U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 Leesburg Pike, Suite 2000 Falls C/111rc/1, Virginia 2204/

Gonzalez, Deborah Gonzalez Law Offices, Inc. 450 Warren Avenue East Providence, RI 02914-3840

OHS/ICE Office of Chief Counsel - BOS P .0. Box 8728 Boston, MA 02114

Immigrant & Refugee Appellate Center | www.irac.net

Name: CHAVARRIA, WILBER JOSE

A029-961-066

Date of this notice: 2/13/2012

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.

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Wilber Jose Chavarria, A029 961 066 (BIA Feb. 13, 2012)

U.S Department of Justice

..

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review Falls Church, Virginia 22041

File:

A029 961 066 - Boston, MA

Date:

In re: WILBER JOSE CHAVARRIA

IN REMOVAL PROCEEDINGS

FEB 13 2012

MOTION ON BEHALF OF RESPONDENT: APPLICATION: Reconsideration Deborah Gonzalez, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

The respondent has filed a motion to reconsider the Board's decision ofDecember 6, 2010. That decision affirmed an Immigration Judge's determination that the respondent was removable as charged and ineligible for cancellation of removal. The motion will be denied. We review the findings of fact, including determinations of credibility, made by the Immigration Judge under a "clearly erroneous" standard. 8 C.F.R. 1003.l (d)(3)(i). discretion, under a We review all other issues, including whether or not the parties have met the relevant burden of proof, and issues of

de novo standard.

8 C.F.R. 1003. l(d)(3)(i).

The respondent's motion argues that we erred in finding his convictions in 1998 and 2003 under Rhode Island General Law (R.l.G.L.) 11-5-3 were for crimes involving moral turpitude. He contends that we failed to properly consider the Rhode Island Supreme Court's holding that reference must be made to the evidence presented during the trial or hearing to determine whether a conviction under R.I.G.L. 11-5-3 involves assault or battery or both (Resp. Motion at 6). 969 A.2d 667 (R.I. 2009). While we did not cite

State v. Cardone,

State v. Cardone, supra,

See
we

considered the respondent's arguments that he might have been convicted of battery rather than assault and found them unavailing (BIA, Dec. 10, 2010, at 2, fn. 2). In his motion, the respondent agrees with the Immigration Judge and this Board that the statute under which he was convicted considers conduct that might or might not involve moral turpitude (Resp. Motion at 5). In our previous decision , we stated that the statute under which the respondent was convicted did not categorically involve moral turpitude. We, therefore, applied both a modified categorical approach and the third stage inquiry under

Maller of Silva-Trevino,

24 l&N Dec. 687

(A.G. 2008), to the respondent's situation. We found the record clearly supported that his conviction involved moral turpitude (BIA, Dec. 10, 2010, at 2). Contrary to the respondent's argument in his motion, neither this Board nor the Immigration Judge simply assumed the respondent had been convicted of assault and not battery based on the criminal complaint. Rather, we reviewed both the conviction record and reliable evidence beyond the formal record of conviction to reach our conclusion. Notably, the respondent does not contest the Board's reliance on this evidence. We will, therefore, deny the motion.

Cite as: Wilber Jose Chavarria, A029 961 066 (BIA Feb. 13, 2012)

.' . AG29.961 066

. r

FOR

BOARD

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Wilber Jose Chavarria, A029 961 066 (BIA Feb. 13, 2012)