Unpub. BIA on Descamps, Aggravated Felony, 212(h)

"The Department of Homeland Security (DHS) appeals the April 9, 2012, decision of the Immigration Judge, which incorporates his December 14, 2011, interim decision, finding that the respondent's conviction was not an aggravated felony and granting the respondent, as a matter of discretion, a waiver of removal under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § I I 82(h).  We affirm the decision of the Immigration Judge, albeit for different reasons.  The appeal will be dismissed.  The respondent is a native and citizen of Mexico and a lawful permanent resident of the United States since 1992.  In 2005, the respondent sustained convictions for two counts of violating, in 1988, Revised Code of Washington Annotated (RCSA) § 9.68A.090, communication with a minor for immoral purposes.  At issue is whether a conviction under this statute constitutes an aggravated felony barring the respondent from waiver of removal under section 212(h) of the Act. Specifically, the DHS contends that violation of RCSA § 9.68A.090 constitutes "sexual abuse of a minor" pursuant to section 101(a)(43)(A) of the Act, 8 U.S.C. § 1101(a)(43)(A).  We review de novo whether a prior conviction qualifies as a conviction for an aggravated felony under the Act. 8 C.F.R. § 1003. I(d)(3)(ii). ... Recently, the United States Supreme Court has held that in order to employ the modified categorical approach, the statute of conviction must be divisible. Descamps v. United States, --- F.3d ---, ... (June 20, 2013). ... Because the element of abuse is not an element of RCSA § 9.68A.090, the record is clear that the respondent was not convicted of "sexual abuse of a minor."  Therefore, the respondent was not convicted of an aggravated felony and is eligible for relief under section 212(h) of the Act. ... The Immigration Judge thoughtfully considered the relevant factors in this case, both positive and negative, and found that the respondent merited a favorable exercise of discretion (May 9, 2012, I.J. at 3-4).  We agree that the respondent's many positive equities and demonstrated rehabilitation outweigh his adverse factors." - Matter of X-, June 27, 2013.

[Hats off to Vicky Dobrin!]