physical or psychological welfare; and (3)
the accused has either failed to act or has taken action so lame or meager that such actions cannot
reasonably be expected to protect the child's welfare. Commonwealth v. Pahel, 689 A.2d 963,964
(Pa. Super. Ct. 1997). The offense "involves the endangering of the physical or moral welfare of
a child by an act or omission in violation of a legal duty even though such legal duty does not itself
carry a criminal sanction." Commonwealth v. Mack, 467 Pa. 613,616 (Pa. 1976). By its nature,
the offense requires consideration of a broad spectrum of conduct without "itemizing every
undesirable type of conduct." Id. at 617.

To categorically constitute a crime of child abuse under section 237(a)(2)(E)(i) of the Act, a
child endangerment-type offense must contain "a knowing mental state coupled with an act or acts
creating a likelihood of harm to a child." See Matter of Mendoza Osorio, supra, at 706; see also
Matter ofSoram, supra. The Pennsylvania child endangerment statute 18 P.C.S. 4304(a)(l) does

2
Cite as: Jose de Jesus Murillo Gutierrez, A207 105 449 (BIA May 12, 2017)
not have such a requirement. Moreover,the DHS has not otherwise demonstrated that this statute
is a crime of child abuse in this circuit by pointing to relevant circuit law. Furthermore, neither
party asserts before the Board that 18 P.C.S. 4304(a)(l) is divisible; therefore, we need not
further address this issue.

While the Board applied the realistic probability test in Matter of Mendoza Osorio, supra, and

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the Immigration Judge relied heavily on this in his decision, the Third Circuit has rejected
application of the realistic probability concept in the context of determining whether an alien's
conviction was for a crime involving moral turpitude ("CIMT"), and the court may extend this to
the similar determination of whether a conviction constituted a crime of child abuse. Jean-Louis
v. Att 'y Gen. of U.S., 582 F.3d 462, 481-82 (3d Cir. 2009); see also Mahn v. Att 'y Gen. of U. S.,
767 F.3d 170, 174 (3d Cir. 2014).

Furthermore, the Third Circuit has found endangering the welfare of a child in violation of
18 P.C.S. 4304(a)(l) not to be a CIMT, applying only the "least culpable conduct" test.
Hernandez-Cruz v. Att'y Gen. of U.S. , 764 F.3d 281, 285-87 (3d Cir. 2014). This decision shows
that the Third Circuit interprets 18 P.C.S. 4304(a)(l) as reaching matters that would not rise to
the level of abuse or neglect. See Matter of Velazquez-Herrera, supra, at 512. For these reasons,
we will vacate the Immigration Judge's decision concluding that the DHS has satisfied its burden
of proving removability under section 237(a)(2)(E)(i) of the Act by clear and convincing evidence
in this circuit. See 8 C.F.R. 1240.8(a).

In view of our disposition of this matter, it is not necessary to address the respondent's
remaining contentions on appeal. See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (Agencies
generally are not required to make findings on issues the decision of which is unnecessary to the
results they reach).

Accordingly,the following orders will be entered.

ORDER: The respondent's appeal is sustained and removal proceedings are terminated.

FURTHER ORDER: The Immigration Judge's decision dated December 21,2016,is vacated.

FOR THE BOARD

3
Cite as: Jose de Jesus Murillo Gutierrez, A207 105 449 (BIA May 12, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
YORK, PENNSYLVANIA

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File: A207-105-449 December 21, 2016

In the Matter of

)
JOSE DE JESUS MURILLO GUTIERREZ ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGES: 237(a)(2)(E)(i), conviction for a crime of child abuse, child neglect,

or child abandonment.

APPLICATIONS: Motion to terminate.

ON BEHALF OF RESPONDENT: ATTORNEY MARY LENTY, ESQUIRE

ON BEHALF OF OHS: KEITH HOPPES, ESQUIRE, ASSISTANT CHIEF COUNSEL

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a male native and citizen of Mexico. He adjusted his

status to that of a lawful permanent resident on April 28, 2014, pursuant to INA Section

245. Prior to that, he had been admitted to the United States with a 8-1, B-2 visa.

However, on November 13, 2015, the respondent was convicted in the Court of

Common Pleas, Bucks County, for the offense of endangering the welfare of a child in

violation of Title 18 Section 4304 Subsection A-1 of the Pennsylvania Crimes Code. For

that offense, the respondent was place in removal proceedings on or about May 18,
2016 with the issuance of a Notice to Appear. See Exhibit 1. And he was charged with

being removable pursuant to INA Section 237(a)(2)(E)(i) for having been convicted of a

crime of child abuse, child neglect, or child abandonment. At a prior removal hearing,

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the respondent admitted to the factual allegations but denied the charge. The Court

sustained the charge back on July 25, 2016. However, there has been a renewed

motion to terminate that the Court is considering on today's date. The following

evidence was considered by this Court.

EVIDENCE

Exhibit 1 is the Notice to Appear. Exhibit 2 is DHS evidence at tabs A

through E. Tab C of Exhibit 2 contains the conviction records. Exhibit 3 is a motion to

terminate that the respondent filed pro se before he was represented by his attorney of

record. That was back on August 29, 2016, and then the Court received a copy of the

motion to terminate via mail as well, so there is two copies of what appears to be

identical documents. Exhibit 3-A is the second copy of the motion to terminate. And the

Court will also note that Exhibit 2, the Government submission, contains internal emails

that were submitted to the Court for unexplained reasons, and so part of Exhibit 2,

pages 15 through 19, have been stricken from the record by this Court, and is not being

considered by this Court in any way, shape, or form. Going back to the respondent's

motion to terminate, Exhibit 3, the second copy of the motion to terminate by the

respondent, Exhibit 3-A. DHS's opposition is Exhibit 4. Exhibit 5 is respondent's letter

to the Court. Exhibit 6 is Ms. Lenty's request for telephonic appearance, which the

Court had previously granted. However, on today's date, Ms. Lenty is representing the

respondent in person at the York Detention Center. Exhibit 7 is the renewed motion to

terminate that has been prepared and submitted by Ms. Lenty, and Exhibit 8 is an

opposition to the motion to terminate.

A207-105-449 2 December 21, 2016

 The respondent also has been apologetic about his crime, and has stated

that he's a good father, made a mistake, indicates that he has a letter from his son, and

the Court acknowledges all that and appreciates the respondent stating what he has.

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The Court appreciates the remorse that the respondent has demonstrated towards this

Court regarding his criminal offense.

LEGAL ANALYSIS: INA SECTION 237(a)(2}(E)(i}, CRIME OF CHILD ABUSE

Under INA Section 237(a)(2)(E)(i), an alien who has been convicted of a

crime of child abuse is deportable. The Board held in Matter of Velasquez-Herrera that

child abuse should be interpreted broadly, meaning any offense regarding an

intentional, knowing, reckless, or criminally negligent act or omission that constitutes

maltreatment of a child or that impairs a child's physical or mental well-being, including

sexual abuse or exploitation. 24 l&N Dec. 503, 512 (BIA 2008). The Board intended

the term to be interpreted broadly. At a minimum, the Board stated, this definition

encompasses convictions involving the affliction on a child of physical harm, even if

slight, mental, or emotional harm, including acts injurious to moral. The phrase crime of

child abuse, child neglect, or child abandonment denotes the unitary concept and a

broad definition of child abuse described in the entire phrase. See Matter of Scram, 25

l&N Dec. 378 (BIA 2010). Accordingly, unlike other sections in the Act involving

children, Section 237(a)(2)(E)(i) is not limited to offenses requiring proof of actual harm

or injury to the child. See Matter of Scram, 25 l&N Dec. 378, 381 (BIA 2010). The

Board has held that the phrase an act or omission that constitutes maltreatment of a

child is sufficiently broad to encompass unreasonably placing a child in the situation that

poses a threat of injury to the child's life or health.

An individual who is aware of his duty to protect a child and is aware that

the child is in circumstances that could threaten the child's physical or psychological

A207-105-449 3 December 21, 2016

welfare and who either fails to act or takes action so deficient that such actions cannot

reasonably be expected to protect the child's welfare, necessarily engages in bad

treatment resulting from willfulness. See Velasquez-Herrera, 24 l&N Dec. at 512,

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Commonwealth v. Bryant, 57 A.3d at 197. The Court has also reviewed the Board's

precedent in Matter of Mendoza Osorio, 26 l&N Dec. 703 (BIA 2016), and the statute in

this case, Title 18 of the Pennsylvania Consolidated Statutes, Section 4304(a). (a)(1)

states a parent, guardian, or other person supervising the welfare of a child under 18

years of age, or person that employs or supervises such a person, commits an act if he

knowingly endangers the welfare of the child by violating a duty of care, protection, or

support.

Pursuant to Board precedent and Supreme Court precedent, in the Third

Circuit the Court can look at judicially noticeable documents if it finds that the statute is

divisible, and the Court will note that at Exhibit 2, tab C, there is a police complaint and

an affidavit of probable cause that identifies the respondent, and the affidavit of

probable cause stated that an officer noticed that there was a child left in a vehicle at

the parks casino, and upon arrival, a 9 year old child was left alone in a vehicle in the

parking lot. The child was identified as Santiago Murillo. His father was subsequently

located by security inside the casino, gambling. He was escorted by security from the

casino. The Government's documents also include an incident report, Exhibit 2, tab D,

page 28, that goes into more details regarding the incident.

However, the Court notes that, based upon court precedent, including the

Third Circuit, the Garcia decision that is cited at 462 F.3d 287 (3rd Cir. 2006), that

because his conviction is from the Court of Common Pleas for Pennsylvania, there

would be a separate information here that could be a judicially noticeable document if

the Court found the statute divisible, but the police complaint is not part of the judicially

A207-105-449 4 December 21, 2016

noticeable documents. Neither is the incident report. And so, therefore, none of those

documents are going to be considered by this Court in making its decision, and the

Court need not reach whether the statute is divisible, because even if the Court found it

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to be divisible, the Government has not submitted any documents under the modified

categorical approach which the Court can consider. So, the Court's analysis is strictly

based upon a categorical interpretation as to whether the statute in Pennsylvania is a

categorical match to the charge of removal under Section 237(a)(2)(E)(i). And in

addition to Matter of Velasquez-Herrera and Matter of Scram, the Court has also

reviewed Matter of Mendoza-Osorio, and in that case, the Board has held that the

offense of endangering the welfare of a child in violation of New York's penal law, which

requires knowingly acting in a manner likely to be injurious to the physical, mental, or

moral welfare of the child, to be categorically a crime of child abuse, child neglect, or

child abandonment, and the charge of removal under 237(a)(2)(E)(i) was properly

sustained by the Immigration Court.

The Board also cited to the fact that New York law, the statute states that

taking action that is likely to be harmful to a child's welfare was important in that case,

and that the statute used the words knowingly. And in order to establish that the New

York offense is not a categorical crime of child abuse, the respondent must do more

than just invoke the statute's breadth in general terms, the Board held. He must also

show that there is a realistic probability that the statute is, in fact, applied to punish

conduct that does not qualify as child abuse under the act, citing Moncrieffe v. Holder,

133 S.C. at 1684-85. The Board notes that the respondent argues that many things can

be found to be endangering the welfare of a child, including leaving a child unattended

for a short period, driving with a suspended license, committing petty larceny, but the

Board noted he did not provide any citations to cases under these circumstances, and

A207-105-449 5 December 21, 2016

did cite to cases that fall outside the definition. So, the Board did not specifically find

whether those offenses would be, would fall within the ambit of endangering the welfare

of a child, but noted that the statute as a whole, and the New York statute as a whole, is

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categorically a crime of child abuse, and so the Board ultimately held that a conviction

under Section 260.10( 1) requires that the defendant engage in conducts likely to be

injurious to a child. In reviewing this statute, the Board held that, considering the totality

of the circumstances presented in each case rather than viewing certain facts in

isolation, the New York cases that resulted in successful prosecution under the statute

are those where the defendant had an awareness that his conduct pose d sufficiently

high risk of harm to a child to qualify the offense as a crime of child abuse or neglect

under Section 237(a)(2)(E)(i), and thus while there are child endangerment statutes that

do not meet our definition, the Board held, we conclude that section 260. 10(1} is not

one of them. Finally, the Board held that considering the respondent's arguments in

the New York cases he cited, they are unable to agree that he has shown a realistic

probability that Section 260. 10( 1) would be successfully applied to conduct falling

outside the definition of child abuse or neglect. In Moncrieffe v. Holder, 133 S.C. at

1694, and Gonzales v. Duenas, 549 U.S. 193.

Similarly, in this case, the Pennsylvania statute at 18 Pennsylvania

Consolidated Statutes 4304(a)(1), which the Government has been able to demonstrate

that he has been convicted of such with judicially noticeable documents, and the Court

notes Exhibit 2, tab C, pages 8 to through 10, reflect that the respondent pied, the plea

was accepted, and he was adjudicated guilty, and the Court finds that those documents

do fall within the ambit of judicially noticeable documents that the Court can rely on. In

the alternative, the Court also finds that it can consider the docket sheet at Exhibit 2, tab

C, pages 20 to 25, and finds that they do further establish the existence of a conviction.

A207-105-449 6 December 21, 2016

See 8 C.F. R. Section 1003.41(a)(6), 1003.41(d). And the respondent admitted to the

convictions as part of the pleadings, which respondent's counsel did not disturb. See 8

C.F.R. Section 1240.10(c) and (d).

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The Pennsylvania statute also includes the words knowingly endanger the

welfare of a child. The Court finds that it is a match to the New York Statute. It reads

almost identically to the New York statute that the Board analyzed in Mendoza-Osorio,

and so the Court finds that that is binding precedential authority, and that this case has

similar facts to that case. And so, based upon the knowing requirement and the fact

that it involves knowingly violating the welfare of a child by violating a duty of care,

protection, or support, the Court finds that all three of those acts, duty of care,

protection, or support, falls within the definition of child abuse, abandonment, or neglect,

as identified by the Board in Matter of Velasquez-Herrera. The Court therefore must

sustain the charge of removability in this case and find that the respondent is subject to

removal.

Since the respondent became a lawful permanent resident in 2014, he

does not have the requisite five years as a lawful permanent resident to qualify for

cancellation of removal for a lawful permanent resident under INA Section 240A(a) of

the Act, so therefore, that type of relief is not available to him. Regarding re-adjustment,

it does not appear that the respondent has an immigrant visa that is immediately

available to him, and so re-adjustment does not appear to be an option, either. No

other relief is being sought, and so, based upon the totality of the record, or based upon

the record before the Court, having found the respondent removable, and that the

respondent is not seeking any other relief, he has also indicated that he has no fear that

would qualify for asylum or protection, and is not seeking that type of relief, the Court

has no choice but to order the respondent removed from the United States to Mexico.

A207-105-449 7 December 21, 2016

 ORDERS OF THE IMMIGRATION COURT

IT IS HEREBY ORDERED that the charge of removal pursuant to Section

237(a)(2)(E)(i), for having been convicted of a crime of child abuse, child neglect, or

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child abandonment, be sustained.

IT IS HEREBY ORDERED that, there being no relief that is being sought

before this Court, that the Court hereby orders the respondent removed to Mexico, his

country of citizenship.

So ordered.

Please see the next page for electronic

signatureKQG
December 21, 2016 KUYOMARS Q. GOLPARVAR
United States Immigration Judge

A207-105-449 8 December 21, 2016

 D

/Isl/
Immigrat ion Judge KUYOMARS Q . GOLPARVAR
golpark on January 3 0 , 2 0 1 7 at 1 1 : 4 5 AM GMT

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A207-105-449 9 December 21, 2016