Vous êtes sur la page 1sur 13

U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5 J 07 Leesburg Pike. Suite 2000


Falls Church, Virginia 22041

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


SAMPONG, RACHEL DHS/ICE Office of Chief Counsel -BLM
Law Office of Rachel N Sampong LLC (MSP)
1300 Lagoon Avenue, Suite 240 1 Federal Drive, Suite 1800
Minneapolis, MN 55408 Ft. Snelling , MN 55111

Name: EZEOBI, LIVINUS NDUBISI A 061-561-711

Date of this notice: 8/17/2017

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

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure
Panel Members:
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index

Cite as: Livinus Ndubisi Ezeobi, A061 561 711 (BIA Aug. 17, 2017)
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

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


EZEOBI, LIVINUS NDUBISI DHS/ICE Office of Chief Counsel -BLM
A061-561-711 (MSP)
CARVER COUNTY JAIL 1 Federal Drive, Suite 1800
600 EAST 4TH STREET Ft. Snelling , MN 55111
CHASKA, MN 55318

Name: EZEOBI, LIVINUS NDUBISI A 061-561-711

Date of this notice: 8/17/2017

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,
/j

0h 'J,'-'
l_l
(,I

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure
Panel Members:
Pauley, Roger

Userteam:

Cite as: Livinus Ndubisi Ezeobi, A061 561 711 (BIA Aug. 17, 2017)
iJ.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Im.migration Review

Falls Church, Virginia 22041

File: A061 561 711 -Fort Snelling, MN Date:


AUG 1 7 2017
In re: Livinus Ndubisi EZEOBI

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


IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Rachel N. Sampong, Esquire

ON BEHALF OF DHS: Kenneth R. Knapp


Assistant Chief Counsel

APPLICATION: Removability

The Department of Homeland Security (DHS) appeals from the Immigration Judge's
April 25, 2017, decision terminating the removal proceedings. The Immigration Judge determined
that the DHS did not sustain its burden to establish the respondent's removability under
section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(i)
(2017), as an alien convicted of a crime involving moral turpitude (CIMT). The respondent has
offered a brief in opposition to the DHS appeal. The Board will affirm the Immigration Judge's
decision and dismiss the appeal.

We review the findings of fact, including the detennination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. 1003 .1 (d)(3)(i) (2017). We
review all other issues, including issues of law, discretion, or judgment, under a de novo standard.
8 C.F.R. 1003.l(d)(3)(ii).

The respondent was convicted on October 31, 2014, for the offense of terroristic
threats/reckless disregard committed on February 16, 2004, in violation of Minn. Stat. 609.713,
subd. 1, for which a sentence of 1 year or longer may be imposed. In a written decision, the
Immigration Judge determined that Minn. Stat. 609.713, subd. 1, is overbroad and is not
categorically a CIMT. On appeal, the DHS argues that the United States Court of Appeals for the
Eighth Circuit, in a precedent decision, has determined that Minn. Stat. 609.713, subd. 1, is a
CIMT, and that the Immigration Judge is bound to follow such precedent (DRS Brief at 4-6; Notice
of Appeal). Avendano v. Holder, 770 F.3d 731, 736 (8th Cir. 2014). The only issue on appeal is
whether Minn. Stat. 609. 713, subd. 1, is a CIMT.

We find that the Immigration Judge set forth the appropriate legal framework to determine
whether an offense is a CIMT (IJ at 2-3). See Matter of Silva-Trevino, 26 I&N Dec. 826
(BIA 2016) (concluding that the categorical and modified categorical approaches provide the
proper framework for determining when a conviction is for a crime involving moral turpitude).
The Immigration Judge also recognized that the Eighth Circuit had determined that Minn. Stat.
609.713, subd. 1, is a CIMT. Id See also Chanmouny v. Ashcroft, 376 F.3d 810 (8th Cir. 2014).
The Immigration Judge noted, however, that the Eighth Circuit in Avendano v. Holder did not
apply the "realistic probability test," as the Eighth Circuit has required, in its analysis of whether
Cite as: Livinus Ndubisi Ezeobi, A061 561 711 (BIA Aug. 17, 2017)
A061 561 711

Minn. Stat. 609.713, subd. 1, is a CIMT (IJ at 5). See Villatoro v. Holder, 760 F.3d 872, 876-77
(8th Cir. 2014). See also Moncrieffe v. Holder, 133 S.Ct. 1678, 1684-85 (2013); Matter ofSilva
Trevino, 26 l&N Dec. at 831-33 ("To determine whether the respondent's offense qualifies as a
CIMT, we employ the 'categorical approach,' which requires a focus on the minimum conduct
that has a realistic probability of being prosecuted under the statutes of conviction rather than on

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


the actual conduct which led to the respondent's particular convictions'').

The Immigration Judge observed that the majority in Avendano v. Holder "explicitly left open
the question of whether [Minn. Stat. 609.713, subd. l] covers non-turpitudinous conduct, finding
that the respondent in that case waived the argument by not raising it" (IJ at 5). Avendano v.
Holder, 770 F.3d at 736; see also Avendando v. Holder, 770 F.3d 739-40 (J. Kelly, concurring in
part and dissenting in part) (arguing that Minn. Stat. 609.713, subd.l, is likely overbroad and
citing Minnesota case examples). Based on the cases cited in the dissenting opinion in Avendano
v. Holder (cases to which the respondent had referred), the Immigration Judge found that the
respondent demonstrated that there is a realistic probability that a defendant can be convicted of
the "reckless disregard" prong of Minn. Stat. 609. 713, subd. 1, for conduct that is not morally
tupitudinous (IJ at 5). The Immigration Judge thus determined that the statute is overboard. Citing
United States v. McFee, 842 F.3d 572 (8th Cir. 2016), in which the Eighth Circuit determined that
Minn. Stat. sect 609.713, subd. 1, is not divisible, the Immigration Judge determined that the
statute is not subject to the modified categorical approach, and concluded that the respondent's
conviction was not for a CIMT (IJ at 6-7). See Matter of Silva-Trevino, 26 I&N Dec. at 827.

For the reasons set forth in the Immigration Judge's decision, we agree with the conclusion
that the DHS did not sustain its burden to establish the respondent's removability under
section 237(a)(2)(A)(i) of the Act, as an alien convicted of a CIMT. Accordingly, the appeal by
the DHS will be dismissed.

u
ORDER: The appeal is dismissed.

FOR THE BOARD

2
Cite as: Livinus Ndubisi Ezeobi, A061 561 711 (BIA Aug. 17, 2017)
J
/" '.
/
\, ,,. .(

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1 FEDERAL DRIVE, SUITE 1850
FORT SNELLING, MN 55111

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


Law Office of Rachel N Sampong LLC
SAMPONG, RACHEL
:.
1300 Lagoon Avenue
Suite 240
Minneapolis, MN 55408

IN THE MATTER OF FILE A 061-561-711 DATE: Apr 25, 2017


EZEOBI, LIVINUS NDUBISI

UNABLE TO FORWARD - NO ADDRESS PROVIDED

f\, ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION 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
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041

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
1 FEDERAL DRIVE, SUITE 1850
FORT SNELLING, MN 55111

OTHER:

-----
COORK
TION COURT FF
CC: OFFICE OF THE PRINCIPAL LEGAL AD R
1 FEDERAL DR., SU+TE 1800
FORT SNELLING, MN, 55111
,
\

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
FORT SNELLING, MINNESOTA

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


File Number: A061-561-711

In the Matter of: )


)
Livinus Ndubisi EZEOBI, ) IN REMOVAL PROCEEDINGS
Respondent. ) -Detained-

Charge: INA 237(a)(2)(A)(i) - an alien who has been convicted of a crime involving
moral turpitude committed within five years after the date of admission for which
a sentence of one year of longer may be imposed.

Re: Removability

ON BEHALF OF RESPONDENT: ON BEHALF OF THE DHS:


Rachel Sampong, Esq. Diane Dodd, Esq.
Law Office of Rachel N. Sampong, LLC Asst. Chief Counsel/ICE
1300 Lagoon Avenue, Suite 240 1 Federal Dr., Suite 1800
Minneapolis, MN 55408 Fort Snelling, MN 55111

WRITTEN DECISION OF THE IMMIGRATION JUDGE

I. Background
Livinus Ndubisi Ezeobi, Respondent, is a 35-year-old man and a native and citizen of Nigeria.
(Ex. 1). Respondent was admitted to the United States at New York City, New York on or about
April 16, 2011 as a DV-1 (lawful permanent resident) under section 245 of the Act. Id. The
Department of Homeland Security (DHS) alleges that on October 31, 2014, Respondent was
convicted for the offense of terroristic threats/reckless disregard risk (felony) in violation of
Minn. Stat. 609. 713, subd. 1 and for that offense a sentence of one year or longer may be
imposed. Id.; see also Ex. 3.

On March 14, 2017, the DHS commenced removal proceedings against Respondent with the
filing of the Notice to Appear (NTA) charging Respondent with removability pursuant to the
above-captioned charge. Id. Respondent admitted allegations 1-3, denied charges 4-5, and

Decision -A061-561-71 l 1
( (

contested the charge. The Court requested that th parties brief the issue of removability, and the
Court now concludes that the charge is not sustainable and terminates these proceedings. 1

II. Legal Standard

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


A crime involves moral turpitude "if the relevant statute defines the offense in such a manner
that it necessarily entails conduct on the part of the offender that is inherently base, vile, or
depraved, and contrary to accepted rules of morality and the duties owed between persons or to
society in general." Matter of Kochlani, 24 l&N Dec. 1 28, 1 29 (BIA 2007). Morally
turpitudinous conduct is "per se morally reprehensible and intrinsically wrong or malum in se, so
it is the nature of the act itself and not the statutory prohiition of it which renders a crime one
involving moral turpitude." Chanmouny v. Ashcroft, 3 76 F.3d 8 1 0, 8 1 1 (8th Cir. 2004). The BIA
has held that "[n]either the seriousness of a criininal offense nor the severity of the sentence
imposed is determinative of whether a crime involves moral turpitude." Kochlani, 24 I&N Dec.
at 1 29. A crime involving moral turpitude (CIMT) must also involve some degree of scienter,
whether specific intent, deliberateness, recklessness, or willfulness. Bobadilla v. Holder, 679
F.3d 1 052, 1 053-54 (8th Cir. 20 1 2); Matter of Louissaint, 24 I&N Dec. 754, 756-57 (BIA 2009).
"Among the tests to determine if a crime involves moral turpitude is whether the act is
accompanied by a vicious motive or a corrupt mind," but "the presence or absence of a corrupt or
vicious mind is not controlling. " Chanmounv 376 F.3d at 8 1 1 ; see also Hernandez-Perez v.
Holder, 569 F.3d 345 , 348 (8th Cir. 2009).

When analyzing whether a crime involves moral turpitude, Immigration Judges and the Board of
Immigration Appeals ("BIA" or "the Board") use the categorical and modified categorical
approaches as the proper framework. Matter of Silva-Trevino, 26 I&N Dec. 826, 83 1 (BIA
20 1 6). Where the INA contains the phrase "convicted of," the Court employs a categorical
approach to determine whether the respondent's statute of conviction matches the generic
definition of the ground of removability in the INA. See Moncrieffe v. Holder, 1 3 3 S. Ct. 1 678,
1 684 (20 1 3 ). under this approach, the Court looks not to the particular facts of the case but
instead to the minimum conduct that is required for a conviction, and then decides whether that
conduct necessarily involves facts that equate to the generic definition. Id.

In evaluating the criminal statute under the categorical approach, the Court uses the "realistic
probability test," if the controlling Federal circuit applies it. Silva-Trevino, 26 l&N Dec. at 83 1 -
3 3 ; see also Matter of Chairez, 26 I&N Dec. 8 1 9, 820 (BIA 20 1 6). The Eighth Circuit uses the
"realistic probability" test. See Villatoro v. Holder, 760 F.3d 872, 877-79 (8th Cir. 2014). Under
this test, assessing the minimum conduct criminalized by the statute is "not an invitation to apply
' legal imagination' to the offense." Moncrieffe, 1 33 S. Ct. at 1 684-85 . Rather, there must be "a
realistic probability," not simply a theoretical possibility, that the statute would be applied to
conduct that falls outside the generic definition of the relevant removability ground. Id.
Ultimately, a respondent's statute of conviction matches the removability ground at issue only if
his conviction " 'necessarily' involved . . . facts equating to'' the generic offense, and whether his
actual conduct involved such facts is "quite irrelevant." Id. at 1 684 (citations omitted).

The Court notes that though it notified the parties of issues of specific concern to the Court, Ex. 5, the DHS
did not address those matters but instead submitted a brief declining to examine those questions and instead relying
on its prior brief. (Ex. 6).

Decision - A06 l-56 1 -7 1 1 2


I
\

The first step in assessing whether a crime involves moral tmpitude is to look to the statutory
language of the crime and "examine the statute itself to determine whether the inherent nature of
the crime involves moral turpitude." Chanmouny) "376 F.3d at 8 1 1; see also Hernandez-Perez,
569 F.3 at 348. "If the statute defines a crime in which moral turpitude necessarily inheres,''

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


because its elements match or are narrower than the generic CIMT definition, the conviction is
categorically a CIMT and the analysis ends. Charunouny, 376 F.3d at 811; see also Descamps v.
United States, 133 S.Ct. 2276, 2281 (2013). Alternatively, if the statute sweeps more broadly
than the CIMT definition, so that it encompasses both turpitudinous and nori-turpitudinous
conduct, and the Court must examine divisibility and, if the statute is divisible, proceed to the
modified categorical approach, which involves reviewing the record of conviction. See
Descamps, 133 S.Ct. at 2281, 2283 ; Chanmouny, 376 F.3d at 812.

Thus, if the statute is found to be broader than the CIMT definition, the Court reviews whether
Respondent's statute of conviction is divisible in order to see if it is appropriate to proceed to the
modified categorical analysis. A statute is "divisible" with respect to moral turpitude if: (1) it
lists multiple discrete offenses as enumerated 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
categorically qualifies as a CIMT. See Descamps. 133 S.Ct. at 228 1, 2283; United States v.
Tucker, 740 F.3d 1177, 1182 (8th Cir. 2014). If the statute "list[s] elements in the alternative,
thereby defin[ing] multiple crimes," it is divisible. Mathis v. United States, 136 S. Ct. 2243, 2249
(2016). The elements are only the parts of the crime's legal definition that "[a]t trial, a jury must
find beyond a reasonable doubt to convict the defendant; and at a plea hearing, [that] the
d.efendant necessarily admits when he pleads guilty." Id. at 2248 (citations omitted). The Court
should determine the elements of the statute by examining the text of the statute or state case
law. Id. at 2256. Any statutory alternative that increases the maximum punishment for the
offense must be an element. Id. When state law fails to clarify the elements, the Court may
examine the recor4 of conviction for the sole purpose of determining whether the listed parts are
elements of the offense. Id. at 2256-257. The record of conviction may include "the charging
document and jury instructions, or in the case of a guilty plea, the plea agreement, plea colloquy,
or 'some comparable judicial record' of the factual basis for the plea" in order to determine
which portion of the statute Respondent was convicted under. Moncrieffe, 133 S. Ct at 1684-85.
However, the Court may only use the record of conviction in its analysis if it speaks plainly as to
the elements of the statute. Mathis, 133 S. Ct. at 2253 ("In other words, 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."). If the record of
conviction does not shed light on which alternative the respondent was convicted of, the inquiry
ends. Descamps, 133 S. Ct. at 2283. See also Matter of Tavares Peralta, 26 l&N Dec. 171 (BIA
201 3).
III. Analysis

Respondent's statute of conviction reads:

Whoever threatens, directly or indirectly, to commit any crime of violence with


purpose to terrorize another or to cause evacuation of a building, place of

Decision - A061-561-71 l 3
( (

assembly, vehicle or facility of public transportation or otherwise to cause serious


public inconvenience, or in a reckless disregard of the risk of causing such terror
or inconvenience may be sentenced to imprisonment for not more than five years
or to payment of a fine of not more than $1 0,000, or both. As used in this
subdivision, "crime of violence" has the meaning given "violent crime" in section

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


609. 1 095, subdivision 1 , paragraph (d).

Minn. Stat. 609.7 1 3 , subd. 1 (20 14). In turn, section 609. 1 095, subd. l (d) lists many statutes
that constitute a "violent crime" under Minnesota law.

The Eighth Circuit has twice addressed whether a conviction under


Minn. Stat. 609.7 1 3, subd. 1 is a CIMT. First, the Eighth Circuit held in Chanmouny v.
Ashcroft, 376 F.3d 8 1 0, 8 14 (8th Cir. 2004) that "threatening to commit a crime of violence with
the purpose to terrorize another" constituted a CIMT: without the need to analyze the specific
crime of violence threatened. Id. The Eighth Circuit noted the definition of "terrorize" means to
"cause extreme fear by use of violence or threats." Id. at 814 (quoting State v. Schweppe. 237
N.W.2d 609, 614 (Minn. 1 975)). "A threat is a declaration of an intention to injure another or his
property by some unlawful act." Schweppe, 23 7 N. W .2d at 61 3 . Whether a statement is a threat
turns on whether the "communication 'in its context' would 'have a reasonable tendency to
create apprehension that its originator will act according to its tenor.' " Id. The Supreme Court of
Minnesota has also stated (referring to the 1 97 5 version of the statute, which has a similar
construction and language) that "Section 609.7 13, subd. 1 requires that defendant utter the threat
with the purpose of terrorizing another." Id. at 6 I 4.

Second, the Eighth Circuit held in Avendano v. Holder, 770 F.3d 73 1 , 735 (8th Cir. 201 4) that
"uttering terroristic threats in reckless disregard of the risk of causing terror 'involves the
reprehensible conduct of terrorizing another person with a culpable mental state, and is a
turpitudinous offense.' " Id. The Eighth Circuit also -held Minn. Stat. 609.7 1 3, subd. 1 was
dvisible as to elements "because it provides alternative culpable mental states: 'purpose to
terrorize' and 'reckless disregard of the risk of causing . . . terror.' " Id. at 734. In so doing, the
Eighth Circuit. observed that Minnesota's reckless disregard standard corresponds to the BIA's
contemplation of recklessness, i.e. a " 'deliberate action in disregard of a known, substantial
risk.' " Avendano, 770 F.3d at 735 (quoting State v. Bjergum, 77 1 N.W.2d 53, 57 (Minn. Ct.
App. 2009)); see also Matter of Leal, 26 I&N Dec. 20, 23 (BIA 201 2). The Eighth Circuit further
rejected the contention that recklessness must be accompanied by an aggravating factor,
deferring to the Attorney General's focus on the 'reprehensible conduct." See Avendano., 770
F.3d at 736.
Both of these Eighth Circuit decisions tied the required mens rea to "terrorizing" or "causing
terror." Essentially, the Eighth Circuit has addressed only two mens rea options: (1) purpose to
terrorize and (2) in a reckless disregard of the risk of causing terror. However, to interpret these
as the only two possible options excises a significant portion of the statute. There may potentially
be more possible mens rea alternatives. See ChanmoW1y, 376 F.3d at 8 1 2 (stating there are "at
least two different mental states") (emphasis added). Specifically, the plain language of the
statute shows a person could also commit this crime: ( 1 ) with purpose "to cause evacuation of a
building, place of assembly, vehicle or facility of public transportation"; (2) with purpose to

Decision - A06 l-561-71 1 4


"otherwise cause serious public inconvenience"; (3) "in a reckless disregard of the risk of
causing . . . inconvenience"; and perhaps (4) "in a reckless disregard of the risk of causing"
evacuation. Minn. Stat. 609.713, subd. 1. The Minnesota jury instructions-although not
entirely clear-support the idea that the ''purpose" and "reckless disregard" prongs can be
combined with either ''terrorizing," "evacuation," or "causing serious public inconvenience." See

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


l0A Minn. Prac., Jury Instr. Guides-Criminal CRIMJIG 13. 106-07 (6th ed.) (July 2016).

The DHS argues there are only two mens rea options: "with purpose" or "reckless disregard."
(Ex. 4 at 2). The DHS, however, does not address the "evacuation" or "serious public
inconvenience" language in the statute. The Court notes this language was also not directly
addressed in Chanmouny or Avendano; indeed, the Eighth Circuit cut out this language when it
quoted the statute. See Avendano, 770 F.3d at 733; Chanmouny, 376 F.3d at 8 12. The DHS also
lists five possible "categories of conduct." (Ex. 4 at 1). These categories all start with the
language "threatening to commit any crime of violence" and then add on a different mens rea
(e.g. with purpose to terrorize another, in reckless disregard of the risk of causing
inconvenience). Thus, these categories of conduct actually support the idea that there are more
than two mens rea possibilities.

Additionally, the Court that notes that Chanmouny and Avendano did not apply the "realistic
probability" test, as the Eighth Circuit requires. See Villatoro, 760 F.3d at 877-79; Silva-Trevino,
26 I&N Dec. at 83 1-33; Chairez, 26 I&N Dec. at 820. The maj ority in Avendano explicitly left
open the question of whether this statute covers non-turpitudinous conduct, finding that the
respondent in that case waived the argument by not raising it. See Avendano, 770 F.3d at 736;
see also Avendano, 770 F.3d at 739-740 (J. Kelly, concurring in part and dissenting in part)
(arguing the statute is likely overbroad and citing Minnesota case examples).

Respondent was convicted under the recklessness prong of Minn. Stat. 609.7 1 3, subd. 1. (Ex. 3
at 25). Respondent's statute of conviction is divisible as to the element of the mens rea of
reckless disregard, and that mens rea is morally turpitudinous. Avendano, 770 F.3d at 734. The
Court next turns to the issue of whether Respondent's statute of conviction is overbroad as to
morally turpitudinous conduct since that specific issue has not been decided by the Eighth
Circuit. Id. at 736. Respondent points to several cases, also referenced in the dissent in
Avendano, which demonstrate that a defendant can be convicted of the reckless disregard prong
of terroristic threats for conduct that is not morally turpitudinous. (Ex. 7 at 4-8). This includes
that juries do not have to be instructed regarding transitory anger, State v. Balster, No. A06-
l 742, 2008 WL 134984 (Minn. Ct. App. Jan. 15, 2008), vague hand gestures can support a
conviction, State v. Sailee, No. C3-98-l 744, 1999 WL 486597 (Minn. Ct. App. July 13, 1999),
and a defendant's intention that words were "a joke or a flippant remark," do not matter in
determining reckless disregard, In re MJS, No. C3-00-76, 2000 WL 101 5886, at *2 (Minn. Ct.
App. July 25, 2000). see also State v. Schweppe, 306 Minn. 395, 237 N.W.2d 609, 6i 7 n. 4
(1975); State v. Bjergum, 771 N.W.2d 53, 57 (Minn.Ct.App.2009). Such acts e not "inherently
base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between
persons or to society in general." Matter of Kochlani; 24 I&N Dec. at 129.
As a CIMT requires both a morally reprehensible act and scienter, terroristic threats in reckless
disregard is categorically not a CIMT as it is overbroad as to the conduct that is prohibited by the
statute. See Bobadilla, 679 F.3d at 1053-54; Chanm!Juny. 376 F.3d at 811; Matter of Louissaint,

Decision - A06l-561-71 1 5
-
24 I&N Dec. at 756-57; Matter of Kochlani, 24 I&N Dec. at 1 29. The Court therefore concludes
that Respondent has shown a realistic probability that the "reckless disregard of the risk of
causing terror" prong of terroristic threats covers non-turpitudinous conduct.
Minn. Stat. 609.713, subd. 1. As this conduct is not divisible, Respondent's statute of
conviction is overbroad, categorically not a CIMT, and the Court does not proceed to the

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


modified categorical approach.
Moreover, in June 2016, post-Avendano and Chanmouny, the United States Supreme Court
overturned an Eighth Circuit decision and directed courts to determine whether a statute is
divisible as to means or elements when applying the categorical approach. Mathis, 136 S. Ct. at
2252. In evaluating whether a statutory alternative is a means or an element, the Eighth Circuit
has since held that "if a phrase is defined in a separate statutory section, that 'provides textual
support' that the definition is a list of 'means by which [an] element may be committed.' "
United States v. McFee, 842 F.3d 572, 575 (8th Cir. 2016) (quoting United States v. Head.bird,
832 F .3d 844, 849 (8th Cir. 2016)). Moreover, McFee specifically addressed terroristic threats
under Minn. Stat. 609.7 13, subd. 1, which is Respondent's statute of conviction, albeit in the
aggravated felony context. McFee held that the term "crime of violence" in subdivision 1 is
indivisible as the type of crimes listed in Minn. Stat. 609. 1095, subd. l (d) are means and not
elements. McFee, 842 F.3d at 577. Because this is the same statute of conviction at issue in
Respondent's case and in light of the change in law, the Court reevaluates whether terroristic
threats are CIMTs under this line of case law as well.

The Court begins with the modified categorical approach. Descamps, 133 S.Ct. at 2281. As the
term "crime of violence" is a list of means, the Court must determine whether the crimes listed in
Minn. Stat. 609 .1095, subd. 1 (d) are all morally turpitudinous. If they are, then
Minn. Stat. 609.713, subd. 1 is categorically a CIMT. If not, then it is overbroad, and the Court
may not proceed to the modified categorical approach because the statute is indivisible. See
McFee, 842 F.3d at 577.

One of the enwnerated violent crimes defined in Minn. Stat. 609. 1095, subd. l (d) is stalking in
violation of Minn. Stat. 609.749 if it is punishable as a felony.2 Felony-level stalking includes
aggravated violations under subdivision (3), which incorporates offenses in subdivision (2) in
addition to aggravating factors. The BIA has defined stalking as including at least the following
three elements: (1) conduct that was engaged in on more than a single occasion, (2) which was
directed at a specific individual, and (3) with the intent to cause that individual or a member of
his or her immediate family .to be placed in fear of bodily injury or death. Matter of Sanchez-

The Court also notes two other enumerated violent crimes defined in Minn. Stat. 609. 1 095, subd. I (d)
that appear to cover non-turpitudinous conduct. First, Minn. Stat. 609 .255 . (False Imprisonment), which prohibits
intentionally confining or restraining a person without consent, probably does not meet the "reprehensible conduct"
standard for a CIMT. Cf. Turijan v. Holder, 744 F.3d 6 1 7, 622 (9th Cir. 20 1 4) (holding felony false imprisonment
under Cal. Penal Code sections 236 and 237 are not categorica11y CIMTs); Saavedra-Figueroa v. Holder, 625 F.3d
62 1 . 628 (9th Cir. 20 1 0) (holding misdemeanor false imprisonment under Cal. Penal Code section 236 is not
categorical1y a CIMT). Second, Minn. Stat. 152.024, subd. 2(1 ) (Possession of Controlled Substance Crime in the
Fourth Degree), which prohibits possessing 1 0 or more dosage units of certain drugs. is likely not a CIMT because
drug possession offenses are generally not CIMTs, unless there is intent to distribute. See Matter of Khourn, 2 1 l&N
Dec. 1 041 , 1 046-47 (BIA 1 997); Matter of Abreu-Semino, 1 2 I&N Dec. 775 (BIA 1 968).

Decision -A061 -561-71 1 6


(
\

Lopez, 26 I&N Dec. 7 1 , 74 (BIA 20 12). 3 See also Matter of Ajami, 22 I&N Dec. 949, 952 (BIA
1 999) (holding an aggravated stalking is a CIMT because "[a] violator of the statute must act
willfully, must embark on a course of conduct, as opposed to a single act, and must cause another
to feel great fear"). A felony-level conviction under Minn. Stat. 609.749 does require that the
conduct was directed at a specific individual. See Minn. Stat. 609.749, subd. 1 . This matches

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


the second element as described in Sanchez-Lopez, 26 I&N Dec. at 74.

However, the Minnesota stalking statute does not categorically match either prong one or prong
three of the federal definition of stalking. Minn. Stat. -609.749, subd. 3 does not require that a
person commit the act constituting stalking on more than one occasion but does describe conduct
that constitutes a violation of the statute that can be committed on only a single occasion. Thus,
the Minnesota statute does not categorically match the first element as outlined in Sanchez
Lopez, 26 I&N Dec. at 74.

Next, Minn. Stat. 609.749, subd. la states, "the state is not required to prove that the actor
intended to cause the victim to feel frightened, threatened, oppressed, persecuted, or intimidated,
or except as otherwise provided in subdivision 3, paragraph (a), clause (4), or paragraph (b), that
the actor intended to cause any other result." Rather, with rgards to mens rea, this statute of
conviction only requires that a defendant recklessly caused the victim to feel "frightened,
threatened, oppressed, persecuted, or intimidated.'' Minn. Stat. 609. 749, subd. 1 . The statute
does not require the victim to feel fear of bodily injury or death to herself or her immediate
family. In addition, the statute explicitly does not require the government prove specific intent to
cause such feelings in the victim. Consequently, the Minnesota statute does not satisfy element
three of the geeric definition of stalking in Sanchez-Lopez, which requires the specific intent by
the defendant to cause fear of bodily injury or death. Sanchez-Lopez, 26 I&N Dec. at 74.
Therefore, the Court concludes that Minn. Stat. 609. 749 is overbroad as to morally
turpitudinous conduct, is categorically not a match to the federal definition of stalking, and is not
a CIMT. Consequently, the Court does not need to address the divisibility of
Minn. Stat. 609.749.

Because stalking as defined in Minn. Stat. 609.749 is not a crime involving moral turpitude, the
statute of conviction for terroristic threats in violation of Minn. Stat. 609.71 3 , subd. 1 , which
incorporates stalking as a crime of violence, is overbroad as to morally turpitudinous conduct.
Since the Eighth Circuit in McFee established that Minn. Stat. 609.71 3, subd. 1 is indivisible as
to "crime of violence," the Court may not proceed to the modified categorical approach. McFee,
842 F.3d at 577. Thus, the Court concludes that Minn. Stat. 609.71 3, subd. 1 is categorically
overbroad and is not a CIMT. DHS, therefore, cannot establish that Respondent's conviction for
terroristic threats in oiation of Minn. Stat. 609.71 3, subd. 1 renders him removable under
INA 237(a)(2)(A)(i). The Court does not sustain the charge, and because this is Respondent's
sole charge, the Court terminates proceedings.

3
The Court notes the respondent in Sanchez-Lopez was charged with removability under a different section
of the Act-INA 237(a)(2)(E)(i)-that relates to stalking and other crimes of domestic violence, and the Board
was defining a "crime of stalking" under that section. Id. at 72. However, the Comt finds the definition applicable
here as it relates to the categorical approach for CIMT determinations because it lays out the generic , federal
definition of the crime of "stalking. ,, See Moncrieffe, 1 33 S. Ct. at 1 684; Sanchez-Lopez, 26 I&N Dec. at 72-73 .

Decision - A061-561-7 1 l 7
(

Accordingly, the Court enters the following orders:

ORDERS

IT IS HEREBY ORDERED that Respondent' s charge under INA 237(a)(2)(A)(i) is NOT

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


SUSTAINED

. IT IS FURTHER ORDERED that Respondent's case be TERMINATED.

UJ,
Kristin W. Olmanson
Immigration Judge

Decision - A061 -56 l -71 1 8