Landry, David, Esq.

Law Ofce of David Landr

121 Broadway, Suite 548
San Diego, CA 92101
U.S. Department of Justice
Executive Ofce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leb1rg Pke, Suite 2000
Fall Church, Vrinia 22041
OHS/ICE Ofice of Chief Counsel SND
880 Front St., Room 1234
San Diego, CA 92101-8834
Name: PEDRO SALVADOR, DOMINGO A 087-008-675
Date of this notice: 9/10/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Guendelsberger, John
Sincerely,
/ Cw
Donna Carr
Chief Clerk
yungc
Userteam: Docket
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Cite as: Domingo Pedro-Salvador, A087 008 675 (BIA Sept. 10, 2013)
PEDRO SALVADOR, DOMINGO
A087-008675
CCA SAN DIEGO CORRECTIONAL
P .0. BOX 439049
SAN DIEGO, CA 92143
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leebur Pke, Suite 2000
Fall Church, Virginia 22041
OHS/ICE Ofice of Chief Counsel SND
880 Front St., Room 1234
San Diego, CA 92101-8834
Name: PEDRO SALVADOR, DOMINGO A 087-008-675
Date of this notice:
9/10/2013
Enclosed is a copy of the Board's decision in the above-refrenced case. This copy is being
provided to you as a courtesy. Your attorey or representative has been sered with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed fom the United States or afrs a Immigration Judge's decision ordering that you
be removed, any petition fr review of the attached decision must be fled with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Guendelsberger, John
Sincerely,
/o C t
Donna Carr
Chief Clerk
yungc
Useream: Docket
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Cite as: Domingo Pedro-Salvador, A087 008 675 (BIA Sept. 10, 2013)
US. Depaent of Justce
Eecutve Ofc fr Imigtion Review
Deision of te Boad of Imigon Appes
Fal Chuh, Virgia 2201
File: A087 008 675 - Sa Diego, CA
I re: DOMNGO PEDRO-SALVAOR
IN REMOVAL PROCEEDINGS
CERTIFICATION
Date:
ON BEHALF OF RESPONDENT: David Ladry, Esquire
ORER:
SEP
1 0 2013
This case wa lat befre the Boad on June 11, 2013, when we remaded the record to the
Immigaton Judge fr fer consideration of the resondent's removability uder
237(a)(2)(A)(i) of the Immigtion ad Natonality Act, 8 U.S.C. 1227(a)(2)(A)(i) (convicted
of crme involving moral tupitude). In the July 1, 2013, decision issued on remad, the
Immigation Judge fund that the Depaent of Homeland Security (DHS) did not meet its
buden to show that the respondent was removable a charged, terinated proceedings without
prejudice, ad cerifed the record to the Boad. However, inamuch a the Immigaton Judge
terinated proceedings, a deterinaton which neither pay ha chalenged, there is no issue
remaining fr adjudication befre te Boad. 1 Accordingly, the record is rte to the
Immigton Cou witout fher Boad acton.
1 We note tat on remad befre te Immigation Judge, the DHS fled a motion to terinate
proceedings witout prejudice. Te respondent opposed the motion, seeking ternaon of
proceedigs with prejudice, a position he tkes befre the Board now. However, this issue is
more approprately decided in a fture proceeding, in the event the DHS initaes such a
proce g ad the respondent aserts claim preclusion ad seeks terination. Tus, we decline
to decide at tis time whether the Immgation Judge's contesed desigaton of the termaton
a ''without prejudice" corectly accounts fr te circumstnces under which prceedings were
terinated in ts case. See Mater of Luis, 22 l&N Dec. 747, 753 (BIA 1999).
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Cite as: Domingo Pedro-Salvador, A087 008 675 (BIA Sept. 10, 2013)
. .


UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
401 West A Street, Suite 800
San Diego, Califrnia 92101
File No.: A087 008 675 ) Date: July 1, 2013
In the Matter of
Domingo PEDRO SALVADOR,
Respondent
)
)
) IN REMOVAL PROCEEDIGS
)
)
)
ON BEHALF OF RESPONDENT: ON BEHALF OF DEPARTMENT OF
HOMELAD SECURITY:
David B. Landry, Esquire
121 Broadway, Suite 548
San Diego, Califria 92101
Robert B. Wities, Esquire
880 Front Street, Suite 2246
San Diego, Califria 92101
CHARGE: Section 237(a)(2)(A)(i) of the Immigation and Nationality Act
(Crime Involving Moral Turpitude within Five Years of Admission).
MOTION: Terination of Proceedings.
DECISION AND ORDER OF THE IMMIGRATION JUDGE
On March 20, 2013, applying the applicable law, including Matter of Silva-Trevino, 24
I&N Dec. 687 (A.G. 2008), the Court fund te respondent removable fom the United States.
On June 11, 2013, the Board of Immigation Appeals ("BIA") remanded this case to the Court on
account of the Ninth Circuit's recently-published precedential decision Oliva-Motta v. Holder, -
-- F.3d ---, 2013 WL 2128318 (9th Cir. May 17, 2013). On June 13, 2013, the Court issued an
interim order, directing the parties to present their positions on how the Court should proceed
and to indicate the necessity of presenting fher evidence to the Court. On June 18, 2013, the
DHS fled a one-sentence motion, moving the Court to terminate proceedings without prejudice.
On June 20, 2013, the respondent, through counsel, opposed the DHS's motion and moved the
Court to instead terminate proceedings with prejudice. Afer considering the parties' positions,
the Court will terinate the case without prejudice.
I its most recent decision, the Court fund the respondent removable. (Decision and
Order of the Immigration Judge, Mar. 20, 2013.) At that point in proceedings, the DHS was
pursuing only one charge of removability: that the respondent was removable as an alien who
had been convicted of a crime involving moral turpitude ("CIMT") within fve years of
A087 008 675 1 July 1, 2013
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admission fr which a sentence of one year or longer may be imposed. (Id. at 1.) The DHS
supported this charge with a fctual allegation that the respondent had been convicted of a
violation of section 69 of the Califria Penal Code, resisting an executive offcer. (Id.) The
Court frst conducted a categorical analysis and fund that the respondent had not been convicted
of a crime tat is categorically a CIMT. (Id. at 1-2.) The Court next conducted a modifed
categorical analysis and fund that, considering only the judicially noticeably documents, ''the
record is inconclusive as to whether the respondent was convicted of a CIMT." (Id. at 2-3.)
Finally, the Court proceeded to the "third-step" analysis outlined by the Attorey General in
Silva-Trevino. (Id. at 3 (citing Matter of Alaro, 25 l&N Dec. 417, 423 (BIA 201 1)).) The Court
specifcally noted that "the Immigation Judge should only proceed to the third step if the second
step is inconclusive." (Id. at 4 (citing Matter of Ahortalejo-Gman, 25 l&N Dec. 465 (BIA
201 1)).) Using this third-step analysis, the Court fund that the respondent had been convicted
of a CIM and was therefre removable. (Id. at 5.)
On May 17, 20 13, the Court of Appeals fr the Ninth Circuit published a precedential
decision in which it held that the third-step analysis established by the Attorey General in Silva
Trevino is impermissible. Olivas-Motta, 2013 WL 2128318. I that decision, the Ninth Circuit
held that CIMT analysis is not to be distinguished fom other crime analysis and thus the
immigation courts are limited to the categorical and modifed categorical approaches. Id. Due
to the Ninth Circuit's decision, the BIA remanded this case back to the Court. (Decision of the
Board of lmmigration Appeals, Jun. 1 1, 2013.)
Applying Olivas-Motta to this case requires the Court to conclude its inquiry afer
conducting the modifed categorical analysis. Since neither the Ninth Circuit's precedential
decision in that case nor the BIA's remand in this case disturb how the categorical and modifed
categorical analyses are to be conducted, the Cour incororates by refrence its complete
analysis regarding the categorcal and modifed categorical approaches and the attendant fndings
fom its March 20, 20 13 order into this decision.
In the March 20, 2013 order, the Court fund that applying the modifed categorical
analysis led to the conclusion that the record is inconclusive as to whether the respondent had
been convicted of a CIMT. Had the Court ended its inquir there, as it is now required to do, the
Court would have been legally compelled to fnd that the DHS had not met its burden of
establishing reovability and to terinate proceedings. As the Court is now bound by the Ninth
Circuit's precedential decision, and its fndings under the categorical and modifed categorical
approaches remain intact, the Court must and does conclude that the OHS has not met its burden
to establish removability and the proceedings will be terminated without prejudice.
However, the BIA's decision to remand this case gives te Court pause. As te appellate
body with reviewing jurisdiction over the Court, the BIA did not disturb the Court's fndings or
analysis under the categorical and modifed categorical approaches. Given the interening
change in law, the BIA could have fund, as a matter of law, that the Court is now prohibited
fom proceeding to the third step, that the OHS had not met its burden of establishing
removability, and that it was compelled to terinate proceedings. However, the BIA instead
chose to remand the matter to this Court to revisit the issue of removability. Presumably, then,
the BIA fnds that there was some fctual or legal eror in the Court's original categorical and
A087 008 675 2 July 1, 2013
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\:
modifed categorical analysis or that, notwithstanding the Ninth Circuit's holding that the Court
may not procee beyond the modifed categorical step, there is some additional analysis that the
Court must conduct. Accordingly, the Court respectflly seeks guidance fom the BIA as to how
it should procee in this matter, and will certif the case to the BIA fr that purpose.
ORDERS
IT IS ORDERED that these proceedings are terminated without prejudice.
IT IS FURTHER ORDERED that the matter is certifed to the Board of Immigation
Appeals, consistent with the regulations as stated below, fr clarifcation of the legal
issues implicated herein.
The Court certifes this case back to the BIA. The parties are hereby notifed of the
provisions of Title 8 of the Code of Federal Regulations, Section 1003.7, which provides as
fllows:
Whenever, in accordance with the provisions of Sec. 1003.l(c), a case is certifed to the
Board, the alien or other party afected shall be given notice of certifcation. A Immigation
Judge or Service ofcer may certify a case only afer an initial decision has been made and
befre an appeal has been taken. If it is known at the time the initial decision is rendered that te
case will be certifed, the notice of certifcation shall be included in such decision and no frther
notice of certifcation shall be required. If it is not known until afer the initial decision is
rendered that the case will be certifed, the ofce of the Service or the Immigation Court having
administrative contol over the record of proceeding shall cause a Notice of Certifcation to be
sered upon the parties. In eiter case, te notice shall infr the parties that the case is required
to be certifed to the Board and that they have the rigt to make representations befre te Board,
including the making of a request fr oral argument and the submission of a brief. If either party
desires to submit a brief, it shall be submitted to the ofce of the Service or the Immigation
Court having administative control over the record of proceeding fr transmittal to the Board
within the time prescribed in Sec. I 003 .3( c ). The case shall be cerifed and frarded to the
Boad by the offce of the Service or Immigration Court having administrative jurisdiction over
the case upon receipt of the brief, or upon the expiration of the time within which the brief may
be submitted, or upon receipt of a written waiver of the rigt to submit a brief. The Board in its
discretion may elect to accept fr review or not accept fr review any such certifed case. If the
Board declines to accept a certifed case fr review, the underlying decision shall become fnal
on the date the Board declined to accept the case.
cc: The Respondent
Mr. Landry fr the respondent.
Mr. Wities fr the OHS.
A087 008 675 3

Immigation Judge
July 1, 2013
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