Thursday, February 9th, 2017

Unpub. BIA on Burden of Proof, Police Report, Silva-Trevino Step 3: Matter of Hernandez Avila

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"At issue in this case was whether the respondent's conviction in violation of California Penal Code § 653w(a) (failure to disclose origin of a recording or audiovisual work) renders him removable under section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i), as an alien convicted of a crime involving moral turpitude ("CIMT") within 5 years after admission for which a sentence of 1 year or longer may be imposed.  In her May 27, 2011, decision, the Immigration Judge terminated proceedings, finding that the DHS did not sustain its burden of proof.  The DHS appealed, arguing that it submitted sufficient evidence (i.e. a police report, including arrest records, Exhibit 7) to support a removability finding under the third step of Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).  On August 30, 2012, we dismissed the DHS's appeal.  In its motion for reconsideration, the DHS alleges that we erred