U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk

5107 leesburg Pike. Su/le 2()()()

Falls Church, V,rgm,a 22041

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Echols, Eli A OHS/ICE Office of Chief Counsel -ATL
Socheat Chea, P.C. 180 Ted Turner Dr., SW, Ste 332
3500 Duluth Park Lane Atlanta, GA 30303
Bldg 300
Duluth, GA 30096

Name: KOLUBAH, TARNUE GRANDPA A 064-190-761

Date of this notice: 3/11/2020

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Morris, Daniel

Userteam: Docket

For more unpublished decisions, visit

www.irac.net/unpublished/index

Cite as: Tamue Grandpa Kolubah, A064 190 761 (BIA March 11, 2020)
,
U.S. Depa'ttment of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
.
Falls Church, Virginia 22041

File: A064-190-761 - Atlanta,GA Date:

MAR 1 1 2020
In re: Tamue Grandpa KOLUBAH

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rN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Eli A. Echols,Esquire

ON BEHALF OF OHS: Stephanie Q. Bowles

Assistant Chief Counsel

APPLICATION: Termination of proceedings

The Department of Homeland Security ("OHS") appeals the Immigration Judge's

June 11,2019,decision not sustaining the charge under section 237(a)(2)(A)(i) of the Immigration
and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i), for the conviction of a crime involving moral
turpitude,within 5 years after admission, for which a sentence of l year or longer may be imposed.
The respondent opposes the DHS's appeal. The DHS's appeal will be dismissed.

We review findings of fact determined by the Immigration Judge, including credibility

findings,under a "clearly erroneous" standard. 8 C.F.R. § 1003. l(d)(3)(i). We review questions
of law, discretion, and judgment,and all other issues in appeals from decisions of Immigration
Judges de nova. 8 C.F.R. § 1003.l(d)(3)(ii).

We affirm the Immigration Judge's decision for the reasons stated therein. In removal
proceedings the OHS has the burden of establishing by clear and convincing evidence that,in the
case of an alien like the respondent who has been admitted into the United States, the alien is
deportable (IJ at l; Exh. 1). Section 240(c)(3)(A) of the Act, 8 U.S.C. § 1229a(c)(3)(A).
To establish a conviction is for a crime involving moral turpitude as a basis of removal under
section 237(a)(2)(A)(i) of the Act, the OHS must demonstrate that the offense involved an act of
baseness, vileness,or depravity in the private and social duties which a person owes to others,or
to society in general,contrary to the accepted and customary rule of right and duty between people.
Gelin v. US. Att'y Gen., 837 F.3d 1236, 1240 (11th Cir. 2016) (citations omitted).
This reprehensible conduct must involve some degree of scienter, whether specific intent,
deliberateness,willfulness,or recklessness. Matter ofSilva-Trevino, 24 I&N Dec. 687,689 n.l
(A.G. 2008),rev 'd on other grounds by Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014).

The Immigration Judge determined that the respondent was convicted on May 18,2019, for
involuntary manslaughter pursuant to section 16-5-3(a) of the Official Code of Georgia (IJ at 1).
The respondent was sentenced to 10 years with the first 2 years served in confinement,and the
remainder served on probation (IJ at 1).

In addition,the Immigration Judge determined that under Georgia law,in order to convict a
person for involuntary manslaughter pursuant to Ga. Code Ann. § 16-5-3(a) the state must prove
Cite as: Tamue Grandpa Kolubah, A064 190 761 (BIA March 11, 2020)
A064- l 90�761

at a minimum that the accused acted with criminal negligence (IJ at 3, citing Easley v. State,
584 S.E. 2d 629 (Ga. Ct. App. 2003)). The type of criminal negligence leading to a conviction
under Ga. Code Ann. § 16-5-3(a) does not require intent or a conscious disregard for a substantial
and unjustifiable risk (IJ at 3-4). See Matter of Leal, 26 I&N Dec. 20, 23 (BIA 2012) (holding that
"recklessness" is a culpable mental state for moral turpitude purposes where it entails a conscious

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disregard of a substantial and unjustifiable risk posed by one's conduct),petition for review denied
by Leal v. Holder, 771 F.3d 1140 (9th Cir. 2014). Instead, the Georgia manslaughter law requires
only an intent to do a criminal act, and this act was the proximate result of a death of a human
being, without the accused having an intent to kill the human being (IJ at 2, citing Scraders v. State,
589 S.E. 2d 315 (Ga. Ct. App. 2003)). Neither party contests these findings.

The OHS argues that the Immigration Judge erred in not applying the modified categorical
approach in determining what unlawful act was committed by the respondent that led to the
conviction under Ga. Code Ann.§ 16-5-3(a) (DHS's Br. at 7-8). The OHS contends that Ga. Code
Ann. § 16-5-3(a) is divisible as to the "unlawful act" element, and the conviction record
demonstrates that the respondent committed "reckless conduct" under Ga. Code Ann. § l 6-5-
60(b), which is a crime involving moral turpitude (OHS's Br. at 8- IO). Keungne v. U S. Att 'y
Gen., 561 F.3d 1281, 1286-87 (11th Cir. 2009). The respondent contends that Ga. Code Ann.
§ 16-5-3(a) does not require any specific intent that a person die or any other type of intent that
supports a mens rea for moral turpitude to attach to the accused's conduct (Respondent's Br. at 9).

Section l 6-5-3(a) of the Official Code of Georgia provides that: A person commits the offense
of involuntary manslaughter in the commission of an unlawful act when he causes the death of
another human being without any intention to do so by the commission of an unlawful act other
than a felony.

In Mathis v. United States, 136 S. Ct. 2243 (2016), the Supreme Court distinguished the
difference between a statue that is divisible, e.g., that lists multiple elements disjunctively, and
therefore appropriate for the use of the modified categorical approach, and a statue that enumerates
various factual means of committing a single element, which is not subject to the modified
categorical approach. In the former, the law prohibits two or more different offenses, e.g., the
lawful entry or the unlawful entry of a premises, and it is necessary for a jury to determine which
offense had been committed in order to arrive at a conviction. However, the latter situation is
where the law enumerates various factual means of committing a single element, e.g., a statute that
requires the use of a "deadly weapon" as an element of a crime and further provides that the use
of a "knife, gun, bat, or similar weapon" would all qualify. In this situation, the jurists would not
need to agree on what weapon was used in the commission of the crime, whether a knife or gun,
but only that a deadly weapon had been used. Id. at 2249-51.

A conviction under Ga. Code Ann. § l 6-5-3(a) is most analogous to the situation where various
factual means of committing the crime are listed. That is, an indictment could list multiple non­
felonious unlawful acts, some with moral turpitude and others without, and jurists could find the
accused guilty of committing involuntary manslaughter even if the jurists disagreed about what
unlawful act had been committed. Therefore, the Immigration Judge correctly determined that
Ga. Code Ann. § 16-5-3(a) is categorically overbroad and indivisible (IJ at 4).

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Cite as: Tamue Grandpa Kolubah, A064 190 761 (BIA March 11, 2020)
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A064- l90-761

Based on the foregoing, the Immigration Judge properly declined to use the modified
categorical approach to determine what unlawful act was the basis of the respondent's conviction
for involuntary manslaughter (IJ at 4). Moreover, we agree with the Immigration Judge that the
OHS has not met its burden to establish that the respondent's conviction under Ga. Code Ann.
§ l 6-5-3(a) was for an offense that involved moral turpitude. Therefore, termination

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of proceedings was appropriate (IJ at 4). See 8 C.F.R. § l 240. l2(c); Matter ofS-O-G- & F-D-B-,
27 l&N Dec. 462, 465 (A.G. 2018) (holding that Immigration Judges may terminate removal
proceedings where the OHS fails to sustain the charges of removability against a respondent).

As we have upheld the Immigration Judge's determination that the respondent's conviction
was not for a crime involving moral turpitude, we need not address the other contentions raised by
the respondent on appeal. Accordingly, the following order will be entered.

ORDER: The Department of Homeland Security's appeal is dismissed.

FO THE BOARD

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Cite as: Tamue Grandpa Kolubah, A064 190 761 (BIA March 11, 2020)