28 I. & N. Dec. 262
BIA2021Background
- Respondent Juan Pablo Aguilar‑Mendez, a Mexican national, entered the U.S. without admission and was placed in removal proceedings after service of a notice to appear (NTA). A later notice of hearing specified the time and place of his initial hearing, which he attended with counsel.
- In July 2014 he was convicted in California of assault by means of force likely to produce great bodily injury, Cal. Penal Code § 245(a)(4).
- The Immigration Judge (IJ) denied his application for cancellation of removal under INA § 240A(b)(1), concluding the § 245(a)(4) conviction is a crime involving moral turpitude (CIMT), and also denied voluntary departure in the exercise of discretion without making detailed findings.
- Aguilar‑Mendez appealed the CIMT determination and the denial of voluntary departure, and filed a motion to terminate proceedings arguing the NTA was defective because it initially omitted the time and date of the hearing.
- The Board affirmed the CIMT determination, holding § 245(a)(4) is categorically a CIMT (following Matter of Wu and Ninth Circuit precedent), remanded for the IJ to make explicit findings and reassess voluntary departure, and denied the motion to terminate because the later notice of hearing cured the NTA defect and no due‑process prejudice was shown.
Issues
| Issue | Aguilar‑Mendez's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether Cal. Penal Code § 245(a)(4) is a crime involving moral turpitude (CIMT) | § 245(a)(4) does not categorically involve moral turpitude | The statute necessarily criminalizes reprehensible, culpable violent conduct and is a CIMT | BIA: § 245(a)(4) is categorically a CIMT; IJ’s ineligibility ruling affirmed |
| Whether voluntary departure was properly denied | He is eligible and merits voluntary departure as a matter of discretion | IJ permissibly denied voluntary departure in the exercise of discretion | BIA: Remanded — IJ must make explicit findings on favorable/unfavorable factors and reassess discretion |
| Whether proceedings must be terminated because the NTA omitted time/date | Defective NTA deprived IJ of jurisdiction; proceedings should be terminated | Later-served notice of hearing cured defect; jurisdiction vested and no due‑process prejudice | BIA: Motion to terminate denied; later notice cured defect and no showing of prejudice |
Key Cases Cited
- Moncrieffe v. Holder, 569 U.S. 184 (U.S. 2013) (articulated the categorical-approach framework)
- Safaryan v. Barr, 975 F.3d 976 (9th Cir. 2020) (Ninth Circuit upheld BIA’s conclusion that assault by force likely to produce great bodily injury is a CIMT)
- Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) (a defective NTA can be cured by subsequent notice of hearing)
- Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020) (same principle on NTA defects and cure by later notice)
- Gomez‑Velazco v. Sessions, 879 F.3d 989 (9th Cir. 2018) (due‑process claim requires showing the defect "potentially affected" the outcome)
- Campos‑Granillo v. INS, 12 F.3d 849 (9th Cir. 1994) (remand required when IJ fails to make necessary voluntary‑departure findings)
- Marmolejo‑Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (courts defer to BIA on moral‑turpitude determinations)