Unpub. BIA Agg. Fel. Remand: Matter of Lucio Chavez

Unpub. BIA Agg. Fel. Remand: Matter of Lucio Chavez

"[T]he respondent expressed an intention to apply for a waiver under former section 212(c) of.the Act, 8 U.S.C. § I I 82(c) (1988), but in a very brief decision the Immigration Judge found him ineligible for such relief on the ground that his 2011 conviction for assault on a public servant [Tex. Penal Code Ann. §§ 22.01(a)(l) and 22.01(b)(I) (West 2011), a felony for which he was sentenced to a 2-year term of imprisonment] was a crime of violence under 18 U.S.C. § 16(b) and an aggravated felony, presumably under section 101(a)(43)(F) of the Act.  On the present record, we cannot affirm that determination. ... [T]o determine whether the respondent's 2011 conviction qualifies as an aggravated felony, we are generally obliged to conduct a "categorical" inquiry in which we ask first whether the statutory elements of the offense of conviction correspond to the requirements of the relevant aggravated felony category or categories.  Yet the Immigration Judge's decision neither identifies the statutory elements of the respondent's offense (which we observe include violations performed recklessly) nor examines those elements by reference to the interpretation of section 101(a)(43)(F) embodied in the precedents of the Supreme Court, the United States Court of Appeals for the Fifth Circuit, and this Board.  E.g., Leocal v. Ashcroft, 543 U.S. I (2004); United States v. Villegas-Hernandez, 468 F.3d 874 (5th Cir. 2006); United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001); Matter of U. Singh, 25 I&N Dec. 670 (BIA 2012).  Without such analysis, there is little basis for this Board to exercise meaningful appellate review." - Matter of Lucio Chavez, Apr. 23, 2013, unpub.  [Hats off to Houston superlawyer Raed Gonzalez, who reports that this is his fourth BIA remand on this precise issue!]