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Sanchez v. Holder

United States Court of Appeals, Seventh Circuit

July 9, 2014

FREDY ARNOLDO SANCHEZ, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent

Argued February 24, 2014

Page 713

Petition for Review of an Order of the Board of Immigration Appeals.

For Fredy Arnoldo Sanchez, Petitioner: Jonathan H. Ebner, Attorney, Baker & Mckenzie Llp, Chicago, IL; Charles Roth, Attorney, Chicago, IL; William Lynch Schaller, Attorney, Baker & Mckenzie Llp, Chicago, IL.

For ERIC H. HOLDER, JR., Attorney General of the United States, Respondent: Jennifer R. Khouri, OIL, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC.

Before FLAUM and ROVNER, Circuit Judges, and KENDALL, District Judge.[*]

OPINION

Page 714

Flaum, Circuit Judge 

Fredy Arnoldo Sanchez seeks review of a Board of Immigration Appeals decision dismissing his appeal of the immigration judge's order of removal. The Board determined that Sanchez was ineligible for cancellation of removal because he failed to prove that he had not been convicted of a crime involving moral turpitude. Because the Board did not properly conduct the three-step inquiry prescribed in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), we grant Sanchez's petition and remand for further proceedings.

I. Background

Fredy Arnoldo Sanchez, a citizen and native of El Salvador, entered the United States without inspection in 1989. Sanchez is now forty-seven, is married to a lawful permanent resident, and has four children, all of whom are U.S. citizens. He lives in Indianapolis, Indiana.

In either 1989 or 1994 (the parties dispute this, but it does not matter for this appeal), Sanchez filed an application for asylum and withholding of removal. In 2002, he filed an additional application for special rule cancellation of removal under § 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub. L. No. 105-100, 111 Stat. 2160, as amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997). After an interview, the Department of Homeland Security referred Sanchez's applications to an immigration judge (IJ). He was charged with removability under § 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without admission or parole.

Sanchez conceded his removability during his initial appearance before the IJ in August 2006. At his next hearing, in December 2007, Sanchez submitted a renewed application for NACARA special rule cancellation of removal along with an application for cancellation of removal under INA § 240A(b), 8 U.S.C. § 1229b(b), based on exceptional hardship to his U.S. citizen children. While his removal proceedings were pending, the government submitted evidence that Sanchez was not eligible for NACARA relief because he had assisted in the persecution of others while serving in the El Salvador military. Sanchez asked for a continuance to respond to the government's allegations.

Page 715

At Sanchez's next hearing, in August 2009, a new issue arose. Sanchez told the IJ that he had been arrested in Indiana in September 2008 " for leaving the scene of an accident where serious bodily injury occurred." Apparently hearing this information for the first time, the government argued that Sanchez's conduct constituted a crime involving moral turpitude. An alien convicted of a crime involving moral turpitude (a CIMT, for short) is statutorily ineligible for cancellation of removal under either the INA or NACARA, subject to exceptions not at issue here. See 8 U.S.C. § 1182(a)(2)(A)(i) (" any alien convicted of, or who admits having committed, or who admits committing acts that constitute the essential elements of ... a crime involving moral turpitude" is inadmissible, subject to exceptions); id. § 1101(f)(3) (a person cannot show good moral character if she has been convicted of a crime of moral turpitude during the relevant period); id. § 1229b(b)(1)(C) (the Attorney General may cancel the removal of a nonpermanent resident who " has not been convicted of an offense under section 1182(a)(2)" ). The INA does not define the term. However, the Board of Immigration Appeals and our circuit have described a CIMT as " conduct that shocks the public conscience as being 'inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.'" Lagunas-Salgado v. Holder, 584 F.3d 707, 710 (7th Cir. 2009) (quoting In re Solon, 24 I. & N. Dec. 239, 240 (B.I.A. 2007)).

The IJ continued the proceedings again to allow Sanchez to provide more information about his Indiana arrest. Sanchez then submitted a " case chronology printout" (a docket sheet) from the Criminal Division of the Marion Superior Court. The printout states that in October 2009, Sanchez pleaded guilty to one count of a violation of Ind. Code § 9-26-1-8, " Failure to stop and remain at scene of accident resulting in injury or death." That provision holds that " [a] person who knowingly or intentionally fails to stop or comply with section 1(1) or 1(2) of this chapter after causing injury to a person commits ... a Class D felony if ... the accident involves serious bodily injury to a person." The referenced section, Ind. Code § 9-26-1-1, " Duties of driver of vehicle involved in accident resulting in injury, death, or entrapment," provides:

Except as provided in section 1.5 of this chapter[1] the driver of a motor vehicle involved in an accident that results in the injury or death of a person or the entrapment of a person in a vehicle shall do the following:
(1) Immediately stop the driver's motor vehicle at the scene of the accident or as close to the accident as possible in a manner that does not ...

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