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Matter of K-K-R- (Mar. 9, 2018, unpub.) - "The only issue on appeal is whether Minn. Stat. § 609.713, subd. 1, is a CIMT. We agree with the Immigration Judge that Avendano v. Holder is not dispositive. The Immigration Judge correctly observed that the majority in Avendano v. Holder '' explicitly left open the question whether [Minn. Stat.§ 609.713; subd. l] covers non-turpitudinous conduct, finding that the respondent in that case waived the argument by not raising it'' (U at 6). Avendano v. Holder, 770 F.3d at 736; see also 770 F3d at 739-40 (J. Kelly, concurring in part and dissenting in part) (arguing that Minn. Stat. § 609.713, subd. l, is likely overbroad and citing Minnesota case examples). Based on the cases cited in the dissenting opinion in Avendano v. Holder (cases to which the respondent had referred), the Immigration Judge found that the respondent demonstrated that there is a realistic probability that a defendant can be convicted of the "reckless disregard" prong of Minn. Stat. § 609. 713, subd. 1, for conduct that is not morally tupitudinous (IJ at 6-7). The Immigration Judge thus determined that the statute is overbroad, Further, citing United States v. ,UcFee, 842 F.3d 572 (8th Cir. 2016), in which the Eighth Circuit determined that Minn. Stat. sect 609.713, subd. 1, is not divisible, the Immigration Judge determined that the statute is not subject to the modified categorical approach, and concluded that the respondent's conviction was not for a CIMT (IJ at 7-8). See Matter of Silva-Trevino, 26 I&N Dec. at 827. For the reasons set forth in the Immigration Judge's decision, we agree with her conclusion that the DHS did not sustain its burden to establish the respondent's removability under section 237(a)(2)(A)(i) of the Act, as an alien convicted of a CIMT."
[Hats off to Phillip L. Torrey, Managing Attorney and Senior Clinical Instructor, Harvard Law Crimmigration Clinic!]