U.S. Citizenship and Immigration Services

MATTER OF T-M-G-

Non-Precedent Decision of the Administrative Appeals Office

DATE: OCT. 28,2016

MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION

APPLICATION: FORM I-601, APPLICATION FOR WAIVER OF GROUNDS OF INADMISSIBILITY

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The Applicant, a native and citizen of Colombia, seeks a waiver of the grounds of inadmissibility for a controlled substance violation and for crimes involving moral turpitude. See Immigration and Nationality Act (the Act) section 212(h), 8 U.S.C. § 1182(h). A foreign national seeking to be admitted to the United States as an immigrant or to adjust status to lawful permanent residence must be admissible or receive a waiver of inadmissibility. U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary waiver if refusal of a<4nission would result in extreme hardship to a qualifying relative or qualifying relatives; or, because the activities for which the foreign national is inadmissible occurred 15 years prior, if the foreign national's admission wquld not be contrary to the national welfare, safety, or security of the United States and the foreign national has been rehabilitated.

The Field Office Director, Miami, Florida, denied the application, concluding that the Applicant was inadmissible under section 212(a)(2)(A)(i)(ll) of the Act for conviction of a controlled substance violation, specifically for possession of cocaine. The Director determined that the Applicant was statutorily ineligible for a waiver under section 212(h) of the Act due to this conviction. Because of this ineligibility determination, the Director did not address whether the Applicant was inadmissible on any other grounds or whether denial of the waiver would result in extreme hardship to a qualifying relative. We summarily dismissed the subsequent appeal, finding that the Applicant had not identified any erroneous conclusion oflaw or statement of fact in the Director's decision.

The matter is now before us on a motion to reopen and a motion to reconsider. In the motion, the Applicant submits evidence of new facts regarding a judge's order vacating her conviction for possession of cocaine. She claims that the conviction was vacated based on a defect in the underlying criminal proceedings, and therefore she is no longer ineligible for a waiver. Upon review, we will grant the motion to reopen and sustain the appeal.

I. LAW

The Applicant is seeking to adjust status to lawful permanent resident and has been found inadmissible for a controlled substance violation, specifically possession of cocaine. Section 212(a)(2)(A)(i)(II) of the Act provides that any foreign national convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a violation of (or a

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conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.

The Applicant also indicated on her Form 1-601, Application for Waiver of Grounds oflnadmissibility, that she has been convicted of a crime involving moral turpitude, which is a ground of inadmissibility under section 212(a)(2)(A)(i)(I) ofthe Act. Section 212(a)(2)(A)(ii) of the Act further provides that this inadmissibility does not apply to a foreign national who committed only one crime involving moral turpitude if the maximum penalty possible for the crime did not exceed imprisonment for one year and the foreign national was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

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Individuals found inadmissible under section 212(a)(2)(A)(i)(I) of the Act may seek a waiver of inadmissibility under section 212(h) of the Act. Section 212(h) of the Act provides for a discretionary waiver where the activities occurred more than 15 years before the date of the application if admission to the United States would not be contrary to the national welfare, safety, or security of the United States, and the foreign national has been rehabilitated; or if denial of admission would result in extreme hardship to a United States citizen or lawful permanent resident spouse, parent, son, or daughter. The waiver is not available for individuals who are inadmissible for a controlled substance violation, unless the individual has a single conviction for simple possession of 30 grams or less of marijuana and meets the other statutory eligibility requirements. See Section 212(h) ofthe Act, 8 U.S.C. § 1182(h).

II. ANALYSIS

The Applicant's motion presents the threshold issue of her inadmissibility due to a controlled substance violation, specifically whether subsequent proceedings to vacate the conviction mean that she no longer has a "conviction" under section 101(a)(48) of the Act. After reviewing the procedural history following her prosecution for possession of cocaine, we conclude that she no longer has a conviction for this offense.

While the Applicant's controlled substance violation was the only matter addressed on appeal and on motion, other issues relating to her ,inadmissibility and eligibility for a waiver remain. The Applicant has been arrested and charged for theft-related offenses on numerous occasions. While she claims that all the charges were dismissed, the record indicates that she has multiple convictions resulting from these arrests. The convictions, in tum, raise the questions of whether any of these convictions were for a crime involving moral turpitude, and if so, whether the petty offense exception under section 212( a)(2)(A) applies. If the Applicant is inadmissible for a crime involving moral turpitude, she must show that a qualifying relative-in this case, her spouse- would experience extreme hardship if her waiver is denied.

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A. Inadmissibility

1. Controlled Substance Violation

As stated above, the Applicant has been found inadmissible under section 212(a)(2)(A) of the Act for a controlled substance violation. The record reflects that in 1994, the Applicant pled guilty to the charge of possession of cocaine under Fla. Stat. Ann.§ 893.13(6)(a) (West 1993). 1 The judge found the Applicant guilty but withheld adjudication of guilt, sentencing her to credit for 21 days of time served in jail. This 1994 disposition constitutes a conviction under section 101(a)(48) of the Act, which provides that, if adjudication of guilt has been withheld, a conviction exists for immigration purposes where a judge or jury has found the foreign national guilty or the foreign national has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and the judge has ordered some form of punishment, penalty, or restraint on the foreign national's liberty.

a. Motion to Vacate 1994 Judgment and Entry ofNew Plea

In 2012, the Applicant filed a motion to vacate the 1994 judgment and sentence under Fla. R. Crim. P. 3.850(a)(5), which provided:

(a) Grounds for Motion. The following grounds may be claims for relief from judgment or release from custody by a person who has been tried and found guilty or has entered a plea of guilty or nolo contendere before a court established by the laws of Florida:

(5) The plea was involuntary.

In her motion to vacate the judgment and sentence, she alleged that her plea was involuntary because her attorney during her initial proceedings did not advise her of the immigration consequences of her plea, as required by the U.S. Supreme Court's holding in Padilla v. Kentucky, 559l}.S. 356 (2010).

1 At the time of the Applicant's conviction, Fla. Stat. Ann. § 893.13(6)(a) provided that:

It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

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She also challenged the legality of her sentence under Fla. R. Crim. P. 3.800, alleging that the . sentence that was imposed as a result of her plea was impermissible under Fla. R. Crim. P. 3.670, which requires a judge to place a defendant on probation if adjudication of guilt is withheld.

The judge reviewing the Applicant's motion subsequently entered and signed an "Order Granting Defendant's Motion to Vacate Judgment and Sentence Due to Constitutional and Substantive Defects in the Underlying Criminal Proceedings."

Generally, where a court vacates a conviction based on a defect in the underlying criminal proceedings, the foreign national no longer has a "conviction" within the meaning of section 101(a)(48)(A) of the Act. See Matter of Pickering, 23 I&N Dec. 621, 624 (BIA 2003), reversed on other grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006).

However, in the Applicant's case, after the 1994 judgment and sentence were vacated by the 2012 order, she entered a new guilty plea to the same charge. After entering her plea, the judge issued "Orders of Supervision" withholding adjudication of guilt and placing the Applicant on 8 months of administrative probation, to include monthly drug testing and completion of community service. The order further provided that upon the Applicant's successful completion of probation, the judge would vacate the judgment and the state would nolle prosequi the charge.

b. Motion to Vacate 2012 Judgment and Sentence

In 2012, midway through the Applicant's probationary period, the judge ordered the 2012 "Orders of Supervision" vacated, and the prosecutor requested a nolle prosequi of the

charge.

In her Form I-601, the Applicant claimed that, because of this 2012 vacatur, she no longer had a conviction for a controlled substance violation. However, the Director determined that she remained convicted, as the judgment was vacated after completion of rehabilitative actions, such as drug testing. After reviewing the record of those proceedings, we find that this 2012 disposition is more aptly characterized as completion of a pretrial diversion program, but still constitutes a conviction for immigration purposes. In accordance with the definition of conviction in section 101(a)(48) of the Act, where a foreign national pleads guilty or nolo contendere, or is found guilty, but entry of the judgment is deferred by the court to allow for a period of probation and/or completion of a diversion program, the foreign national has been convicted for immigration purposes even if the charges are later dismissed. See Matter of Marroquin-Garcia, 23 I&N Dec. 705, 714-15 (A.G. 2005); Matter of Roldan-Santoyo, 22 I&N Dec. 512 (BIA 1999).

The Applicant's probation order required regular drug testing and community service. There is no written order, and the available records do not indicate the specific basis for the judge's 2012 order. However, the court transcript of the final·hearing reflects that the judge's inquiry was limited to the Applicant's compliance with the terms of her probation, and that her success in that program precipitated the judge's decision to grant the oral motion to vacate the sentence and

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judgment. In totality, the record of the Applicant's 2012 proceedings supports the Director's determination that the order vacating the judgment and sentence was the result of the Applicant's participation in a diversion program, and the Applicant did not provide evidence indicating otherwise with her Form I-601. Accordingly, we find that, as of the entry of the

2012 order, the Applicant remained conyicted under the Act.

c. 2016 Order Granting Applicant's Motion to Clarify

On motion, the Applicant submitted evidence of a new order, which she asserts establishes that the 2012 vacatur was for procedural defects rather than her participation in a diversion

program. The new order, entered in 2016, states that the Applicant's 2012 plea did not comport with Fla. R. Crim. P. 3.172, which required the trial judge to determine that her plea of guilty or nolo contendere was voluntarily entered. Pursuant to Rule 3.172, a judge must make this determination by addressing the defendant personally and determining that she understands the nature of the charge, the right to representation, the right to trial by jury and attendant rights, the effect of the plea, the waiving of her right to trial, the questions asked by the judge, the terms of the plea agreement, the deportation consequences of her plea, and consequences related to sexually violent or sexually motivated offenses or suspension ofher driver's license. Florida courts have held that this determination requires the assistance of a competent interpreter where the defendant is incapable of communicating in English. See Perez v. State, App. 2 Dist.,449 So.2d 407 (1984) and Balderrama v. State, App. 2 Dist., 433 So.2d 1311 (1983). Because the Applicant required a Spanish interpreter, but no interpreter was present when she entered her plea in 2012, the judge reviewing her motion determined that her plea had not been entered voluntarily. The 2016 order states, "The motion to vacate that was ente~ed by the Court on 2012 was based on Florida Rules of Criminal Procedure 3 .172."

The 2016 order expressly states that the judgment was v~~ated based on a defect in the underlying proceedings and therefore the Applicant no longer · has a conviction for cocaine possession. As a result, she is no longer inadmissible under section 212(a)(2)(A) of the Act for a controlled substance violation.

2. Crime Involving Moral Turpitude

Neither the Director's decision nor the Applicant's motion addresses whether the Applicant is inadmissible for a crime involving moral turpitude under section 212(a)(2)(A) of the Act. In her Form I-601, the Applicant claims that she was arrested and charged with petit theft on nine occasions between 1994 and 1998, but that all charges were dismissed. However, the misdemeanor records submitted with her Form I -601 show that she was convicted' at least six times for petit theft. 2

2 The misdemeanor records indicate convictions on six occasions. On one other occasion, the record reflects that adjudication was withheld and the Applicant was placed on probation. If adjudication of guilt has been withheld, a conviction exists for immigration purposes where a judge or jury has found the foreign national guilty or the foreign national has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

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Her sentences included, variably, credit for time served in jail and payment of a fine and costs. Also, the record states that she was convicted of resisting an officer/merchant and sentenced to pay a fine and costs. We now consider whether any of these convictions constitutes a crime involving moral turpitude.

The Board of Immigration Appeals (the Board) held in Matter,of Perez-Contreras, 20 I&N Dec. 615,617-18 (BIA 1992), that:

[M]oral turpitude is a nebulous concept, which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one's fellow man or society in general.. ..

In determining whether a crime involves moral turpitude, we consider whether the act is accompanied by a vicious motive or corrupt mind. Where knowing or intentional conduct is an element of an offense, we have found moral turpitude to be present. However, where the required mens rea may not be determined from the statute, moral turpitude does not inhere.

(Citations omitted.)

In assessing whether a conviction is a crime involving moral turpitude, we must first "determine what law, or portion of law, was violated." Matter of Esfandiary, 16 I&N Dec. 659, 660 (BIA 1979); see also Matter of Chairez, 26 I&N Dec. 819 (BIA 20 16) (Board of Immigration Appeals engaged in a categorical inquiry of the entire criminal statute addressing discharge of a firearm rather than a specific subsection because the amended charging document to which the respondent pled guilty "did not specifically allege ... any one portion of the statute to the exclusion of any other"). We then engage in a categorical inquiry of the statute, considering the "inherent nature of the crime as defined by statute and interpreted by the courts," not the underlying facts of the criminal offense. Matter of Short, 20 I&N Dec. 136, 13 7 (BIA 1989); see also Matter of Louissaint, 24 I&N Dec. 754, 757 (BIA 2009) (citing Taylor v. United States, 495 U.S. 575, 599-600 (1990)). This categorical approach focuses on whether moral turpitude necessarily inheres in the minimal conduct for which there is a realistic probability of prosecution under the statute. See Matter of Silva­Trevino, 26 I&N Dec. 826, 831 (BIA 2016) (citing Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-1685 (2013); Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 822 (2007)).

Where a criminal statute is divisible (encompasses multiple distinct offenses not aH of which are crimes involving moral turpitude), we conduct a modified categorical inquiry by reviewing the record of conviction to discover which offense within the divisible statute formed the basis of the

,, the judge has ordered some form of punishment, penalty, or restraint on the foreign national's liberty. The evidence in the record does not indicate whether the Applicant entered a plea before the judge withheld adjudication, and therefore we are unable to determine whether this disposition constitutes a conviction.

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conviction, and then to determine whether that offense is categorically a crime involving moral turpitude. See Short, supra, at 137-38, see also Descamps v. US., 133 S. Ct. 2276, 2285-86 (2013). The record of conviction is a narrow, specific set of documents which includes the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript. See Louissant, supra, at 757; see also Shepard v. US., 544 U.S. 13, 16 (2005) (finding that the record of conviction is limited to the "charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant as~ented.")

A divisible statute "(1) lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of "elements," more than one combination of which could · support a conviction, and (2) at least one (but not all) of those listed offenses or combinations of disjunctive elements is a "categorical match" to the relevant generic standard." Chairez, supra, at 822 (citing Descarr{ps, supra, at 2283). However, disjunctive statutory language only renders a statute divisible where "each statutory alternative defines an independent "element" of the offense, as opposed to a mere "brute fact" describing various means or methods by which the offense can be committed." !d. (citing US. v. Mathis, 136 S. Ct. 2243, 2248 (2016)). "Elements" are what the prosecution must prove to sustain a conviction: at trial, they are what the jury must find beyond a reasonable doubt to convict, and at a plea hearing, they are what the defendant necessarily admits when pleading guilty. Mathis, supra, at 2248. Means or methods are extraneous to the crime's legal requirements; they are circumstances or events that need neither be found by a jury nor admitted by a defendant. !d.

There are various sources for confirming whether alternatives are elements or means. First, the statute on its face may dictate that alternatives are elements because they carry different punishments or are identified as things that must be charged. Mathis, supra, at 2256. On the other hand, it may be clear from the statute that they are means because they are listed as "illustrative examples." !d. Second, a court decision or other source of law in the jurisdiction may provide the answer. See Mathis, supra, at 2256 (finding that the Iowa Supreme Court had previously determined that the listed premises in Iowa's burglary law were just alternative methods and a jury did not need to agree on the location); see also Chairez, supra at 824 (determining that separately enumerated mental states for the crime of discharge of a firearm in Utah were not elements partly because the Utah Supreme Court did not require jury unanimity for the different mental states listed in the crime of second-degree murder). Third, we can look at the record of conviction itself for the sole and limited purpose (at this stage of the analysis) of resolving the divisibility question. Mathis, supra, at 2257. For example, the indictment or jury instructions might just reiterate all the alternatives, or use a single umbrella term for various alternatives, indicating that these alternatives are means of commission for which the jury did not need to make a unanimous decision. !d. On the other hand, the record of conviction could indicate "by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements .... " !d.

We will address separately whether either petit theft or resisting an officer/merchant constitutes a crime involving moral turpitude rendering the Applicant inadmissible.

a. Petit Theft

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At the time of the Applicant's last conviction for petit theft in (West 1998) provided that:

1998, Fla. Stat. § 812.014

(1) A person commits theft if he or she knowingly obtains or uses, or endeavors to . . obtain or to use, the property of another with intent to, either temporarily or

I permanently:

(a) Deprive the other person of a right to the property or a benefit from the property.

(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

The Board has determined that to constitute a crime involving moral turpitude, a theft offense must require the intent to permanently take another person's property. See Matter of Grazley, 14 I&N Dec. 330 (BIA 1973) ("Ordinarily, a conviction for theft is considered to involve moral turpitude only when a permanent faking is intended."). As the minimum conduct needed for a conviction under Fla. Stat. § 812.014 does not involve moral turpitude, we cannot find that a violation ofFla. Stat. § 812.014 is categorically a crime involving moral turpitude. It is thus necessary to determine whether the statute is divisible into separate offenses with distinct mens rea, or whether intent to temporarily or permanently deprive/appropriate are merely alternative means of committing the offense. To do so, we tum to the Florida Supreme Court's Standard Jury Instructions for Criminal Cases. Specifically, to prove the crime of Theft, the jury instructions state, in pertinent part:

1. (Defendant) knowingly and unlawfully [obtained or used] [endeavored to obtain or to use] the (property alleged) of(victim).

2. [He] [She] did so with intent to, either temporarily or permanently,

a. [deprive (victim) of [his] [her] right to the property or any benefit from it.]

b. [appropriate the property of (victim) to [his] [her] own use or to the use of any person not entitled to it.]

Based on the Florida Supreme Court's Standard Jury Instructions, a jury in a case. concerning an alleged violation of Fla. Stat. § 812.014 does not need to be unanimous regarding whether the defendant intended to either "temporarily or permanently" deprive or appropriate property. A jury could convict a defendant of Fla. Stat. § 812.014 without agreeing on whether the defendant had the intent to permanently deprive or appropriate property or, alternatively, temporarily deprive or appropriate property, so rather than describing two separate types of theft offenses, ~he statute describes different means to commit the one offense. While the language at issue - "with intent to, either temporarily or permanently,"- may be disjunctive, it does not render the statute divisible so

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as to warrant a modified categorical inquiry, and the use of the modified categorical approach is not permissible. As a modified categorical approach is unavailable because the statute is not divisible, we are unable to determine that the Applicant's theft conviction involved moral turpitude.

As the offense defined by Fla. Stat. § 812.014 is neither a categorical crime involving moral turpitude nor divisible as defined in Descamps, we find that the Applicant is not inadmissible under section 212(a)(2)(A)(i)(I) of the Act for her Florida petty theft convictions.

b. Resisting an Officer/Merchant

In 1998, when the Applicant was convicted of resisting an officer/merchant, Fla. Stat. § 812.015 (West 1998) provided:

(6) An individual who, while committing or after committing theft of property, transit fare evasion, or trespass, resists the reasonable effort of a law enforcement officer, merchant, merchant's employee, farmer, or a transit agency's employee or agent to recover the property or cause the individual to pay the proper transit fare or vacate the transit facility which the law enforcement officer, merchant, merchant's employee, farmer, or a transit agency's employee or agent had probable cause to believe the individual had concealed or removed from its place of display or elsewhere or perpetrated a transit fare evasion or trespass commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, unless the individual did not know, or did not have reason to know, that the person seeking to recover the property was a law enforcement officer, merchant, merchant's employee, or farmer, or a transit agency's employee or agent. For purposes of this section the charge oftheft and the charge of resisting may be tried concurrently.

In 1998, Fla. Stat. § 775.082 stated that a person convicted of a misdemeanor of the first degree may be sentenced to a definite term of imprisonment not exceeding one year.

Therefore, even if we were we to find that the Applicant's conviction for Resisting an Officer/Merchant is a crime involving moral turpitude3

, we would also find that the petty offense

3 The Florida Supreme Court's Standard Jury Instructions for Fla. Stat.§ 812.015(6) indicate that the statute is divisible,

as there is a set of instructions specific to resisting recovery of stolen property. Those instructions require the state to prove, beyond a reasonable doubt, that the defendant was committing or had committed a theft of property, and that during or after the theft, the defendant resisted the victim's reasonable effort to recover the property.

The conduct described in the statute and corresponding jury instructions with respect to resisting recovery of stolen property reflects an intent to retain the stolen property permanently, akin to the nature of retail theft, and therefore the offense may constitute a crime involving moral turpitude. See Matter of Jurado, 24 I&N Dec. 29, 33-34 (BIA 2006) (finding that violation of a Pennsylvania retail theft statute involved moral turpitude because the nature of retail theft is such that it is reasonable to assume such an offense would be committed with the intention of retaining merchandise permanently).

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exception under section 212(a)(2)(A)(ii)(II) of the Act applies. This exception applies where a foreign national has committed only one crime involving moral turpitude, the maximum penalty possible for that crime did not exceed imprisonment for 1 year, and the foreign national was not sentenced to imprisonment in excess of 6 months. Even where a foreign national has been convicted of more than one crime, the exception still applies so long as only one of those was a crime involving moral turpitude. See Matter of Garcia-Hernandez, 23 I&N Dec. 590, 594 (BIA 2003).

Based on the record before us, the Applicant was convicted of a first degree misdemeanor, and the maximum penalty for this crime under Florida law is imprisonment for 1 year. The Applicant was not sentenced to any term of imprisonment for this charge. Therefore, this conviction would fall within the petty offense exception and does not render the Applicant inadmissible under section 212(a)(2)(A)(i)(l) ofthe Act.

In sum, the petit theft offense defined by Fla. Sta. § 812.014 is neither a categorical crime involving moral turpitude nor divisible as defined in Descamps and Chairez-Castrejon, and the Applicant's conviction for resisting an officer/merchant under Fla. Sta. § 812.015 would fall under the petty offense exception. Accordingly, we find that the Applicant is not inadmissible under section 212(a)(2)(A)(i)(l) of the- Act. As previously discussed, we also find that the Applicant is not inadmissible under section 212(a)(2)(A) of the Act for a controlled substance violation.

B. Waiver

The Applicant is not inadmissible for a controlled substance violation or for a crime involving moral turpitude, and, based on the present record, no other inadmissibility grounds appear to apply to her. Accordingly, the waiver application is not necessary.

III. CONCLUSION

The Applicant has the burden of proving eligibility for the immigration benefit being sought. See section 291 of the Act, 8 U.S.C. § 1361. The Applicant has met that burden. We will grant the motion to reopen, as she has provided evidence of new facts. Further, we will sustain the appeal, as the new evidence establishes that she no longer has a conviction for a controlled substance violation, and the record as a whole shows that she is not inadmissible on other grounds and therefore does not require a waiver. Because "':'e are granting the motion to reopen and sustaining the appeal, the motion to reconsider is moot.

However, the records available in the Applicant's case are incomplete, consisting only of a copy ofthe Complaint/Arrest Affidavit taking by the arresting officer, and a record listing the Applicant's Florida misdemeanor case records. The list provides the case number, arrest date, charge, disposition, and disposition date for her 1998 conviction, but it states that court records for misdemeanor cases are retained for only five years. As she was convicted in 1998, and the list was generated in 2006, the complete record of conviction is not available, and we cannot determine which alternative element formed the basis of conviction. See Aguilar-Turcios v. Holder, 740 F.3d 1294, 1300-02 (9th Cir. 2014).

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ORDER: The motion to reopen is granted and the appeal is sustained.

Cite as Matter ofT-M-G-, ID# 11879 (AAO Oct. 28, 2016)

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