Martinez, Michael P. The Law Offices of Dennis M. Clare 745 West Main Street, Suite 250 Louisville, KY 40202

Name: TRINH, BINH NGOC

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

. .

5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - LOU 167 North Main St., Room 1036 Memphis, TN 38103

A 041-556-896

Date of this notice: 2/19/2015

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

Enclosure

Panel Members: Cole, Patricia A. Wendtland, Linda S. Pauley, Roger

Sincerely,

Donna Carr Chief Clerk

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index

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Cite as: Binh Ngoc Trinh, A041 556 896 (BIA Feb. 19, 2015)

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

Decision of the Board oflmmigration Appeals

Falls Church, Virginia 20530

File: A04 l 556 896 - Louisville, TN

In re: BINH NGOC TRINH

IN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENT: Michael P. Martinez, Esquire

ON BEHALF OF OHS:

CHARGE:

Jamee E. Comans Assistant Chief Counsel

FEB 1 9 2015

Notice: Sec. 212(a)(2)(A)(i)(II), I&N Act [8 U.S.C. § l l 82(a)(2)(A)(i)(II)] -Controlled substance violation

Sec. 212(a)(2)(A)(i)(I), I&N Act [8 U .S.C. § 1l82(a)(2)(A)(i)(I)] -Crime involving moral turpitude

APPLICATION: Voluntary departure

The respondent appeals the Immigration Judge's October 22, 2012, decision finding him removable as charged and pretermitting any applications for relief. 1 The record will be remanded to the Immigration Judge for further proceedings consistent with this opinion and for entry of a new decision.

On appeal, the respondent first contends that the Immigration Judge erred in finding his September 24, 2004, conviction for assault in the fourth degree in violation of Kentucky Revised Statutes section 508.030 to be a categorical "crime involving moral turpitude'' rendering him removable under section 2 l 2(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U .S.C. § 1l82(a)(2)(A)(i)(I). See Respondent's Brief at 3-5.2 In particular, the respondent argues that

1 The Immigration Judge issued her decisfon finding the respondent removable as charged on October 9, 2012, and explicitly incorporated that decision into her October 22, 2012, decision denying the respondent's application for voluntary departure. The respondent does not dispute the Immigration Judge's denial of his application for voluntary departure based on his failure to show that he has the necessary valid travel documents.

2 In his Notice of Appeal, the respondent stated his position that the Immigration Judge erred in finding him removable under section 2 l 2(a)(2)(A)(i)(II) of the Act "'because he was convicted of possession of marijuana under Kentucky Law." See Respondent's Notice of Appeal. Indeed, in her decision, the Immigration Judge did find the respondent removable based on his August 20, 2001, conviction for possession of marijuana. However, the respondent does not pursue this

(continued ... )

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A041 556 896

a conviction under subsection (l)(a) of section 508.030, which requires that a person intentionally or wantonly cause physical injury to another person, does not constitute a categorical crime involving moral turpituda because he contends that wantonly does not require the formation of any intent to cause any result. See Respondent's Brief at 4.3

We find that the Department of Homeland Security ("DHS") has not met its burden in establishing that the respondent's conviction for assault in the fourth degree in violation of Kentucky Revised Statutes section 508.030 is a crime involving moral turpitude rendering him removable under section 212(a)(2)(A)(i)(I) of the Act.4 See 8 C.F. R. § 1003.l(d)(3)(ii) (2014) (de novo review). The respondent was convicted of assault in the fourth degree in violation of section 508.030 of the Kentucky Revised Statutes, which provides that:

(1) A person is guilty of assault in the fourth degree when: (a) He intentionally or wantonly causes physical injury to another person; or (b) With recklessness he causes physical injury to another person by means of a deadly

weapon or dangerous instrument.

K. R.S. § 508.030(1) (2004). "Wantonly" is defined by section 501.020 of the Kentucky Revised Statutes, which provides, in pertinent part:

A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

We agree with the respondent that a violation of Kentucky Revised Statutes section 508.030(l)(a) is not a categorical crime involving moral turpitude. See Respondent's

( ... continued) claim in his brief, and the statement made on the Notice of Appeal does not specify any legal arguments in relation to this claim. Therefore, we find the respondent has abandoned this claim on appeal.

3 The respondent does not dispute that a violation of subsection (b) of section 508.030, which requires a person to act with "recklessness" in causing "physical injury to another person by means of a deadly weapon or dangerous instrument" is a crime involving moral turpitude. See Respondent's Brief at 5. We find it unnecessary to address this issue in this appeal.

4 The respondent appears to have misconstrued the Immigration Judge's decision in that he states in his brief that she "seemed to correctly identify the statute as divisible." See Respondent's Brief at 4. However, in her decision, the Immigration Judge engaged in the first instance in the categorical approach and determined that both subsections of the statute are crimes involving moral turpitude such that the statute is not divisible. See Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).

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Brief at 4-5. Specifically, "wantonly," as definec;l by Kentucky law, is akin to "recklessness." See id. Crimes involving recklessness may involve moral turpitude only where other statutory aggravating factors are present. See Matter vf Leal, 26 l&N Dec. 20, 25 (BIA 2012); Matter of Medina, 15 l&N Dec. 611, 613 (BIA 1976); cf Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996) (reckless assault without an aggravating factor is not a crime involving moral turpitude). Indeed, we have held that recklessness is a culpable mental state for moral turpitude purposes where it entails a conscious disregard of a substantial and unjustifiable risk of death or serious bodily injury posed by one's conduct. See Matter of Leal, supra; see also Matter of Ruiz-Lopez, 25 I&N Dec. 551, 553-54 (BIA 2011), ajfd, 682 F.3d 513 (6th Cir. 2012); Matter of Franklin, 20 l&N Dec. 867, 869-71 (BIA 1994), ajfd, 72 F.3d 571 (8th Cir. 1995); Matter of Wojtkow, 18 I&N Dec. 111, 112-13 (BIA 1981); Matter of Medina, supra.

In this case, however, an offense under section 508.030(a), which requires the risk of "physical injury," which is defined as "substantial pain or any impairment of physical condition," does not contain a sufficient aggravating factor to render it a crime involving moral turpitude. See K.R.S. § 500.080(13). Further, the DHS did not present evidence establishing that the respondent was convicted under subsection ( 1 )(b) of the statute. Thus, we find that a conviction under section 508.030 is not a categorical crime involving moral turpitude, and the evidence does not establish that the respondent's offense qualifies as a crime involving moral turpitude such that he is removable under section 212(a)(2)(A)(i)(I) of the Act.

Further, we find that, given the procedural history of this case, the respondent's application(s) for relief should not be deemed abandoned and a remand is necessary to allow him to apply for relief. See Respondent's Brief at 6. Specifically, the Immigration Judge noted the respondent's failure to file applications for relief despite being given opportunities to do so and the "lengthy procedural history of this case," which was initiated in 2009, in deeming the respondent's opportunity to file for relief abandoned (I.J. at 6). However, the record reflects that the DHS also failed to comply with several filing deadlines in regard to the documents needed to establish the respondent's inadmissibility, and it did not file the required documents until over 2 years after it initiated these proceedings (Exh. 3). See id. Thus, it appears that both parties, not just the respondent, caused the delays which protracted these proceedings. See id. Given the circumstances, and the respondent's equities, we find that he should be allowed to apply for relief.

Accordingly, the record will be remanded to the Immigration Judge for further proceedings consistent with this opinion and for entry of a new decision.

O RDER: The record is remanded to the Immigration Judge for further proceedings consistent with this opinion and for entry of a new decision.

F R . EBOARD

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Cite as: Binh Ngoc Trinh, A041 556 896 (BIA Feb. 19, 2015)

UNITED STATE S DEPARTMENT OF JU STICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATE S IMMIGRATION C OURT MEMPHIS, TENNE S SEE

File: A041-556-896 October 22, 2012

In the Matter of

BINH NGOC TRINH

RESPONDENT

C HARGES:

IN REMOVAL PROCEEDING S

INA Section 212 (a) (2) (A) (i) {II) of the Immigration and Nationality Act -- an alien who has been convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of any law or regulation of the state, the United States or a foreign country relating to a controlled substance as defined in Section 102 of the Controlled Substance Act (21 U.S. C. Section 802).

Section 212 (a) (2) (A) (i) (I} of the Immigration and Nationality Act -- alien who has been convicted of, or who admits having committed, or admits committing acts which constitute the essential elements of a crime involving moral turpitude (other than a purely political offense} or an

attempt or conspiracy to commit such crime.

APPL ICAT IONS: Voluntary departure (applications pretermitted, see below) .

ON BEHAL F O F RE SPON DENT: MICHAEL MARTINEZ

ON BEHALF OF OH S: JAM IE COMAN S

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ORAL DECISION O F THE IMMIGRATION JUDGE

On November 25, 2009, the Department of Homeland

Security filed a Notice to Appear which is dated October 14,

2009 against the above-named respondent. The filing of this

charging document commenced proceedings and vested jurisdiction

with this Court. 8 C. F .R. Section 1003.14 (a). The Notice to

Appear was marked and has been admitted into evidence as Exhibit

1.

Respondent appeared in court and denied the factual

allegations as well as the charges of rernovability set forth in

the Notice to Appear. He, however, admitted certain factual

allegations including that he is not a citizen or national of

the United States, that he is a native of Vietnam and citizen of

Vietnam and that he was admitted as a lawful permanent resident

to the United States on May 26, 1989 and was last paroled into

the United States for deferred inspection on June 9, 2009. He

denied that he was on August 20, 2001 convicted in the Hardin

District Court at Hardin County, Kentucky for the offense of

possession of marijuana and that he was on September 24, 2004

convicted in the Jefferson District Court at Jefferson County,

Kentucky for the offense of assault fourth degree with minor

injury.

The matter was set for a removability hearing and the

Department of Homeland Security filed two sets of documents in

support of the charge of removability at Exhibits 2 and 3. The

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respondent was ordered in addition to file all forms of relief

and failed to do so. The Court on several occasions continued

the matter even while respondent failed to appear for

proceedings due to a variety of procedural and other issues.

The Court ultimately issued a decision on the removability which

decision was served on all parties and is dated October 9, 20 12.

The decision of the Court is incorporated herein by reference

though set forth at length. In that decision the Court found

the respondent removable for the reasons set forth in the

decision. Further, the Court found that the respondent failed

to file any applications for relief notwithstanding he was given

numerous opportunities to do so. The Court, therefore,

pretermitted the applications for relief as the respondent had

failed to file any applications for relief though he was given

multiple opportunities to do so. The matter was scheduled for

hearing on today's date for voluntary departure. Respondent has

requested voluntary departure at the completion of proceedings.

At the conclusion of removal proceedings the Court may

grant voluntary departure in lieu of removal. INA Section

240B(b). The alien bears the burden to establish that he is

both eligible for relief and that he merits a favorable exercise

of discretion. Matter of Gamboa, 14 I&N Dec. 244 (BIA 1972);

Matter of Arguelles, 22 I&N Dec. 8 1 1 (BIA 1999). To establish

eligibility the respondent must prove that he has physically

been present in the United States for at least one year

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immediately preceding service of the Notice to Appear; that he

is, and has been, a person of good moral character for at least

five years immediately preceding the application for voluntary

departure; is not removable under Section 237(a) (2) (A) (iii) as

an aggravated felon or under Section 237(a) (4) for security and

related grounds; and he has established by clear and convincing

evidence that he has the means to depart the United States and

intends to do so. Matter of Arguelles, supra; INA Section

240B(b) (1). The alien must also be in possession of a valid

document and except as otherwise provided in the regulations

clear and convincing evidence of the means to depart the United

States has been defined to include in all cases presentation by

the alien of a passport or other travel documentation sufficient

to assure lawful entry into the country to which the alien is

departing. The regulation at 8 C. F.R. Section 1240.26(c} (2)

provides that the Service shall have a full opportunity to

inspect and photocopy the documentation and to challenge any

authenticity or sufficiency before voluntary departure is

granted. The respondent must also post a bond in an amount

necessary to insure that he will depart which must be at least

$500 within five days of the voluntary departure order. INA

Section 240B(b) (3); 8 U.S. C. Section 1240.26(c) {3).

The respondent has testified as to a variety of

convictions that he had. He stated that he was convicted for

possession of marijuana and was sentenced and paid a fine. He

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said that in 2004 he was arrested for the second time for

fighting with a person and hitting him with a bottle. He was

charged with assault, spent 13 days in jail and paid a fine.

Respondent also testified that he was then arrested for arguing

with his girlfriend in 2005 and she called the police. The

respondent testified that he was drunk and that they told him to

stay away from her and that he has not seen her in a long time.

Respondent also testified that he was arrested in 20 11 for a

DU I, pled guilty and paid a fine. He said that he completed his

sentence and finished all of his education. He testified on

direct examination that if he is allowed to leave the United

States, he would leave by the date ordered, has the money to

leave and the money to pay a bond. On extensive questioning by

counsel and the Court, respondent testified that he still has an

I-94 which was issued to him upon his entry into the United

States but he does not know if this document will allow his

entry into Vietnam. He stated that no passport is required to

enter his country. All he needed was a visa that was issued in

the United States so that he could return to the United States.

He said that he was then allowed to enter Vietnam with this

document. The respondent testified that the document, the visa,

was issued by the United States Government and was a reentry

document. It was applied for when he purchased his ticket and

was like a white passport. He stated that with this document he

was allowed to enter Vietnam. Respondent testified that he has

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. ,.

a passport from Vietnam which he had when he entered the United

States for the first time in 1989 but that his mother kept it in

a locked place. He said that he has never had this passport

renewed and has no other travel documents other than these two

documents.

On cross-examination the respondent testified that he

was arrested on June 15, 2012 but denied that it was for a DU I

and stated that he was not driving but was with a friend who was

driving and did not have his seatbelt on. He said that the

police arrested him and found that he had not paid his fines in

connection with his 2011 arrest and was required at that time to

pay the fine and he was then let go. Respondent testified that

in court today he only has his driver's license and a Social

Security card with him and has no other documents. On

quest ioning by the Court, the respondent indicated that if he

had no other documentation other than the travel documents in

his passport, he would not be allowed to get onto an airplane

and go to Vietnam.

As noted above, the respondent's removability has been

established by the order of the Court which has been

incorporated herein. Further, the respondent has failed to

cooperate and failed to file any and all applications for relief

during the lengthy procedural history of this case. Therefore,

the Court has preterrnitted any and all applications which may

have been relevant to these proceedings. Therefore, this Court

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needs only analyze the request for voluntary departure. The

respondent has been physically present in the United States for

at least one year immediately preceding service of the Notice to

Appear and all of his convictions with the exception of the

conviction in 2011 is outside of the five years required to

establish good moral character. Therefore, although respondent

has been convicted of possession of a controlled substance and

of a crime involving moral turpitude, his convictions were

outside of the five year period required for consideration of

voluntary departure. He is left, therefore, with only one

conviction in 2011 for D U I and an arrest in 2005 which he had an

argument with his girlfriend. Respondent has failed to provide

any evidence concerning the disposition of the arrest in 2005,

however the Court will note that this is also outside of the

five year period required for good moral character. The

Department of Homeland Security alleges that the respondent was

arrested and the records establish that he was arrested for a

DUI on June 15, 2012, however, the Court has no evidence of this

fact and respondent was clear that he was arrested in 2012 for

failure to pay his fines in connection with a D U I in 2011. The

respondent has not been convicted of an aggravated felony or for

security or related grounds. Therefore, the Court would find

that the respondent has established his good moral character

during the five year period required for consideration of

voluntary departure. However, the respondent has failed to

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establish clear and convincing evidence that he has the means to

depart the United States. Although the respondent has testified

that he intends to leave the United States and has the money to

do so, and has the money to pay the bond, the respondent has

failed under the regulation to establish by clear and convincing

evidence that he has the means to depart because he has failed

to present a passport or other travel documents sufficient to

assure lawful entry into the country to which he is departing.

Further, the Service has not had a full opportunity to inspect

and photocopy any documentation and to challenge any

authenticity or sufficiency before voluntary departure was

requested or is to be entered in this case. The respondent has

specifically testified that the only documents that he has is a

travel document issued by the United States Government in

connection with his lawful permanent resident status. It is

clear from the respondent's testimony and his description of the

document that it is in fact a reentry document that was issued

in connection with his status. This document will not be valid

for entry into his country because the respondent is being

removed from the United States. The respondent has also

testified that he has an old passport from his entry in 1 989 but

he has failed to renew the passport and does not have a current

passport. He has also testified that he has no other travel

documents that would allow him to travel. He has also

specifically testified that without these travel documents he

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would be unable to get onto an airplane and to travel back to

his home country. The respondent counsel argues that the

respondent has told him, and that he has heard from other

sources, that an individual is able to have entry into the

United States by simply presenting himself at the border and he

would be admitted. However, respondent has failed to provide

any evidence of this fact or the fact that he would be able to

be allowed onto an airplane to travel back to his country.

Therefore, the Court will find that the respondent has failed to

establish by clear and convincing evidence that he has the means

to depart the United States as is required for a grant of

voluntary departure. The respondent's application, therefore,

for voluntary departure will be denied.

ORDE R S

Based upon the foregoing, the following orders will

enter:

IT I S HEREBY ORDERE D that the charges pursuant to

Section 2 12(a) (2) (A) (i) (I) and (II) of the Immigration and

Nationality Act hereby are sustained.

IT I S HEREBY FURTHE R O R DERE D that respondent's request

for the filing of any further relief be and hereby is

pretermitted and denied as is set forth in the decision and

order of the Immigration Judge dated October 9, 2012.

IT IS HE REBY FURTHE R O R DERE D that respondent's

application for voluntary departure be and hereby is denied.

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. . ..

IT IS HEREBY FURTHER ORDERED that respondent be

removed to Vietnam on the charges contained in the Notice to

Appear.

��1Crokrno �� REBECCA Lt>iOLT Immigration Judge

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.. ...

/Isl/

Immigration Judge REBECCA L. HOLT

holtr ·on January 10, 2013 at 7:27 PM GMT

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