U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church. Virginia 22041

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Flora, Jason A OHS/ICE Office of Chief Counsel - CHI
Jason Flora Law Office, LLC 525 West Van Buren Street
5449 West Washington Street Chicago, IL 60607
Indianapolis, IN 46241

Name: MATZAR ALVARADO, MIGUEL .. A 055-427-275

Date of this notice: 2/3/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

DorutL ctl/lA)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Pauley, Roger
Mullane, Hugh G.
Creppy, Michael J.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Miguel Enrique Matzar Alvarado, A055 427 275 (BIA Feb. 3, 2017)
 U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 leesburg Pilce, Suite 2000

Falls Church. Virgm1a 22041

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MATZAR ALVARADO, MIGUEL ENRIQUE OHS/ICE Office of Chief Counsel - CHI
A055-427-275 525 West Van Buren Street
C/O OHS CUSTODY Chicago, IL 60607
101 W. CONGRESS PARKWAY, 4 FL
CHICAGO, IL 60605

Name: MATZAR ALVARADO, MIGUEL ... A 055-427-275

Date of this notice: 2/3/2017

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,

DOYUtL ca.NU
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Pauley, Roger
Mullane, Hugh G.
Creppy, Michael J.

Userteam: :_.;:,;;kt!:

Cite as: Miguel Enrique Matzar Alvarado, A055 427 275 (BIA Feb. 3, 2017)
I U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office fot Immigration Review

Falls Church, Virginia 22041

File: A055 427 275 - Chicago, IL Date:

FEB - 3 2017
In re: MIGUEL ENRIQUE MATZAR ALVARADO

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Jason A. Flora, Esquire

CHARGE:

Notice: Sec. 237(a)(2)(E)(i), I&N Act [8 U.S.C. 1227(a)(2)(E)(i)] -

Convicted of crime of domestic violence, stalking, or child abuse, child
neglect, or child abandonment

APPLICATION: Termination; cancellation of removal

The respondent, a lawful permanent resident and native and citizen of Guatemala, has
appealed the Immigration Judge's decision dated August 9, 2016, which found him removable
under section 237(a)(2)(E)(i) of the Immigration and Nationality Act ("Act"), 8 U.S.C.
1227(a)(2)(E)(i), and denied his applications for cancellation of removal under section
240A(a) of the Act, 8 U.S.C. 1229b(a), and for voluntary departure. The Department of
Homeland Security ("OHS") did not file a response to the appeal. The appeal will be sustained
and the respondent's removal proceedings terminated.

We review the findings of fact, including determinations of credibility and predictions

of future events, made by the Immigration Judge under a "clearly erroneous" standard. 8 C.F.R.
1003.l(d)(3)(i). We review all other issues, including whether the parties have met their
relevant burden of proof, and issues of discretion, under a de novo standard. 8 C.F .R.
1003.l(d)(3)(ii).

A threshold issue before us is whether the respondent's 2015 felony conviction for engaging
in or conducting a performance harmful to minors, in violation of section 35-49-3(a)(5) of the
Indiana Code, is a crime of "child abuse, child neglect, or child abandonment" that rendered the
respondent removable under section 237(a)(2)(E)(i) of the Act. The respondent on appeal argues
that the Immigration Judge erred in finding him removable under section 237(a)(2)(E)(i) of the
Act because the offense for which he was convicted is not categorically a crime of child abuse.

For purposes of the ground of removal under section 237(a)(2)(E)(i) of the Act, the Board
has defined the term "crime of child abuse, child neglect, or child abandonment" to mean any
offense involving an intentional, knowing, reckless, or criminally negligent act or omission that
constitutes maltreatment of a person under 18 years old or that impairs such a person's physical
or mental well-being, including sexual abuse or exploitation. Matter of Velazquez-Herrera,
24 I&N Dec. 503 (BIA 2008). Offenses under section 237(a)(2)(E)(i) of the Act do not require
proof of actual harm or injury to the child. Matter of Soram, 25 I&N Dec. 378, 380-81 (BIA
2010); see Matter of Mendoza Osorio, 26 I&N Dec. 703, 709-10 (BIA 2016). In child
Cite as: Miguel Enrique Matzar Alvarado, A055 427 275 (BIA Feb. 3, 2017)
A055 427 275

endangerment-type crimes where there is no actual injury, but rather only a "threat of injury" to a
child, the Board found that a State-by-State analysis is appropriate to determine whether the risk
of hann required by the endangerment-type language in any given State statute is sufficient to
bring an offense within the definition of "child abuse" in section 237(a)(2)(E)(i) of the Act.
Matter of Soram, supra, at 379-80, 383. The Board found that even if the defendant's conduct
was not directed at a child specifically, such as witnessing acts of domestic violence against

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another, it would be considered "child abuse" if there is a "sufficiently high risk of hann to the
child." Matter ofMendoza Osorio, supra, at 710-1.

Turning to the respondent's statute of conviction under section 35-49-3-3(a)(5) of the Indiana
Code (2012 and 2013), the statute provides, in pertinent part:

[A] person who knowingly or intentionally... engages in or conducts a performance that is

harmful to minors in an area to which minors have visual, auditory, or physical access, unless
each minor is accompanied by the minor's parent or guardian. . .commits a Class D felony.

"Performance" is defined as "any play, motion picture, dance, or other exhibition or

presentation, whether pictured, animated, or live, performed before an audience of one . . . or
more persons." Ind. Code Ann. 35-49-1-7. A performance is deemed "harmful to minors" if
(1) it describes or represents, in any form, nudity, sexual conduct, sexual excitement, or sado
masochistic abuse; (2) considered as a whole, it appeals to the prurient interest in sex of minors;
(3) it is patently offensive to prevailing standards in the adult community as a whole with respect
to what is suitable matter for or performance before minors; and (4) considered as a whole, it
lacks serious literary, artistic, political, or scientific value for minors. Ind.Code Ann. 35-49-
2-2. Finally, "minor" means any individual under the age of 18 years. Ind.Code Ann. 35-49-
1-4.

The respondent asserts that Zitlaw v. State, 880 N.E.2d 724 (Ind. Ct. App. 2008),
demonstrates that there is a realistic probability that the minimum conduct proscribed by Ind.
Code. Ann. 35-49-3-3(a)(5) is broader than the definition of "child abuse" under section
237(a)(2)(E)(i) of the Act (Respondent's Br. at 3-4). In Zitlaw, the Indiana court of appeals
denied the defendant's motion to dismiss after finding that the clear and ambiguous definition of
"access" in Ind. Code.Ann. 35-49-3-3(a)(5) did not require that the minor be actually present
during the offending performance, but rather merely required that a minor had "the ability to see
or hear the conduct or the ability to be present." Zitlaw v. State, supra, at 729-30. In that case,
the Zitlaw majority found that the defendant's alleged act of exposing and fondling himself to an
undercover police officer in a public park was sufficient to constitute a "performance that is
harmful to minors." Id. at 732. The court found that while a charging information must allege
the elements of the crime, it is unnecessary for the prosecution of the offense of performance
harmful to minors under Ind. Code. Ann. 35-49-3-3(a)(5), to name specific minor victims in
the defendant's charging information. Id at 730-31.

Accordingly, considering the Zitlaw court's finding that presence of a minor is not an
element of the offense of performance harmful to a minor under Ind. Code. Ann. 35-49-3-
3(a)(5), the remaining question is whether the offense at issue presents a sufficiently high risk of
harm to a child to constitute as a crime of "child abuse, child neglect, or child abandonment"

Cite as: Miguel Enrique Matzar Alvarado, A055 427 275 (BIA Feb. 3, 2017)
A055 427 275

under section 237(a)(2)(E)(i) of the Act. See Matter of Mendoza Osorio, supra, at 710. The
Zitlaw court also found that the statute requires, at the very least, that the performance be
conducted in an area where a minor has the "ability to be present." Zit/aw v. State, supra, at
729-30. The minors' ability to be present in an area merely raises the possibility that minors may
be exposed to the offending performance and does not give rise to a particular likelihood of harm
to a child. Cf Matter ofMendoza Osorio, supra, at 711 (noting that child endangerment statutes

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that do not require a sufficiently high risk of harm to a child - such as those that create 'only the
bare potential for nonserious harm to a child" -- do not meet the definition of child abuse,
neglect, or abandonment under the Act).

In view of the court's findings in Zit/aw, we conclude that there is a realistic probability that
the state of Indiana would apply Ind. Code. Ann 35-49-3-3(a)(5) to conduct that does not
.

involve a minor and, thus, does not create a particular likelihood of harm to a minor. Therefore,
the statute under Ind. Code. Ann . 35-49-3-3(a)(5) is overbroad relative to the Board's
definition of "child abuse, neglect and abandonment" articulated in Matter of Velazquez
Herrera, supra, Matter ofSoram, supra, and Matter ofMendoza Osorio, supra. There has been
no claim or showing that Ind. Code. Ann 35-49-3-3(a)(5) has divisible elements pertaining to
.

the level and degree of risk of harm to a child. The charge of removability under section
237(a)(2)(E)(i) of the Act lodged by the OHS against the respondent cannot be sustained.
Because there is no other alternate or additional charge of removability, the respondent's
removal proceedings will be terminated. The following order shall be entered.

ORDER: The respondent's appeal is sustained.

FURTHER ORDER: The Immigration Judge's removal order is vacated, the removability
charge under section 237(a)(2)(E)(i) of the Act is not sustained, and the respondent's removal
proceedings is terminated.

lfaJ
Board Member Hugh G. Mullane respectfully dissents without opinion.

Cite as: Miguel Enrique Matzar Alvarado, A055 427 275 (BIA Feb. 3, 2017)