U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 leesburg Pike, Suite 2000

Falls Church, Virgmia 22041

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Chan, R Linus OHS/ICE Office of Chief Counsel -BLM
Detainee Rights Clinic U of Minn Law (MSP)
School 1 Federal Drive, Suite 1800
190 Walter Mondale Hall Ft. Snelling, MN 55111
229 19th Avenue S
Minneapolis, MN 55455

Name: KUOT, ROMAN A 094-584-669

Date of this notice: 12/6/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: Roman Kuot, A094 584 669 (BIA Dec. 6, 2017)
 U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Sulle 2000

Falls Church, Virginia 22041

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KUOT, ROMAN OHS/ICE Office of Chief Counsel -BLM
A094-584-669 (MSP)
C/O OHS/ERO 1 Federal Drive, Suite 1800
13880· BUSSINESS CENTER DRIVE N Ft. Snelling, MN 55111
ELK RIVER, MN 55330

Name: KUOT, ROMAN A 094-584-669

Date of this notice: 12/6/2017

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. § 1292.5(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.

Sincerely,

DonrtL ctlAAJ
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Pauley, Roger

Userteam: !

Cite as: Roman Kuot, A094 584 669 (BIA Dec. 6, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive-Office for Immigration Review

Falls_Church, Virginia 22041

File: A094 584 669 - Fort Snelling, MN Date:

DEC 6 2017
In re: Roman KUOT
-

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Linus Chan, Esquire

ON BEHALF OF DHS: Cassondra Bly

Assistant Chief Counsel

APPLICATION: Termination

The respondent, a native and citizen of South Sudan, is a lawful permanent resident of the
United States. In a decision entered on June 21, 2017, an Immigration Judge granted the
respondent's motion to terminate, holding that the Department of Homeland Security ("DHS'') did
not establish, by clear and convincing evidence, that he is removable under section 237(a)(2)(E)(i)
of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (IJ at 2-3; Exh. 1). See
8 C.F.R. § 1240.8(a) (2017). The DHS's appeal of this decision will be dismissed.

The Board reviews findings of fact, including the determination of credibility, for clear error.
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 l&N Dec. 462 (BIA 2002). We review questions of law, discretion, or
judgment, and other issues de novo. 8 C.F.R. § 1003.l(d)(3)(ii).

It is undisputed that on February 6, 2017, the respondent was convicted of contributing to the
deprivation of a minor in violation of North Dakota Century Code (''NDCC") § 14-10-06(1)
(IJ at 2; Exh. 3). The DHS contends that the Immigration Judge erred in holding that pwsuant to
the categorical approach, the respondent's conviction was not a crime of child abuse, child neglect,
or child abandonment under section 237(a)(2)(E)(i) of the Act (U at 2-3; DHS's Br. at 3-7). See
Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013) (explaining the categorical approach); see also
Alonzo v. Lynch, 821 F.3d 951, 960 (8th Cir. 2016). The respondent has raised contrary arguments
in a brief in opposition (Respondent's Br. at 5-9).

The statute of conviction provides that "[a]ny individual who by any act willfully encourages,
causes, or contributes to the delinquency or deprivation of any minor is guilty of a
class A misdemeanor." NDCC § 14-10-06(1). The elements of NDCC § 14-10-06(1) are
encouraging, causing, or contributing to a minor's engagement in a "delinquent act" (U at 2-3).
See, e.g., State v. Azure, 520 N.W.2d 574, 575-76 (N.D. 1994). A "delinquent act," in turn, is
defined as any act designated a crime under the law, other than traffic offenses and offenses
applicable only to children (U at 3). Id at 576.

Cite as: Roman Kuot, A094 584 669 (BIA Dec. 6, 2017)
A094 584 669

The DHS correctly observes that we have broadly construed the term "child abuse'' for
purposes of section 237(a)(2)(E)(i) of the Act (DHS Br. at 3-5). However, the Immigration Judge
was correct in ruling that the term is not so broad that it encompasses contribution to a minor's
illegal conduct irrespective of whether such conduct is harmful or potentially harmful to the
minor's well-being (U at 2). See Matter of Soram, 25 I&N Dec. 378, 380-81 (BIA 2010);
Matter of Velazquez-Herrera, 24 I&N Dec. 503, 512 (BIA 2008). On the contrary, in

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Matter ofSoram and Matter ofMendoza Osorio, 26 l&N Dec. 703 (BIA 2016), we emphasized
that a key consideration in determining whether a child endangerment-type offense constitutes a
crime of child abuse is the likely risk of harm to the child. We therefore found that convictions
under a Colorado statute requiring a ''reasonable probability" of harm and a New York statute
requiring a person to act "in a manner likely to be injurious" were for crimes of child abuse. See
Matter ofMendoza Osorio, 26 l&N Dec. at 705-10 (New York statute); Matter ofSoram, 25 l&N
Dec. at 384-85 (Colorado statute). On the other hand, we noted that "there are child endangerment
statutes that do not require a sufficiently high risk of harm to a child to meet the definition of child
abuse, neglect, or abandonment under the Act." Matter ofMendoza Osorio, 26 I&N Dec. at 711.

Because the categorical approach requires examining what a state conviction necessarily
involved and not the facts underlying the case, it is necessary to"presume that the conviction rested
upon nothing more than the least of the acts criminalized" and determine whether even those acts
come within the generic offense. Moncrieffe v. Holder, 569 U.S. at 190-91 (internal quotation and
citation omitted). Contrary to the DHS's argument on appeal, we agree with the
Immigration Judge that there are certain malum prohibitum crimes which would constitute
"delinquent acts" pursuant toNDCC § 14-10-06(1) and not necessarily"impair0 a child's physical
or mental well-being" (U at 3; DHS's Br. at 7). See Matter of Mendoza Osorio, 26 l&N
Dec. at 706; see also Matter of Velazquez-Herrera, 24 l&N Dec. at 512. Along these lines, the
respondent's citation to State v. Azure, 520N.W. 2d at 576, establishes a realistic possibility that
North Dakota would prosecute a violation of NDCC § 14-10-6(1) in a case involving merely a
minor's entry into a liquor establishment, which (subject to certain exceptions) amounts to a
"delinquent act" (U at 3; Respondent's Br. at 7-8). See Villatoro v. Holder, 160 F.3d 872, 879
(8th Cir. 2014) (adopting the Supreme Court's realistic probability standard); see also
Matter ofFerreira, 26 I&N Dec. 415, 420-22 (BIA 2014). Therefore, we affirm the holding that
a conviction in violation ofNDCC § 14-10-6(1) categorically does not qualify as a crime of"child
abuse" within the meaning of section 237(a)(2)(E)(i) of the Act (U at 3). Further, the
Immigration Judge correctly ruled that it is improper to consider the actual conduct underlying the
respondent's conviction to reach a contrary conclusion regarding his removability (U at 3;
DHS Br. at 2). See Alonzo v. Lynch, 821 F.3d at 960.1

In view of the forgoing, we affirm the holding that the DHS has not established, by clear and
convincing evidence, that the respondent is removable pursuant to section 237(a)(2)(E)(i) of the
Act (U at 3). See 8 C.F.R. § 1240.8(a). Consequently, the Immigration Judge properly terminated
the proceedings (U at 3).

1 The DHS concedes thatNDCC § 14-10-6(1) is indivisible and the modified categorical approach
is thus inapplicable (DHS's Br. at 5). See Mathis v. United States, 136 S. Ct. 2243, 2249 (2016).

2
Cite as: Roman Kuot, A094 584 669 (BIA Dec. 6, 2017)
A094 584 669

Accordingly, the following order is entered.

ORDER: The appeal is dismissed.

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3
Cite as: Roman Kuot, A094 584 669 (BIA Dec. 6, 2017)
..

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
FORT SNELLING, MINNESOTA

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File: A094-584-669 June 21, 2017

In the Matter of

)
ROMAN KUOT ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

I CHARGES: 237(a)(2)(E)(i)

I APPLICATIONS: Termination

ON BEHALF OF RESPONDENT: Virginia Jeffreys

ON BEHALF OF OHS: Cassandra wtm&Bly

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a 31-year-old citizen and native of South Sudan and a

citizen of South Sudan, as indicated in the Notice to Appear. He has moved from

termination of removal proceedings in this case. The respondent was placed in removal

proceedings when the Notice to Appear was filed with the immigration court on May 18,

2017. The Notice to Appear charges that the respondent is removable under INA

Section 237(a)(2).(fil(i). The respondent, through counsel, has denied the charge. He

believes he is not removable. I find that the respondent is not removable as charged in
the Notice to Appear. The court has considered the following evidence. Exhibit number

1 is the Notice to Appear, which is dated May 11, 2017. Exhibit number 2 is the record

of deportable/inadmissible alien. That details the respondent's prior criminal history.

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Exhibit number 3 is a Department of Homeland Security exhibit containing records of a

conviction on February 6, 2017, at Grand Forks County District Court in Grand Forks,

North Dakota, for contributing to the deprivation of a minor. Exhibit number 4 is the

respondent's evidence in support of the motion of termination, and that contains a copy

of the statute under which the respondent was convicted in a case out of the state of

North Dakota. Exhibit number 5 is the Department of Homeland Security's opposition to

the respondent's motion to terminate proceedings. Exhibit number 6 is respondent's

reply to OHS opposition to motion to terminate. Exhibit number 7 is an unpublished BIA

decision provided by the respondent today in court. Exhibit number 8 is a copy of an

unpublished decision by the Board of Immigration Appeals, dated December 18, 2012,

relating to a conviction under North Dakota law, North Dakota sentry code section 14-

10-6(1), causing or contributing to a major's engagement in delinquent acts.

ANALYSIS

The Department of Homeland Security has not met its burden for

establishing that the respondent is removable under Section 237(a)(2)(e.5)(i) of the Act.

The BIA has construed the term "child abuse" broadly for purposes of Section

237(a)(2)(5e)(i) of the Act, but not so broad that it encompasses contribution to a

minor's illegal conduct, irrespective of whether such conduct is harmful or potentially

harmful to the minor's wellbeing. Violation of North Dakota sentry code 14-10-6(1)

involves encouraging, causing, or contributing to a minor's engagement in a delinquent

A094-584-669 2 June 21, 2017

act. See example State v. Azure, 520 NW 2nd 574, 575-76 (North Dakota 1994). A

delinquent act, in turn, is any crime, other than a traffic offense and offenses applicable

only to children. There is a broad range of crimes that would constitute delinquent acts

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that would not necessarily impair a child's physical or mental wellbeing. See generally

Matter of Velazquez-Herrera, 24 l&N Dec. 503, 512 (BIA 2008). For instance, a minor's

mere entry into a liquor establishment amounts to a delinquent act under North Dakota

law. See State v. Azure, supra at 576. Accordingly, a conviction for contributing to the

delinquency of a minor in violation of North Dakota sentry code section 10-14-6(1) does

not qualify as a crime of "child abuse" within the meaning of Section 2�7(a)(2)(Ee)(i) of

the Act, and the court will not consider the respondent's actual conduct underlying the

conviction to reach a contrary conclusion. Therefore, the Department of Homeland

Security has not established that respondent is removable from the United States, and

accordingly, the court orders that proceedings be terminated.

ORDER

The respondent's removal proceedings are terminated.

Please see the next page for electronic

signature
RYAN R. WOOD
Immigration Judge

A094-584-669 3 June 21, 2017

•

/Isl/

Immigration Judge RYAN R. WOOD

woodr on September 7, 2017 at 10:19 PM GMT

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A094-584-669 4 June 21, 2017