Ruben Dario Sanchez Esquivel, A035 727 884 (BIA July 19, 2013)

7/27/2019 Ruben Dario Sanchez Esquivel, A035 727 884 (BIA July 19, 2013)

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Bracamonte Jose A, EsqLaw Oices of Jose A Bacamonte2627 Noh Third Street, Ste 104Phoenix A 85004-0000

US Department ofJusice

Executive Oce r Immigraon Revew

Board of Imigraton AppealsOce of the Clek

5107 Jebug l'ik, Sute 2000Fas Crch. Vn 22041

HS/ICE Oce of Chief Counsel TUSP. Box 25158Phoenix, A 85002

Name: SANCHEZESQUIVEL, RUBEN D.. A 035-727-884

Date of this notice 7/9/2013

closed s a copy of the Board's decson and order the above-rereced case.

closre

n Mbs:Puy, Rgr

Scerely,

D cDona CarChe Clerk

willames Dckt

Cite as: Ruben Dario Sanchez Esquivel, A035 727 884 (BIA July 19, 2013)


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A0 727 884

n gh o he regong we onde ha he DS h no ared burden o provng hahe responden s removabe prsuan o seon 237(a(2(A( o he A No oer removahrges are rreny pendng agans he resonden moreover and herere he proeedngswere propery ermnae

ORDER: The appea s dsmssed d he remova proeedngs e ermnaed

1 The DS nay hged he responden wh removab der seon 237(a(2(A( ohe A, b he maon udge dsmssed ha harge. e DS does no presenyhaenge ha ape o he aon dge's deson

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Cite as: Ruben Dario Sanchez Esquivel, A035 727 884 (BIA July 19, 2013)


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- .J

UNITED STATES DEPARTMENT OF JUSTICE

XCUIVE FFICE FOR IMMIGT REVIEWITD STATES IMMIGTION COURTTUCSON ARIZONA

File A03527-84 ovember 29, 2011

the atter of

REN DARIO SNCHEESQUIVL IN RMOVAL PROCEEDINGS

RESPONDNT

CHARGS Section 237(a) (2) (A) (iii) ofNationality Act (Act) : alienadmission has been convicted

the Imigraon ad at any time (aJ r of an aggrae : -.c; -

felony as defined in Section 101(a) (43)S f e RAct crime of violence (as defined in n :.nof Title 18 United States Code but ng .includig a purely political offense) fS!i a

:qterm of imprisonment odered is at least ,:year; Section 237(a) 2) (A) (ii) of the Igaad Nationality Act that any time after . 7admission respondent has been convicted of twocrimes involving moral turpitude which did notarise from a single scheme of crimialmisconduct

APPLICATIOS: Motion to terminate.

O BEHALF F RESPONDENT: JOSE A BRAMNTE

O BLF F DHS: ATTHW KUF

AL DCISIO F TH IMMIGRATON JDGE


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'

espnen appears be an a mae aien naive

a ciizen Panama wh was pace in remva prceeings by

e issance a Nice Appear ae March 22 200 ha

cmen was serve pn respnen n March 26 200 an has

ben amie in he recr prceeings as xhbi

he Gvernmen has ha case inrce an

aina charging cmen a rm I26 which makes rher

aegains an ges an aiina charge ha cmen ise Nvember 6 200 an was serve n he respnen n

Nember 6, 200

he respnen wh is a ciizen r naina

Pnama, was aie as a aw permanen resien he

Uie Saes n Apr 20 979 hereaer n Janary

99, he respnen was cnvice aggravae riving r

bing in aca physica cnr a vehice whie ner he

ience inxicaing qr r rgs (aggravae DUI) in

vain Arina evise Sae Secns 28383(a) () an

ws senence a erm imprisnmen six years

As a res ha cnvicin he rmer Immigrain

a Narazain Servce n March 22 200 isse a Nice

Apear charging he respnen wih remvabiiy ner Secin

27(a) (2) (A) (ii) he Ac in ha a any ime aer

amissin he was cnvice an aggravae eny prsan

Scin (a) (43) () a crime vience

wing he issance he NA, he NS hen

35727884 2 Nvember 29 20


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carge he responen wih an aiional grou of removabiliy

uer Section 23a2A ii, in ha at any time afer

aission, he was convice of wo or more crimes involving

ral urpiue which i no arise from a single scheme of

ciminal misconuc

As he oar ischarge he NS an pointe to a May

3 1999 conviction for aggravae UI", again in violaion of

A rzona Revise Statue Section 281383{a 1 For hiscnvicion, responen receive a senence of a term of

iprisonment for 1 years

On ecember 18, 21, a prior mmigraion Juge

smisse the charge of removabiliy uner Section

2a2 {A{iii of he Ac, aggravate felony - crime of

volence, bu susaine he charge uner Section

2{a 2{A ii, wo or more crimes involving moral urpiue

nt arising ou o a sngle scheme o criminal misconuct

This Orer in conjuncion with subsequen preceen

issue by both he oar of mmigraion Appeas {he A an

te Ninh Circui, cause a liany of appellae ajuication in

responents case

Ultimaely he responen who was moving o have his

case reconsiere in ight of he Ninh Circuit's ecison in

Hernanez-Marinez vs Ashcrof, 329 F 3 111 9h Cir 23

prevaile resuling in he presen reman hus, he

eterminaive issue is whether responents two aggravate U

A35-2-884 3 November 29 211


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cvcto conttte crme vovg mor trtde der

Hrdezrtnez pr th rederng remv der Secton((2 () ( of the Act

LYSIS

The reodent' ttte o convcto ertnent

rt, rovde tht: ] ero gty o ggrvted o

vg or ct hyc contro whe der the nece o

toxctng qor or drg f the eron commt me DUI

ofee whe the ero' drver cene or rvege to

ve ended, cceed, revoked, or reed, or whe

trcton ced o the ero' drver' cee or

vege ret of ror U ofee or offene.

RIZO RVISD STTUT SCTION 28-383( (1

To roery dee the rmeter o the reent

cuon t necery to exme the htory o tgton

dng to Hendezrtez, r. Frt, n Loez-Me,te Bord of mmgrto Ae hed tht the oee decrbed

der Arzo eved Sttte Secton 28-1383( (1, ggrvted

I, w ctegorcy crme vovg mor trtde See

ee, 2 I& Dec 119697Uke me U offene, whch requre roof of

thg more thn the ct of drvng whe ntoxcted, the

oene decrbed nder Secto 28-1383( (1 reqre ct

ggrvg fctor tht ehnce the crme to the eve of mm

e roo tht the drer commtted DUI oene whe he

35-727884 4 November 29, 211


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nowlege that hs lcense was ether sspene cancelle

roe or refuse because of a reqre DUI offense See I

at 9496 See also State v Wllams 698 P 2d 732 at 734

(rzona 985) (holng tat there s or mples mens rea

eement o "nowng to sstan a convcton ner Secton 28

83(a) {) ) Ths whle smple DUI oes not rse to the level

o conuct nolvng moral turptue te aggraate offense

er Secton 28383(a) () oes. U.

Followng tat n TorresVarela te Boar of

mgraton Appeals sa that an offense commtte uner a

prallel provson of Arzona Revse Statte 28383 was not

rme nolng moral turptue TorresVarela 23 IN Dec.

86, subsecton A.

Subsecton A2 whch was at sse n TorresVarela

spra maes t an aggravate offense base upon a certan

ner of pror conctons for smple DUI Secton 28

383 (a) (2)

Accorngly the Boar of Immgraton Appeals

ecognze that an offense uner Subsecton A2 le a smple

DUI offense an nle an offense uner Sbsecton A oes not

r equre proof of a clpable ental state

TorresVarela 23N Dec 85

Wthot suc an element the offense proscrbe ner

Sbsecton A2 s nothng more than a sple DUI offense wch

s eeme an aggravate ofense base pon the nmber of pror

035727884 5 oveer 29 20


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convictions See d

Because nonturpitudinous conduct is not rendered

trpitudinous thouh multipe criminal convictions for the same

ofense the Boad of mmiration Appeals held that an offense

under Sub-sectio A2 as not a CMT See also Matter of Short

2 &N ec 36 at 39 (BA 989) (statin that "oral turpitue

cannot e vieed to arise from some undefined synerism by hich

to offenses are coine to create a crime invovin moraturpitude, here each crime individually does not meet moral

trpitude conduc)

In 2003 the inth Circuit added a distinction to the

CMT analysis under Ariona Revised Statute 28-383 See

Hrnande-Martine 329 F 3d 9 (decided under former Section

28692)

This held that a conviction under Section 28-

383(a) () is not cateoricaly a CIMT; the Court focused on the

fact that a person ho as violated this section hen either

they are drivin or have actual physica contro of a

vhicle d 8-9 Ariona Revised Statute 28-383(a)

As the Court pointed out, one may be convicted under

this Statute elipsis for sittin in one's one car in ones ondriveay ith the key in the inition and a bottle of ee in

one han HeraneMartine 329 F 3d 89

Just havin physical control over a vehicle hile

under the infuece of alcohol is not the type of despicabe

A352884 6 November 29 20


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cs of circumsances unerlining ReinaRoriuez v. UnieSaes, 65 F. 3 1182 a 1191 (9h ir 2011. The Govemeni his case submis ha he case of ilvaTrevino inicaes

a the Boar of Immigraion Appeals has allowe Immigraion

ges o consier he presenence repor o eermine if he

sponen was acually riving he vehicle.

Aiionally, he inicmens, alhough probably

ppore by verics ha foun he responen guily asarge in he inicmen, unforunaely are of lile impor

cause the charges were no limie o he ac of riving.

Iicmen R61773, xhibi 48A, an Inicmen R61774,

hibi 48B. ee also Youn v. oler, 634 F. 3 1014 a 1022(h ir. 2011) examining a charge or inicmen where he

nvicion ocumen conains a criical phase "as charge in he

iicmen)

Accoringly, he respecive verics an presenence

repor may no be only ocumens ha canno or shoul be use

saisfy his iniry.

ollecively, he verics an senencing orers

apear o properly limi he responens convicion so as o

pe rmi a eerminaion ha hey consiue IMT's

ecifically, hese ocuens in each respecive case conain

generic language reflecing ha he was convice of aggravae

r iving uner he iluence

Thus, if ake on heir faces, hese ocumens appearI

A035727884 8 ovember 29, 2011


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o lmt the respodets covcto to the act of drvg

However allowg these doumets to reflect the

espodet's covctos ecessarly rested o the act of

rvg ad thus costtutes CIM could lkely be msleadg

It s mportat to recogze the terplay of the

hases drvg drvg uder the fluece ad DUI as

hey perta to the operatve provsos of Secto 28-

383 (a) () he term DU - e drvg uder the fluece s

sed syoymously wt a covcto uder Secto 28383(a) ()

hs would be true regardless of whether the covcto rested

olely o the coduct of drvg or also o the coduct of

hyscal cotro

For example te synoymous ature of these terms are

emostrated by smply examg the uderlg dctmets

hch reflect the [dscerble the respodet was beg

harged for the geerc offese of aggravated drvg uder the

fluece that he ether drove or was actual physal

cotrol of the vehcle whle toxcated See Idctmet CR

6773 ad Idctmet CR-6774

Smlarly he Nth Crcut ackowledged

HeradezMartez a covcto for ggravated DUI uder Secto

28 -383(a) () - e aggravated drvg whle uder the

fluece ca occr we oe ether drves or has physcal

otrol of a vehcle whle toxcated See geerally

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\

nandez-Martinez, 329 F 3d 1119; See Id 1118 {using the

ase aggravated DU to refer to a conviction for "aggravated

ving or being in hysical control of a vehicle while under

t influence 11 )

Unfortunately, this ambiguity is only made more

ertain by toroughly examining the resective verdicts. On

of the declarations that the resondent was being found

lty for aggravate driving under the influence each verdicts to onder if a likely determination of guilt was for the

fense "as charged in the indictment. "

Again, asnoted above, the resonden as charged in

indictment was charged with the ofense of aggravated DUI

that he either drove or had hysical control of a vehicle

le intoxicated

Accordingy the verdict forms declaration that the

rsondent was guilty of "aggravated DUI" demonstrates nothing

e than as charged in the indictment, and that the resondent

s convicted or his act of driving a vehicle while having

sical control thereof See U S v FloresOrtea 152 Fedx 656 at 65 9th ir 2005} finding the generic terms in a

rdict orm were not sufficient when the verdict was reached

"s charged in the indictment and that the indictment failed

iit the ofense to the ters"

Thus te argument can be made that the verdict forms

il to cleary, convincingly, and unequivocably establish that

35-2-884 10 November 29, 2011


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te respondent ws convicted for conduct in ctull driving

vehicle while intoxicted See U S v NviddMrcos 367 F 3d

0 3 t 09 (9th Cir 2004) (finding tht generic reference to

sttute or conviction in n bstrct of judgment file to

monstrte conscious judicil nrrowing of the offense n

ore tht it did clericl ttept to bbrevite the offense)

A rgument cn be mde tht the sentencing orders

therefore re indete to stisf the modified ctegoriclnlsis As noted bove nd similr to the verdicts, these

or ders reflected forml judgment of guilt ws entered for

ggrvted driving uder the influence

In ddition to the concern tht conviction for

ggrvted DU refers to one who either drives or hs phsicl

c ontrol of vehicle the sentencing order is indeute to

estblish the sis of the respondents conviction for nother

iportnt reson Under Arizon lw, tril Courts

pronouncement of guilt is mde on the conduct of the jur hs

found the defendnt guilt of committing See generll Stte

v Boldin, 2 3 3d 279 t 284 (Arizon Ct App 2011)(explining process for otining judgent of conviction)

Ar izon R rim P 26 16(}

Accordingl the uthorit of tril ourt to

pronounce guilt nd ultite crete finl judgment of

c onviction is imited strictl to determintions de b the

jur Stte v Medor 64 2d 2 7 t 1261 (Arizon t App

A03 727884 11 November 2 2011


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(

82) stating that it is the fnction of the jry to determine

nnocence or gilt of the defendant on a charge) .

In this case, the jrys determination of gilt

emonstrates that the respondent was convicted of aggravated DUI

s charged in the indictment a determination that is binding

n the trial Corts prononcement of gilt. See FloresCorea,

52 Fed. Appx 657

As a reslt o sentencing orders for the same reasons the verdicts do not necessarily spport the Department of

omeland Secritys position that respondents conviction is

n ecessrily rested on im or his driving the vehicle.

However, an argment cold be made that if the record

f conviction was spplemented by additional docmentary

e vidence, the reslt wold be diferent. See e. g. , Flores

orea, 152 Fed. App. 657 stating that had the record of

conviction been spplemented with the information and/or jry

instrctions limiting te predicate acts necessarily fond by

he jry, the reslt cold have been different

For instance, if there were jry instrctions to the

efect that the jry were ordered to ind either that te

respondent was driving or had physical control o the vehicle,

hen it wold be plasible to assme that the verdicts

declaration that the respondent was gilty of aggravated driving

nder the inflence trly meant driving and not the shorthand

generic offense of aggravated U

A35727884 12 ovember 29, 211


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wvr vn uming hi ru cncuin

my i iing whr in crin c h vric

g n h h cnvcn wr fr h ffn

chrg in h inicmn n h inicmn h f

rfc whhr [inicrni ws rving r physicy

cnring h vhic whi inxic

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f h Au Prin Dprmn h pri hv ipu

h if h fnn ws cnvic n cun n n w h

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mn f w prir DU cnvicin wu umicy

inclu pr f h ffns f which h fnn i

cnvic s riginy n cun n n f h

inicn

nc vry clrly s h rcr wi rflc

h cun n h fnn gr h h fnn w

riving whi hi icn w supn r rvk n h h

A3 2884 13 Nvr 29 2


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did n fact have two pror DUI convctons."

Tus t was specfcally agreed tat te jury was not

be advsd of tes two elemens and that th Stae need not

hav tese elements proven by the jury nasmuc as te defndant

spulaed and agreed tat hes elemens would be ncluded n

te verdcts rendered by the jury.

Terefore the acual chargs and classfcaton for

wch he defndant stands convcted are aggravated drvng

under he nfluence wl lcense s suspnded or revoked (or

with two pror DUI convctons) a Class Four flony (count

one) ; and aggravated drvng wth an alcool concentraon of

10 or more whle lcense s suspended or revoked (or wth two

pror DUI convcons) a Class our felony (count two)

The documen s not sned bu tere s an ndcaon

of Ruthann Wggns Deputy Clerk. Thus there s an Order y the

Cour from here that the Cour wll conduct a earng on Aprl

28 et cetera et ctera ndcatng whether the defendan wll

b subjec to enhanced punshment.

Tus based upon the evdence n the record the Court

wll mak the followng fndngs of fact T respondent was

brn n Panama and can clam czenshp from Panama. Te

respondent s no a ctzen o naonal of te Uned as and

canno clam czenshp by brth naturazaton dervaton or

acquson

Te rspondent was admted o te Uned Sates at

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n Jun Puero Rco on or bou Apr 20 7 s lwu

pernen resden

Responden ws convced on Jnury 9 n he

rzon Superor Cour Mrcop Couny or he couns o Coun

O ne: rved drvng nder he nuence o lcohol whle

lcense s suspended or revoked n volon o ARS 2

() ( ) ( d) { ) {) (h) nd ( ) 2 () ( ) - 4

Responden ws senenced o erm o prsonmen ox yers n he Arzon Deprmen o Correcons he Cour

kes he concluson o lw h he responden hs no been

onvced o n rved elon hs cnno consue

cre o voence under Secon {) (4) {F) o he Ac nd

hereore he Cour wll no susn he chrge n he orn

Noce o Apper

he Cour nd h on My 0 9 n he Superor

Cour o Arzon Pm Coun he responden ws convced o

rved drvng wh n coho concenron o 0 or more

whle lcense ws suspended wh wo pror convcons n

voon o Arzon Revsed Sue Secon 2 () () {d)

{g) {) {h) nd () Secon 2 () () nd Secon

04 {c) or whch he er o mprs_onen posed ws 0 yers

he Cour nds h he cres h were lleed boh n he

ornl chrn doumen nd he ddon chrn docuen

dd no rse rom snge scheme o crmn msconduc

he Cour mkes he concuson o w h he oense

A057274 5 November 2 20


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r whch the respondent was convcted on January 999 does

cnsttute a crme nvolvng moral turptude. he ourt makes

ts concluson ased upon the fact that Exht 6 n the

rcord clearly ndcates that the jury dd not need to determne

eter the respondent was drvng or was n actual pyscal

cntrol as the partes stpulated to that fact and the defendant

s ound by that stpulaton and tereore the ssue of drvng

ws not an ssue for the jury to determne So le the jury

my have ndcated as charged n the ndctment the convcton

clearly ndcates that the respondent was drvng and thereore

tat crme nvolves a crme nvolvng mora turptude.

Hoever the evdence s not as clear for the

cnvcton on ay 30 999 hs nvolves an oense whch

ocurred on arch 99 nd the Government would ask that

the ourt consder the pre-sentence report n conjuncton th

the case o Slva-revno supra to determne that ased uponte statement o the offense on page 14 of Exht s-

exht that the respondent based upon the pre-sentence

report can be found to have been drvng the vehcle.

In ths case hoever there s no clear ndcaton of

wat the jur determned The statement of te oense s for

the ass o the dult Proaton Department and oter State

agences. here s no specfc clarcaton n the record or

n te mnute entry such as for the prevous convcton that

clearly ndcates that the defendant ether stpulated that he

A03727- Novemer 29 20


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was drvng or ha he jury made a spef fndng ha he

responden was drvng he vehe Therefore he Cour fnds

ha hs offense does no onsue a rme nvovng mora

urpude

Based upon he fa ha he Cour a hs me an

ony fnd ha he responden has been onved of one rme

nvovng mora urpude he Cour a hs me mus no

susan he harge under Seon 7a))A) ) of he A and

herefore he Cour a hs pon n me w ssue he

foowng order:

TEREFORE IT S ORDERED ha he responden's moon

o ermnae hese proeedngs e and s hereby GRTED

TOS

Uned Saes I mmgraon Judge

A0-77-4 7 November 9 0


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CERCATE AGE

hereby certfy that the attached proceedng before GE

HOS CHL OEARY n the matter of

RUBEN DARO SNCHEZESQUVE

A0357274

UCSON ARZONA

s an accurate verbatm transcrpt of the recordng as provded

y the Executve Offce for mmgraton Revew and that ths s

he orgnal transcrpt thereof for the fle of the Executve

ffce for mmgraton Revew

JOAN DEROSA (ranscrber)

DEPOSTON SERVCES nc

EBRUARY 0 202

(Completon Date

Ruben Dario Sanchez Esquivel, A035 727 884 (BIA July 19, 2013)

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Transcript of Ruben Dario Sanchez Esquivel, A035 727 884 (BIA July 19, 2013)