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U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

DHS/ICE Office of Chief Counsel - EAZ

Dunn & Davison,LLC


1100 Walnut St. Suite 2900
Kansas City, MO 64106

P.O. Box 25158


Phoenix,AZ 85002

Name:V

,N

-550

Date of this notice: 11/18/2014

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

Donna Can
Chief Clerk

Enclosure

Panel Members:
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: N-V-, AXXX XXX 550 (BIA Nov. 18, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

Hoppock, Matthew Lorn

U.S. Department of Justice

Decision of the Board oflmmigration Appeals

Executive Office for Immigration Review


Falls Church, Virginia

20530

550

File:

Date:

Eloy, AZ

In re: N

NOV 18 2014

IN REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

Matthew L. Hoppock, Esquire

Jennifer M. Wiles
Senior Attorney

CHARGE:
Notice: Sec.

237(a)(2)(E)(i), I&N Act [ 8 U.S.C. 1227(a)(2)(E)(i)] Convicted of crime of domestic violence, stalking, or child abuse,
child neglect, or child abandonment

Lodged: Sec.

237(a)(2)(A)(i), I&N Act [8 U.S.C. 1227(a)(2)(A)(i)] Convicted of crime involving moral turpitude (withdrawn)

APPLICATION: Asylum

The Department of Homeland Security ("DHS") timely appeals the Immigration Judge's
June 11, 2014, decision granting the respondent's applications for asylum and withholding of
removal under sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C.
1158 and 1231(b)(3). The DHS argues that the respondent should not have been granted
asylum and withholding of removal because he was convicted of a particularly serious crime.
The respondent, a native and citizen of Burundi, argues that he is not removable as charged and
was not convicted of a particularly serious crime. The appeal will be dismissed and the removal
proceedings terminated.
The respondent raises the issue of removability on appeal. Although the respondent
conceded removability below, we will address this issue in the interest of justice (Tr. at 117;
Exh. 1; Respondent's Brief at 5-8). The respondent was convicted of misdemeanor assault under
section 13-1203(a)(l) of the Arizona Revised Statute (Exh. 5). The respondent argues on appeal
that his conviction is not a crime of domestic violence, because it is not a crime of violence. We
agree.

Cite as: N-V-, AXXX XXX 550 (BIA Nov. 18, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL

550

ORDER: The appeal is dismissed and the respondent's removal proceedings are terminated.
FURTHER ORDER: The Immigration Judge's June 11, 2014, decision is vacated.

1 The respondent argues that there is no physical force element (Respondent at 6).
To the
contrary, use of physical force is a required element under section 13-1203(a)(l) of the Arizona
Revised Statute. Fernandez-Ruiz v. Gonzales, supra at 1126.

2
Cite as: N-V-, AXXX XXX 550 (BIA Nov. 18, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

Section 13-1203(a)(l) of the Arizona Revised Statute defines assault as intentionally,


knowingly, or recklessly causing any physical injury to another person. The Ninth Circuit has
held that section 13-1203(a)(l) is not a categorical crime of violence. See Fernandez
Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006); see also Matter of Velasquez, 25 I&N Dec. 278
(BIA 2010). 1 We may not apply the modified categorical approach in this instance because the
statute in question is not divisible as defined in Descamps v. US., 133 S.Ct. 2276 (BIA 2013);
thus, our inquiry ends here. See Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014);
Matter of Chairez, 26 I&N Dec. 349 (BIA 2014). Based on the foregoing, we conclude that the
respondent was not convicted of a crime of violence. It follows that the respondent was not
convicted of a crime of domestic violence under section 237(a)(2)(E)(i) of the Act.