A090 76 102 review these legal questions de novo.
1003.(d)(3)(ii). We also note that here are no contested questions o ct arising in his appea that wold igger clear error review.
1003.(d)(3)( i). he qestion wheer e assault conviction under the above-rerenced section o Noh Carolina law constitutes a crime involving moral turpitude is inoed by the Supreme Cos decision in
33 S. Ct. 2276 (2013) which was issued aer the· Immiation udge rendered his decision in this case. In
the Supreme Court explained at the modied categorical apprach operates narrowly and applies only i (1) the statute o convction is divisible in the sense hat it lists
discrete oenses as enumerated alteatives or denes a single oense by rerence to disjunctve sets o elements" more than one combination o which could suppor a conviction nd (2) some (but not all) o those listed oenses or combinations o disjunctive elements are a categorical match to he relevant generic standd.
at 2281 2283. Thus aer
e modied categorica approach does not apply merely because the elements o a crime can sometimes b proved y rerence to conduct at ts a generic deral standard; according to the
Cou such crimes are orbroad" but not divisible."
at 22858 229092
he state statute under which the espondent was convicted r misdemenor assault provides in relevant pr tha . any person who comits any assault assault nd batery or aa is guilty o a Class misdemeanor i in the course o the assault assault and baery or aay he or she . (2) [a]ssaults a male he being a male person at least 18 years o age"
NC Gen. Stat. 133(c)(2). he Immigration Judge und that this staute did not categorically dene a crime nvolving moral trpitude but pursunt to the prties agreement conducted a modied categorcal analysis o the conviction record to determine i the conviction would suppor the charge under section 237(a)(2)(A)(ii) o the Act (IJ. at 2-3). We disagree that under
United States supra
the statute lends itsel to a modied categorical inquiry into whether the respondent's conviction thereunder is r a cime involving moral turpitude While the anguage rerencing the commission o any assault determine i least culpable conduct necessary to sustain a conviction under the statute meets the stadard o a crime ivolving moral tpitude). The ybestg convicion was nt alleged as a ctual predicate r the charge under section 237(a)(2)(E)(i) o the Act nd the HS does not allege on appeal that this conviction would suppo removal under section 237(a)(2)(E)(i) o the Act.
HSs Brie at 3 n 2 nd Ex 5
By elments" we nderstand the
Cou to men those cts about a crime which must be proved to a jury beyond a reasonable doubt
about which he jury must agree by whatever margin is required to convict n the relevnt juisdiction.
at 2288 (citing
526 U.S 813 817 (999)). The Eleventh Circuit has held that he requirements o the categorical nd modied categorical approaches may not be relaxed in CIMT cases
S Att' Gen.
659 F3d 0 305 (1h Cir.1).
Cite as: Eduardo Gomez Jurado, A090 764 102 (BIA Mar. 28, 2014)