"This case is before us instantly pursuant to a remand from the United States Court of Appeals for the Fourth Circuit filed on July 5, 2012. ... In our published decision, Matter of U. Singh, [25 I&N Dec. 670 (BIA 2012)] we reached two main conclusions: ( 1) a decision by a federal court of appeals reversing a precedent decision of the Board is not binding authority outside the circuit in which the case arises, and (2) a stalking offense for harassing conduct in violation of section 646.9(b) of the California Penal Code is a crime of violence under section 101(a)(43)( F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)( F). We also pointed out that because the respondent at bar was removable for having committed a crime involving moral turpitude, it was his burden to show that his conviction was not an aggravated felony. See 8 C.F.R. § 1240.S(d). As a result, we overturned the Immigration Judge's grant of a waiver of inadmissibility under section 212(h) of the Act and ordered the respondent removed to his native India.
The matter is now before us following a June 25, 2012, unopposed motion to remand before the Fourth Circuit requesting the record be returned to the Board for further proceedings. Specifically, the Fourth Circuit remanded the record for further proceedings in light of its decision in United States v. Vann, 660 F.3d 771 (4th Cir. 2011). ... We will remand the record for further proceedings. ... We ask that the Immigration Judge consider whether the stalking statute at issue is categorically a crime of violence. lf he concludes that it is not, he then should conduct a modified categorical analysis of the statute. To aid the Immigration Judge in this analysis, the parties should be allowed to submit additional evidence with regard to the respondent's conviction. The Immigration Judge should then determine whether the respondent was convicted of "following,' "harassing,'' or both, in light of Vann, supra. Finally, the Immigration Judge should consider whether the respondent has met his burden in this case to show that his conviction is not an aggravated felony barring him from a waiver of inadmissibility under section 212(h)." - Matter of U. Singh, Sept. 27, 2013, unpub.
[Thanks to Ben Winograd/IRAC!]