Binh Ngoc Trinh, A041 556 896 (BIA Feb. 19, 2015)

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

Office of the Clerk
.
5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 20530
Martinez, Michael P.
Name: TRINH, BINH NGOC
OHS/ICE Office of Chief Counsel - LOU

167 North Main St., Room 1036
Memphis, TN 38103
A 041-556-896
Date of this notice: 2/19/2015
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Cole, Patricia A.
Wendtland, Linda S.
Pauley, Roger
Userteam: Docket
For more unpublished BIA decisions, visit

www.irac.net/unpublished/index
Cite as: Binh Ngoc Trinh, A041 556 896 (BIA Feb. 19, 2015)
Immigrant & Refugee Appellate Center | www.irac.net
The Law Offices of Dennis M. Clare

745 West Main Street, Suite 250
Louisville, KY 40202
. '
U.S. Department of Justice
Decision of the Board oflmmigration Appeals
Executive Office for Immigration Review
20530
Falls Church, Virginia
File:
A04 l 556 896 - Louisville, TN
Date:
FEB 1 9 2015
In re: BINH NGOC TRINH
APPEAL
ON BEHALF OF RESPONDENT:
ON BEHALF OF OHS:
Michael P. Martinez, Esquire
Jamee E. Comans
Assistant Chief Counsel
CHARGE:
Notice:
Sec.
212(a)(2)(A)(i)(II), I& N Act [8 U.S.C.

Controlled substance violation
Sec.
212(a)(2)(A)(i)(I), I&N Act [8 U .S.C.

Crime involving moral turpitude
APPLICATION:
l l 82 (a)(2)(A)(i)(II)] -
1l82 (a)(2)(A)(i)(I)] -
Voluntary departure
The respondent appeals the Immigration Judge's October 22, 2012, decision finding him
removable as charged and pretermitting any applications for relief.
The record will be
remanded to the Immigration Judge for further proceedings consistent with this opinion and for
entry of a new decision.

On appeal, the respondent first contends that the Immigration Judge erred in finding his
September 24, 2004, conviction for assault in the fourth degree in violation of Kentucky Revised
Statutes section 508.030 to be a categorical "crime involving moral turpitude'' rendering him
removable under section 2 l 2(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U .S.C.
1l82(a)(2)(A)(i)(I ). See Respondent's Brief at 3-5.2 In particular, the respondent argues that
1
The Immigration Judge issued her decisfon finding the respondent removable
as
charged on
October 9, 2012, and explicitly incorporated that decision into her October 22, 2012, decision
denying the respondent's application for voluntary departure. The respondent does not dispute
the Immigration Judge's denial of his application for voluntary departure based on his failure to
show that he has the necessary valid travel documents.

2
In his Notice of Appeal, the respondent stated his position that the Immigration Judge erred in
finding him removable under section 2 l 2(a)(2)(A)(i)(II) of the Act "'because he was convicted of
possession of marijuana under Kentucky Law." See Respondent's Notice of Appeal. Indeed, in
her decision, the Immigration Judge did find the respondent removable based on his August 20,
2001 , conviction for possession of marijuana. However, the respondent does not pursue this
(continued... )
IN REMOVAL PROCEEDINGS
A041 556 896
a conviction under subsection (l)(a) of section 508.030, which requires that a person
intentionally or wantonly cause physical injury to another person, does not constitute
a categorical crime involving moral turpituda because he contends that wantonly does not require
the formation of any intent to cause any result. See Respondent's Brief at 4.3
(1) A person is guilty of assault in the fourth degree when:

(a) He intentionally or wantonly causes physical injury to another person; or
(b) With recklessness he causes physical injury to another person by means of a deadly
weapon or dangerous instrument.
K. R.S. 508.030(1) (2004). "Wantonly" is defined by section 501.020 of the Kentucky Revised
Statutes, which provides, in pertinent part:
A
person acts wantonly with respect to a result or to a circumstance described by a

statute defining an offense when he is aware of and consciously disregards a
substantial and unjustifiable risk that the result will occur or that the circumstance
exists. The risk must be of such nature and degree that disregard thereof constitutes
a gross deviation from the standard of conduct that a reasonable person would
observe in the situation.
We agree with the respondent that a violation of Kentucky Revised Statutes

section 508.030(l)(a) is not a categorical crime involving moral turpitude. See Respondent's
(...continued)
claim in his brief, and the statement made on the Notice of Appeal does not specify any legal
arguments in relation to this claim. Therefore, we find the respondent has abandoned this claim
on appeal.
3
The respondent does not dispute that a violation of subsection (b) of section 508.030, which
requires a person to act with "recklessness" in causing "physical injury to another person by
means of a deadly weapon or dangerous instrument" is a crime involving moral turpitude. See
Respondent's Brief at 5. We find it unnecessary to address this issue in this appeal.
4 The respondent appears to have misconstrued the Immigration Judge's decision in that he
states in his brief that she "seemed to correctly identify the statute as divisible." See
Respondent's Brief at 4. However, in her decision, the Immigration Judge engaged in the first
instance in the categorical approach and determined that both subsections of the statute are
crimes involving moral turpitude such that the statute is not divisible. See Matter of
Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).
2
We find that the Department of Homeland Security ("DHS") has not met its burden in
establishing that the respondent's conviction for assault in the fourth degree in violation of
Kentucky Revised Statutes section 508.030 is a crime involving moral turpitude rendering him
removable under section 212(a)(2)(A)(i)(I) of the Act.4 See 8 C.F. R. 1003.l(d)(3)(ii) (2014)
(de novo review). The respondent was convicted of assault in the fourth degree in violation of
section 508.030 of the Kentucky Revised Statutes, which provides that:
A041 556 896
In this case, however, an offense under section 508.030(a), which requires the risk of
"physical injury," which is defined as "substantial pain or any impairment of physical
condition," does not contain a sufficient aggravating factor to render it a crime involving moral
turpitude. See K.R.S. 500.080(13). Further, the DHS did not present evidence establishing
that the respondent was convicted under subsection (1)(b) of the statute. Thus, we find that
a conviction under section 508.030 is not a categorical crime involving moral turpitude, and the
evidence does not establish that the respondent's offense qualifies as a crime involving moral
turpitude such that he is removable under section 212(a)(2)(A)(i)(I) of the Act.
Further, we find that, given the procedural history of this case, the respondent's
application(s) for relief should not be deemed abandoned and a remand is necessary to allow him
to apply for relief. See Respondent's Brief at 6. Specifically, the Immigration Judge noted the
respondent's failure to file applications for relief despite being given opportunities to do so and
the "lengthy procedural history of this case," which was initiated in 2009, in deeming the
respondent's opportunity to file for relief abandoned (I.J. at 6). However, the record reflects that
the DHS also failed to comply with several filing deadlines in regard to the documents needed to
establish the respondent's inadmissibility, and it did not file the required documents until over
2 years after it initiated these proceedings (Exh. 3). See id. Thus, it appears that both parties,
not just the respondent, caused the delays which protracted these proceedings. See id. Given the
circumstances, and the respondent's equities, we find that he should be allowed to apply for
relief.
Accordingly, the record will be remanded to the Immigration Judge for further proceedings
consistent with this opinion and for entry of a new decision.
O RDER: The record is remanded to the Immigration Judge for further proceedings
consistent with this opinion and for entry of a new decision.
F R
. EBOARD
3
Brief at 4-5. Specifically, "wantonly," as definec;l by Kentucky law, is akin to "recklessness."

See id. Crimes involving recklessness may involve moral turpitude only where other statutory
aggravating factors are present. See Matter vf Leal, 26 l&N Dec. 20, 25 (BIA 2012); Matter of
Medina, 15 l&N Dec. 611, 613 (BIA 1976); cf Matter ofFualaau, 21 I&N Dec. 475 (BIA1996)
(reckless assault without an aggravating factor is not a crime involving moral turpitude). Indeed,
we have held that recklessness is a culpable mental state for moral turpitude purposes where it
entails a conscious disregard of a substantial and unjustifiable risk of death or serious bodily
injury posed by one's conduct. See Matter of Leal, supra; see also Matter ofRuiz-Lopez, 25 I&N
Dec. 551, 553-54 (BIA 2011), ajfd, 682 F.3d 513 (6th Cir. 2012); Matter of Franklin, 20 l&N
Dec. 867, 869-71 (BIA 1994), ajfd, 72 F.3d 571 (8th Cir. 1995); Matter of Wojtkow, 18 I&N
Dec. 111, 112-13 (BIA1981); Matter ofMedina, supra.
UNITED STATE S DEPARTMENT OF JU STICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STA TE S IMMIGRATION C OURT
MEMPHI S, TENNE S SEE
October 22,
A041-556-896
2012
In the Matter of
IN REMOVAL PRO CEEDING S
BINH NGOC TRINH

RE SPONDENT
C HARGE S:
INA Section 212 (a) (2) (A) (i) {II) of the

Immigration and Nationality Act -- an alien who
has been convicted of, or who admits having
committed, or who admits committing acts which
constitute the essential elements of any law or
regulation of the state, the United States or a
foreign country relating to a controlled
substance as defined in Section 102 of the
Controlled Substance Act (21 U.S. C. Section 802).
Section 212 (a) (2) (A) (i) (I}
of the Immigration and
Nationality Act -- alien who has been convicted

of, or who admits having committed, or admits
committing acts which constitute the essential
elements of a crime involving moral turpitude
(other than a purely political offense} or an
attempt or conspiracy to commit such crime.
APPL ICAT IONS:
Voluntary departure
see below) .
ON BE HAL F O F RE SPON DENT:

ON BEHALF OF OH S:
File:
(applications pretermitted,
MI CHAEL MAR TINEZ
JAM IE COMAN S
ORAL DECISION O F T HE IMMIGRATION JUDGE

On November 25,
2009,
the Department of Homeland
2009 against the above-named respondent.
The filing of this
charging document commenced proceedings and vested jurisdiction

with this Court.
8 C. F . R.
Section 1003.14 (a).
The Notice to
Appear was marked and has been admitted into evidence as Exhibit
1.
Respondent appeared in court and denied the factual
allegations as well as the charges of rernovability set forth in
the Notice to Appear.
He,
however,
admitted certain factual
allegations including that he is not a citizen or national of

the United States,
that he is a native of Vietnam and citizen of
Vietnam and that he was admitted as a lawful permanent resident

to the United States on May 26,
1989 and was last paroled into
the United States for deferred inspection on June 9,
2009.
He
denied that he was on August 20,
2001 convicted in the Hardin
District Court at Hardin County,
Kentucky for the offense of
possession of marijuana and that he was on September 24,
2004
convicted in the Jefferson District Court at Jefferson County,

Kentucky for the offense of assault fourth degree with minor
injury.
The matter was set for a removability hearing and the
Department of Homeland Security filed two sets of documents in
support of the charge of removability at Exhibits 2 and 3.
A041-556-896
October 22,
The
2012
Security filed a Notice to Appear which is dated October 14,
respondent was ordered in addition to file all forms of relief

and failed to do so.
The Court on several occasions continued
proceedings due to a variety of procedural and other issues.

The Court ultimately issued a decision on the removability which
decision was served on all parties and is dated October 9, 20 12.
The decision of the Court is incorporated herein by reference
though set forth at length.
In that decision the Court found
the respondent removable for the reasons set forth in the

decision.
Further,
the Court found that the respondent failed
to file any applications for relief notwithstanding he was given

The Court,
numerous opportunities to do so.
therefore,
pretermitted the applications for relief as the respondent had

failed to file any applications for relief though he was given
The matter was scheduled for
multiple opportunities to do so.
Respondent has
hearing on today's date for voluntary departure.
requested voluntary departure at the completion of proceedings.

At the conclusion of removal proceedings the Court may
grant voluntary departure in lieu of removal.
240B(b).
INA Section
The alien bears the burden to establish that he is
both eligible for relief and that he merits a favorable exercise

of discretion.
14 I&N
Matter of Gamboa,
Matter of Arguelles,
22 I&N Dec.
811
Dec.
244
(BIA 1999).
(BIA 1972);
To establish
eligibility the respondent must prove that he has physically

been present in the United States for at least one year
A04 1-556-896
October 22, 20 12
the matter even while respondent failed to appear for
immediately preceding service of the Notice to Appear;

is,
and has been,
that he
a person of good moral character for at least
departure; is not removable under Section 237(a)(2)(A) (iii) as

an aggravated felon or under Section 237(a) (4) for security and
related grounds;
and he has established by clear and convincing
evidence that he has the means to depart the United States and
in tends to do so.
Matter of Arguelles, supra;
INA Section
The alien must also be in possession of a valid
240B(b)(1).
document and except as otherwise provided in the regulations

clear and convincing evidence of the means to depart the United
States has been defined to include in all cases presentation by
the alien of a passport or other travel documentation sufficient
to assure lawful entry into the country to which the alien is
departing.
The regulation at 8 C. F.R.
Section 1240.26(c} (2)
provides that the Service shall have a full opportunity to

inspect and photocopy the documentation and to challenge any
authenticity or sufficiency before voluntary departure is
granted.
The respondent must also post a bond in an amount
necessary to insure that he will depart which must be at least

$500 within five days of the voluntary departure order.
INA
Section 240B(b)(3); 8 U.S. C. Section 1240.26(c) {3).

The respondent has testified as to a variety of
convictions that he had.
He stated that he was convicted for
possession of marijuana and was sentenced and paid a fine.
A041-556-896
October 22,
He
20 1 2
five years immediately preceding the application for voluntary
said that in 2004 he was arrested for the second time for
fighting with a person and hitting him with a bottle.
He was
Respondent also testified that he was then arrested for arguing

with his girlfriend in 2005 and she called the police.
The
respondent testified that he was drunk and that they told him to
stay away from her and that he has not seen her in a long time.
Respondent also testified that he was arrested in 20 11 for a
DU I, pled guilty and paid a fine.
He said that he completed his
sentence and finished all of his education.
He testified on
direct examination that if he is allowed to leave the United

States, he would leave by the date ordered,
leave and the money to pay a bond.
has the money to
On extensive questioning by
counsel and the Court, respondent testified that he still has an

I-94 which was issued to him upon his entry into the United
States but he does not know if this document will allow his
entry into Vietnam.
enter his country.
He stated that no passport is required to

All he needed was a visa that was issued in
the United States so that he could return to the United States.

He said that he was then allowed to enter Vietnam with this
document.
The respondent testified that the document,
the visa,
was issued by the United States Government and was a reentry

document.
It was applied for when he purchased his ticket and
was like a white passport.
He stated that with this document he
was allowed to enter Vietnam.
A04 1-556-896
Respondent testified that he has
October 22, 20 12
charged with assault, spent 13 days in jail and paid a fine.
,.
a passport from Vietnam which he had when he entered the United

States for the first time in 1989 but that his mother kept it in
He said that he has never had this passport
renewed and has no other travel documents other than these two
documents.
On cross-examination the respondent testified that he
was arrested on June 15,
2012 but denied that it was for a DU I
and stated that he was not driving but was with a friend who was
driving and did not have his seatbelt on.
He said that the
police arrested him and found that he had not paid his fines in
connection with his 2011 arrest and was required at that time to
pay the fine and he was then let go.
Respondent testified that
in court today he only has his driver's license and a Social

Security card with him and has no other documents.
quest ioning by the Court,
On
the respondent indicated that if he
had no other documentation other than the travel documents in

his passport,
he would not be allowed to get onto an airplane
and go to Vietnam.
As noted above,
the respondent's removability has been
established by the order of the Court which has been

incorporated herein.
Further,
the respondent has failed to
cooperate and failed to file any and all applications for relief
during the lengthy procedural history of this case.
Therefore,
the Court has preterrnitted any and all applications which may
have been relevant to these proceedings.
A041-556-896
Therefore,
this Court
October 22, 2012
a locked place.
needs only analyze the request for voluntary departure.
The
respondent has been physically present in the United States for
Appear and all of his convictions with the exception of the

conviction in 2011 is outside of the five years required to
establish good moral character.
Therefore,
although respondent
has been convicted of possession of a controlled substance and

of a crime involving moral turpitude,
his convictions were
outside of the five year period required for consideration of

voluntary departure.
He is left,
therefore,
with only one
conviction in 2011 for D U I and an arrest in 2005 which he had an

argument with his girlfriend.
Respondent has failed to provide
any evidence concerning the disposition of the arrest in 2005,

however the Court will note that this is also outside of the
five year period required for good moral character.
The
Department of Homeland Securi ty alleges that the respondent was

arrested and the records establish that he was arrested for a
D UI on June 15,
2012,
however,
the Court has no evidence of this
fact and respondent was clear that he was arrested in 2012 for
failure to pay his fines in connection with a D U I in 2011.
The
respondent has not been convicted of an aggravated felony or for

security or related grounds.
Therefore,
the Court would find
that the respondent has established his good moral character

during the five year period required for consideration of
A041-556-896
However,
the respondent has failed to
October 22,
2012
at least one year immediately preceding service of the Notice to
establish clear and convincing evidence that he has the means to

depart the United States.
Although the respondent has testified
do so,
and has the money to pay the bond, the respondent has
failed under the regulation to establish by clear and convincing

evidence that he has the means to depart because he has failed
to present a passport or other travel documents sufficient to
assure lawful entry into the country to which he is departing.
Further,
the Service has not had a full opportunity to inspect
and photocopy any documentation and to challenge any

authenticity or sufficiency before voluntary departure was
requested or is to be entered in this case.
The respondent has
specifically testified that the only documents that he has is a

travel document issued by the United States Government in
connection with his lawful permanent resident status.
It is
clear from the respondent's testimony and his description of the

document that it is in fact a reentry document that was issued
in connection with his status.
This document will not be valid
for entry into his country because the respondent is being

removed from the United States.
The respondent has also
testified that he has an old passport from his entry in 1 989 but
he has failed to renew the passport and does not have a current
passport.
He has also testified that he has no other travel
documents that would allow him to travel.
He has also
specifically testified that without these travel documents he
A041-556-896
October 22,
2012
that he intends to leave the United States and has the money to
would be unable to get onto an airplane and to travel back to

his home country.
The respondent counsel argues that the
sources,
and that he has heard from other
that an individual is able to have entry into the
United States by simply presenting himself at the border and he

would be admitted.
However, respondent has failed to provide
any evidence of this fact or the fact that he would be able to

be allowed onto an airplane to travel back to his country.
Therefore,
the Court will find that the respondent has failed to
establish by clear and convincing evidence that he has the means

to depart the United States as is required for a grant of
The respondent's application,
therefore,
for voluntary departure will be denied.

O R DE R S
Based upon the foregoing,
the following orders will
enter:
IT I S HE REBY O R DERE D that the charges pursuant to
Section 2 12(a) (2) (A) (i) (I)
and (II) of the Immigration and
Nationality Act hereby are sustained.

IT I S HE REBY
FURTHE R O R DERE D that respondent's request
for the filing of any further relief be and hereby is

pretermitted and denied as is set forth in the decision and
order of the Immigration Judge dated October 9,
2012.
IT IS HE REBY FU R T HE R O R DERE D that respondent's

application for voluntary departure be and hereby is denied.
A041-556-896
October 22,
2012
respondent has told him,
..
IT
IS HEREBY
FURTHER ORDERED that respondent be
removed to Vietnam on the charges
contained in the Notice to
1Crokrno
t>iOLT
REBECCA L
Immigration Judge
A041-556-896
10
October 22,
2012
Appear.
..
...
/Isl/
Immigration Judge REBECCA L.
holtr on January 10,
HOLT
2013 at 7:27
PM GMT
A041-556-896
11
October 22,
2012

Binh Ngoc Trinh, A041 556 896 (BIA Feb. 19, 2015)

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U.S.

Board of Immigration Appeals

5107 Leesburg Pike, Suite 2000

Name: TRINH, BINH NGOC

OHS/ICE Office of Chief Counsel - LOU

Date of this notice: 2/19/2015

For more unpublished BIA decisions, visit

Immigrant & Refugee Appellate Center | www.irac.net

The Law Offices of Dennis M. Clare

U.S. Department of Justice

Decision of the Board oflmmigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia

A04 l 556 896 - Louisville, TN

In re: BINH NGOC TRINH

Michael P. Martinez, Esquire

Assistant Chief Counsel

212(a)(2)(A)(i)(II), I& N Act [8 U.S.C.

212(a)(2)(A)(i)(I), I&N Act [8 U .S.C.

The record will be

entry of a new decision.

show that he has the necessary valid travel documents.

Immigrant & Refugee Appellate Center | www.irac.net

A041 556 896

(1) A person is guilty of assault in the fourth degree when:

person acts wantonly with respect to a result or to a circumstance described by a

We agree with the respondent that a violation of Kentucky Revised Statutes

Immigrant & Refugee Appellate Center | www.irac.net

A041 556 896

Immigrant & Refugee Appellate Center | www.irac.net

Brief at 4-5. Specifically, "wantonly," as definec;l by Kentucky law, is akin to "recklessness."

UNITED STATE S DEPARTMENT OF JU STICE

IN REMOVAL PRO CEEDING S

BINH NGOC TRINH

INA Section 212 (a) (2) (A) (i) {II) of the

of the Immigration and

Nationality Act -- alien who has been convicted

APPL ICAT IONS:

ON BE HAL F O F RE SPON DENT:

Immigrant & Refugee Appellate Center | www.irac.net

MI CHAEL MAR TINEZ

ORAL DECISION O F T HE IMMIGRATION JUDGE

the Department of Homeland

2009 against the above-named respondent.

The filing of this

charging document commenced proceedings and vested jurisdiction

Section 1003.14 (a).

admitted certain factual

allegations including that he is not a citizen or national of

that he is a native of Vietnam and citizen of

Vietnam and that he was admitted as a lawful permanent resident

1989 and was last paroled into

the United States for deferred inspection on June 9,

denied that he was on August 20,

2001 convicted in the Hardin

District Court at Hardin County,

Kentucky for the offense of

possession of marijuana and that he was on September 24,

convicted in the Jefferson District Court at Jefferson County,

Immigrant & Refugee Appellate Center | www.irac.net

Security filed a Notice to Appear which is dated October 14,

respondent was ordered in addition to file all forms of relief

The Court on several occasions continued

proceedings due to a variety of procedural and other issues.