Unpub. BIA Descamps Remand: Matter of Hernandez Garcia

Unpub. BIA Descamps Remand: Matter of Hernandez Garcia

"[R]espondent argues that the determination cannot be made as to the level of harm he caused his victim under a modified categorical approach, because the indictment, plea agreement, or other documents that would indicate the nature of his offense, are not in the record (Respondent's Br. at 8-9).  He contends that the Immigration Judge should have concluded that it was "reasonably probable" that he was convicted of causing only de minimus harm (Respondent's Br. at 9).  Just after the Immigration Judge issued his decision, the United States Supreme Court decided Descamps v. United States, 133 S. Ct. 2276 (2013), which addresses the application of the modified categorical approach. See also MoncriefJe v. Holder, 133 S. Ct. 1678 (2013) (further explaining the application of the categorical approach in the context of immigration proceedings); Garcia v. Holder, _ F.3d __ , 2014 WL 2937020 (5th Cir. 2014); Matter of Martin Chairez-Castrejon, 26 I&N Dec. 349 (BIA 2014).  In light of these recent relevant decisions, the Board will remand the record to permit the Immigration Judge to reexamine whether the respondent's conviction bars his eligibility for cancellation of removal, and to enter a new decision." - Matter of Hernandez Garcia, Aug. 14, 2014, unpub.  [Hats off to Raed Gonzalez!]