DEPORTATION WIN (LPR with Two Criminal Convictions, Motion to Terminate Granted because DHS failed to meet their burden to establish that the Respondent had been convicted of two crimes involving moral turpitude by clear, unequivocal and convincing evidence

DEPORTATION WIN (LPR with Two Criminal Convictions, Motion to Terminate Granted because DHS failed to meet their burden to establish that the Respondent had been convicted of two crimes involving moral turpitude by clear, unequivocal and convincing evidence)

Our client native and citizen of Chile was admitted to the United States as a permanent resident on June 21, 1973. On October 5, 1983 he was convicted of Grand Theft, a felony in the third degree. On August 4, 1988, he was convicted of Disorderly Conduct Lewd Act, a misdemeanor. Respondent was served with a Notice to Appear (hereinafter NTA) with the following charges: Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (“Act”)-Convicted of a crime involving moral turpitude and Section 237 (a)(2)(A)(ii) of the Act – Convicted of two or more crimes involving moral turpitude after admission. At the Master Hearing we denied the allegations and contested the charge. DHS provided the Court with the conviction documents establishing the Respondent plead guilty to the charges. Based on that information, the Court determined the allegations in the NTA were true. At the next hearing our office submitted a Motion to Terminate arguing that Respondent was NOT an arriving alien, and his convictions were not for crimes involving moral turpitude.

The Motion to Terminate also argued that the Court must take a modified categorical approach since the statute is a divisible statute in that it punishes behavior that both involve moral turpitude and do not involve moral turpitude, thus they must look at the conviction documents in conjunction with the statute. The DHS only provided one document relevant to his conviction which was the actual judgment. Based on that the Court was unable to make any determination regarding the Respondent’s actions, thus the Motion to Terminate was GRANTED since DHS failed to establish by clear and convincing evidence that the Respondent was removable under INA § 237(a)(2)(A)(ii).

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