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Sangchul Lee, A200 298 115 (BIA July 5, 2013)
Sangchul Lee, A200 298 115 (BIA July 5, 2013)
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Cite as: Sangchul Lee, A200 298 115 (BIA July 5, 2013)
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRTION REVIEW
U.S. IMMIGRATION COURT
File NO.: A200 298115
In the Matter of:
Sangchul Lee
Respondent
Detroit, Michigan
In Removal Proceedings
Charge(s): Section 237(a)(2)(A)(i) of the Immigration & Nationality Act
Applications: Termination
On Behalf of Respondent:
Nicole Mackmiller
Attorney at Law
206 N. Huron
Ypsilanti, MI 48171
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On Behalf of the Department:
Brian Burgtorf
Ass't Chief Counsel
333 Mt. Elliott
Detroit, MI 48207
DECISION AND ORDER
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Respondent is a single male who is a native and citizen of the Republic of South Korea. The
Department of Homeland Security (DHS) initiated proceedings against the respondent pursuant
to the authority contained in section 240 of the Immigration & Nationality Act (the Act).
Proceedings were commenced with the immigration court by the fling of the Notice to Appear
(NTA). 8 C.F.R. 1003.14(a): Exhibit (Ex.) 1.
The respondent, through counsel, has admitted all the fctual allegations contained in the NT A.
but denies that he is subject to removal under Section 237(a)(2)(A)(i) of the Act. Respondent
asserts that the conviction fr aggravated assault pursuant to Michigan Compiled Laws (MCL)
750.81 a does not constitute a crime involving moral turpitude (CIMT) fr purposes of
immigration law. Counsel argues that the Michigan statut
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lacks the required scienter to
establish the elements of a CIMT pursuant to Maller of Short, 20 I&N Dec. 136 (BIA 1989).
Respondent argues that the statute categorically docs not constitute a CIMT pursuant to the
required analysis . . \after <?f'Silr 'frevinu. 24 l&N Dec. 687(BlA 2007).
The Department of Homeland Security argues that the ofense in this matter is CIMT whether
considered solely categorically or pursuant to a modifed categorical analysis under Silva
Trevino.
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M
I. Legal Standards
A. Crimes Involving Moral Turitude
Moral turpitude refers generally to conduct which is inherently base. vile, depraved, or
contrary to the accepted rules of morality and the duties owed between persons or society in
general. See Maller <?Franklin. 20 I&N Dec. 867. 868 (BIA 1994). A crime involving moral
turpitude requires "some degree of scienter. whether specific intent, deliberateness, willflness.
or recklessness." Matter of Silva-Trevino, 24 I&N Dec. 687, 689 n. l & 706 n.5 (A.G. 2008).
Moral turpitude also has been defned as an act which is per se morally reprehensible and
intrinsically wrong. or ma/um in se. so it is the nature of the act itself and not the statutory
prohibition of it which renders a crime one of moral turpitude. See Matter of Torres-Varela, 23
I&N Dec. 78, 85 (BIA 2001); see also Franklin, 20 I&N Dec. at 868; Matter of Fualaau, 21 I&N
Dec. 475 (BIA 1996). The seriousness of a criminal ofense, the severity of the sentence
imposed. or the paricula circumstances of the crime's commission do not determine whether the
crime involves moral turpitude. Matter of Serna. 20 I&N Dec. 579, 581 (BIA 1992); Matter of
Short. 20 l&N Dec. 136. 137(BIA 1989).
To determine whether a specifc crime involves moral turpitude, the Court frst applies
the "'categorical approach." The Court looks to whether there is a "realistic probability, not a
theoretical possibility," that the applicable criminal statute "would be applied to reach conduct
that does not involve moral turpitude." Silva-Trevino, 24 I&N Dec. at 696-97. The Court must
determine whether moral turpitude necessarily inheres in all cases that have a realistic probability
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of being prosecuted by looking at whether the statute was applied to conduct that did not involve
moral turpitude. Id at 696-97. Specifcally, .. whether at the time of the alien's removal
proceeding, any actual .. . case exists in which the relevant criminal statute was applied to
conduct that did not involve moral turpitude." Id at 697. If the statute has not been applied to
any case, including respondent's case, where moral turpitude is absent, the Court may
categorically treat all convictions under the statute as involving moral turpitude. Id.
When a statute is divisible, that is, when some of the conduct prohibited by the statute
involves moral turpitude and some does not, the Court must apply the '"modifed categorical
approach" and look at the record of conviction, including the indictment, judgment of conviction,
jury instructions. a signed guilty pica, and the pica transcript to determine if moral turpitude is
involved. Id at 690. If the record of conviction is inconclusive, the Immigration Judge may
consider any pertinent evidence beyond the frmal record of conviction to determine if the alien
engaged in conduct that constitutes a crime involving moral turpitude. Id at 704; Matter of
Ahortalejo-Gu=man, 25 l&N Dec. 465, 469 (BIA 2011 ).
Respondent was convicted of assault with a dangerous weapon under Michigan Compiled
Laws ("MCL") 750.81 a. states, in pertinent part:
[A I person who assaults another person with out a weapon und inficts serious or
aggravated injury upon that individual without intending to commit murder o to
inllict great bodily harm less than murder is guilty of a misdemeanor punishable
by imprisonment for not more than I year or a line of not more than $1.000.00
MCL 750.8la
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Under the categorical approach, this Court is only to consider whether there is a
''realistic probability, not a theoretical possibility," that the conduct does not involve moral
turpitude. Silva-Trevino, 24 I&N Dec. at 689-90. In making its determination that respondent's
conviction under MCL 750.81 a is categorically a crime involving moral turpitude, the Court
finds that the crime involves both reprehensible conduct and scienter. Aggravated assault
" .. .intending to infict great bodily harm''is clearly contrary to the accepted rules of morality and
the duties owed between persons and society in general. It is vile, morally base, degrading. and
contrary to the duties owed between persons and society in general. Unlike the assault at issue in
Matter of Sanuedo, 23 I&N Dec. 968 (BIA2006) which did not require the infiction of harm, the
Michigan statute requires the infiction of .. great bodily harm".
The provisions of MCL 750.81 a also additionally requires general intent. See, People v.
Johnson. 407 Mich 196. 284 N. W. 2d 718 (1979). The Michigan Supreme Court fund that are
assaults ac general intent crimes requiring the intent to commit an unlawful act. Here the statute
couples the general intent to commit an unlawfl act with the infiction of aggravated injur on
the victim. The ofense of aggravated assault pursuant to MCL 750.81 a is categorically a
CIMT. Matter of Perez Contreras, 20 I&N Dec. 615, 620 (BIA 2006).
However, even if the ofense were not categorically a CIMT, the Court would fnd that
the respondent's conviction did constitute an aggravated flony based upon the submission of the
police report. The conviction and underlying infrmation do not resolve the issue of whether the
ofense is one of moral turpitude. Ex. 2. The OHS did submit a copy of the police report in
connection with its response to respondent's motion to dismiss. TABB. A review of the police
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report shows that the respondent engaged in repeated kicks to the victim to the fce and head,
punching the victim in the fce repeatedly and throwing him to the ground. The report shows the
infiction of serious injuries to the victim. While counsel fr respondent has objected to the
consideration of the report, the decision in Si/\-Tevino permits consideration of evidence
outside of the record of proceeding to establish moral turpitude. The respondent in this case was
convicted of a CIMT under either approach of analysis.
The respondent has requested no relief from removal. Based on the fregoing, the
fllowing order is entered:
ORDER: IT IS ORDERED that the respondent be removed and deported to the Republic
of South Korea on the charges contained in the Notice to Appear.
1 2/27/11
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