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    Fernando Cardeas Cazares, A014 273 381 (BIA Jan. 27, 2017)

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    Immigrant & Refugee Appellate Center, LLC
    In this unpublished decision, the Board of Immigration Appeals (BIA) held that battery domestic violence under Nev. Rev. Stat. 200.485.1(a) was not a crime of violence under 18 U.S.C. 16(a) or a crime of domestic violence under INA 237(a)(2)(E)(i) because a battery in Nevada may be committed using nonviolent force. The Board further held that the respondent was not bound by his attorney’s prior contrary admission because of intervening case law making clear that the statute is not divisible. The decision was issued by Member John Guendelsberger and was joined by Member Patricia Cole and Member Ellen Liebowitz. Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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    Fernando Cardeas Cazares, A014 273 381 (BIA Jan. 27, 2017)

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    Immigrant & Refugee Appellate Center, LLC
    483 views5 pages
    In this unpublished decision, the Board of Immigration Appeals (BIA) held that battery domestic violence under Nev. Rev. Stat. 200.485.1(a) was not a crime of violence under 18 U.S.C. 16(a) or a crime of domestic violence under INA 237(a)(2)(E)(i) because a battery in Nevada may be committed using nonviolent force. The Board further held that the respondent was not bound by his attorney’s prior contrary admission because of intervening case law making clear that the statute is not divisible. The decision was issued by Member John Guendelsberger and was joined by Member Patricia Cole and Member Ellen Liebowitz. Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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    In this unpublished decision, the Board of Immigration Appeals (BIA) held that battery domestic violence under Nev. Rev. Stat. 200.485.1(a) was not a crime of violence under 18 U.S.C. 16(a) or a crime of domestic violence under INA 237(a)(2)(E)(i) because a battery in Nevada may be committed using nonviolent force. The Board further held that the respondent was not bound by his attorney’s prior contrary admission because of intervening case law making clear that the statute is not divisible. The decision was issued by Member John Guendelsberger and was joined by Member Patricia Cole and Member Ellen Liebowitz. Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    483 views5 pages

    Fernando Cardeas Cazares, A014 273 381 (BIA Jan. 27, 2017)

    Uploaded by

    Immigrant & Refugee Appellate Center, LLC
    In this unpublished decision, the Board of Immigration Appeals (BIA) held that battery domestic violence under Nev. Rev. Stat. 200.485.1(a) was not a crime of violence under 18 U.S.C. 16(a) or a crime of domestic violence under INA 237(a)(2)(E)(i) because a battery in Nevada may be committed using nonviolent force. The Board further held that the respondent was not bound by his attorney’s prior contrary admission because of intervening case law making clear that the statute is not divisible. The decision was issued by Member John Guendelsberger and was joined by Member Patricia Cole and Member Ellen Liebowitz. Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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    © All Rights Reserved
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    Download as pdf or txt
    of 5
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    The respondent, a lawful permanent resident of the US since 1965, was initially found removable for a 1986 drug conviction and a 2005 domestic violence conviction based on concessions made by his prior counsel. However, intervening case law called these concessions into question.

    The Immigration Judge initially found the respondent removable based on his concessions to a 1986 drug trafficking conviction and a 2005 domestic violence conviction.

    On remand, the Board considered whether the respondent could withdraw concessions made by prior counsel given intervening case law, and also examined whether the domestic violence statute of conviction was divisible or indivisible in light of recent Supreme Court precedent.

    U.S.

    Department of Justice

    Executive Office for Immigration Review

    Board of Immigration Appeals


    Office ofthe Clerk

    5107 Leesburg Pike, Suite 2000


    Falls Church, Virgm1a 22041

    Immigrant & Refugee Appellate Center, LLC | www.irac.net


    Stuchiner, Jeremiah Wolf, Esq. OHS/ICE Office of Chief Counsel - LVG
    Paladinlaw 3373 Pepper Lane
    P.O. Box 80537 Las Vegas, NV 89120
    Las Vegas, NV 89180

    Name: CARDEAS CAZARES, FERNANDO A 014-273-381

    Date of this notice: 1/27 /2017

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

    Sincerely,

    DonJtL caAAJ
    Donna Carr
    Chief Clerk

    Enclosure

    Panel Members:
    Cole, Patricia A
    Guendelsberger, John
    Liebowitz, Ellen C

    Userteam: Docket

    For more unpublished BIA decisions, visit


    www.irac.net/unpublished/index/

    Cite as: Fernando Cardeas Cazares, A014 273 381 (BIA Jan. 27, 2017)
    '

    U.S. Department of Justice Decision of the Board of Immigration Appeals


    Executive Office for lmrnigration Review

    Falls Church, Virginia 20530

    File: A014 273 381 -Las Vegas, NV Date:


    JAN 2 7 2017
    In re: FERNANDO CARDEAS CAZARES a.k.a. Fernando Cardenas Cazares

    Immigrant & Refugee Appellate Center, LLC | www.irac.net


    IN REMOVAL PROCEEDINGS

    APPEAL AND MOTION

    ON BEHALF OF RESPONDENT: Jeremiah Wolf Stuchiner, Esquire

    CHARGE:

    Notice: Sec. 237(a )(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -


    Convicted of aggravated felony (withdrawn)

    Sec. 237(a)(2)(B)(i), I&N Act [8 U.S.C. 1227(a)(2)(B)(i)] -


    Convicted of controlled substance violation (sustained)

    Sec. 237(a)(2)(E)(i), I&N Act [8 U.S.C. 1227(a)(2)(E)(i)] -


    Convicted of crime of domestic violence (sustained)

    APPLICATION: Remand

    This case is before the Board pursuant to a May 26, 2016, order of the United States Court of
    Appeals for the Ninth Circuit, which granted the Government's unopposed motion to remand.
    The Government sought remand for the Board to consider whether the respondent is bound by
    previous counsel's concession of removability under section 237(a )(2)(E)(i) of the I&N Act,
    8 U.S.C. 1227(a)(2)(E)(i). On remand, the respondent seeks to nullify counsel's concession and
    moves to remand the record to apply for relief. The Department of Homeland Security ("DHS")
    has not filed a response. The appeal will be sustained and the record will be remanded for
    further proceedings.

    We review findings of fact for clear error, including credibility findings. See 8 C.F.R.
    1003.l(d)(3)(i); see also Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007); Matter of S-H-,
    23 I&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all
    other issues de novo. See 8 C.F.R. 1003.l(d)(3)(ii).

    The respondent, a native and citizen of Mexico, was admitted as a lawful permanent resident
    of the United States in 1965. In 1986, a Nevada district court convicted the respondent of selling
    a controlled substance, heroin, under Nevada Revised Statute 453.321, with a suspended
    10-year sentence (l.J. at 2; Exh. 2). In 2005, the respondent was convicted of Battery
    Constituting Domestic Violence, pursuant to Nevada Revised Statute 200.481 and 200.485,
    and sentenced to 2 days in jail, community service, and counseling (l.J. at 2; Exh. 2). The
    respondent, through his former counsel, admitted the allegations of fact concerning the drug
    offense and the domestic violence offense and conceded the charges of removability (Tr. at 5, 7).

    Cite as: Fernando Cardeas Cazares, A014 273 381 (BIA Jan. 27, 2017)
    A014 273 381

    Based on the respondent's August 16, 2011 concessions, the Immigration Judge found him
    subject to removal (I.J. at 2; Tr. at 5).

    First, as an initial matter, the respondent asserts on remand that his 1986 conviction for drug
    trafficking may not be considered for any purpose because the DHS withdrew the aggravated
    felony charge (Respondent's Brief at 2-3). See Ledezma-Galicia v. Holder, 636 F.3d 1059

    Immigrant & Refugee Appellate Center, LLC | www.irac.net


    (9th Cir. 2010) (holding that convictions occurring prior to November 18, 1988, may not serve as
    a basis for removal under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act).
    However, we affirm our previous determination that, for definitional purposes, an alien is an
    aggravated felon irrespective of the date of conviction. See section 10 l (a)(43) of the Act
    (undesignated closing paragraph); see also Ledezma-Galicia v. Holder, supra, at 1079 n.25.
    Thus, while the respondent's conviction for selling a controlled substance may not serve as a
    basis for deportability under section 237(a)(2)(A)(iii) of the Act, it remains an aggravated felony
    by definition for other purposes.

    Second, turning to the respondent's concession of removability through counsel, an alien is


    bound by "a distinct and formal admission made before, during, or even after a proceeding by an
    attorney acting in his professional capacity." Matter of Velasquez, 19 I&N Dec. 377, 382
    (BIA 1986). Where an attorney's judicial admission is tactical, only egregious circumstances
    that are so unfair as to produce an unjust result will warrant setting aside its binding effect. Id.
    Such egregious circumstances include situations "where the propriety of an admission or
    concession has been undercut by an intervening change in law." Santiago-Rodriguez v. Holder,
    657 F.3d 820, 831-32 (9th Cir. 2011); see also Matter of Velasquez, supra, at 382-83.

    Upon review, we agree with the respondent that his prior attorney's concession is not binding
    with respect to the charge of removability under section 237(a)(2)(E)(i) of the Act, based on a
    crime of domestic violence. Specifically, the respondent contends that his conviction for battery
    domestic violence, in violation of section 200.485. l (a) of the Nevada Revised Statutes, does not
    qualify as a crime of domestic violence under section 237(a)(2)(E)(i) of the Act
    (l.J. at 2; Respondent's Brief at 2-3). Reviewing the question de novo, we agree. See 8 C.F.R.
    1003.l (d)(3)(ii).

    At the time of his offense, section 200.485.1 of the Nevada Revised Statutes proscribed, in
    relevant part, "a battery which constitutes domestic violence pursuant to NRS 33.018." Section
    200.481. l (a) of the Nevada Revised Statutes, in tum, defined "battery" as the "willful and
    unlawful use of force or violence upon the person of another." (emphasis added.) Nevada case
    law establishes that, "at a minimum, battery is the intentional and unwanted exertion of force
    upon another, however slight." Hobbs v. State, 251 P.3d 177, 179-80 (Nev. 2011).

    Because a "battery" under section 200.485.1 of the Nevada Revised Statutes may be
    committed using nonviolent force, we agree with the respondent that his conviction under this
    statute does not categorically qualify as a crime of violence, and therefore a crime of domestic
    violence, under section 237(a)(2)(E)(i) of the Act (l.J. at 2). See Matter of Velasquez, 25 I&N
    Dec. 278, 283 (BIA 2010) (concluding that the "physical force" necessary to establish that an
    offense is a "crime of domestic violence" for purposes of section 237(a)(2)(E)(i) of the Act must
    be "violent" force, that is, force capable of causing physical pain or injury to another person).

    Cite as: Fernando Cardeas Cazares, A014 273 381 (BIA Jan. 27, 2017)
    A014 273 381

    Furthermore, given the intervening case law, we agree that the respondent's statute of
    conviction is indivisible despite the disjunctive phrasing. See Matter ofChairez ("Chairez Ill'),
    26 I&N Dec. 819 (BIA 2016) (holding that the concept of divisibility as embodied in Descamps
    v. United States, 133 S. Ct. 2276, 2283 (2013), and Mathis v. United States, 136 S. Ct. 2243
    (2016), "applies in immigration proceedings to the same extent that it applies in criminal

    Immigrant & Refugee Appellate Center, LLC | www.irac.net


    sentencing proceedings"). In Mathis, the Supreme Court clarified that "disjunctive statutory
    language does not render a criminal statute divisible unless each statutory alternative defines an
    independent ' element' of the offense." Chairez III, supra, at 822 (citing Mathis v. United States,
    supra, at 2248); see also Rendon v. Holder, 164 F.3d 1077, 1086 (9th Cir. 2014).

    With regard to the statute's elements, "a state court decision definitively answers the
    question." See Mathis v. United States, supra, at 2256. The respondent's statute of conviction is
    indivisible because a Nevada jury need not agree on whether a defendant's violation of section
    200.485.1 of the Nevada Revised Statutes involved ''violent force." See Byars v. State, 336 P.3d
    939, 949 (Nev. 2014) (finding that the prosecutor need only prove that "the defendant actually
    intend[ed] to commit a willful and unlawful use of force or violence upon the person of another"
    to establish that the defendant committed battery in violation of Nevada law).

    Thus, insofar as the respondent's statute of conviction is overbroad and indivisible relative to
    the generic definition of a crime of domestic violence under section 237(a)(2)(E)(i) of the Act,
    the respondent's prior counsel's concession of this charge of removability is no longer binding
    because it is undercut by current law. Santiago-Rodriguez, supra. (l.J. at 2). We therefore
    conclude that the respondent is permitted to withdraw his admissions to the factual allegations
    and his concession of the charge made pursuant to section 237(a)(2)(E)(i) of the Act. See Matter
    of Velasquez, supra, at 382-83.

    Accordingly, we will remand for further proceedings. On remand, the parties may address
    the issues related to the respondent's removability as charged, or based on any other charge the
    DHS may lodge in the course of remanded proceedings. The Immigration Judge should also
    1
    consider the respondent's eligibility for relief from removal as appropriate. The parties should
    have the opportunity to submit additional evidence and arguments to assist the Immigration
    Judge in issuing a new decision.

    The following orders will be entered.

    1
    With respect to his 1986 drug trafficking conviction, the Immigration Judge observed that
    although the respondent is eligible to apply for a waiver under former section 212(c), an alien
    cannot be granted both cancellation of removal and a waiver under section 212(c) in the same
    proceeding (l.J. at 3-4). See section 240A(c)(6) of the Act; see also Garcia Jimenez v. Gonzales,
    488 F.3d 1082 (9th Cir. 2007). On remand, if the Immigration Judge determines that the
    domestic violence charge cannot be sustained, the need for relief on that point would be moot
    and the respondent would be free to seek a waiver under section 212( c).

    Cite as: Fernando Cardeas Cazares, A014 273 381 (BIA Jan. 27, 2017)
    ,
    A014 273 381

    ORDER: The respondent's appeal is sustained.

    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.

    Immigrant & Refugee Appellate Center, LLC | www.irac.net

    Cite as: Fernando Cardeas Cazares, A014 273 381 (BIA Jan. 27, 2017)

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