Willmoth, Jonathan James, Esq. Willmoth Immigration Law, LLC 215 W. 18th St., Suite 101 Kansas City, MO 64108

Name: GIRON, JUAN EMIGDIO

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5/07 Leesburg Pike, Suite 2000 Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - KAN 2345 Grand Blvd., Suite 500 Kansas City, MO 64108

A 060-304-016

Date of this notice: 9/14/2015

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

Enclosure

Panel Members: Pauley. Roger

Sincerely,

DCinltL c t1ftA)

Donna Carr Chief Clerk

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index/

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· U.S. Department of Justice Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A060 304 016 - Kansas City, MO

In re: JUAN EMIGDIO GIRON

IN REMOVAL PROCEEDINGS

APPEAL

Decision of the Board of Immigration Appeals

Date: SEP 14 2015

ON BEHALF OF RESPONDENT: Jonathan James Willmoth, Esquire

ON BEHALF OF DRS: Jennifer A. May Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(A)(i), l&N Act [8 U.S.C. § 1227(a)(2)(A)(i)] -Convicted of crime involving moral turpitude

Sec. 237(a)(2)(A)(iii), l&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] -Convicted of aggravated felony

Sec. 237(a)(2)(C), I&N Act [8 U.S.C. § 1227(a)(2)(C)] -Convicted of firearms or destructive device violation

APPLICATION: Termination

The Department of Homeland Security ("DHS") appeals from an Immigration Judge's August 11, 2014, decision terminating removal proceedings against the respondent. The respondent has filed a brief in opposition to the appeal. The appeal will be dismissed.

The respondent, a native and citizen of El Salvador, was admitted to the United States as a lawful permanent resident in 2009. In 2010 the respondent was convicted of felony burglary in violation of section 21-3 715 of Kansas Statute Annotated ("KSA"), for which he was sentenced to a 4 month prison term. In 2014 the respondent was convicted of possession of a firearm. On June 17, 2014, the United States Court of Appeals for the Tenth Circuit granted a joint motion to vacate conviction, on the grounds that the felony burglary conviction did not constitute a crime punishable by imprisonment for a term exceeding 1 year (I.J. at 1; Exh. 3, Tab A). The Immigration Judge found that since the felon in possession of a firearm conviction has been vacated, the respondent no longer has a conviction under which he can be removed pursuant to sections 237(a)(2)(C) and 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. §§ 1227(a)(2)(C), 1227(a)(2)(A)(iii) (I.J. at 3, 4).

The respondent contends that his conviction and sentencing for felony burglary does not constitute a crime for which a sentence of 1 year or longer may be imposed, and the respondent sought to have the removal proceedings terminated. The DRS contends that while KSA section

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A060 304 016

21-4704 provides a sentencing range of 5 to 7 months for the respondent's felony burglary, the Kansas court could have considered aggravating factors, and the respondent could have hypothetically received a sentence with a prison term of up to 1 7 months on the non-drug Kansas sentencing grid (Exh. 5, Tab E). The DHS asserts that this crime renders the respondent removable as an alien convicted of a crime involving moral turpitude, committed within 5 years after the date of admission, for which a sentence of 1 year or longer may be imposed. See section 237(a)(2)(A)(i) of the Act, 8 U.S.C. § 1227(a)(2)(A)(i).

The sole issue on appeal is whether the respondent's crime is one "for which a sentence of one year or longer may be imposed" within the meaning of section 237(a)(2)(A)(i)(II) of the Act. The Immigration Judge concluded that it was not because, under the Kansas Sentencing Grid, KSA § 21-4 704, the crime of felony burglary committed with the respondent's particular lack of criminal history carried a maximum prison sentence of only 7 months.

In determining whether the respondent is removable under section 237(a)(2)(A)(i) of the Act, the Immigration Judge considered U.S. v. Brooks, 751 F.3d 1204 (10th Cir. 2014), as well as Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) and U.S. v. Haltiwanger, 637 F.3d 881 (8th Cir. 2011). The Immigration Judge noted that while Carachuri held that a simple possession charge was not an aggravated felony under the Act when a respondent's previous convictions were not part of the record, the present situation is analogous (I.J. at 4). Further, the Immigration Judge noted that as in Carachuri, there was no finding of fact at trial that would have allowed the court to impose a sentence of I year or more on the respondent, and the Kansas court, at no time during the trial had the discretion to sentence the respondent to more than 7 months of incarceration, the maximum allowable under the KSA sentencing guidelines (I.J. at 4; Exh. 5, Tab E). In Carachuri, the Court looked to the conviction itself, not to what might have or could have been charged.

In the present case, the Information provides the crime is for a security level 9, non-person felony with no prior criminal record yielding a category 1 classification, with a maximum sentence of 7 months, according to the sentencing grid (Exh. 2, Tab C; Exh. 5, Tab E). In U.S. v. Brooks, supra, at 1213, the Tenth Circuit held that courts must consider the defendant's particular prior record level and not merely the worst possible prior record level in determining whether a conviction was for an offense "punishable" by a term exceeding 1 year. Applying the Carachuri line of cases, the Immigration Judge determined that the respondent's 2010 felony burglary conviction does not constitute a crime for which a 1 year or greater sentence may have been imposed, and that the respondent is therefore not removable under section 237(a)(2)(A)(i) of the Act (I.J. at 4).

We are not convinced that the Immigration Judge committed reversible error when he concluded that the respondent had not been convicted of a crime for which a sentence of 1 year or longer may be imposed within the meaning of section 237(a)(2)(A)(i)(II). 1 Accordingly, the 1 We do not agree, however, with the respondent's argument that Matter of Ruiz-Lopez, 25 l&N Dec. 551 (BIA 2011), is no longer good law. That case did not involve a state sentencing system that required guideline enhancements to be charged and proved to the factfinder beyond a reasonable doubt.

2

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DHS appeal from the Immigration Judge's decision granting the respondent's motion to terminate proceedings will be dismissed. Accordingly, the following order shall be issued.

ORDER: The appeal is dismissed.

FOR THE BOARD <.:..

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

Willrnoth Immigration Law, LLC Willrnoth, Jonathan James 215 W. 18th St., Suite 101 Kansas City, MO 64108

IN THE MATTER OF GIRON, JUAN EMIGDIO

FILE A 060-304-016

UNABLE TO FORWARD - NO ADDRESS PROVIDED

DATE: Aug 13, 2014

'><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 !�MIGRATION 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 20530

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

OTHER:

FF CC:

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT 2345 GRAND BOULEVARD, SUITE 525

KANSAS CITY, MISSOURI 64108

IN THE MA TIER OF ) ) ) ) )

Augustl!_, 2014

Juan Emigdio GIRON

RESPONDENT

CHARGES:

File No. 060-304-016

IN REMOVAL PROCEEDINGS

Section 237(a)(2)(C) of the Immigration and Nationality Act (Act), as amended: Alien convicted of certain firerum violations.

Section 237(a)(2)(A)(iii) of the Act: Alien convicted of an aggravated felony as defined in section 101 (a)(43)(E), a law relating to firearms offenses.

Section 237(a)(2)(A)(i) of the Act: Alien convicted, within five years after admission, of a crime involving moral turpitude.

ON BEHALF OF THE RESPONDENT Jonathan Willmouth, Esq.

ONBEHALF OF THE GOVERNMENT Jennifer May, Esq.

Attorney at Law 215 W. 18th Street, Suite 101 Kansas City, MO 64108

Immigration and Customs Enforcement 2345 Grand Boulevard, Suite 500 Kansas City, MO 64108

WRITTEN DECISION OF THE IMMIGRATION JUDGE

I. Procedural History

The respondent, a twenty-five year old native and citizen of El Salvador, was admitted to the United States as a lawful permanent resident at Kansas City, Missouri, on April 11, 2009. Group Exhibit 2, Tab A. On March 29, 2010, the respondent was convicted of Felony Burglary in violation of Kansas Statute Annotated (K.S.A.) section 21-3715 in Wyandotte County, Kansas, and sentenced to a four month prison term. Id. at Tab C. On January 8, 2014, the respondent was convicted of Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(l) and 924(a)(2) (1994) in the U.S. District of Kansas. Id. at Tab B.

Respondent proceeded to appeal his fireann possession conviction, which was ultimately successful when the 10th Circuit Court of Appeals (10th Circuit) granted a joint motion to vacate conviction on June 17, 2014. The judgment was vacated on the grounds that the felony burglary conviction did not constitute a crime for which a maximum sentence of one year or longer may have been imposed, as required by 18 U.S.C. §§ 922(g)(l). See Group Exhibit 3, Tab A. Juan Emigdio GIRON 060-304-016

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On July 7, 2014, the Department of Homeland Security (Department) served the respondent with a Notice to Appear (NTA) charging him with removability pursuant to sections 237(a)(2)(C), 237(a)(2)(A)(iii), and 237(a)(2)(A)(i) of the Act. Exhibit 1 . On July 10, 2014, the Court received the respondent's motion to tenninate, through counsel, wherein he denied all charges of removability contained in the NTA. Exhibit 4. On July 14, 2014, the Department filed an opposition to respondent's motion to tenninate. Exhibit 5.

The respondent argues that his conviction and subsequent sentencing for felony burglary does not constitute a crime for which a sentence of longer than one year may be imposed, and seeks to have the removal proceedings terminated. See Exhibit 4. The Department, however, contends that although K.S.A. section 21 -4 704 provided a sentencing range of five to seven months for respondent, the Kansas court, had it chosen to do so, would have been able to consider aggravating factors. Exhibit 5. Respondent, therefore, could have hypothetically received a sentence with a prison term of up to seventeen months, as provided by the K.S.A. guidelines, if certain aggravating factors had been proven beyond a reasonable doubt in the Kansas court. See Id. at 2-3. The Court must determine whether the respondent's felony burglary conviction for which he received a prison term of four months constitutes a crime for which a sentence of one year or longer may be imposed within the definition of section 237(a)(2)(A)(ii) of the Act.

II. Documentary Evidence

The documentary evidence presented consists of the following exhibits, which are marked into the record via this decision.

Exhibit 1:

Group Exhibit 2:

Group Exhibit 3:

Exhibit 4:

Exhibit 5:

Exhibit 6:

Respondent's Notice to Appear, dated July 7, 2014.

Departments Supplemental Documents in Support of Removal, Tabs A-D, filed July 7, 2014.

Respondent's Supplemental Documents,' Tabs A-D, filed July 10, 2014.

Respondent's Motion to Terminate, filed July 10, 2014.

Department's Opposition to Respondent's Motion to Terminate, filed July 14, 2014.

Order of the Immigration Judge administratively closing the case, ordered July 15, 2014.

III. Certain Firearm Offenses under Section 237(a)(2)(C)

Under section 237(a)(2)(C) of the Act, an alien is removable, if, at any time after admission, he is convicted under any law of owning, possessing, or carrying any firearm defined

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under 1 8 U.S.C. § 921(a). This includes pure firearms offenses even if no other crime is committed. See Lemus-Rodriguez v. Ashcroft, 3 50 F.3d 562, 655-56 (7th Cir. 2003); Valerio­Ochoa v. INS, 241 F.3d 1092 (9th Cir. 2001). The term "firearm" is defined at 1 8 U.S.C. § 921 (a) as:

(A) any weapon (including a starter gun) which wil l or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm si lencer; or {D) any destructive device. Such term does not include an antique firearm.

Respondent is also charged under section 237(a)(2)(A)(iii) of the Act, which provides that "any alien who is convicted of an aggravated felony at any time after admission is deportable." Section 101 ( a)( 4 3 )(E) of the Act defines aggravated felony as relating to a firearms offense as defined in 1 8 U.S.C. § 922.

· · ·

IV. Maximum Sentence Under 237(a)(2)(A)(i)

Under section 237(a)(2)(A)(i) of the Act, an alien convicted of a crime involving moral turpitude within five years of obtaining lawful permanent resident status is removable if a sentence of one year or longer may have been imposed. In making a dete1mination whether a maximum sentence of one or more years may have been imposed for a respondent's previous criminal conviction, the "maximm11 amount of prison time a particular defendant could have received" is controlling. U.S. v. Brooks, 751 F.3d 1 204, 121 3 (1 0th Cir. 2014) (emphasis added). This is in contrast to "look[ing] to the hypothetical worst possible offender to determine whether a state offense was punishable by more than a year in prison." Id.

V. Analysis

Respondent's charged violation of sections 237(a)(2)(C) and 237(a)(2)(A)(i) of the Act are predicated on his criminal conviction for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(l ) and 924(a)(2) (1994). In turn, respondent's conviction for possessing a firearm is dependent on his burglary conviction being considered a crime for which a maximum sentence of one year of more may have been imposed.

Although the district coui1 ruled that the conviction was one which carried a maximum sentence of a year or longer, the 1 0th Circuit vacated respondent's conviction under U.S.C. §§ 922(g)(l) and 924(a)(2) in a June 1 9, 2014 order in response to ajoint motion to vacate. Group Exhibit 3 , Tab A. Since the felon in possession of a fireann conviction has been vacated, respondent no longer has a conviction under which he can be removed via sections 237(a)(2)(C) and 237(a)(2)(A)(i) of the Act.

To detennine whether respondent is removable under section 23 7(a)(2)(A)(i) of the Act, the Court must conduct the same inquiry as was used in the U.S. v. Brooks line of cases. See United States v. Brooks, 751 F.3d 1204 (1 0th Cir. 201 4); Carachuri-Rosendo v. Holder, 1 30 s. ct. 2577 (20 1 0) at 2586-87; United States v. Haltiwanger, 637 F.3d 881 (8th Cir. 2011).

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The Department's analysis is correct. The Kansas court could have hypothetically considered aggravating factors when sentencing respondent. See K.S.A. section 21-4704. The use of any aggravating factors to increase the sentence, however, would have been required to be proven beyond a reasonable doubt in a jury trial. Id § 21 -4704(b). In Carachuri, the Supreme Court states, "[i]ndisputably, Carachuri-Rosendo's record of conviction contains no finding of the fact of his prior drug offense. [A federal immigration court] cannot, ex post, enhance the state offense of record just because facts known to it would have authorized a greater penalty under either state or federal law." Carachuri-Rosendo v . Holder, 1 30 s. ct. 2577, 2586-87 (2010).

Although Carachuri held that a simple possession charge was not an aggravated felony under the Act when a respondent' s previous convictions were not part of the record, the situation is analogous. See generally Carachuri-Rosendo v. Holder. In the instant case, the Department argues that the hypothetical existence of aggravating factors in respondent's prior conviction is enough to find that the maximum sentence that could have been imposed was equal to or longer than a year. Like Carachuri, there was no finding of fact at trial that would have allowed the court to impose a sentence of a year or more on respondent. Indeed, the state prosecutor would have been required to give 30 days' ·notice to impanel a jury in order for the court to even consider aggravating factors for purposes of increasing the sentence beyond that provided in the K.S.A. See K.S.A. section 21-4718(b)( l ). In other words, the Kansas court at no time during the trial had the discretion to sentence respondent to more than 7 months of incarceration, the maximum allowable under the K.S .A. Sentencing Guidelines.

VI. The Court's Finding

The charges against respondent of violating sections 237(a)(2)(C) and 237(a)(2)(A)(iii) of the Act are both predicated on a prior firearms conviction. Since the required conviction was vacated by the 10th Circuit after a joint motion to vacate, the Court finds that respondent is not removable under either section 237(a)(2)(C) or section 237(a)(2)(A)(iii) of the Act.

Further, the clear instruction of the Carachuri line of cases is that "the maximum amount of prison time a pruticular defendant could have received controls, rather than the amount of time the worst imaginable recidivist could have received." U.S. v . Brooks at 1 213. Since the Kansas court never had the discretion to impose a sentence longer than 7 months, the Court finds that the respondent's March 29, 20 1 0 felony burglary conviction does not constitute a crime for which a one year or greater sentence may have been imposed, and respondent, therefore, is not removable under section 237(a)(2)(A)(i) of the Act.

Accordingly, after careful consideration, the following order is entered:

ORDER OF THE IMMIGRATION JUDGE

IT IS HEREBY ORDERED that the respondent's Motion to Terminate is GRANTED.

IT IS FURTHER ORDERED that the charge of removal under section 237(a)(2)(C) is DISMISSED.

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IT IS FURTHER ORDERED that the charge of removal under section 237(a)(2)(A)(iii) is DISMISSED.

IT IS FURTHER ORDERED that the charge of removal under section 237(a)(2)(A)(i) is DISMISSED.

AugustJl, 201 4

�K. {Jp(� J.oiu( R. O'Malley United States Immigration Judge.

All future hearings in this matter are cancelled.

The Court reserves the right of both parties to appeal this decision to the Bo�d of Immigration Appeals (BIA). A Notice of Appeal (Fom1 EOIR-26) must be received by the BIA within 30 days of the entry of this decision.

CERTIFICATE OF SERVICE THIS DOCUMENT WAS SERVED BY: MAIL (M) PERSO AL SERVICE (P)

f TO: ( ) ALJ -t ( ) L N C/0 CUSTODIAL OFFICER 'S ATTY/REP ( DHS DATE: BY: COURT STAFF �-boL--1-1-.4�..___������-

ATTACH _, : ) EOIR-33 ( ) EOIR-28 ( ) LEGA R ICES LIST ( ) OTHER

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