U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office of the Clerk
5 /07 Leesburg Pike, Suite 2000
Falls Church, Virginia 2204 I

OHS/ICE Office of Chief Counsel - LVG

3373 Pepper Lane
Las Vegas, NV 89120

Name: PATRICIO-DAMIAN, KEVIN

A 061-342-980
Date of this notice: 10/27/2015

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

b0ruu..., Ca.AA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:

Greer, Anne J.
Pauley, Roger
Geller, Joan B

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Kevin Patricio-Damian, A061 342 980 (BIA Oct. 27, 2015)

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

Reszko, Seth L
Reza Athari & Associates
3365 Pepper Lane
#102
Las Vegas, NV 89120

U.S. Department of Justice

Decision of the Board of Immigration Appeals

. Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A06 l 342 980 - Las Vegas, NV

Date:

In re: KEVIN PATRICIO-DAMIAN

OCT 2 7 2015

APPEAL
ON BEHALF OF RESPONDENT: Seth L. Reszko, Esquire
ON BEHALF OF DHS: Christian Parke
Assistant Chief Counsel
CHARGE:
Notice: Sec.

237(a)(2)(E)(i), I&N Act [8 U.S.C. 1227(a)(2)(E)(i)] Convicted of crime of domestic violence, stalking, or child abuse, child
neglect, or child abandonment (sustained)

Lodged: Sec.

237(a)(2)(A)(ii), I&N Act [8 U.S.C. 1227(a)(2)(A)(ii)] Convicted of two or more crimes involving moral turpitude (not sustained)

APPLICATION: Termination
The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
June 22, 2015, decision to deny his motion to terminate removal proceedings and his request for
a continuance. The Department of Homeland Security ("DHS") has filed its opposition to the
appeal. The appeal will be sustained and proceedings will be terminated.
We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003. l(d)(3)(i). We review de novo all other issues,
including issues of law, judgment, and discretion. 8 C.F.R. 1003.l(d)(3)(ii).
On appeal, the respondent contends that the Immigration Judge erred in determining that his
convictions for battery domestic violence, in violation of section 200.485.1(a) of the Nevada
Revised Statutes, and battery domestic violence with a prior offense, under section 200.485.1(b)
of the Nevada Revised Statutes, qualify as convictions for crimes of domestic violence under
section 237(a)(2)(E)(i) of the Act, 8 U.S.C. 1227(a)(2)(E)(i) (I.J. at 2-3; Exhs. 1-2;
Respondent's Brief at 2-10). For the following reasons, we agree.
Section 200.485.1 of the Nevada Revised Statutes proscribes, in relevant part, "a battery
which constitutes domestic violence pursuant to NRS 33.018." Section 200.481.l(a) of the
Nevada Revised Statutes, in tum, defines "battery" as the "willful and unlawful use of force or
violence upon the person of another." "[A]t a minimum, battery is the intentional and unwanted
exertion of force upon another, however slight." Hobbs v. State, 251 P.3d 177, 179-80
(Nev. 2011) (noting that the "force" encompassed by section 200.481.1 includes "nonharmful
Cite as: Kevin Patricio-Damian, A061 342 980 (BIA Oct. 27, 2015)

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

IN REMOVAL PROCEEDINGS

A061 342 980

'and nonviolent force"). Unless a greater penalty is provided under section 200.481 of the
Nevada Revised Statutes, the first and second violations of section 200.485.1 within 7 years are
punished as misdemeanors under the statute, although punishment is greater for a second offense
committed within 7 years. See Nev. Rev. Stat. 200.485.l(a)-(b).

The Immigration Judge determined that the respondent's statute of conviction was divisible
because a battery may committed with "force or violence" under Nevada law (I.J. at 2). In light
of this disjunctive language, the Immigration Judge found that recourse to the respondent's
conviction record was appropriate in order to determine whether one or both of the respondent's
domestic violence convictions involved "violent force" (l.J. at 2; Exh. 2). Upon review of the
conviction record, the Immigration Judge determined that the respondent's offense involved
violent force and thus qualified as a crime of domestic violence under section 237(a)(2)(E)(i) of
the Act (I.J. at 2-3; Exh. 2).
However, the respondent's statute of conviction is indivisible because a jury need not agree
on whether a defendant's violation of section 200.485.1 of the Nevada Revised Statutes involved
violent force. See Rendon v. Holder, 764 F.3d 1077, 1086 (9th Cir. 2014) (finding that a
disjunctively worded statute is composed of divisible elements only if a jury must unanimously
agree the defendant committed a particular substantive offense contained within the disjunctively
worded statute); Byars v. State, 336 P.3d 939, 949 (Nev. 2014) (finding that the prosecutor need
only prove that "the defendant actually intend [ed] to commit a willful and unlawful use offorce
or violence upon the person of another" to establish that the defendant committed battery in
violation of Nevada law (emphasis added)); Nev. Jury Instr.-Battery No. 6 (defining battery and
stating that "[a]ny harmful or offensive unconsented touching, however slight, constitutes
sufficientforceor violence upon the person of another" (emphasis added)). As a result, recourse
to the conviction record in this case was not appropriate. Thus, insofar as the respondent's
statute of conviction, section Nev. Rev. Stat. 200.485.1, is overbroad and indivisible relative to
the generic definition of a crime of domestic violence under section 237(a)(2)(E)(i) of the Act,
the Immigration Judge erred in sustaining the charge under section 237(a)(2)(E)(i) of the Act
(l.J. at 2-3). 1 Because the respondent is not removable as charged, we will sustain the
1

The Immigration Judge did not sustain the charge under section 237(a)(2)(A)(ii) of the Act
(I.J. at 3). Because the parties do not challenge this determination on appeal, we deem the issue
waived. See Matter of L-G-H-, 26 I&N Dec. 365, 366 n.l (BIA 2014).
2
Cite as: Kevin Patricio-Damian, A061 342 980 (BIA Oct. 27, 2015)

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

Because a "battery" under section 200.485.1 of the Nevada Revised Statutes may be
committed using nonviolent force, we agree with the Immigration Judge that the respondent's
convictions under this statute do not categorically qualify as crimes of domestic violence under
section 237(a)(2)(E)(i) of the Act (I.J. at 2). See Matter of Velasquez, 25 I&N Dec. 278, 283
(BIA 2010) (concluding that the "physical force" necessary to establish that an offense is a
"crime of domestic violence" for purposes of section 237(a)(2)(E)(i) of the Act must be "violent"
force, that is, force capable of causing physical pain or injury to another person). However,
because section 200.485.1 of the Nevada Revised Statutes is indivisible, we disagree with the
Immigration Judge's determination that the respondent's convictions qualify as crimes of
domestic violence under section 237(a)(2)(E)(i) of the Act pursuant to a modified categorical
analysis (I.J. at 2-3; Exh. 2; Respondent's Brief at 2-10).

A061 342 980

respondent's appeal in this matter and terminate proceedings. See Matter of Sanchez-Herbert,
26 l&N Dec. 43, 45 (BIA 2012) (finding termination to be appropriate when the DHS cannot
sustain the charges of removability). Accordingly, the following order will be entered.
ORDER: The appeal is sustained, and the removal proceedings are terminated.

c:::.:

3
Cite as: Kevin Patricio-Damian, A061 342 980 (BIA Oct. 27, 2015)

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

FE BOARD

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LAS VEGAS, NEVADA

IN THE MATTER OF
Kevin Patricio-Damian,
Respondent

)
)
)
)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGE: Section 237(a)(2)(E)(i) of the Immigration and Nationality Act ("the

Act")-Convicted of domestic violence offense
LODGED: Section 237(a)(2)(A)(ii) of the Act-Convicted of crimes involving moral turpitude
APPLICATIONS: Termination of proceedings; post-conviction relief
ON BEHALF OF THE RESPONDENT:

ON BEHALF OF THE OHS:

Maya Timis, Esquire

Christian Parke, Assistant Chief Counsel

WRITTEN DECISION OF THE IMMIGRATION JUDGE

The respondent is a 22-year-old male who is a native and citizen of Mexico. He was
admitted to the United States as a lawful permanent resident on or about June 4, 2010. The
Department of Homeland Security (DHS) has brought these removal proceedings against the
respondent under the authority of section 240 of the Act. Proceedings were commenced with the
filing of the Notice to Appear (NTA) with the Immigration Court in Las Vegas on May 4, 2015.
See Exhibit 1.
On or about June 12, 2015, the DHS filed a Form 1-261 with the Court adding the charge of
deportability that the respondent has been convicted of two crimes involving moral turpitude not
arising out of a single scheme of criminal misconduct. See Exhibit 1A. The respondent admitted
factual allegations 1-4 in the NTA, as well as factual allegation 6, but he denied allegations 5 and
7, and he denied that he is subject to removal as charged in the NT A and Form
I-261. The DHS bears the burden of establishing the respondent's deportability by clear and
convincing evidence. See section 240(c)(3) of the Act.
The respondent's conviction records (Exhibit 2) reflect that he was convicted on
April 26, 2011, in the North Las Vegas Municipal Court Township, of the misdemeanor offense of
battery constituting domestic violence. The DHS also presented the criminal complaint, dated
April 21, 2011, underlying this conviction. Moreover, the DHS has presented evidence that on
December 11, 2012, the respondent was convicted of a domestic battery (second) offense.

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

FILE NUMBER: A061 342 980

However, when the Court employs the modified categorical approach, the Court concludes
that the charge of deportability has been sustained by clear and convincing evidence. The
"Judgment of Sentence" issued by the North Las Vegas Municipal Court on April 26, 2011,
provides that the respondent pled "no contest" to the charge in the complaint that he committed a
battery against his brother "by punching him in the face with a closed fist," in violation of N.R.S.
200.485. lA. The respondent's brother qualifies as a person to whom he is "related by blood,"
within the meaning of N.R.S. 33.018.
The Immigration Court finds that the respondent's offense involved violent force which
qualifies as a crime of "domestic violence" under section 237(a)(2)(E)(i) of the Act. See Matter
of Martinez, 25 I&N Dec. 571, 573 n. l (BIA 201 l)(explaining that for a "crime of violence" under
18 U.S.C. 16(a), the phrase "use of physical force" means the use of "violent force"). In Matter
of Velasguez, supra, at 283, the Board described "violent force" as "force capable of causing
physical pain or injury to another person." Here, the complaint to which the respondent pied nolo
contendere provides that he did strike the victim by punching him in the face with a closed fist.
Striking a person in this manner is certainly force that is capable of causing physical pain or injury
to the victim.
The Immigration Court has also considered the Supreme Court's decision in Descamps v.
U.S.,_ U.S._, 133 S.Ct. 2276 (2013), in determining whether or not a modified categorical
approach is permissible in this matter. In Descamps, the Supreme Court held that lower courts
may not employ the modified categorical approach when the crime has a single, indivisible set of
elements. The Supreme Court also stated in Descamps as follows: "When a state law is drafted
in the alternative, the court merely resorts to the approved documents [indictment, jury
instructions, plea colloquy, and plea agreement] and compares the elements revealed there to those
of the generic offense." Id. at 2285 n.2. Here, the Immigration Court finds that the Nevada
domestic violence statute is a divisible one, because N.R.S. 200.481 includes the elements of
unlawful use of "force or violence" [emphasis added]. Moreover, to conclude that the statute is
not divisible impresses the Immigration Court as being contrary to Congressional intent. That is,
the Hobbs case stands for the proposition that persons who have engaged in only offensive
touching may be found guilty of battery domestic violence under Nevada law. However, the
result of the legal conclusion that the statute is not divisible would be that no person convicted
2

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

The respondent was initially charged with deportability under section 237(a)(2)(E)(i) of
the Act, as an alien who has been convicted of a crime of "domestic violence." In Hobbs v. State,
251 P.3d 177, 182 (Nev. 2011), the Nevada Supreme Court held that under N.R.S. 200.481,
"battery is the intentional and unwanted exertion of force upon another, however slight." The
significance of the Hobbs case is that it brings Nevada law in conformance with California law,
and other jurisdictions where the Board of Immigration Appeals has concluded that a minimal
touching, while sufficient to constitute a "battery" offense, does not constitute a crime involving
moral turpitude or a "domestic violence'' offense within the meaning of section 237(a)(2)(E)(i) of
the Act. See Matter of Sejas, 24 I&N Dec. 236 (BIA 2007)(Virginia); Matter of Sanudo, 23 I&N
Dec. 968 (BIA 2006)(California). Thus, under the categorical approach, the respondent's
convictions do not render him deportable under section 237(a)(2)(E)(i) of the Act. See Matter of
Velasguez, 25 l&N Dec. 278, 282 (BIA 2010).

under N.R.S. 200.481 would be subject to removal as a person who has committed a domestic
violence offense described in section 237(a)(2)(E)(i) of the Act.

The Court notes that the respondent does not have the necessary period of continuous
residence under section 240A(a)(2),in order to apply for cancellation of removal for lawful
permanent residents. The respondent is also not able to establish statutory eligibility for
post-conclusion voluntary departure,pursuant to section 240B(b)(l)(B) of the Act. In addition to
the April 2011 domestic violence offense,which the Court considers as involving moral turpitude
due to its violent nature, the respondent was also convicted of obstructing and resisting a public
officer on April 26,2011. The complaint underlying this offense alleged that the respondent did
"grab[] and hold[]" the leg of the arresting officer,a form of physical resistance to a lawful arrest.
See Estrada-Rodriguez v. Mukasey,512 F.3d 5 17,521 (9th Cir. 2007)("resisting arrest naturally
involves the risk that physical force may be used against the officer"). Thus, where the
respondent has committed two crimes involving moral turpitude in the last 5 years,he is
disqualified from receiving post-conclusion voluntary departure under sections 1 Ol(f)(3) and
240B(b)( I )(8) of the Act.
Finally,the respondent has requested a continuance pending his opportunity to seek
post-conviction relief. However, it is well-settled that a motion for post-conviction relief does not
establish "good cause" for a continuance in removal proceedings. 8 C.F.R. 1003.29; see also
Matter of Onyido,22 I&N Dec. 552 (BIA 1999) ("The availability of post-conviction motions or
other forms of collateral attack does not affect the finality of [a] criminal conviction for
immigration purposes, unless and until the conviction has been overturned pursuant to such a
motion.") If the respondent is successful with a motion for post-conviction relief, his remedy
will be to file a motion for remand with the Board.
Based on the foregoing, the Court will enter the following order.
ORDER: It is hereby ordered that the respondent shall be removed from the United
States to Mexico,pursuant to the charge contained in the NTA.

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

Therefore, the charge of deportability in the NTA has been established by clear and
convincing evidence. See section 240(c)(3) of the Act. The Court did not sustain the lodged
charge,because the December 2012 offense involving domestic violence might have involved
only offensive touching,and accordingly could not be considered as a second crime involving
moral turpitude.

I .
,APPEAL RIGHTS: Both parties have the right to appeal. Any appeal is due at the Board of
Immigration Appeals on or before 30 calendar days from the date of service of this decision.
DATE:

Jv -.

d ) 1 dO I

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

Jeffrey L. Romig
Immigration Judge