U.S.

Department

of Justice

Executive Office for Immigration Review

,

Board ofImmigration Appeals Office ofthe Clerk

510i Lee.churg Pike. Si1ilr 2000 Falls Churd1, Virginia :!2041

Wlllmoth, Jonathan Wlllmoth Immigration Law, LLC 415 Delaware SL, suite #3A Kansas City, MO 64105

Office of the District Counsel/KAN

2345 Grand Blvd., Suite 500

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Kansas City, MO 64108

Name: IBEH, KINGSLEY CHIAGOZIE EZINWA

AOSS-574-599

Date of this notice: 11141201O

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

Donna Carr Chief Clerk

Enclosure

Panel Members:
Grant, Edward R. Malphrus, Garry D. Miller, Neil P.

Cite as: Kingsley Chiagozie Ezinwa Ibeh, A055 574 599 (BIA Nov. 4, 2010)

U.S.

Department of Justice

Executive Office for Immigration Review

'

Board ofImmigration Appeals Office of the Clerk

S 10? Leesblll'g Pih. Suitt 2000 Falll Clrurch. Virginia JJ041

IBEH, KINGSLEY CHIAGOZIE EZINWA

A# 055-574 599 2304 S. TuckerTer. Pittsburg, KS 66762

..

Office of the District Counsel/KAN 2345 Grand Blvd., Suite 500 Kansas City, MO 64108

Immigrant & Refugee Appellate Center | www.irac.net

Name: IBEH, KINGSLEY CHIAGOZIE EZINWA

A055-574-599

Date of this notice: 11/412010

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 attomey 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.
Sincerelv.

DOYutL ca.NL)
Donna Carr Chief Clerk

Enclosure

Panel Members:
Grant, Edward R. Malphrus, Garry D. Miller, Neil P.

Cite as: Kingsley Chiagozie Ezinwa Ibeh, A055 574 599 (BIA Nov. 4, 2010)

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

Decision of the Board of Immigration Appeals

FallsChu$ Vmdnia22041
File:
In re:

AOSS 574 599 Kansas City, MO KINGSLEY CHIAGOZIE EZlNWA ;mEH

Date :

NOV 04 2010

IN REMOVAL PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Jonathan Willmoth, Esquire

Jayme Salinardi Assistant Chief Counsel

CHAR.GE: Notice: Sec. 237(a)(2)(A)(ii), I&N Act (8 U.S.C. 1227(a)(2)(A)(ii)] Convicted of two or more crimes involving moral turpitude

APPLICATION:

Termination of proceedings

The respondent, a native and citizen of Nigeria, appeals from the decision of the Immigration Judge, dated July 7, 2010, tinding him removable as charged. The appeal will be sustained and the proceedings terminated. We review the findings of fact, including determinations of crechoility, made by the Immigration Judge under a ''clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). We review all other issues, including whether or not the parties have met the relevant burden of proo and issues of discretion, under a de novo standard. 8 C.F.R. 1003.l(d)(3)(i). The only issue on appeal is whether or not the Department of Homeland Security ("DHS") has demonstrated that the respondent , s 2005 conviction for battery and criminal damage to property in violation ofKansas Statutes 2 l 3412 and 213720b(3) is for a crime invoMng moral turpitude. Such a finding results in the respondent's removability under section 237(a)(2)(A)(ii.) of the Act (two or more crimes involving moral turpitude). The only evidence of record indicating the nature of this crime is the arraignment and journal entry of the municipal court (Exh. 1, pg. 7) and the incident report completed at the time of the respondent,s arrest (Exh. 2).

Cite as: Kingsley Chiagozie Ezinwa Ibeh, A055 574 599 (BIA Nov. 4, 2010)

A055 574 599

. I
.

Applying the analysis discussed in Matter ofSilva-Trevino, 24 I&N Dec 687 (A.G. 2008), 1 the Immigration Judge first found that the respondent's 2005 battery crime was not categorically a crime involving moral turpitude. as battery may involve only a general intent and does not necessarily involve the requisite evil intent or corrupt mind associated with moral turpitude (I.I. at 4) (citations omitted). The Immigration Judge next applied the modified categorical approach, but under this approach he also found the evidence to lack sufficient specificity. The Immigration Judge specifically noted that under our decision in Matter ofMilian-Dubon, 25 I&N Dec 197 (BIA 2010), he was unable to consider the police report under the modified categorical approach. as there is no evidence that it was incorporated into the respondent's guilty plea. The Immigration Judge also properly distinguished Solis v. Mulrasey, S 15 F.3d 832 (8th Cir. 2008). which allowed consideration ofa police report, as that case involved the issues of relief and credibility rather than removability.
.

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After determining that neither the categorical nor the modified categorical approach answered the question, and finding the record inconclusive, the Immigration Judge applied the third approach outlined in Matter ofSilva-:Irevino, supra. The Immigration Judge considered additional evidence that he deemed necessary or appropriate to resolve the moral turpitude question. In this final step, he considered the police report and found that the crime did involve moral turpitude.

The respondent raises several arguments against the Immigration Judge's use of the police report and to the application of the analysis ofMatter ofSilva-Trevi110, supra. He first argues that there is no realistic probability that the battery crime would be a crime involving moral turpitude. This argument is without merit. While simple assault or battery is generally not deemed to involve moral turpitude for purposes ofimmigration law, this general rule does not apply where an assault or battery
necessarily involves some aggravating dimension that significantly increases the culpability of the offense, such as the use of a deadly weapon, or an assau lt against a protected class. See Matter of Solon, 24 l&N Dec. 239 (BIA 2007); Matter of Sanudo, 23 l&N Dec. 968, 970-71 (BIA 2006); Maner ofFualaau, 21 l&N Dec. 475, 477 (BIA 1996). Clearly some battery crimes do involve moraJ turpitude and some do not. The respondent's primary argument is that the Immigration Judge's reliance on the police report was improper, as it was not incorporated into the journal entry of bis conviction. His argument, however, ignores the fact that the Immigration Judge did not use the police report during a modffied categorical analysis. Rather, the bnmigration Judge used it as evidence that be found necessary or appropriate to resolve the moral turpitude question, using the third approach outlined in Matter of Silva-1'rB11no, supra. .M the Attorney General explained in Matter of Silva-Trevino, supra. there

We find no merit to the respondent's argument that the holding ofMatter ofSilva-Trevino, supra, should not apply retroactively to convictions entered before the decision was issued. The respondent's reliance on INS v. St. Cyr., 533 U.S. 289 (2001), is misplaced. That case involved a determination ofthe retroactive applicability ofa statute rather than an interpretation of the law. We also note the United States Court ofAppeals for the Eighth Circuit's comments in Guardado-Garcia v. Holder, 2010 WL 3023659 (8 th Cir. 2010), apparently disapproving of the holding in Matter of Silva-1Tevi110, supra. Nonetheless. as the court's comments are dicta, we apply the Attorney Generars precedent decision to the case before us. See Matter ofSilva-Trevino, supra.
1

Cite as: Kingsley Chiagozie Ezinwa Ibeh, A055 574 599 (BIA Nov. 4, 2010)

AOSS 574 599

are situations in which the moral tuq>itude of a crime stands apart from the elements of the criminal offense itself. Here. the respondent was convicted of battery and, as discussed above, to find if the crime involved moral turpitude it must be determined if there was an aggravating filctor.

We do not find that the police report adequately supports a finding that the crime involved moral turpitude. The report &ils to show that the respondent acted with the requisite intent. A finding of moral turpitude requires finding that the respondent acted with some form of scienter. See Matter of Silva-1revino, supra. The police report fails to establish this element by clear and convincing evidence, as the respondent could have been guilty of simple assault. Further, it does not show that a deadly weapon was used, nor does it adequately demonstrate that the respondent and the victim were in a relationship that would place her in a prot ected class. As the record does not provide clear and convincing evidence that the respondent's battery crime was one involving moral turpitude, the following order will be entered.
,,

Immigrant & Refugee Appellate Center | www.irac.net

ORDER: The appeal is sustained and

Gany D. Malpbrus, Board Member, dissents from this decision without separate written opinion.

Cite as: Kingsley Chiagozie Ezinwa Ibeh, A055 574 599 (BIA Nov. 4, 2010)