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Immigration Law

CA1 on Agg. Fel., Crime of Violence: Villanueva v. Holder

"This is a petition for review of a Board of Immigration Appeals (BIA) determination that petitioner Fredy Villanueva is ineligible for consideration for discretionary relief from removal under a special program.  The BIA's result depends on an analytical error, and petitioner is eligible for consideration.  We remand so that petitioner may be considered for discretionary relief. ...

The modified categorical approach cannot resolve this case because it is not established from the record of conviction under which prong of the statute Villanueva was convicted.  Accordingly, given that the entirety of the Connecticut statute does not qualify as a "crime of violence," we cannot conclude that Villanueva was convicted of a crime of violence. ...

In short, the plea colloquy does not establish that Villanueva admitted to an intentional assault under subsection (1) of the Connecticut statute, and so the BIA erred in concluding that he was convicted under that subsection. ... Because the parties agree that third-degree assault, as defined by Connecticut law, is not categorically a crime of violence, see Leocal, 543 U.S. at 9; Fish, 758 F.3d at 9-10 & n.4, we hold that Villanueva's conviction does not render him ineligible for TPS.   Accordingly, we vacate the BIA's decision and remand this case to the agency so it may determine whether Villanueva warrants TPS relief as a matter of discretion." - Villanueva v. Holder, Apr. 24, 2015.  [Hats off to Eduardo Masferrer!]