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7/27/2019 Ruben Dario Sanchez Esquivel, A035 727 884 (BIA July 19, 2013)
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Bracamonte Jose A, EsqLaw Oices of Jose A Bacamonte2627 Noh Third Street, Ste 104Phoenix A 85004-0000
US Department ofJusice
Executive Oce r Immigraon Revew
Board of Imigraton AppealsOce of the Clek
5107 Jebug l'ik, Sute 2000Fas Crch. Vn 22041
HS/ICE Oce of Chief Counsel TUSP. Box 25158Phoenix, A 85002
Name: SANCHEZESQUIVEL, RUBEN D.. A 035-727-884
Date of this notice 7/9/2013
closed s a copy of the Board's decson and order the above-rereced case.
closre
n Mbs:Puy, Rgr
Scerely,
D cDona CarChe Clerk
willames Dckt
Cite as: Ruben Dario Sanchez Esquivel, A035 727 884 (BIA July 19, 2013)
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A0 727 884
n gh o he regong we onde ha he DS h no ared burden o provng hahe responden s removabe prsuan o seon 237(a(2(A( o he A No oer removahrges are rreny pendng agans he resonden moreover and herere he proeedngswere propery ermnae
ORDER: The appea s dsmssed d he remova proeedngs e ermnaed
1 The DS nay hged he responden wh removab der seon 237(a(2(A( ohe A, b he maon udge dsmssed ha harge. e DS does no presenyhaenge ha ape o he aon dge's deson
2
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7/27/2019 Ruben Dario Sanchez Esquivel, A035 727 884 (BIA July 19, 2013)
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- .J
UNITED STATES DEPARTMENT OF JUSTICE
XCUIVE FFICE FOR IMMIGT REVIEWITD STATES IMMIGTION COURTTUCSON ARIZONA
File A03527-84 ovember 29, 2011
the atter of
REN DARIO SNCHEESQUIVL IN RMOVAL PROCEEDINGS
RESPONDNT
CHARGS Section 237(a) (2) (A) (iii) ofNationality Act (Act) : alienadmission has been convicted
the Imigraon ad at any time (aJ r of an aggrae : -.c; -
felony as defined in Section 101(a) (43)S f e RAct crime of violence (as defined in n :.nof Title 18 United States Code but ng .includig a purely political offense) fS!i a
:qterm of imprisonment odered is at least ,:year; Section 237(a) 2) (A) (ii) of the Igaad Nationality Act that any time after . 7admission respondent has been convicted of twocrimes involving moral turpitude which did notarise from a single scheme of crimialmisconduct
APPLICATIOS: Motion to terminate.
O BEHALF F RESPONDENT: JOSE A BRAMNTE
O BLF F DHS: ATTHW KUF
AL DCISIO F TH IMMIGRATON JDGE
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'
espnen appears be an a mae aien naive
a ciizen Panama wh was pace in remva prceeings by
e issance a Nice Appear ae March 22 200 ha
cmen was serve pn respnen n March 26 200 an has
ben amie in he recr prceeings as xhbi
he Gvernmen has ha case inrce an
aina charging cmen a rm I26 which makes rher
aegains an ges an aiina charge ha cmen ise Nvember 6 200 an was serve n he respnen n
Nember 6, 200
he respnen wh is a ciizen r naina
Pnama, was aie as a aw permanen resien he
Uie Saes n Apr 20 979 hereaer n Janary
99, he respnen was cnvice aggravae riving r
bing in aca physica cnr a vehice whie ner he
ience inxicaing qr r rgs (aggravae DUI) in
vain Arina evise Sae Secns 28383(a) () an
ws senence a erm imprisnmen six years
As a res ha cnvicin he rmer Immigrain
a Narazain Servce n March 22 200 isse a Nice
Apear charging he respnen wih remvabiiy ner Secin
27(a) (2) (A) (ii) he Ac in ha a any ime aer
amissin he was cnvice an aggravae eny prsan
Scin (a) (43) () a crime vience
wing he issance he NA, he NS hen
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carge he responen wih an aiional grou of removabiliy
uer Section 23a2A ii, in ha at any time afer
aission, he was convice of wo or more crimes involving
ral urpiue which i no arise from a single scheme of
ciminal misconuc
As he oar ischarge he NS an pointe to a May
3 1999 conviction for aggravae UI", again in violaion of
A rzona Revise Statue Section 281383{a 1 For hiscnvicion, responen receive a senence of a term of
iprisonment for 1 years
On ecember 18, 21, a prior mmigraion Juge
smisse the charge of removabiliy uner Section
2a2 {A{iii of he Ac, aggravate felony - crime of
volence, bu susaine he charge uner Section
2{a 2{A ii, wo or more crimes involving moral urpiue
nt arising ou o a sngle scheme o criminal misconuct
This Orer in conjuncion with subsequen preceen
issue by both he oar of mmigraion Appeas {he A an
te Ninh Circui, cause a liany of appellae ajuication in
responents case
Ultimaely he responen who was moving o have his
case reconsiere in ight of he Ninh Circuit's ecison in
Hernanez-Marinez vs Ashcrof, 329 F 3 111 9h Cir 23
prevaile resuling in he presen reman hus, he
eterminaive issue is whether responents two aggravate U
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cvcto conttte crme vovg mor trtde der
Hrdezrtnez pr th rederng remv der Secton((2 () ( of the Act
LYSIS
The reodent' ttte o convcto ertnent
rt, rovde tht: ] ero gty o ggrvted o
vg or ct hyc contro whe der the nece o
toxctng qor or drg f the eron commt me DUI
ofee whe the ero' drver cene or rvege to
ve ended, cceed, revoked, or reed, or whe
trcton ced o the ero' drver' cee or
vege ret of ror U ofee or offene.
RIZO RVISD STTUT SCTION 28-383( (1
To roery dee the rmeter o the reent
cuon t necery to exme the htory o tgton
dng to Hendezrtez, r. Frt, n Loez-Me,te Bord of mmgrto Ae hed tht the oee decrbed
der Arzo eved Sttte Secton 28-1383( (1, ggrvted
I, w ctegorcy crme vovg mor trtde See
ee, 2 I& Dec 119697Uke me U offene, whch requre roof of
thg more thn the ct of drvng whe ntoxcted, the
oene decrbed nder Secto 28-1383( (1 reqre ct
ggrvg fctor tht ehnce the crme to the eve of mm
e roo tht the drer commtted DUI oene whe he
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nowlege that hs lcense was ether sspene cancelle
roe or refuse because of a reqre DUI offense See I
at 9496 See also State v Wllams 698 P 2d 732 at 734
(rzona 985) (holng tat there s or mples mens rea
eement o "nowng to sstan a convcton ner Secton 28
83(a) {) ) Ths whle smple DUI oes not rse to the level
o conuct nolvng moral turptue te aggraate offense
er Secton 28383(a) () oes. U.
Followng tat n TorresVarela te Boar of
mgraton Appeals sa that an offense commtte uner a
prallel provson of Arzona Revse Statte 28383 was not
rme nolng moral turptue TorresVarela 23 IN Dec.
86, subsecton A.
Subsecton A2 whch was at sse n TorresVarela
spra maes t an aggravate offense base upon a certan
ner of pror conctons for smple DUI Secton 28
383 (a) (2)
Accorngly the Boar of Immgraton Appeals
ecognze that an offense uner Subsecton A2 le a smple
DUI offense an nle an offense uner Sbsecton A oes not
r equre proof of a clpable ental state
TorresVarela 23N Dec 85
Wthot suc an element the offense proscrbe ner
Sbsecton A2 s nothng more than a sple DUI offense wch
s eeme an aggravate ofense base pon the nmber of pror
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convictions See d
Because nonturpitudinous conduct is not rendered
trpitudinous thouh multipe criminal convictions for the same
ofense the Boad of mmiration Appeals held that an offense
under Sub-sectio A2 as not a CMT See also Matter of Short
2 &N ec 36 at 39 (BA 989) (statin that "oral turpitue
cannot e vieed to arise from some undefined synerism by hich
to offenses are coine to create a crime invovin moraturpitude, here each crime individually does not meet moral
trpitude conduc)
In 2003 the inth Circuit added a distinction to the
CMT analysis under Ariona Revised Statute 28-383 See
Hrnande-Martine 329 F 3d 9 (decided under former Section
28692)
This held that a conviction under Section 28-
383(a) () is not cateoricaly a CIMT; the Court focused on the
fact that a person ho as violated this section hen either
they are drivin or have actual physica contro of a
vhicle d 8-9 Ariona Revised Statute 28-383(a)
As the Court pointed out, one may be convicted under
this Statute elipsis for sittin in one's one car in ones ondriveay ith the key in the inition and a bottle of ee in
one han HeraneMartine 329 F 3d 89
Just havin physical control over a vehicle hile
under the infuece of alcohol is not the type of despicabe
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cs of circumsances unerlining ReinaRoriuez v. UnieSaes, 65 F. 3 1182 a 1191 (9h ir 2011. The Govemeni his case submis ha he case of ilvaTrevino inicaes
a the Boar of Immigraion Appeals has allowe Immigraion
ges o consier he presenence repor o eermine if he
sponen was acually riving he vehicle.
Aiionally, he inicmens, alhough probably
ppore by verics ha foun he responen guily asarge in he inicmen, unforunaely are of lile impor
cause the charges were no limie o he ac of riving.
Iicmen R61773, xhibi 48A, an Inicmen R61774,
hibi 48B. ee also Youn v. oler, 634 F. 3 1014 a 1022(h ir. 2011) examining a charge or inicmen where he
nvicion ocumen conains a criical phase "as charge in he
iicmen)
Accoringly, he respecive verics an presenence
repor may no be only ocumens ha canno or shoul be use
saisfy his iniry.
ollecively, he verics an senencing orers
apear o properly limi he responens convicion so as o
pe rmi a eerminaion ha hey consiue IMT's
ecifically, hese ocuens in each respecive case conain
generic language reflecing ha he was convice of aggravae
r iving uner he iluence
Thus, if ake on heir faces, hese ocumens appearI
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-
o lmt the respodets covcto to the act of drvg
However allowg these doumets to reflect the
espodet's covctos ecessarly rested o the act of
rvg ad thus costtutes CIM could lkely be msleadg
It s mportat to recogze the terplay of the
hases drvg drvg uder the fluece ad DUI as
hey perta to the operatve provsos of Secto 28-
383 (a) () he term DU - e drvg uder the fluece s
sed syoymously wt a covcto uder Secto 28383(a) ()
hs would be true regardless of whether the covcto rested
olely o the coduct of drvg or also o the coduct of
hyscal cotro
For example te synoymous ature of these terms are
emostrated by smply examg the uderlg dctmets
hch reflect the [dscerble the respodet was beg
harged for the geerc offese of aggravated drvg uder the
fluece that he ether drove or was actual physal
cotrol of the vehcle whle toxcated See Idctmet CR
6773 ad Idctmet CR-6774
Smlarly he Nth Crcut ackowledged
HeradezMartez a covcto for ggravated DUI uder Secto
28 -383(a) () - e aggravated drvg whle uder the
fluece ca occr we oe ether drves or has physcal
otrol of a vehcle whle toxcated See geerally
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\
nandez-Martinez, 329 F 3d 1119; See Id 1118 {using the
ase aggravated DU to refer to a conviction for "aggravated
ving or being in hysical control of a vehicle while under
t influence 11 )
Unfortunately, this ambiguity is only made more
ertain by toroughly examining the resective verdicts. On
of the declarations that the resondent was being found
lty for aggravate driving under the influence each verdicts to onder if a likely determination of guilt was for the
fense "as charged in the indictment. "
Again, asnoted above, the resonden as charged in
indictment was charged with the ofense of aggravated DUI
that he either drove or had hysical control of a vehicle
le intoxicated
Accordingy the verdict forms declaration that the
rsondent was guilty of "aggravated DUI" demonstrates nothing
e than as charged in the indictment, and that the resondent
s convicted or his act of driving a vehicle while having
sical control thereof See U S v FloresOrtea 152 Fedx 656 at 65 9th ir 2005} finding the generic terms in a
rdict orm were not sufficient when the verdict was reached
"s charged in the indictment and that the indictment failed
iit the ofense to the ters"
Thus te argument can be made that the verdict forms
il to cleary, convincingly, and unequivocably establish that
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te respondent ws convicted for conduct in ctull driving
vehicle while intoxicted See U S v NviddMrcos 367 F 3d
0 3 t 09 (9th Cir 2004) (finding tht generic reference to
sttute or conviction in n bstrct of judgment file to
monstrte conscious judicil nrrowing of the offense n
ore tht it did clericl ttept to bbrevite the offense)
A rgument cn be mde tht the sentencing orders
therefore re indete to stisf the modified ctegoriclnlsis As noted bove nd similr to the verdicts, these
or ders reflected forml judgment of guilt ws entered for
ggrvted driving uder the influence
In ddition to the concern tht conviction for
ggrvted DU refers to one who either drives or hs phsicl
c ontrol of vehicle the sentencing order is indeute to
estblish the sis of the respondents conviction for nother
iportnt reson Under Arizon lw, tril Courts
pronouncement of guilt is mde on the conduct of the jur hs
found the defendnt guilt of committing See generll Stte
v Boldin, 2 3 3d 279 t 284 (Arizon Ct App 2011)(explining process for otining judgent of conviction)
Ar izon R rim P 26 16(}
Accordingl the uthorit of tril ourt to
pronounce guilt nd ultite crete finl judgment of
c onviction is imited strictl to determintions de b the
jur Stte v Medor 64 2d 2 7 t 1261 (Arizon t App
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(
82) stating that it is the fnction of the jry to determine
nnocence or gilt of the defendant on a charge) .
In this case, the jrys determination of gilt
emonstrates that the respondent was convicted of aggravated DUI
s charged in the indictment a determination that is binding
n the trial Corts prononcement of gilt. See FloresCorea,
52 Fed. Appx 657
As a reslt o sentencing orders for the same reasons the verdicts do not necessarily spport the Department of
omeland Secritys position that respondents conviction is
n ecessrily rested on im or his driving the vehicle.
However, an argment cold be made that if the record
f conviction was spplemented by additional docmentary
e vidence, the reslt wold be diferent. See e. g. , Flores
orea, 152 Fed. App. 657 stating that had the record of
conviction been spplemented with the information and/or jry
instrctions limiting te predicate acts necessarily fond by
he jry, the reslt cold have been different
For instance, if there were jry instrctions to the
efect that the jry were ordered to ind either that te
respondent was driving or had physical control o the vehicle,
hen it wold be plasible to assme that the verdicts
declaration that the respondent was gilty of aggravated driving
nder the inflence trly meant driving and not the shorthand
generic offense of aggravated U
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wvr vn uming hi ru cncuin
my i iing whr in crin c h vric
g n h h cnvcn wr fr h ffn
chrg in h inicmn n h inicmn h f
rfc whhr [inicrni ws rving r physicy
cnring h vhic whi inxic
Th ur wi n h in his c h Gvrnn
h prn cun which is f uni u fr hur in mking rminin whhr rpnn w
rving fr crin cnvicin. Fr u R64 hr is
mnu nry h nic n chr r crificn f
vric inic h nihr fnn nr cun
r prn. n inic whhr h Gvrnmn'
cun w prn
wvr i cry inic h fr h nfi
f h Au Prin Dprmn h pri hv ipu
h if h fnn ws cnvic n cun n n w h
mn f riving unr upn r rvk icn n h
mn f w prir DU cnvicin wu umicy
inclu pr f h ffns f which h fnn i
cnvic s riginy n cun n n f h
inicn
nc vry clrly s h rcr wi rflc
h cun n h fnn gr h h fnn w
riving whi hi icn w supn r rvk n h h
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did n fact have two pror DUI convctons."
Tus t was specfcally agreed tat te jury was not
be advsd of tes two elemens and that th Stae need not
hav tese elements proven by the jury nasmuc as te defndant
spulaed and agreed tat hes elemens would be ncluded n
te verdcts rendered by the jury.
Terefore the acual chargs and classfcaton for
wch he defndant stands convcted are aggravated drvng
under he nfluence wl lcense s suspnded or revoked (or
with two pror DUI convctons) a Class Four flony (count
one) ; and aggravated drvng wth an alcool concentraon of
10 or more whle lcense s suspended or revoked (or wth two
pror DUI convcons) a Class our felony (count two)
The documen s not sned bu tere s an ndcaon
of Ruthann Wggns Deputy Clerk. Thus there s an Order y the
Cour from here that the Cour wll conduct a earng on Aprl
28 et cetera et ctera ndcatng whether the defendan wll
b subjec to enhanced punshment.
Tus based upon the evdence n the record the Court
wll mak the followng fndngs of fact T respondent was
brn n Panama and can clam czenshp from Panama. Te
respondent s no a ctzen o naonal of te Uned as and
canno clam czenshp by brth naturazaton dervaton or
acquson
Te rspondent was admted o te Uned Sates at
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n Jun Puero Rco on or bou Apr 20 7 s lwu
pernen resden
Responden ws convced on Jnury 9 n he
rzon Superor Cour Mrcop Couny or he couns o Coun
O ne: rved drvng nder he nuence o lcohol whle
lcense s suspended or revoked n volon o ARS 2
() ( ) ( d) { ) {) (h) nd ( ) 2 () ( ) - 4
Responden ws senenced o erm o prsonmen ox yers n he Arzon Deprmen o Correcons he Cour
kes he concluson o lw h he responden hs no been
onvced o n rved elon hs cnno consue
cre o voence under Secon {) (4) {F) o he Ac nd
hereore he Cour wll no susn he chrge n he orn
Noce o Apper
he Cour nd h on My 0 9 n he Superor
Cour o Arzon Pm Coun he responden ws convced o
rved drvng wh n coho concenron o 0 or more
whle lcense ws suspended wh wo pror convcons n
voon o Arzon Revsed Sue Secon 2 () () {d)
{g) {) {h) nd () Secon 2 () () nd Secon
04 {c) or whch he er o mprs_onen posed ws 0 yers
he Cour nds h he cres h were lleed boh n he
ornl chrn doumen nd he ddon chrn docuen
dd no rse rom snge scheme o crmn msconduc
he Cour mkes he concuson o w h he oense
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r whch the respondent was convcted on January 999 does
cnsttute a crme nvolvng moral turptude. he ourt makes
ts concluson ased upon the fact that Exht 6 n the
rcord clearly ndcates that the jury dd not need to determne
eter the respondent was drvng or was n actual pyscal
cntrol as the partes stpulated to that fact and the defendant
s ound by that stpulaton and tereore the ssue of drvng
ws not an ssue for the jury to determne So le the jury
my have ndcated as charged n the ndctment the convcton
clearly ndcates that the respondent was drvng and thereore
tat crme nvolves a crme nvolvng mora turptude.
Hoever the evdence s not as clear for the
cnvcton on ay 30 999 hs nvolves an oense whch
ocurred on arch 99 nd the Government would ask that
the ourt consder the pre-sentence report n conjuncton th
the case o Slva-revno supra to determne that ased uponte statement o the offense on page 14 of Exht s-
exht that the respondent based upon the pre-sentence
report can be found to have been drvng the vehcle.
In ths case hoever there s no clear ndcaton of
wat the jur determned The statement of te oense s for
the ass o the dult Proaton Department and oter State
agences. here s no specfc clarcaton n the record or
n te mnute entry such as for the prevous convcton that
clearly ndcates that the defendant ether stpulated that he
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was drvng or ha he jury made a spef fndng ha he
responden was drvng he vehe Therefore he Cour fnds
ha hs offense does no onsue a rme nvovng mora
urpude
Based upon he fa ha he Cour a hs me an
ony fnd ha he responden has been onved of one rme
nvovng mora urpude he Cour a hs me mus no
susan he harge under Seon 7a))A) ) of he A and
herefore he Cour a hs pon n me w ssue he
foowng order:
TEREFORE IT S ORDERED ha he responden's moon
o ermnae hese proeedngs e and s hereby GRTED
TOS
Uned Saes I mmgraon Judge
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CERCATE AGE
hereby certfy that the attached proceedng before GE
HOS CHL OEARY n the matter of
RUBEN DARO SNCHEZESQUVE
A0357274
UCSON ARZONA
s an accurate verbatm transcrpt of the recordng as provded
y the Executve Offce for mmgraton Revew and that ths s
he orgnal transcrpt thereof for the fle of the Executve
ffce for mmgraton Revew
JOAN DEROSA (ranscrber)
DEPOSTON SERVCES nc
EBRUARY 0 202
(Completon Date