U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church. Virginia 22041

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Klosowski, Laura B. OHS/ICE Office of Chief Counsel - CHI
300 W. Adams Street 525 West Van Buren Street
Chicago, IL 60606 Chicago, IL 60607

Name: PAUL, SEMSAIR A 098-508-518

Date of this notice: 5/30/2017

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:
Pauley, Roger
Malphrus, Garry D.
Mullane, Hugh G.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Semsair Paul, A098 508 518 (BIA May 30, 2017)
 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

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PAUL, SEMSAIR OHS/ICE Office of Chief Counsel - CHI
A098-508-518 525 West Van Buren Street
C/O OHS CUSTODY Chicago, IL 60607
4777 88TH AVE
KENOSHA, WI 53144

Name: PAUL, SEMSAIR A 098-508-518

Date of this notice: 5/30/2017

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,
1/
cL
J

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Pauley, Roger
Malphrus, Garry D.
Mullane, Hugh G.

Userteam:

Cite as: Semsair Paul, A098 508 518 (BIA May 30, 2017)
 .

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

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A098 508 518 - Chicago, IL Date:

MAY 3 0 2017
In re: SEMSAIR PAUL

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Laura B. Klosowski, Esquire

ON BEHALF OF OHS: Marc A. Jones

Assistant Chief Counsel

CHARGE:

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

Convicted of controlled substance violation (not found)

Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -

Convicted of aggravated felony under section 10l(a)(43)(B) of the Act
(sustained)

APPLICATION: Termination

The respondent appeals from an Immigration Judge's December 15, 2016, decision,
incorporating by reference his September 27, 2016, written decision, ordering the respondent
removed from the United States. 1 The Department of Homeland Security (OHS) opposes the
appeal. The respondent's appeal will be sustained and proceedings will be terminated.

The respondent is a native and citizen of Haiti and a lawful permanent resident of the
United States. In May 2016,2 the respondent was convicted in Indiana of maintaining a common
nuisance, in violation of Indiana Code (I.C.) section 35-48-4-13(b)(l), for which he was sentenced
to 720 days, all of it suspended (I.J. at 1; Exh. 2).3 The Immigration Judge concluded that the
underlying facts of the conviction demonstrated that the respondent had less than 30 grams of
marijuana for personal use, and thus the respondent was not removable for a controlled substance
violation under section 237(a)(2)(B)(i) of the Immigration and Nationality Act (I.J. at 3). The
OHS does not appeal this finding, and it is not clearly erroneous.

1 On November 21, 2016, we remanded this case to the Immigration Judge; we declined to rule
on the interlocutory appeal. The case is now ripe, and we review it in full.

2 Effective July 1, 2016, the respondent's statute of conviction was repealed; a substantially
changed version was enacted at I.C. 35-45-1-5.

3 All "I.J." citations are to the September 27, 2016, written decision, unless otherwise indicated.

Cite as: Semsair Paul, A098 508 518 (BIA May 30, 2017)
A098 508 518

However, the Immigration Judge found the conviction was categorically a match to
21 U.S.C. 856(a)(2), and thus sustained the aggravated felony charge. Upon de novo review,
see 8 C.F.R. 1003.l(d)(3)(ii), we disagree. As such, we will terminate proceedings.

The Immigration Judge found that LC. 35-48-4-13 was a divisible statute, and the parties do
not dispute this finding (l.J. at 4). Undertaking the modified categorical approach, the

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Immigration Judge reviewed the record of conviction to determine that the respondent was
convicted under LC. 35-48-4-13(b)(l), which states:

(b) A person who knowingly or intentionally maintains a building, structure,

vehicle, or other place that is used one (1) or more times: (1) by persons to
unlawfully use controlled substances . .. commits maintaining a common nuisance,
a Level 6 felony.

Id. The Immigration Judge found the Indiana statute a categorical match to 21 U.S.C.
856(a)(2), which states:

[I]t shall be unlawful to-manage or control any place, whether permanently or

temporarily, either as an owner, lessee, agent, employee, occupant, or mortgagee,
and knowingly and intentionally rent, lease, profit from, or make available for use,
with or without compensation, the place for the purpose of unlawfully
manufacturing, storing, distributing, or using a controlled substance.

/d.4

We conclude that the Indiana statute is overbroad. The Indiana statute would include simple
possession of marijuana in a vehicle, as in the present case. Yet, the federal statute requires that
the place be made available to others. See generally United States v. Chen, 913 F .2d 183, 191 (5th
Cir. 1990) (interpreting 21 U.S.C. 856(a)(2) as requiring the "place" be made "available to
others" for drug activity). This overbreadth is akin to the situation in Mellouli v. Lynch,
135 S. Ct. 1980 (2015). In Mellouli v. Lynch, supra, the Supreme Court held that the alien's
conviction for drug paraphernalia, because he was found to have a sock with drugs in it, was
overbroad for removal purposes. Similarly, the respondent's conviction includes conduct that the
federal statute does not cover, namely, marijuana for personal use in a vehicle.

4 The respondent argues that Indiana criminalizes more substances than the Controlled Substances
Act (CSA}, making the Indiana statute overbroad (Resp. Brief at 9, 13). However, under
Matter ofFerreira, 26 I&N Dec. 415, 420-21 (BIA 2014), we held that "even where a State statute
on its face covers a type of object or substance not included in a F ederal statute's generic definition,
there must be a realistic probability that the State would prosecute conduct falling outside the
generic crime in order to defeat a charge of removability." Here, the respondent has not submitted
evidence that Indiana has used this statute to punish conduct involving controlled substances
outside the CSA schedule.

Cite as: Semsair Paul, A098 508 518 (BIA May 30, 2017)
r
A098 508 518

Moreover, l.C. 35-48-4-13(b)(l) is not a categorical match to 21 U.S.C. 856(a)(2) because

the mens rea requirements are different. Importantly, the Indiana statute requires a person
"knowingly or intentionally maintains" (in the respondent's case) a vehicle. l.C. 35-48-4-13(b)
(emphasis added). The ability to convict under this statute requires mere knowledge; intent may
be found but is not required. See Holmes v. State, 583 N. E. 2d 180, 182 (Ind. Ct. App. 1991)
("The state concedes that, pursuant to l.C. 35-48-4-l3(b)[],knowledge ...is a necessary element

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

of proving the crime of maintaining a common nuisance." (emphasis added)); see also
Beard v. State, 941 N.E. 2d 571 (Ind. Ct. App. 2011) (unpublished) (approvingly citing jury
instructions for LC. 35-48-4-13(b) that required finding the defendant "knowingly" maintained
a structure); Bass v. State, 512 N.E. 2d 460, 463 (Ind. Ct. App. 1987) (holding that the phrase
"knowingly or intentionally" used in l.C. 35-48-4-13(a) required the state to "prove beyond a
reasonable doubt that the defendant knew the building" was used for ''the unlawful use of a
controlled substance" (emphasis added)).

The Indiana statute stands in contrast to the federal law, which requires a mens rea of
"knowingly and intentionally." 21 U.S.C. 856(a)(2). The United States Court of Appeals for
the Seventh Circuit has emphasized that both parts must be present. In United States v. Ramsey,
406 F.3d 426, 432 (7th Cir. 2005), the court stated that "[t]he 'intentionally' element can be
satisfied by the government proving beyond a reasonable doubt that the defendant intentionally
permitted another person to use the property at issue and that the other person used it for an illicit
purpose about which the defendant knew." (emphasis added); see also United States v. Tebeau,
713 F.3d 955, 961 (8th Cir. 2013) (stating that 21 U.S.C. 856(a)(2) requires the defendant
"intended to make his property available to others who had that [illegal] purpose." (emphasis
added)). United States v. Ramsey, supra, demonstrates that the "intentionally" mens rea is an
element of the federal statute that must be found, unlike the Indiana statute at issue.5 Notably, the
facts of the respondent's case do not comport with 21 U.S.C. 856(a)(2), as there is no allegation
that another person was permitted to use the respondent's vehicle.6

Because we find that the record does not establish that the respondent was convicted of an
aggravated felony, and there are no other charges of removal at issue, we will sustain the
respondent's appeal and terminate these proceedings.

Accordingly, the following orders will be entered.

s In this context the difference between knowing and intentional is significant. A person may
know that his property is being used by a gang to store or deal drugs but be powerless to prevent
such use even though he does not intend for it to occur.

6 The respondent also argues he was improperly convicted, as he only had 1.5 grams of marijuana.
See Lovitt v. State, 915 N.E.2d 1040, 1045 (Ind. Ct. App.2009) ("[The statute] is ... not [intended
to apply] to an offender who has personal use quantities of controlled substance(s) on his or her
person or even loose in the vehicle."). However, whether the facts of the respondent's case were
sufficient to establish the conviction is a question the categorical approach does not permit us to
examine. See Matter o/Sanchez-Lopez, 26 I&N Dec. 71, 75 (BIA 2012) ("[N]either the Board nor
the Immigration Judges can readjudicate a convicted alien's guilt or innocence." (citation omitted)).

Cite as: Semsair Paul, A098 508 518 (BIA May 30, 2017)
' A098 508 518

ORDER: The respondent's appeal is sustained.

FURTHER ORDER: Proceedings are tenninated.

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FORTHE BOARD <:::

Board Member Garry D. Malphrus respectfully concurs in the result only.

Board Member Hugh G. Mullane respectfully dissents without separate opinion.

Cite as: Semsair Paul, A098 508 518 (BIA May 30, 2017)
 - cv--
.
. ."*"
"-'1'.

.. . . - .... ...
/

IMMIGRATION COURT
525 W. VAN, BUREN, SUITE 500
CHICAGO, IL 60607
In the Matter of
Case No.: A098-508-518
PAUL, SEMSAIR
Respondent tJ !'}( ;::__ REMOVAL PROCEEDINGS

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

ORDER OF THE IMMIGRATION JUDGE

This is a summary of the oral decision entered on

This memorandum is solely for the convenience of t

arieS: If the
proceedings should be appealed or reopened, the oral decision will become
)ti' official opinion in the case.
l(,X.. l The respondent was ordered removed from the United States tq

]
HAITI or in the alternative to .
Respondent's application for voluntary departure was denied'a d
\ Jf
(
respondent was ordered removed to HAITI or in the
alternative to .
, "

Respondent's application for voluntary departure was granted until

upon posting a bond in the amount of $
with an alternate order of removal to HAITI.
Respondent's application for:
[ ] Asylum was ( )granted )denied( )withdrawn.
[ ] Withholding of removal was ( )granted ( )denied )withdrawn.
[ ] A Waiver under Section was ( )granted ( )denied ( )withdrawn.
[ ] Cancellation of removal under section 240A(a) was ( )granted ( )denied
( )withdrawn.
Respondent's application for:
'
. Cancellation under section 240A(b)(1) was ( ) granted ) denied
. .

( ) withdrawn. If granted, it is ordered that the respondent be issued

all appropriate documents necessary to give effect to this order.
Cancellation under section 240A(b) (2) was ( )granted ( )denied
( )withdrawn. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this order.
Adjustment of Status under Section was ( )granted ( )denied
( )withdrawn. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this order.
. ] Respondent's application of ( ) withholding of removal ( ) deferral of
removal under Article III of the Convention Against Torture was
( ) granted ( ) denied ( ) withdrawn.
Respondent's status was rescinded under section 246.
Respondent is admitted to the United States as a until
As a condition of admission, respondent is to post a $ bond.
Respondent knowingly filed a frivolous asylum application after proper
notice.
Respondent was advised of the limitation on discretionary relief for
failure to appear as ordered in the Immigration Judge's oral decision.
[ l Proceedings we terminated.

Other: <-t:

Date:

Immigration Judge
Appeal' Waived/ Appeal Due By:

t}?j/fJ