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Phillip Andrew Murray, A055 213 731 (BIA Sept. 20, 2013)

Phillip Andrew Murray, A055 213 731 (BIA Sept. 20, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for reconsideration of whether second degree assault under Md. Code Ann. Crim. Law 3-203 is a crime of violence aggravated felony in light of the respondent's argument that the statute is not divisible under the intervening decisions in Descamps v. United States, 133 S.Ct. 2276 (2013), and Karimi v. Holder, 715 F.3d 561 (4th Cir. 2013). The decision was written by Member Anna Mann and joined by Member Hugh Mullane and Member Michael Creppy.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for reconsideration of whether second degree assault under Md. Code Ann. Crim. Law 3-203 is a crime of violence aggravated felony in light of the respondent's argument that the statute is not divisible under the intervening decisions in Descamps v. United States, 133 S.Ct. 2276 (2013), and Karimi v. Holder, 715 F.3d 561 (4th Cir. 2013). The decision was written by Member Anna Mann and joined by Member Hugh Mullane and Member Michael Creppy.

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Published by: Immigrant & Refugee Appellate Center, LLC on Sep 25, 2013
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06/14/2015

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Gallagher, John E., Esq.

Gallagher & Hansen, L.L.P.
583 Frederick Road, Suite 3A
Catonsville, MD 21228
Name: MURRAY, PHILLIP ANDREW
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Of fice of the Clerk
5107 Leesburg Pike. Suite 2000
Falls Church. Virginia 22041
DHS/ICE Ofice of Chief Counsel - BAL
31 Hopkins Plaza, Room 1600
Baltimore, MD 21201
A 055-213-731
Date of this notice: 9/20/2013
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Mullane, Hugh G.
Mann, Ana
Creppy, Michael J.
Sincerely,
DO c t
Donna Carr
Chief Clerk
Userteam: Docket
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Cite as: Phillip Andrew Murray, A055 213 731 (BIA Sept. 20, 2013)
For more unpublished BIA decisions, visit www.irac.net/unpublished
MURRAY, PHILLIP ANDREW
A055-213-731
WORCESTER COUNTY JAIL
5022 JOYNER ROAD
SNOW HILL, MD 21863
Name: MURRAY, PHILLIP ANDREW
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board oflmmigration Appeals
Offce of the Clerk
5 !07 Leesburg Pike. S11ile 2000
Fals Church. Virginia 22041
OHS/ICE Ofice of Chief Counsel - BAL
31 Hopkins Plaza, Room 1600
Baltimore, MD 21201
A 055-213-731
Date of this notice: 9/20/2013
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a cout1esy. 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 fom the United States or afrms an Immigration Judge's decision ordering that you
be removed, any petition fr review of the attached decision must be fled with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Mullane, Hugh G.
Manng Ana
Creppy, Michael J.
Sincerely,
Do Ct
Donna Carr
Chief Clerk
� ¹ � | ',· � · ; ¸ ,*,
Useream: _
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Cite as: Phillip Andrew Murray, A055 213 731 (BIA Sept. 20, 2013)
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+ t
' U.S. Deparent of Justice Decision of the Board of Imigation Appeals
Executive Ofce fr Imigation Review
Falls Church, Virginia 22041
File: AOSS 213 731 - Baltimore, MD
In re: PHILLIP ANDREW MRY
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: John E. Gallagher, Esquire
ON BEHALF OF DHS:
CHARGE:
Kala S. Baker
Assistant Chief Counsel
SE? 2 0 2013
Notice: Sec. 237(a)(2)(A)(iii), I
&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] -
Convicted of aggavated flony
APPLICATION: Termination of proceedings
The respondent, a native .ad citizen of Grenada, appeals fom the decision of te
Immigation Judge, dated April 25, 2013, fnding him removable as chaged. The appeal will be
sustained and the record remanded fr fher proceedings.
We review the fndings of fct, including deterinations of credibilit, made by the
Immigration Judge under a "clearly eroneous" standard. 8 C.F.R. § 1003.1(d)(3)(i). We review
all other issues, including whether or not the paies have met the relevant burden of proof, ad
issues of discretion, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(i).
Te respondent was convicted on to counts of second degee assault on April 25, 2011, and
then, convicted again, on March 13, 2012, under section Md. Code An., Crim. Law§ 3-203.
For each of te counts fr the frst ofense he was sentenced to 12 months in prison ad he was
sentenced to 18 months fr the second ofense (Tr. at 34, 50; Exhs. 1 and 2). He was also
convicted on May 14, 2012, of unlawfl taing of a motor vehicle in violation of Md. Code An+_
Crim. Law§ 7-105, and sentenced to 3 years of imprisonment (Id).
The Immigration Judge fund th�t the respondent's thef crme was not necessarily a
aggravated flony, but that his asault crimes were crmes of violence and aggravated felonies
under section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (l.J. at 3). Md. Code Ane_
Crim. Law § 3-203 provides:
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Cite as: Phillip Andrew Murray, A055 213 731 (BIA Sept. 20, 2013)
- f
AOSS 213 731
Assault in te second degree
Prohibited
(a) A person may not commit an assault.
Penalty
Id
(b) Except as provided in subsection ( c) of this section, a person who violates subsection
(a) of this section is guilty of te misdemeanor of assault in the second degee ad on
conviction is subject to imprsonent not exceeding I 0 yeas or a fne not exceeding
$2,500 or both.
A crime of violence fr purposes of section 10l(a)(43)(F) of the Act relies on the defnition
fund at 18 U.S.C. § 16. To qualif as a crime of violence under 18 U.S.C. § 16(a), the ofense
must have as an element the use, atempted use, or threatened use of physical frce against the
person or property of another; to qualif uder section l 6(b ), it must be a felony that, by its
nature, involves a substatial risk tat physical frce against the person or property of anoter
may be used in the course of comitting the ofense. See generally Leocal v. Ashcrof, 543 U.S.
I (2004).
On appeal, the only agwent raised by the respondent is that Md. Code An., Crim. Law
§ 3-203(a) is not divisible ad that the minimal conduct falls below that required to fnd it is a
crime of violence under 18 U.S.C. § 16. Subsequent to the Immigration Judge's decision, te
Supreme Court addressed the appropriate application of an elements-based examination of a
statute of conviction. See Descamps v - _ United States, 133 S.Ct. 2276 (June 20, 2013); see also
Karimi v. Holder, 715 F.3d 561 (4th �ir .. 2013).
It is appropriate to permit the Immigration Judge to reexamine the issue of removability in
the frst instance in light of the Court's holding. See 8 C.F.R. § 1003.l{d)(3)(iv) (limiting te
Boad's fct-fnding ability on appeal). We will therefre remad the record fr fer
proceedings ad the enty of a new decision. We express no opinion as to the outcome of
proceedings on remad.
ORDER: The record is remaded to the Immigation Judge fr frher proceedings
consistent with the fregoing opinion and fr the enty of a new decision.
2
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Cite as: Phillip Andrew Murray, A055 213 731 (BIA Sept. 20, 2013)
.`
`¹¬· :·
;e
-.
.. --
I:MIGRATION COURT
31 HOPKINS PLAZA, ROOM 440
BALTIMORE, M 21201
In the Matter of
Case No.: AOSS-213-731
MRRAY, PHILLIP ADREW
Respondent IN REOVAL PROCEEDINGS
ORDER OF THE I:MIGRATION JUDGE
This is a sumary of the oral decision entered on April 25, 2013.
This meorandum is solely for the convenience of the parties. If the
proceedings should be appealed or reopened, the oral decision will become
the official opinion in the case.
[X ] The respondent was ordered removed from the United States to GRNAA
[ I
]
[ ]
or in the alternative to .
Respondent's application for voluntary departure was denied ad
respondent was ordered removed to or in the
alterative to .
Respondent's application for voluntar departure was granted until
upon posting a bond in the aount of $
with an alterate order of reoval to .
Relpondent's application for:
[ ] Asylum was ( )granted ( )denied( )withdrawn.
[ ] Withlding of removal was ( )grated ( )denied )withdrawn.
[ ] A Wafver under Section �was ( )grated ( )denied ( )withdraw.
[ ] Cancellation of removal under section 240A(a) was ( )grant�d ( )denied
( )withdraw.
Respondent's application for:
[ ] Cancellation under section 240A(b) (1) was ( ) granted ) denied
( ) withdrawn. If granted, it is ordered that the respondent be issued
all appropriate docuents necessary to give effect to this order.
Cancellation under section 240A(b) (2} was ( )granted ( )denied
( )withdraw. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this order.
Adjustment of Status under Section �was ( )granted ( )denied
( )withdraw. If granted it is ordered that the respondent be issued
all appropriated docuets necessary to give effect to this order.
Respondent's application of ( ) withholding of removal ( ) deferral of
removal under Article III of the Convention Against Torture was· Í
( ) granted ( ) denied ( ) withdrawn.
/ . ,,,�
Respondent's status was rescinded under section 246. . ... Í '
Respondent is admitted to the United States as a until �·'� .
As a condition of adission, respondent is to post a $
'..
end.
Respondent kowingly filed a frivolous asylu application after proper
notice.
Respondent was advised of the limitation on discretionary relief for
failure to appear as ordered in the Imigration Judge's oral decision.
Proceedings were terinated.
Other:
Date: Apr 25, 2013
0�· �
PHIL��LIAS
.Imigration Judge
Appeal: Waiv�serv� Appe<l Due By: .ff /J:
·�'
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�·
'
Alien Number: 055-213-
731 Alien Name: MURRY, PHILLIP ADREW
A.
LIMITATIONS ON DISCRETIONAY RELIEF FOR FAILURE TO APPEAR
1. You have been scheduled for a removal hearing, at the time and place
set forth on the attached sheet. Failure to appear for this hearing
other than because of exceptional circumstances beyond your control**
will result in your being found ineligible for certain forms of
relief under the Immigration and Nationality Act (see Section A.
below) for a period of ten {10) years after the date of entry of the
final order of removal.
2. You have been scheduled for an asylum hearing, at the time and place
set forth on the attached notice. Failure to appear for this hearing
other than because of exceptional circumstances beyond your control**
will result in your being·found ineligible for certain forms.of relief
under the Immigration and Nationality Act (see Section A. Below) for· a
period of ten (10} years from the date of your scheduled 'hearing.
3. You have been granted voluntary departure from the United States
pursuant to section 240B of the Immigration and Nationality Act, and
remaining in the United States beyond the authorized date other than
because of exceptional circumstances beyond your control** will result
in your being ineligible for certain forms of relief under the
Immigration and Nationality Act (see Section A. Below) for ten (10)
years from the date of the scheduled departure or the date of unlawful
reentry, respectively. Your voluntary departure bond, if any, will
also be breached. Additionally, if you fail to voluntarily depart the
United States within the time period specified, you shall be subject
to a civil penalty of not less than $1000 and not more than $5000.
A order of removal has been entered against you. If you fail to
appear pursuant to a final order of removal at the time and place
.
ordered by the DHS, other than because of exceptional circumstances
- bey6hd your control** you will not be eligible for certain forms of
relief under the Immigration and Nationality Act (see Section A.
below) for ten (10) years after the date you are scheduled to appear.
**the term "exceptional circumstances" refers to circumstances such
as serious illness of the alien or death of an immediate relative
of the alien, but not including less compelling circumstances.
THE
1)
FORMS OF RELIEF FROM REMOVAL FOR WHICH YOU WILL BECOME INELIG�BLE ARE:
Voluntary departure as provided for in section 240B of the
� • :'
2)
3)
Immigration and Nationality Act;
`^
Cancellation of removal as provided for in section 240A of. th�
Immigration and Nationality Act; and
|
Adjustment of status or change of status as provided for in Section
245, 248 or 249 of the Immigration and Nationality Act.
This written notice was provided to the alien in English. Oral notice of
the contents of this notice must be given to the alien in his/her native
language, or in a language he/she understands by the Immigration Judge.
Date: Apr 25, 2013
Immigration Judge:
CERTIFICATE OF
THIS DOCUMENT WAS SERVED BY: MIL (M) PER;V
TO: [ ] [ ] ALIEN c/o Custodial Officer
DATE: BY: COURT·STAFF
] EOIR-33 [ ] EOIR-28
DHS
¹ ·
` ;._:'
: *
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
BALTIMORE, MARYLAND
File: A055-213-731 April 25, 2013
In the Matter of:
PHILLIP ANDREW MURRAY
)
)
)
)
IN REMOVAL PROCEEDINGS
DETAINED
RESPONDENT
CHARGES: Immigration and Nationality Act Section 237(a)(2)(A)(iii) - as one
who afer admission has been convicted of an aggravated felony as
defined in Section 101 (a)(43)(F) of the Act, a crime of violence (as
defined in Section 16 of Title 18 of the United States Code, but not
including a purely political ofense) fr which the term of
imprisonment ordered is at least one year;
Immigration and Nationality Act Section 237(a)(2)(A)(iii) - as one
who at any time afer admission has been convicted of an
aggravated felony as defined in Section 101 (a)(43)(G) of the Act, a
law relating to a theft ofense (including receipt of stolen propery or
a burglary ofense) for which a term of imprisonment of at least one
year was imposed.
APPLICATION: None.
ON BEHALF OF RESPONDENT: JOHN GALLAGHER, Esquire
583 Frederick Road, Suite 3A
Catonsville, Maryland 21228
ON BEHALF OF DHS: KARLA BAKER, Esquire
Assistant Chief Counsel
Immigration and Customs Enfrcement
Ofice of Chief Counsel
31 Hopkins Plaza, 16th Floor
Baltimore, Maryland 21201
1
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ORL DECISION OF THE IMMIGRTION JUDGE
The respondent is a male alien native and citizen Grenada. He was sered with
a Notice to Appear dated September 24, 2012. The Notice to Appear is in this record
as Exhibit 1. It indicates the respondent is not a citizen or a national of the United
States, but a native and citizen of Grenada [Exhibit 1]. The Notice to Appear indicates
the respondent was admited to the United States through Charlotte, Norh Carolina, on
or about July 9, 2005, as a lawul permanent resident (F-12), but that on April 25, 2011,
he was convicted in the District Cour of Maryland for Montgomery County fr the
offense of two counts of second degree assault in violation of Marland Criminal Code
Section 3.203 and that he was sentenced to a term of imprisonment of 12 months each
(Exhibit 2) (by oral amendment indicates 24 months). Additionally in the Notice to
Appear it indicates that on March 13, 2012, the respondent was convicted in the District
Cour of Maryland for Montgomer County fr the offense of second degree assault in
violation of Maryland Statute 3-203 under a different case number and that he was
sentenced to a term of imprisonment of 18 months [Exhibit 1 ]. The Notice to Appear
alleges that on May 14, 2012, the respondent was convicted in the District Cour of
Marland fr Montgomery County for the offense of unlawul taking of a motor vehicle in
violation of Maryland Statute CR. 7 .105 and that he was sentenced to a term of
imprisonment of three years [Exhibit 1 ]. Based on those factual allegations, the
Deparment of Homeland Security alleges that the respondent is removable from the
United States under INA Section 237(a)(2)(A)(iii) as one who at any time afer
admission has been convicted of an aggravated felony as defined in Section
101(a)(43)(F) of the Act, a crime of violence (as defined in Section 16 of Title 18 United
States Code, but not including a purely political ofense) for which a term of
imprisonment ordered is at least one year and under INA Section 237(a)(2)(A)(iii) as
A055-213-731 2 April 25,2013
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one who at any time after admission has been convicted of an aggravated felony as
defined in Section 101(a)(43)(G) of the Act relating to a thef ofense, including receipt
of stolen propery or a burglar offense, fr which a term of imprisonment of at least one
year was imposed [Exhibit 1].
The respondent appeared before the Immigration Cour and, through counsel,
admited Allegations 1 through 9 contained in the charging document with the oral
amendment to reflect a term of imprisonment of 24 months, as amended by OHS on
December 13, 2012. The respondent denied removability under INA Section
237(a)(2)(A)(iii) as one convicted of an aggravated felony relating to a thef ofense
arising out of the unlawful taking of a motor vehicle. On this record as ofered by the
Department of Homeland Security, which is Exhibit 2 containing the record of
conviction, this Cour fund that the Department of Homeland Security is unable to
establish the respondent's removability as an aggravated felon under 237(a)(2)(A)(iii)
based on the theft ofense relating to the unlawful taking of a motor vehicle. However,
the Cour finds that the respondent's removability under INA Section 237(a)(2)(A)(iii) as
one convicted of an aggravated felony fr a crime of violence fr which a term of
imprisonment of at least one year has been imposed has been established by evidence
that is clear and convincing as is required under Section 240(c) of the Immigration and
Nationality Act. See also Woodby v. INS, 385 U.S. 276 (1966) [decided in the context
of deporation proceedings].
The Cour next turns to the respondent's applications for relief. As noted by the
Cour and conceded by counsel, the respondent has not submited any applications fr
relief. He acknowledges that absent application fr relief, he is subject to removal from
the United States under 237(a)(2)(A)(iii) as one who has been convicted of a crime of
violence fr which a term of imprisonment of at least one year has been imposed.
A055-213-731 3 April 25, 2013
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Absent applications for relief, it is the order of this Cour that the respondent be
removed from the United States to Grenada as charged.
ORDER
IT IS ORDERED that the respondent be removed from the United States to
Grenada as charged under INA Section 237(a)(2)(A)(iii).
A055-213-731
PHILLIP T. WILLIAMS
Immigration Judge
4 April 25, 2013
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CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE PHILLIP T.
WILLIAMS, in the matter of:
PHILLIP ANDREW MURRAY
A055-213-731
BALTIMORE, MARYLAND
was held as herein appears, and that this is the original transcript thereof fr the file of
the Executive Ofice for Immigration Review.
J
FREE STATE REPORTING, lnc.-2
JUNE 23, 2013
(Completion Date)
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