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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office of the Clerk

5107 Leesburg Pike, Suite 2000


Falls Church, Virginia 22041

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


Hoppock, Matthew Lorn DHS/ICE Office of Chief Counsel - KAN
The Hoppock Law Firm LLC 2345 Grand Blvd., Suite 500
10985 Cody Street, Suite 130 Kansas City, MO 64108
Overland Park, KS 66210

A -057

Date of this notice: 2/9/2017

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

Sincerely,

DonrtL CaAAJ
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Liebowitz, Ellen C
Guendelsberger, John
Malphrus, Garry D.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/

Cite as: M-M-S-, AXXX XXX 057 (BIA Feb. 9, 2017)


U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A 057 - Kansas City, MO Date:


FEB - 9 2017
In re:

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Matthew L. Hoppock, Esquire

ON BEHALF OF DHS: Melissa L. Castillo


Deputy Chief Counsel

CHARGE:

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


Convicted of aggravated felony

Sec. 237(a)(2)(A)(ii), l&N Act [8 U.S.C. 1227(a)(2)(A)(ii)] -


Convicted of two or more crimes involving moral turpitude

APPLICATION: Waiver of inadmissibility

The record is before us pursuant to a grant of the government's unopposed motion to remand
by the United States Court of Appeals for the Eighth Circuit. Mora-Santoyo v. Lynch, No. 15-
3714 (8th Cir. April 14, 2016). The respondent, a native and citizen of Mexico, and a lawful
permanent resident of the United States, was previously found ineligible for a waiver of
inadmissibility under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C.
1
1182(c), and found removable as charged. The record will be remanded.

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). We review
all other issues, including whether or not the parties have met the relevant burden of proof, and
issues of discretion, under a de novo standard. 8 C.F.R. 1003.l(d)(3)(ii).

On March 3, 1993, the respondent was convicted of an aggravated felony, which is also a
crime involving moral turpitude, namely sodomy ,. a class C felony, in violation of Mo. Rev. Stat.
566.060.3 (Exh. 2). On April 3, 2001, he was convicted of sexual conduct in the third degree
and two counts of sexual conduct in the first degree, and sentenced to 1 year and to 15 days
imprisonment, suspended (id). These were found to be crimes involving moral turpitude (I.J. at

1
The record indicates that the respondent was removed from the United States on December 3,
2015.

Cite as: M-M-S-, AXXX XXX 057 (BIA Feb. 9, 2017)


I ,
) -

057
.

5-6; BIA, Nov. 10, 2015, at 4). 2 Based on these convictions, the respondent was found
removable as charged under sections 237(a)(2)(A)(iii) (convicted of an aggravated felony -
sexual abuse of a minor) and 237(a)(2)(A)(ii) of the Act (two or more crimes involving moral
turpitude), 8 U.S.C. 1227(a)(2)(A)(iii), (ii).

Concerning his removability for his 1993 aggravated felony, the respondent qualifies for a

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waiver of inadmissibility under former section 212(c) of the Act. Matter ofAbdelghany, 26 I&N
Dec. 254 (BIA 2014). The issue is the effect this waiver has on his removability for having been
convicted of two or more crimes involving moral turpitude, which occurred after the repeal of
212(c). In our previous decision, we found that although application of a waiver of
inadmissibility under section 212(c) of the Act waives his removability for having committed an
aggravated felony, it does not remove the crime from his record (BIA, Nov. 10, 2015, at 3).
Therefore, despite any 212(c) waiver, the 1993 crime may still be considered as one of the two or
more crimes of moral turpitude supporting removability under section 237(a)(2)(A)(ii} of the
Act.3

Before the court of appeals, the government requested that we reconsider our decision in
light of various decisions, including Board orders which found that under the type of
circumstances presented in the instant case, the application of a waiver under section 212(c) of
the Act can serve to waive the past crime as one of the two crimes of moral turpitude (Resp.
Remand Br. at 5-7).

We acknowledge that the Board has rendered decisions with varying outcomes as to the issue
at hand. See DHS Remand Br. at 11, n.7. Upon further evaluation, and in consideration of the
government's unopposed motion to remand, we determine the following. In the instant matter, a
waiver under section 212(c) of the Act will waive both removability for the aggravated felony
nature of the crime and waive the crime as one of the two crimes supporting removability for two
or more crimes involving moral turpitude. We distinguish this situation from that in Matter of
Balderas, 20 I&N Dec. 389 (BIA 1991), where a respondent was granted a waiver under 212(c)
of the Act, but later brought into new proceedings based on additional charges. As noted, section
212(c) waives the removability for the conviction, not the conviction itself. Although the
respondent's conviction remains valid, the waiver is available to waive both grounds of
removability simultaneously.

The DHS argues that under this view of the statute those who were granted relief in a
previous hearing may be rendered ineligible for a waiver in a second proceeding for a new crime;
whereas, a respondent, like the one here who is in one proceeding for both crimes, is able to use
2
The DHS acknowledges these crimes arose out of a single scheme of criminal misconduct
(DHS Remand Br. at n.2).
3
This being the Board's and the Immigration Judge's previous conclusion, we considered
whether the respondent could use cancellation of removal in conjunction with a waiver of
inadmissibility under section 212(c) of the Act, and found that he could not. See BIA Nov. 10,
2015 at 3, citing section 240A(a)(3) of the Act.

2
Cite as: M-M-S-, AXXX XXX 057 (BIA Feb. 9, 2017)
A 057
<Q.. JI

the waiver for both offenses. Although the DHS cites Matter of Balderas, supra, it is not a case
about eligibility for section 212(c) relief, but rather, it clarifies an important limitation on the
prospective effect of section 212(c) relief for repeat offenders, i.e. those who continue to commit
deportable offenses after having once been granted such relief.

As discussed above, a waiver under section 212(c) of the Act eliminates the removability

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stemming from the conviction at which the waiver is directed where a waiver has not been
previously granted regardless of whether that crime is one of two involving moral turpitude or is
an aggravated felony. In this regard, the respondent is correct to distinguish the Eighth Circuit's
decision in Munoz-Yepez v. Gonzales, 465 F.3d 347 (8th Cir. 2006) (Resp. Br. at 8-11). In that
decision, the court found that a waiver under section 212(c) of the Act did not remove an
aggravated felony from consideration in a later proceeding as a bar to an application for
cancellation of removal. See Munoz-Yepez, supra at 350. 1bis is not the issue before us.

As the respondent may be eligible to waive his removability for his 1993 offense under
section 212(c) of the Act, the record will be remanded for further proceedings and the entry of a
new decision.4

ORDER: The appeal is sustained and the record remanded for further proceedings and the
entry of a new decision.

Board Member Garry D. Malphrus respectfully dissents without separate opinion.

4
We point out, however, that even if the respondent can establish eligibility for a section 212(c)
waiver, he will still have the burden to establish that he warrants a favorable exercise of
discretion in light of his criminal history. See generally Matter of Edwards, 20 I&N Dec. 191
(BIA 1990).

3
Cite as: M-M-S-, AXXX XXX 057 (BIA Feb. 9, 2017)

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