Matter of Jose Castaneda-Gonzalez

Board of Immigration Appeals

Jose Castaneda-Gonzalez appealed the decision of an Immigration Judge that found him removable to the Board of Immigration Appeals (BIA).  The BIA sustained the appeal and terminated removal proceedings.

On April 29, 1999, Castaneda-Gonzalez pleaded guilty in a Colorado court to a class 3 misdemeanor of harassment and was sentenced to probation.

The Department of Homeland Security charged Castaneda-Gonzalez with begin subject to removal because he had been convicted of a crime of violence as defined by the INA.  The Immigration Judge assigned to the case relied upon police records submitted by the DHS.

In reviewing the Colorado Statute, the BIA found that the statute is divisible between “acts of physical violence (strikes, shoves, kicks) and lesser offensive touchings (touches a person or subjects him to physical contact).”  The BIA has held that when a statute is divisible, it may look beyond the statute to consider the facts that appear in the record of conviction (Matter of Pichardo, 21 I&N Dec. 330, 334 (BIA 1996)).

The Board found that the police reports submitted were not part of the conviction and does not fall within the categories of evidence that can be used to establish a conviction under the INA.  Also, Castaneda-Gonzalez did not plead guilty in the police report.

Therefore, the BIA found that the DHS failed to establish “by clear and convincing evidence” that Castaneda-Gonzalez was convicted of a crime under section 240(c)(3)(A) of the INA.  Castaneda-Gonzalez’s appeal was sustained.