In this unpublished decision, the Board of Immigration Appeals (BIA), following an unopposed remand from the Fourth Circuit, remanded for further consideration of its determination in Matter of U. Singh, 25 I&N Dec. 670 (BIA 2012), that a conviction for stalking in violation of Cal. Penal Code 646.9(a) is categorically an aggravated felony crime of violence under 18 U.S.C. 16(b). The decision was written by Member Roger Pauley and joined by Member Hugh Mullane and Member John Guendelsberger.
In this unpublished decision, the Board of Immigration Appeals (BIA), following an unopposed remand from the Fourth Circuit, remanded for further consideration of its determination in Matter of U. Singh, 25 I&N Dec. 670 (BIA 2012), that a conviction for stalking in violation of Cal. Penal Code 646.9(a) is categorically an aggravated felony crime of violence under 18 U.S.C. 16(b). The decision was written by Member Roger Pauley and joined by Member Hugh Mullane and Member John Guendelsberger.
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In this unpublished decision, the Board of Immigration Appeals (BIA), following an unopposed remand from the Fourth Circuit, remanded for further consideration of its determination in Matter of U. Singh, 25 I&N Dec. 670 (BIA 2012), that a conviction for stalking in violation of Cal. Penal Code 646.9(a) is categorically an aggravated felony crime of violence under 18 U.S.C. 16(b). The decision was written by Member Roger Pauley and joined by Member Hugh Mullane and Member John Guendelsberger.
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Formatos disponíveis
Baixe no formato PDF, TXT ou leia online no Scribd
550 Kearny Street, Suite 200 San Francisco, CA 94108 Name: SINGH, UPINDERJIT U.S. Department of Justice Executive Ofce fr Imigration Review 8aoraf Ioo|rot|anaj]cols uccaft/cc|crk 5107 Leeburg P;ke. Suite 2000 Falls Church, Vrginia 22041 OHS/ICE Ofice of Chief Counsel - WAS 500 12th St., SW, Mail Stop 5902 Washington, DC 20536 A 048-029-730 Date of this notice: 9/27/2013 Enclosed is a copy of the Board's decision and order in the above-refrenced case. Enclosure Panel Members: Mullane, Hugh G. Guendelsberger, John Pauley, Roger Sincerely, DC c l Donna Carr Chief Clerk williame Userteam: Docket For more unpublished BIA decisions, visit www.irac.net/unpublished I m m i g r a n t
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w w w . i r a c . n e t Cite as: Upinderjit Singh, A048 029 730 (BIA Sept. 27, 2013) . ! '
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Exeutive Ofce fr mtion Review
) Falls Church, Vir@ia 22041 File: A048 029 730 - Alington, VA In re: UPIERJIT SIGH IN REMOVAL PROCEEDIGS APPEAL Decision of te Board of Imigaton Appeals Date: ON BEHALF OF RSPONDENT: Rober B. Jobe, Esquire ON BEHALF OF DHS: Ada L. Berg Assistant Chief Counsel CHARGE: Notice: Sec. 212(a)(2)(A)(i)(I), l&N Act [ 8 U.S.C. {1182(a)(2)(A)(i)( I ) ] - Crme involving moral turpitde APPLICATION: Waiver of inadmissibilit under section 212(h) of the Act This case is befre us instantly pursuant to a remand fom the United States Cour of Appeals fr the Fou Circuit fled on July 5, 2012. The case was befre us initially on January 19, 2012, when we upheld a Febray 7, 2011, Immigration Judge decision fnding te respondent removable as charged, but vacated te Immigration Judge's decision granting the respondent a waiver of inadmissibilit under section 212(h) of te Act. Matter of U Singh, 25 I&N Dec. 670 (BIA 2012). The respondent is a native and citizen oflndia. The Immigration Judge granted the respondent's waiver afer concluding tat he could not fnd the respondent's stalking conviction uder section 646.9(b) of te Califria Penal Code to be a crime of violence because he was not bound by ou decision to te contary in Matter of Malta, 23 I&N Dec. 656 (BIA 2004), a the United States Court of Appeals fr te Nint Circuit had reversed te decision in Malta-Espinoza v. Gonales, 478 F.3d 1080, 1083-84 (9th Cir. 2007). In our published decision, Matter of U Singh, supra, we reached two main conclusions: ( 1) a decision by a fderal cou of appeals reversing a precedent decision of the Board is not binding authority outside the circuit in which the case aises, and (2) a stalking ofense fr harassing conduct in violation of section 646.9(b) of the Califria Penal Code is a crime of violence under section 101(a)(43)(F) of te Immigration ad Nationality Act, 8 U.S.C. {1101(a)(43)( F). We also pointed out that because te respondent at bar was removable fr having commited a crime involving moral tpitde, it was his burden to show tat his conviction was not a aggavated felony. See 8 C.F.R. {1240.S(d). As a result, we overed the Immigation Judge's grat of a waiver of inadmissibility under section 212(h) of te Act ad ordered the respondent removed to his native India. The mater is now befre us fllowing a June 25, 2012, uopposed motion to remad befre te Fou Circuit requesting te record be reted to the Board fr frer proceedings. Specifcally, te Fourt Circuit remanded te record fr fher proceedings in light of its decision I m m i g r a n t
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w w w . i r a c . n e t Cite as: Upinderjit Singh, A048 029 730 (BIA Sept. 27, 2013) I A048 029 7 30 . in United State v. Vann, 660 F.3d 771 (4t Cir. 2011). Vann, supra, at 774-75, provides in relevat pa tat in te context of convictions tat were eligible fr sentence enhacements under te Armed Career Criminal Act, a defendant who pleads guilt to a conunctively worded indictment with a disjunctively worded statte pleads guilty only to te elements necessa fr a conviction and not necessaly to everyting listed in te indictment. See also Young v. Holder, 697 F.3d 976 985-88 (9t Cir. 2012) (en bane) (same; but noting that oter circuits apply state rater tan federal law to resolve issue). We will remand the record fr fer proceedings. Te Califria staling statte at issue provides in relevat pa tat "[a ]ny person who willflly, maliciously, ad repeatedly follows or willflly ad maliciously harasses anoter person and who makes a credible teat with te intent to place that person in reasonable fea fr his or her safty, or te safety of his or her immediate fmily is guilty of te crime of stalking .... " CAL. PENAL CODE 646.9(a) (emphasis added}. Te "fllowing" component of the statute was not addessed below. We ask tat te Iigration Judge consider wheter te stalking statte at issue is categorically a crime of violence. lf he concludes tat it is not, he then should conduct a modifed categorical analysis of te statute. To aid the Immigration Judge in tis analysis, the paies should be allowed to submit additional evidence wit regad to te respondenfs conviction. Te Immigration Judge should then determine wheter te respondent was convicted of "fllowing/' "haassing,'' or bot, in ligt of Vann, supra. Finally, the Imigation Judge should consider wheter te respondent has met his burden in this case to show tat his conviction is not a aggavated flony baring him fom a waiver of inadmissibilit under section 212(h). Salem v. Holder, 647 F.3d 111, 115 (4th Cir. 2011); 8 C.F.R. 1240.8(d). Accordingly, the fllowing order will be issued: ORER: Te' record is remanded to the Immigration Judge fr the afrementioned reasons, and fr enty of a new decision, consistent with this order. t . . . . . . . . _ 2 . .$ . . I m m i g r a n t
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w w w . i r a c . n e t Cite as: Upinderjit Singh, A048 029 730 (BIA Sept. 27, 2013)