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Gzim Imeri, A091 298 819 (BIA July 31, 2013)

Gzim Imeri, A091 298 819 (BIA July 31, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for further proceedings after finding that assault by use or display of dangerous weapon under Iowa Code 708.1 and 708.2(3) was not a categorical crime of violence. The decision was written by Member Roger Pauley and joined by Member John Guendelsberger and Member Anne Greer.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for further proceedings after finding that assault by use or display of dangerous weapon under Iowa Code 708.1 and 708.2(3) was not a categorical crime of violence. The decision was written by Member Roger Pauley and joined by Member John Guendelsberger and Member Anne Greer.

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Published by: Immigrant & Refugee Appellate Center, LLC on Aug 06, 2013
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10/12/2013

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U.S.

Department of Justice

Executive Office for Immigration Review Board ofImmigration Appeals Office of the Clerk
5107 Leesburg Pike. S11i1e WOO Falls Cli11rcli. Virginia 12041

Trey Sucher 311 W. Rainbow Dr., Suite C3 West Liberty, IA 52776

OHS/ICE Office of Chief Counsel - OMA 1717 Avenue H Omaha, NE 68110

Immigrant & Refugee Appellate Center | www.irac.net

Name: IMERI, GZIM

A 091-298-819

Date of this notice: 7/31/2013

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

DorutL ctVvV
Donna Carr Chief Clerk

Enclosure
Panel Members:
Guendelsberger, John Greer, Anne J. Pauley, Roger

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Userteam: Docket

Cite as: Gzim Imeri, A091 298 819 (BIA July 31, 2013)

U.S. Department of Justice

Executive Office for Immigration Review Board ofImmigratio11 Appeals Office of the Clerk
Fall., C/111rd1. Virginia 220.//

510 7 l.<'l'.,h11rg Pike. Suite 10011

IMERI, GZIM A091-298-819 HARDIN COUNTY JAIL 1116 14TH AVE ELDORA, IA 50627

OHS/ICE Office of Chief Counsel - OMA 1717 Avenue H Omaha, NE 6811 O

Immigrant & Refugee Appellate Center | www.irac.net

Name: IMERI, GZIM

A 091-298-819

Date of this notice: 7/31/2013

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a courtesy. Your attorney or representative has been served with this decision pursuant to 8 C.F.R. § 1292.S(a). If the attached decision orders that you be removed from the United States or affinns an Immigration Judge's decision ordering that you be removed, any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of the decision. Sincerely,

DonnL ct1/VL)
Donna Carr Chief Clerk

Enclosure
Panel Members:
Guendelsberger, John Greer, Anne J. Pauley, Roger

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Userteam:

Docket

Cite as: Gzim Imeri, A091 298 819 (BIA July 31, 2013)

�U.S. Department of Justice
E�ecutive Office for Immigration Review Falls Church, Virginia

Decision of the Board of Immigration Appeals

22041

File: In re:

A091 298 819 - Omaha, NE GZIM IMERI

Date:

JUL 3 1 2013

IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Trey Sucher, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Matthew E. Morrissey Assistant Chief Counsel

CHARGE: Notice: Sec. 237(a)(2)(A)(iii), l&N Act [8 U.S.C.§ l 227(a)(2)(A)(iii)] Convicted of aggravated felony

APPLICATION: Termination

United States, appeals from the Immigration Judge's March 5, 2013, decision findin � him removable as charged and ordering him removed from the United States to Macedonia. The appeal will be sustained and the record will be remanded. The record reflects that on August 27, 2012, the respondent was convicted of Assault by Use or Display of a Dangerous Weapon in violation of sections 708.l and 708.2(3) of the Iowa Code. The Department of Homeland Security ("DHS") charged the respondent with being subject to removal under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony as defined in section 10l(a)(43)(F) of the Act, 8 U.S.C. § 110l(a)(43)(F) (crime of violence as defined under 18 U.S.C. § 16). The respondent denied the charge, but the Immigration Judge found that the DHS met its burden of proving that the respondent's conviction constituted a crime of violence under 18 U.S.C. § 16(a). Because the respondent did not seek any relief from removal, he was ordered removed from the United States to Macedonia. On appeal, the respondent argues that he is not removable. Iowa Code section 708. l provides: An assault as defined in this section is a general intent crime. A person commits an assault when, without justification, the person does any of the following:

The respondent, a native and citizen of Macedonia and a lawful permanent resident of the

1 The Immigration Judge memorialized his findings in a written decision dated March 4, 2013 (Exh. 8). He issued an oral decision ordering the respondent removed on March 5, 2013.

Cite as: Gzim Imeri, A091 298 819 (BIA July 31, 2013)

A091 298 819

1. Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with·the apparent ability to execute the act. 2. Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act. 3. Intentionally points any firearm toward another, or displays in a threatening manner any dangerous weapon toward another. Iowa Code section 708.2(3) provides that "a person who commits an assault, as defined in section 708.1, and uses or displays a dangerous weapon in connection with the assault, is guilty of an aggravated misdemeanor." The maximum penalty possible for an aggravated misdemeanor is 2 years.

Immigrant & Refugee Appellate Center | www.irac.net

See Iowa Code section 903.1(2).

To qualify as a crime of violence as defined under 18 U.S.C. § 16(a), the DHS must establish by clear and convincing evidence that the respondent's offense "has as an element the use, attempted use, or threatened use of physical force against the person or property of another."

See

section 240(c)(3)(A) of the Act, 8 U.S.C.§ 1229a(c)(3)(A). In concluding that the respondent's conviction constitutes a categorical crime of violence under 18 U.S.C. § l 6(a), the Immigration Judge found that the respondent was convicted under Iowa Code section 708.1(3) (Exh. 8 at 2-3). We find this clearly erroneous.

See

8 C.F.R. § 1003.l (d)(3)(i).

The record does not indicate

which of the three subsections of Iowa Code section 708.1 under which the respondent was convicted; rather, it only indicates that he used or displayed a dangerous weapon in connection with the assault per section 708.2(3) (Exh. 4). We note that the United States Court of Appeals for the Eighth Circuit, the controlling federal jurisdiction in this matter, has held that Iowa Code § 708.1(2) does not have "as an element, the use or attempted use of force." See U.S. v. Smith, 171 F.3d 617, 620 (8th Cir. 1999). Nor does Iowa Code§ 708.1(1). We therefore conclude that the DHS has not established by clear and convincing evidence that the respondent's conviction is categorically a crime of violence under 18 U.S.C. § l 6(a), as it is possible that he could have been convicted under Iowa Code§ 708.1( l ) or (2). We find that remand is warranted. First, the Immigration Judge should consider whether the respondent's conviction constitutes a crime of violence as defined by 18 U.S.C.§ 16(a) under the modified categorical approach. See Exh. 4, Written Guilty Plea and Waiver of Rights. Next, if necessary, the Immigration Judge should consider whether the respondent's conviction constitutes a crime of violence as defined by 18 U.S.C.§ 16(b) (any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense). In this regard, we conclude that the Immigration Judge erred in determining that the respondent's conviction cannot fall under 18 U.S.C. § 16(b) because it is classified as a misdemeanor under state law (Exh. 8 at 3). For purposes of the aggravated felony crime of violence provision in the

See Matter of Velasquez, 25

immigration context, we look to whether a state conviction would constitute a federal felony. I&N Dec. 278, 280 (BIA 2010). Under federal law, an offense is a

felony if it is punishable by more than 1 year in prison. See 18 U.S.C. § 3559(a)(5). As previously noted, an aggravated misdemeanor under Iowa law has a 2-year maximum sentence. 2

Cite as: Gzim Imeri, A091 298 819 (BIA July 31, 2013)

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.

A091 298 819

Accordingly, the respondent's conviction constitutes a federal felony for immigration purposes,

Doe v. Hartz, 134 F.3d 1339 (8th Cir. 1998), a non-immigration case, is misplaced. There, the Eighth Circuit held that the aggravated misdemeanor committed by Hartz under Iowa law would not have constituted a federal felony because the conduct would not have violated federal criminal law, not because of the sentence maximum.
Accordingly, the following order is entered.

despite its designation as a misdemeanor under state law.

The respondent's reliance on

Immigrant & Refugee Appellate Center | www.irac.net

ORDER: The respondent's appeal is sustained and the record is remanded.

3

Cite as: Gzim Imeri, A091 298 819 (BIA July 31, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT OMAHA, NEBRASKA

File: A091-298-819 In the Matter of

March 5, 2013

Immigrant & Refugee Appellate Center | www.irac.net

GZIM IMERI RESPONDENT

) ) ) )

IN REMOVAL PROCEEDINGS

CHARGES:

Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act alien who has been convicted of an aggravated felony as defined in Section 101(a)(43)(F) of the Immigration and Nationality Act as a crime of violence for which a term of imprisonment of at least one year was ordered.

APPLICATIONS:

ON BEHALF OF RESPONDENT: JOSHUA P. SLEPER ON BEHALF OF OHS: DEBRA ROBINSON

ORAL DECISION OF THE IMMIGRATION JUDGE The Government initiated removal proceedings against the respondent by filing a Notice to Appear dated January 14, 2013. See Exhibit 1. The respondent admitted some of the allegations, denied others in regard to the dates, and denied removability. Certain documents were received into evidence. The Government and the respondent submitted briefs in regard to the issue of removability. The Court

considered those documents and issued an order on March 4, 2013, finding the respondent removable as charged. See Exhibit 8. At a hearing today, the respondent stated that he would not be seeking any form of relief.

Immigrant & Refugee Appellate Center | www.irac.net

Because the Court has found the respondent to be removable as charged, and the respondent has not sought any form of relief in this Court, the Court will enter the following order: ORDER OF THE IMMIGRATION JUDGE IT IS HEREBY ORDERED that the respondent be removed to Macedonia on the charge contained in the Notice to Appear.

Please see the next page for electronic signature
DANIEL A. MORRIS United States Immigration Judge

A091-298-819

2

March 5, 2013

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...
/Isl/ Immigration Judge DANIEL A. morrisd on April 23, MORRIS

2013 at 1:01 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A091-298-819

3

March 5, 2013

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