U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virgm1a 22041

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Hurtado, Peter OHS/ICE Office of Chief Counsel - SEA
Peter Hurtado Attorney at Law 1000 Second Avenue, Suite 2900
119 1st Avenue South Seattle, WA 98104
Suite 450
Seattle, WA 98104

Name: O -R , J S . A 814

Date of this notice: 10/25/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Guendelsberger, John

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: J-S-O-R-, AXXX XXX 814 (BIA Oct. 25, 2017)
tJ.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 814 - Seattle, WA Date:

OCT 2 5 2017
In re: J S O -R

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Peter Hurtado, Esquire

APPLICATION: Cancellation of removal under section 240A(b) of the Act

This case is before the Board pursuant to a July 29, 2015, order of the United States Court of
Appeals for the Ninth Circuit, which granted the Government's unopposed motion to remand. The
appeal will be sustained in part, and we will remand the record to the Immigration Judge.

This matter was last before the Board on August 18, 2014, when we dismissed the respondent's
appeal from the Immigration Judge's decision, dated February 7, 2013, denying the respondent's
application for cancellation of removal under section 240A(b)(1) of the Immigration and
Nationality Act, 8 U.S.C. 1229b(b)( l ). In our decision, we agreed with the Immigration Judge's
determination that the respondent had not established that his removal would result in exceptional
and extremely unusual hardship to a qualifying relative. 1

The Immigration Judge found that the respondent's conviction under Wash. Rev. Code
9.41.270 is a firearms conviction under section 237(a)(2)(C) of the Act, 8 U.S.C.
1227(a)(2)(C), which rendered him statutorily ineligible for cancellation pursuant to section
240A(b)( l )(C) of the Act (IJ at 3-4). However, substantial intervening caselaw issued since the
Immigration Judge's decision warrants reconsideration of this issue. See Mathis v. United States,
136 S. Ct. 2243 (2016); Descamps v. United States, 133 S. Ct. 2276 (2013); Matter ofChairez
Castrejon, 26 l&N Dec. 819 (BIA 2016).

At all relevant times, Wash. Rev. Code 9.41.270 has provided as follows, in pertinent part:

(1) It shall be unlawful for any person to carry, exhibit, display, or draw any firearm,
dagger, sword, knife or other cutting or stabbing instrument, club, or any other
weapon apparently capable of producing bodily harm, in a manner, under
circwnstances, and at a time and place that either manifests an intent to intimidate
another or that warrants alarm for the safety of other persons.

1 We declined to address whether the respondent's criminal record prevents him from establishing

his eligibility for cancellation of removal.

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 814

Wash. Rev. Code 9.41.270 is "categorically overbroad" relative to the definition of "certain
fireann offenses" under section 237(A)(2)(C) of the Act. Because the state statute of conviction
includes conduct not covered by section 237(A)(2)(C) of the Act, which covers only misconduct
involving fireann s as defined in 18 U.S.C. 921, we consider whether the statute is divisible. See
United States v. Arriaga-Pinon, 852 F.3d 1195, 1198-99 (9th Cir. 2017).

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In Descamps, the Supreme Court explained that a criminal statute is divisible only if it (1) 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 is
a "categorical match" to the relevant generic standard. See Descamps, 133 S. Ct. at 2281, 2283.

Mathis reaffirms Descamps while clarifying an important point: disjunctive statutory language
does not render a criminal statute divisible unless each statutory alternative defmes an independent
"element" of the offense, as opposed to a mere "brute fact" describing various means or methods
by which the offense can be committed. Mathis, 136 S. Ct. at 2248.5. The Mathis Court explained
they need neither be found by a jury nor admitted by a defendant. Elements are ''those
circumstances on which the jury must unanimously agree." United States v. Vega-Ortiz, 822 F.3d
1031, 1035 (9th Cir. 2016). Here, the pertinent statute describes various means by which the
offense can be committed.

In addition, Washington's pattern jury instructions for criminal cases (WPIC) also demonstrate
that Wash. Rev. Code 9.41.270 lists alternative "means." l l A WPIC is entitled "Unlawful
Display of a Weapon-Elements" and states, in relevant part: "(l) That on or about (date), the
defendant [carried] [exhibited] [displayed] [or] [drew] a [fireann] [dagger] [sword] [knife] [cutting
or stabbing instrument] [club] [or] [any [other] weapon apparently capable of producing bodily
hann ]." Thus, as the statute lists alternative means, the statute is not divisible. Only when a state
statute is both overbroad and divisible do we employ the modified categorical approach. See
Marinelarena v. Sessions, 14-72003, 2017 WL 3611589, at 3 (9th Cir. Aug. 23, 2017).

Consequently, as the Immigration Judge and this Board are not permitted to employ the
modified categorical approach, the respondent's conviction does not render him statutorily
ineligible under section 237(A)(2)(C) of the Act.2 See U.S. v. Ochoa, 861 F.3d 1010 (9th Cir.
2017) (federal statute that illegal reentry defendant was previously convicted of having conspired

2 While the Immigration Judge found the respondent had not met his burden to show eligibility
for relief, citing Young v. Holder, 697 F.3d 976, 990 (9th Cir. 2012) (en bane), that Court held that
a "petitioner cannot carry the burden of demonstrating eligibility for cancellation of removal by
establishing an inconclusive record of conviction." Here, however, while the respondent admitted
at his immigration hearing that his offense involved a fireann (U at 3; Tr. at 15-17), Moncrieffe
acknowledged that its analysis for determining whether a particular crime of conviction is
categorically a crime involving moral turpitude "is the same in both" the removal and cancellation
contexts and Moncrieffe therefore cannot be read to inform the relevant dispute in Young, which
pertained only to the operation of the burden of proof when the modified categorical approach
applies. See Marinelarenav. Sessions, 14-72003, 2017 WL 3611589, at 6 (9th Cir. Aug. 23, 2017).

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 814

to violate, merely provided alternative means of committing single crime; thus, court could not
employ "modified categorical" approach in deciding whether alien's conviction qualified as
predicate offense).

Because the respondent is not statutorily ineligible for cancellation due to his conviction under
Wash. Rev. Code 9.41.270 and the statutory cap had been met for the fiscal year in which the

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Immigration Judge adjudicated the respondent's application, the Immigration Judge is required to
reserve his decision until such time as a grant becomes available under the annual limitation in a
subsequent fiscal year (Tr. at 46). See 8 C.F.R 1240.21 (c)(l).

We will therefore vacate the Immigration Judge's decision finding the respondent ineligible
for cancellation of removal under section 240A(b)(1)(C) of the Act due to his conviction under
Wash. Rev. Code 9.41.270 and will remand the record for further proceedings. In so remanding,
we intimate no opinion regarding the respondent's ultimate eligibility for relief.

Accordingly, the following orders will be entered.

ORDER: The appeal is sustained in part.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.

"1

Cite as: J-S-O-R-, AXXX XXX 814 (BIA Oct. 25, 2017)