Arturo Mandujano-Torres, A091 480 873 (BIA Jan. 4, 2017)

U.S.
Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals

Office of the Clerk
5107 Leesburg Pike. Suite 2000
Falls Church, Vtrgmia 22041
OHS/ICE Office of Chief Counsel

333 Mt. Elliott St., Rm. 204
Detroit, Ml 48207
Name: MANDUJANO-TORRES, ARTURO
A 091-480-873
Date of this notice: 1/4/2017
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
DorutL Ca.NU
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Greer, Anne J.
Guendelsberger, John
Pauley, Roger
Userteam: Docket
For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Arturo Mandujano-Torres, A091 480 873 (BIA Jan. 4, 2017)
DET
Immigrant & Refugee Appellate Center, LLC | www.irac.net
Acklin, Christopher James

Avanti Law Group, PLLC
600 28th St. SW
Wyoming, Ml 49509
U.S. Department of Justice

Board ofImmigration Appeals

Office of the Clerk
5107 Leesburg Pike, Suite 2000
FallsChurch, Virgmra 22041
OHS/ICE Office of Chief Counsel - DET

333 Mt. Elliott St., Rm. 204
Detroit, Ml 48207
Name: MANDUJANO-TORRES, ARTURO
A 091-480-873
Date of this notice: 1/4/2017
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,
DOWtL ct1/VL)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Greer, Anne J.
Guendelsberger, John
Pauley, Roger
Userteam:
MANDUJANO-TORRES, ARTURO
A091-480-873
CALHOUN COUNTY JAIL
OHS CUSTODY
185 E. MICHIGAN
BATTLE CREEK, Ml 49014
U.S. Depa.rtment of Justice
Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530
File:
Date:
A091 480 873 - Detroit, MI
JAN
It 2017
IN REMOVAL PROCEEDINGS
CERTIFICATION
ON BEHALF OF RESPONDENT: Christopher J. Acklin, Esquire
ON BEHALF OF OHS:
Jason A. Ritter
Assistant Chief Counsel
CHARGE:
Notice: Sec.
APPLICATION:
237(a)(2)(A)(iii), I&N Act [8 U.S.C.

Convicted of aggravated felony
1227(a)(2)(A)(iii)] -
Termination
This case was last before us on June 30, 2015, when we remanded the record for the
Immigration Judge to conduct an elements-based analysis of whether the respondenfs conviction
for possession of child sexual abusive material, in violation of section 750.145c(4) of the
Michigan Compiled Laws ("section 750.145c(4r), constitutes an aggravated felony under
sections 237(a)(2)(A)(iii) and 101(a)(43)(I) of the Immigration and Nationality Act (pertaining to
knowing possession of child pornography). On July 27, 2015, the Immigration Judge certified
this case to the Board on the respondent's appeal of his finding that the respondent is removable
as
charged.
The
Department
of
Homeland
Security
("OHS")
opposes
the
appeal.
The respondent's appeal will be sustained and proceedings will be terminated.

The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under the "clearly erroneous" standard.
8 C.F.R.
1003.l(d)(3)(i).
The Board reviews questions of law, discretion, and judgment and all other issues in appeals
from decisions of Immigration Judges de novo. 8 C.F.R. 1003.l(d)(3)(ii).
At issue on appeal is whether the Immigration Judge properly sustained the above-captioned
removal charges due to respondent's conviction for possession of child sexual abusive material, a
violation of section 750.145c(4). See Respondent's Brief at 2-7.
In re: ARTURO MANDUJANO-TORRES a.k.a. Arturo Torres
A091 480 873
The Immigration
Judge found that the state law conviction was a categorical match to
18 U.S.. 2252, 1 the federal statute pertaining to knowing possession of child pornography that
is referenced in section 10l(a)(43)(1) of the Act and therefore serves as the generic point of
comparison for determining whether the respondent's conviction is an aggravated felony.

See l.J. at 7. Before the Immigration Judge and on appeal, the respondent argues that his
Michigan conviction does not categorically qualify as an aggravated felony, and in fact describes
Specifically, it is the respondent's
contention that the Michigan statute can be violated when a perpetrator is merely negligent as to
the age of the victims depicted in the child sexually abusive material, whereas the federal statute
requires that a defendant know that the images possessed are of minors. See Resp.' s Brief at 4-7.
To determine whether the respondent's offense qualifies as an aggravated felony under
section 10l(a)(43)(1) of the Act, we employ the "categorical approach, " which requires us to
focus on the minimum conduct that has a realistic probability of being prosecuted under section
750.145c(4), rather than on the facts underlying the respondent's particular violation of that
2
statute. Moncrieffe v. Holder, 133 S.Ct.1678, 1684-85 (2013).

Section 750.145c(4) provides that:
A person who knowingly possesses any child sexually abusive material is guilty
of a felony punishable by imprisonment for not more than 4 years or a fine of not
more than $10,000.00, or both, if that person knows, has reason to know, or
should reasonably be expected to know the child is a child or that the child
sexually abusive material includes a child or that the depiction constituting the
child sexually abusive material appears to include a child, or that person has not
taken reasonable precautions to determine .the age of the child.
.
We agree with the Immigration Judge that 18 U.S.C. 2252(a)(4) is the relevant subpart and
point of comparison for the respondent's offense (l.J. at 8). This subpart of the federal statute
provides that:
(a) Any person who ...(4) either
(A) . . . knowingly possesses, or knowingly accesses with intent to view, 1 or more books,
magazines, periodicals, films, video tapes, or other matter which contain any visual depiction;
or (B) knowingly possesses, or knowingly accesses with intent to view, 1 or more books,
magazines, periodicals, films, video tapes, or other matter which contain any visual depiction
that has been mailed, or has been shipped or transported using any means or facility of
interstate or foreign commerce ...if.(i) the producing of such visual depiction involves the use of a minor engaging in sexually
explicit conduct; and
(ii) such visual depiction is of such conduct;
shall be punished as provided in subsection (b) of this section.
2
To conclude there is such a realistic probability, there must "at least " be "cases in which the
state courts in fact did apply the statute in the special (nongeneric) manner for which [Petitioner]
argues." Gonzales v. Duenas-Alvarez, 549 U.S.183, 193 (2007).
a crime broader than that described in the federal statute.
A091 480 873
Although on its face the Michigan statute covers a broader range of conduct than does the
federal statute3-due to its coverage of conduct where the perpetrator is reckless or negligent
about, or does not take reasonable precautions to determine, the age of the persons depicted in
the sexually abusive material-the Immigration Judge found that there was no realistic
probability that Michigan would prosecute individuals who operated with a mens rea of less than
had
"demonstrated
greater
culpability
than
mere
negligence."
See
l.J.
at
10.
The Immigration Judge explained that although the Michigan court found that the defendant in
Harmon "failed to take reasonable precautions" regarding the age of two 15-year-old girls he
photographed, the facts of the case reflect that the defendant did not confirm the girls' ages and
backdated consent forms to cover his actions. Id.
We disagree with the Immigration Judge's conclusion that People v. Harmon, supra, supports
his finding that Michigan would not successfully prosecute less-than-knowing possession
of child pornography. Leaving aside the fact that the defendant in that case was convicted
of producing (rather than possessing) sexually abusive images, 4 it is clear that at least one
count charged under section 750.145c related to the defendant taking photographs of a
15-year-old
girl
where
he
"did
not
ask
[her]
about
Immigration Judge acknowledged, the defendant in People

the age of the victims in that case (I.J. at 10).
v.
[her]
age."
Therefore,
as
the
Harmon, supra, "failed to confirm"
In our view, this conduct does not satisfy the
"knowing" mens rea embedded in the generic federal statute.
See also People
v.
Girard,
709 N.W.2d 229, 233 (Mich. Ct. App. 2005) (rejecting defendant's argument that state did not
prove that images were of "real" children where jury was permitted to convict if they found that
defendant "should reasonably be expected to know" that images were of children).
The federal statute requires proof that a defendant knew that the sexually explicit images at
issue were of children. See United States v. Symanski, 631 F.3d 794, 799 (6th Cir. 2011)
(citing, inter alia, United States v. X-Citement Video, Inc., 513 U.S. 64, 78, 115 S.Ct. 464,
130 L.Ed.2d 372 (1994)).

4
The conviction in People
v.
Harmon arose under a different subpart of the Michigan statute at
issue in the respondent's case, but both subparts provide for a conviction where the defendant
"knows, has reason to know, or should reasonably be expected to know the child is a child or that
the child sexually abusive material includes a child or that the depiction constituting the child
sexually abusive material appears to include a child, or that person has not taken reasonable
precautions to determine the age of the child."
knowledge as to the age of those depicted in the sexually explicit materials. See I.J. at 7-10.
This conclusion was based on an examination of, inter alia, People v, Harmon, 640 N.W.2d 314
(Mich. Ct. App. 2002), a case in which the Immigration Judge found that the defendant therein
A091 480 873
For similar reasons, we reject the DHS's reliance on the language of the charging document in
the respondent's case, which alleged in Count 2 that the respondent did "knowingly possess child
sexually abusive material."
See DHS's Brief at 4. s
Even if we were to conclude that the
Michigan statute was divisible, and even if we were to examine the record of conviction pursuant
to a modified categorical analysis, the inclusion of the word "knowingly" in the felony
information does not indicate that to convict, Michigan requires that a defendant have knowledge
required to be exercised over the material before one can be found to "possess" it.
Because we find that the record does not establish that the respondent was convicted of an
aggravated felony, and there are no other charges of removal at issue, we will sustain the
respondent's appeal and terminate these proceedings.
Accordingly, the following orders will be entered.
ORDER: The respondent's appeal is sustained.
FURTHER ORDER: Proceedings are terminated.
s The OHS argues on appeal that the statute of conviction is divisible, but has not proffered
adequate authority to establish that the various mens rea theories set forth under 750.145c(4)
reflect discrete offenses or a single offense with a disjunctive sets of "elements," more than one
combination of which could support a conviction. That is, the record lacks evidence that
Michigan law defines the different mens rea theories underlying section 750.145c as alternative
"elements" of the offense," Descamps
v.
United States, supra, at 2288 (citing Richardson
United States, 526 U.S. 813, 817 (1999)).
v.
of the age of the persons depicted in the sexually abusive material. Rather, as demonstrated
above, the word "knowingly" modifies possession, and clarifies the degree of control that is
UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
477 MICHIGAN AVENUE,
DETROIT,
Acklin,
SUITE 440
48226
PLLC
Christopher James
600 28th St. SW

Wyoming,
MI
49509
Date:
Jul 28,
2015
File A091-480-873
In the Matter of:
MANDUJANO-TORRES,
ARTURO
Attached is a copy of the written decision of the Immigration Judge.

This decision is final unless an appeal is taken to the Board of
Immigration Appeals.
Notice of Appeal,
Representative,
The enclosed copies of FORM EOIR 26,
and FORM EOIR 27,
properly executed,
Notice of Entry as Attorney or

must be filed with the Board of
Immigration Appeals on or before

The appeal must be accompanied by proof of paid fee
($110.00).
Enclosed is a copy of the oral decision.

Enclosed is a transcript of the testimony of record.
You are granted until
to submit a brief
to this office in support of your appeal.

pposi
counsel is granted until
to submit a
rief in opposition to the appeal.
Enclosed is a copy of t
order/decision o
the Immigration Judge.
All papers filed with the Court shall be accompanied by proof

of service upon opposing counsel.
Sincerely,
Immigration
cc:
RITTER,
JASON
333 MT. ELLIOTT

DETROIT,
MI
48207
UL
Avanti Law Group,
MI

UNITED STATES IMMIGRATION COURT
DETROIT, MICHIGAN
July 27, 2015
In the Matter of:
MANDUJANO-TORRES, Arturo
)
)
In Removal Proceedings
DETAINED
Respondent
Charge:
Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"

or "Act"), as amended, in that, at any time after admission, you have been
convicted of an aggravated felony as defined in section 10l (a)(43)(1) of
the Act, a law relating to an offense described in Tittle 18, United States
Code, Sections 2251, 2251A, or 2252 (relating to child pornography).
Application:
Cancellation of Removal for Certain Permanent Residents under

240A(a).
ON BEHALF OF RESPONDENT
ON BEHALF OF THE GOVERNMENT

Jason Ritter, Assistant Chief Counsel
Department of Homeland Security
333 Mt. Elliott, Second Floor
Detroit, Michigan 48207
Christopher Acklin, Esq.

Avanti Law Group, PLLC
600 28th Street SW
Wyoming, Michigan 49509
ORDER OF THE IMMIGRATION JUDGE

IT IS HEREBY ORDERED that this matter is RECERTIFIED to the Board of
Hoo.
U.S. Immigration Judge
Date
File No.: A 091-480-873
J

IMMIGRATION COURT
477 MICHIGAN AVENUE,
DETROIT,
Acklin,
SUITE 440
48226
PLLC
Christopher James
600 28th St.
SW
Wyoming,
49509
MI
Date:
Jul 27,
2015
File A091-480-873
In the Matter of:
MANDUJANO-TORRES,
ARTURO
Attached is a copy of the written decision of the Immigration Judge.

This decision is final unless an appeal is taken to the Board of
Notice of Appeal,
Representative,
The enclosed copies of FORM EOIR 26,
and FORM EOIR 27,
properly executed,
Notice of Entry as Attorney or

must be filed with the Board of
Immigration Appeals on or before

The appeal must be accompanied by proof of paid fee
($110.00).
Enclosed is a copy of the oral decision.

Enclosed is a transcript of the testimony of record.
You are granted until
to submit a brief
to this office in support of your appeal.
Opposing counsel is granted until

brief in opposition to the a
Enclosed is a co
All papers filed
of the Immigration Judge.

e Court shall be accompanied by proof
of service upon opposing counsel.

Sincerely,
KLF
Immigration Court Clerk
cc:
OHS/ICE/ATTORNEY RITTER
UL
Avanti Law Group,
MI

UNITED STATES IMMIGRATION COURT
DETROIT, MICHIGAN
In the Matter of:
)
MANDUJANO-TORRES, Arturo
Respondent
Charge:
In Removal Proceedings
DETAINED
Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"

or "Act"), as amended, in that, at any time after admission, you have been
convicted of an aggravated felony as defined in section 101(a)(43)(1) of
the Act, a law relating to an offense described in Tittle 18, United States
Code, Sections 2251, 2251A, or 2252 (relating to child pornography).
Application:
Cancellation of Removal for Certain Permanent Residents under
240A(a).
ON BEHALF OF RESPONDENT
ON BEHALF OF THE GOVERNMENT
Christopher Acklin, Esq.
Jason Ritter, Assistant Chief Counsel
A vanti Law Group, PLLC

600 28th Street SW
Department of Homeland Security

333 Mt. Elliott, Second Floor
Wyoming, Michigan 49509
Detroit, Michigan 48207
DECISION AND ORDERS OF THE IMMIGRATION JUDGE

I. PROCEDURAL msTORY
Respondent, Arturo Mandujano-Torres, is a fifty-one-year-old male, native and citizen of

Mexico. Respondent entered the United States without inspection or admission at an unknown
location, date, and time. Exh. 1. On July 24, 1991, respondent adjusted his status to a lawful
permanent resident ("LPR") under section 210(a)(2) of the Act.
Id.
The Department of
Homeland Security ("DHS" or "Government") commenced removal proceedings against

respondent by filing a Notice to Appear (''NTA") with the Detroit Immigration Court on
February 23, 2015. Id. Respondent was charged as removable under section 237(a)(2)(A)(iii) of
July 27, 2015
File No.: A 091-480-873
the Act for his December 2014 felony conviction, where he was found guilty of possessing child
sexually abusive material in violation of MICH. COMP. LAWS 750.145c(4) by the 20th Circuit
Court in Grand Haven, Michigan. 1 Id.
counsel who requested and was given a continuance for attorney preparation.
On March 16,
2015, respondent appeared for his second master calendar hearing, at which he admitted factual
allegations one through five of his NTA, including his conviction for possessing child sexually
abusive material in violation of MICH. COMP. LAWS 750.145c(4). Transcript of Record at 8-10.
Respondent, however, contested his charge of removability, specifically arguing that his
conviction did not constitute
an
aggravated felony. Respondent also indicated his intention to
file an application for cancellation of removal under section 240A{a) of the Act. Id. at 10, 15-16.
The Court designated Mexico as the country of removal, should such action become necessary.
Id. at 9.
On March 30, 2015, the Court found that the materials submitted to the Court, including
the respondent's certified Judgment of Sentence, coupled with his admission of the factual
allegations in his NTA, were sufficient to deny respondent's request for bond. Id. at 15. The
Court also sustained the charge of removability. Id. at 17. The Court found that respondent's
conviction in violation of MICH. COMP. LAWS 750.145c(4) was a conviction for

felony under the Act. Id. The Immigration Judge ("IJ") subsequently issued
an
an
aggravated
oral decision
finding respondent removable as charged as a result of his aggravated felony for possession of
child sexually abusive material, and for using a computer to commit a crime involving child
sexually abusive material.
Order of the IJ (Mar. 30, 2015). Moreover, the IJ concluded that
1 Respondent was simultaneously convicted for using a computer to commit a crime involving child sexually
abusive material in violation ofMlCH. COMP. LAWS 752.797(3)(d). Respondent was sentenced to thirty days in
jail and sixty months of probation.
2
At his initial master calendar hearing on March 2, 2015, respondent was represented by
because respondent's conviction under MICH. COMP. LAWS 750.145c(4) was an aggravated
felony, he was statutorily ineligible for cancellation of removal.
Id.
The IJ then ordered
respondent removed to Mexico. Id.
"BIA"). On June 30, 2015, the Board remanded the case, finding that the IJ's oral decision did
not include an elements-based analysis of whether respondent's offense under MICH. COMP.
LAWS 750.145c(4) categorically qualifies as an aggravated felony under section 101(a)(43)(1)
of the Act. The Board instructed the Court to provide a more detailed analysis of the particular
statute involved in determining whether respondent was removable, and if he had demonstrated
statutory eligibility for cancellation of removal.
II. EVIDENCE OF RECORD
The record of proceedings is comprised solely of documentary evidence.
The Court
admitted into the record Exhibits 1 and 2, consisting of respondent's NTA and his Judgment of
Sentence. The Court notes that it has considered all admitted evidence in its entirety, even if not
specifically mentioned further in the text of this decision.
III. LEGAL STANDARDS
A. REMOVABILITY
The Government bears the burden of proving an admitted alien's removability by clear
and convincing evidence. INA 240(c)(3)(A). Once the Government ''has established its prima
facie case,
the burden of going forward to produce evidence of non-deportability then shifts to
the [alien]." Pickering
v.
quotation marks omitted).
Gonzales, 465 F.3d 263, 269 (6th Cir. 2009) (internal citations and
An alien who has been convicted of an aggravated felony after
admission is removable. INA 237(a)(2)(A)(iii).
Respondent appealed the IJ' s decision to the Board of Immigration Appeals ("Board" or
B. AGGRAVATED FELONY
Under the Act, the definition of an aggravated felony includes "an offense described in
section .. .2252 of title 18, United
States
Code (relating to child pornography).''
INA
Knowingly possesses, or knowingly accesses with intent to view, 1 or more books,

magazines, periodicals, films, video tapes, or other matter which contain any
visual depiction ... by any means including by computer, if - (i) the producing of
such visual depiction involves the use of a minor engaging in sexually explicit
conduct; and (ii) such visual depiction is of such conduct.
2252(a)(4)(B ).
18 U.S.C.
To determine whether a state criminal conviction constitutes an aggravated felony as
defined under INA 101(a)(43)(1), the
v.
Holder, 133
Court must apply the categorical approach. Moncrieffe
S . Ct.1678, 1684 (2013); Matter of Chairez, 26 I&N Dec. 349, 351 (BIA 2014).
Using the categorical approach, the
Court must consider whether the statute defining the crime of
conviction categorically fits within the generic federal definition of a corresponding aggravated
felony. Moncrieffe, 133
the
S.
Ct. at 1684 (internal citations and quotations
omitted). This requires
Court to presume that the conviction rests upon nothing more than the least serious of the
acts criminalized by the statute. Id. However, there must be a realistic probability that the state
would appl y its statute to conduct outside of the generic offense in order to show that the statute
in question is not a categorical match. Id.
Not all statutes fall clearly within or outside of the generic federal definition. In the case
of a divisible statute (one which contains several different crimes, each described separately) the
Court may use a modified categorical approach.Id.; see also Descamps
v.
United States, 133
S.
Ct.2276, 2293 (2013) ("A court may use the modified [categorical] approach only to determine
which alternative element in a divisible statute formed the basis of the defendant 's conviction.)" ;
10l(a)(43)(1). In tum, the federal offense penalizes any person who, in pertinent part:
)
Chairez,
26 I&N Dec. at 352-55. The Court may then consider certain limited documents, such
as the "charging document, written plea agreement, transcript of plea colloquy, and any explicit
factual fmding by the trial judge to which the defendant assented."
Shepard v. United States,
C. CANCELLATION OF REMOVAL FOR CERTAIN PERMANENT RESIDENTS
Section 240A(a) of the Act authorizes the Court to exercise its discretion to cancel the
rem.oval of an alien who is removable from the United States if the alien: (1) has been lawfully
admitted for permanent residence for not less than five years; (2) has resided in the United States
continuously for seven years after having been admitted in any status; and (3) has not been
convicted of an aggravated felony. Any period of continuous residence shall be deemed to end
when the alien is served an NTA or when the alien commits a crime involving moral turpitude
that renders him inadmissible under INA 212(a)(2) or removable under INA 237(a)(2) or
(4), whichever is earliest. INA 240A(d)(l).
The applicant bears the burden of establishing his eligibility for cancellation of removal
and that he merits a favorable exercise of the Court's discretion. See INA 240(c)(4)(A); 8
C.F.R. 1240.S(d). In exercising its discretion under INA 240A(a), the Court '"must balance
the adverse factors evidencing the alien's undesirability as a permanent resident with the social
and humane considerations presented in his ...behalf to determine whether the granting of ...
relief appears in the best interest of this country."'
1998) (quoting
Matter of Marin,
Matter of C-V-T-,
22 l&N Dec. 7, 11 (BIA
16 I&N Dec. 581, 584-85 (BIA 1978) and extending it to
cancellation of removal under INA 240A(a)). Positive factors include family ties in the United
States; residence of long duration; evidence of hardship to the alien and his family if the alien is
removed; service in this country's armed forces; a history of employment; the existence of
544 U.S. 13, 16 (2005).
property or business ties; evidence of value and service to the community; proof of genuine
rehabilitation if a criminal record exists; and other evidence of the alien's good character. Id.
Negative factors include the nature and circumstances of the removal grounds; the presence of
criminal record; and other evidence of the alien's bad character or undesirability as a permanent
resident. Id.
"In any balancing test, various factors . . . are accorded more weight than others
according to the specific facts of the individual cases." Matter of Sotelo-Sotelo, 23 I&N Dec.
201, 203 (BIA 2001).
"In some cases," mere eligibility for relief may suffice to ''warrant
favorable discretionary action."
C-V-T-, 22 I&N Dec. at 12. "[A]s the negative factors grow
more serious," however, the alien must ''introduce additional offsetting favorable evidence." Id.
An alien with a criminal record "will ordinarily be required to present evidence of
rehabilitation" before discretionary relief is granted.
Id.
"However, applications involving
convicted aliens must be evaluated on a case-by-case basis, with rehabilitation a factor to be

considered in the exercise of discretion." Id.; see also Matter ofEdwards, 20 I&N Dec. 191, 196
(BIA 1990). "[A] showing of rehabilitation is not a prerequisite in every case involving an alien
with a criminal record." C-V-T-, 22 I&N Dec. at 12. The Court must ''weigh the favorable and
adverse factors to detennine whether, on balance, the 'totality of the evidence . . . ' indicates that
the 'respondent has adequately demonstrated that he warrants a favorable exercise of discretion."
Sotelo-Sotelo, 23 l&N Dec. at 204 (quoting C-V-T-, 22 I&N Dec. at 10).
significant violations of this country's immigration laws; the recency and seriousness of any
)
IV. DISCUSSION AND ANALYSIS
A. REMOVABILITY UNDER INA 237(a)(l)(A)(iii)

After having considered all of the evidence, the Court concludes that respondent's
an
aggravated felony under
INA 10 l (a)(43)(1), in that it is an offense described in 18 U.S.C. 2252. As such, respondent

is removable under INA 237(a)(2)(A)(iii).
Respondent contends that his conviction under MICH. COMP. LAWS 750.145c(4) is not
an aggravated felony because the state statute is patently dissimilar to the corresponding federal
offense under 18 U.S.C. 2252. Respondent points to the language of 18 U.S.C. 2252(a)(2),
which requires that a person "knowingly receive" visual depictions involving a minor engaging
in sexually explicit conduct, and contrasts it with MICH. COMP. LAWS 750.145c(4), which reads
"if that person knows, has reason to know or should reasonably be expected to know" that the
child sexually abusive material "includes a child or . . appears to include a child." Specifically,
respondent posits that the difference in text between tb.e Michigan statute and the federal statute
results in Michigan courts finding defendants culpable under a mens rea standard lower than the
mens rea required under the federal statute. Based on that assumption, respondent asserts that
MICH. COMP. LAWS 750.145c(4) allows for a conviction based on the mere negligence of the
defendant, while 2252 purportedly requires specific intent, such as knowledge, rather than
mere negligence.
The Court finds this argument without merit.
The Michigan Supreme Court's recent
interpretation of MICH. COMP. LAWS 750.145c(4) is particularly instructive. In People
v.
Flick,
790 N.W.2d 295 (Mich. 2010), the Supreme Court found that a conviction under MICH. COMP.
LAWS 750.145c(4) requires "a specific mens rea or knowledge element as a prerequisite for
conviction under MICH. COMP. LAWS 750.145c(4) is categorically
establishing criminal culpability." Flick, 790 N.W.2d at 302-03. The Michigan Supreme Court
noted that the defendants "did more than passively view child sexually abusive material." Id. at
304. Rather, they engaged in several affirmative, intentional actions that demonstrated knowing
See id. The Michigan Supreme Court distinguished such
conduct from a person who "accidentally views a depiction of child sexually abusive material on
a computer screen." Id. at 305. In that instance, the Flick Court found that such person does not
"'knowingly possess' any child sexually abusive material in violation of MCL 750. l 45c(4)." Id.
The Michigan Supreme Court's repeated emphasis upon intentional and purposeful
actions by defendants clearly demonstrates that a higher
for a conviction under MICH. COMP.
mens rea than negligence is necessary
LAWS 750.145c(4). This directly undermines respondent's
assertion that Michigan courts hold defendants culpable under a
mens rea standard which is
lower than the intentional mens rea required under the federal statute.
Additionally, respondent asserts that MICH. COMP.
LAWS 750.145c(4) does not fall
2
within the federal statute because a subsection of the federal offense requires that a person
"knowingly receive" sexually explicit conduct involving a minor, whereas the Michigan statute
does not. However, this argwnent also fails. The Court finds that subsection (a)(4) of 18 U.S.C.
2252, rather than subsection (a)(2), closely follows the language of MICH. COMP. LAWS
750.145c(4) because it penalizes a person who "knowingly possesses, or knowingly accesses
with intent to view ... by any means including by computer, if - (i) the producing of such visual
depiction involves the use of a minor engaging in sexually explicit conduct; and (ii) such visual
depiction is of such conduct." 18 U.S.C. 2252(a)(4)(B) (emphasis added). In comparison, the
state statute of conviction penalizes a person who:
[K]nowingly possesses or knowingly seeks and accesses any child sexually abusive
2
18 U.S.C. 2252(a)(2).
possession of the prohibited material.
material ... if that person knows, has reason to know, or should reasonably be
expected to know the child is a child or that the child sexually abusive material
includes a child or that the depiction constituting the child sexually abusive
material appears to include a child, or that person has not taken reasonable
precautions to determine the age of the child.
provision under the federal statute for determining whether respondent's state conviction was an
aggravated felony is 18 U.S.C. 2252(a)(4), ratherthan 18 U.S.C. 2252(a)(2).
Lastly, respondent argues that the Michigan statute is broader than the federal offense by
seemingly encompassing merely negligent actions, and is thus not a categorical match.
However, there must be a realistic probability that the state would apply its statute to conduct
outside of the generic federal offense in order to show that the statute in question is not a
categorical match. Moncrieffe, 133 S. Ct. at 1684. Although the second clause of the Michigan
statute facially criminalizes a broader range of conduct than the federal offense, there is no
evidence that Michigan courts actually convict defendants for this conduct. Rather, Michigan
courts emphasize that a conviction under the statute requires that a defendant knowingly possess
or
access
child sexually abusive material. Thus, the categorical approach proves dispositive.
Moreover, in an attempt to magnify the alleged differences between the Michigan statute
and the federal offense, respondent points to certain state
cases
which purportedly demonstrate
that defendants have been convicted under a "'negligence' standard."
However, the Court's
review finds that ,those defendants were not merely negligent For example, respondent cites to
People
v.
Harmon, 640 N.W.2d 314 (Mich. Ct. App. 2001), where the defendant was convicted
under MICH. COMP. LAWS 750.14Sc(2).
This subsection contains a similar clause to MICH.
COMP. LAWS 750.145c(4), in that it penalizes a person for producing sexually abusive material
if that person 'knows, has reason to know, or should reasonably be expected to know" that the
MICH. COMP. LAWS 750.145c(4) (emphasis added). As such, the Court finds that the relevant
child is a child or that person "has not taken reasonable precautions to determine the age of the
child."
MICH. COMP. LAWS 750.145c(2).
Although the Michigan court stated that the
defendant "failed to take reasonable precautions regarding the age of the victims," his actions
defendant failed to confirm the age of the victims before photographing them in the nude, even
after he informed them that such confirmation was required. Id. Subsequently, he then had the
children sign backdated consent forms in an attempt to cover his tracks. Id. Such actions can
hardly be described as simple negligence.
Therefore, the Court finds that respondent's conviction under MICH. COMP. LAWS
750.145c(4) is categorically an aggravated felony under INA 101(a)(43)(0, in that it is an
offense described in 18 U.S.C. 2252.
The Michigan statute falls within the federal offense
because both statutes penalize the knowing possession or
access
of child pornography. Although
the language of the Michigan statute may suggest a lesser culpability necessary for convictions,
there is no realistic probability that persons would be convicted for mere negligence, as
respondent alleged.
As such, respondent's conviction is an aggravated felony, and he is
removable under INA 237(a)(2)(A)(iii).

8. CANCELLATION OF REMOVAL UNDER INA 240A(a)
Respondent is statutorily ineligible for cancellation of removal under INA 240A(a). In

order to be statutorily eligible for such relief, respondent must show: (1) that he has been an LPR
for at least five years; (2) that he has seven years of continuous residence in the United States;
(3) that he has not been convicted of an aggravated felony; and (4) that there is a positive balance
of factors for this discretionary form of relief. INA 240A(a); see generally C-V-T-, 22 l&N
Dec. 7. As the Court has found that respondent's conviction for possessing child sexually
10
demonstrated greater culpability than mere negligence. Harmon, 640 N.W .2d at 318-19. The
abusive material in violation of MICH. COMP. LAWS 750.145c(4) is an aggravated felony,

respondent is barred from seeking cancellation of removal.
VI.ORDERS
IT IS FURTHER ORDERED that respondent is ineligible for cancellation of
removal under INA 240A(a).

IT IS FURTHER ORDERED that respondent be removed to MEXICO,
pursuant to the charges contained in his Notice to Appear.
Hon. David H. Paruch

U.S. Immigration Judge
Date
11
IT IS HEREBY ORDERED that the charge of removability under INA
237(a)(2)(A)(iii) is SUSTAINED.

Arturo Mandujano-Torres, A091 480 873 (BIA Jan. 4, 2017)

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U.S.

Executive Office for Immigration Review

Board ofImmigration Appeals

OHS/ICE Office of Chief Counsel

Name: MANDUJANO-TORRES, ARTURO

Date of this notice: 1/4/2017

For more unpublished BIA decisions, visit

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Acklin, Christopher James

U.S. Department of Justice

Board ofImmigration Appeals

OHS/ICE Office of Chief Counsel - DET

Name: MANDUJANO-TORRES, ARTURO

Date of this notice: 1/4/2017

Immigrant & Refugee Appellate Center, LLC | www.irac.net

U.S. Depa.rtment of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

A091 480 873 - Detroit, MI

237(a)(2)(A)(iii), I&N Act [8 U.S.C.

The respondent's appeal will be sustained and proceedings will be terminated.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

In re: ARTURO MANDUJANO-TORRES a.k.a. Arturo Torres

A091 480 873

comparison for determining whether the respondent's conviction is an aggravated felony.

statute. Moncrieffe v. Holder, 133 S.Ct.1678, 1684-85 (2013).

Immigrant & Refugee Appellate Center, LLC | www.irac.net

a crime broader than that described in the federal statute.

A091 480 873

backdated consent forms to cover his actions. Id.

Immigration Judge acknowledged, the defendant in People

Harmon, supra, "failed to confirm"

In our view, this conduct does not satisfy the

"knowing" mens rea embedded in the generic federal statute.

See also People

130 L.Ed.2d 372 (1994)).

The conviction in People

Harmon arose under a different subpart of the Michigan statute at

precautions to determine the age of the child."

Immigrant & Refugee Appellate Center, LLC | www.irac.net

A091 480 873

See DHS's Brief at 4. s

Even if we were to conclude that the

United States, supra, at 2288 (citing Richardson

United States, 526 U.S. 813, 817 (1999)).

Immigrant & Refugee Appellate Center, LLC | www.irac.net

UNITED STATES DEPARTMENT OF JUSTICE

600 28th St. SW

Attached is a copy of the written decision of the Immigration Judge.

The enclosed copies of FORM EOIR 26,

and FORM EOIR 27,

Notice of Entry as Attorney or

Immigration Appeals on or before

Enclosed is a copy of the oral decision.

to this office in support of your appeal.

counsel is granted until

rief in opposition to the appeal.

the Immigration Judge.

All papers filed with the Court shall be accompanied by proof

333 MT. ELLIOTT