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Bitar Turou, A205 829 460 (BIA Oct. 4, 2013)

Bitar Turou, A205 829 460 (BIA Oct. 4, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) denied an appeal from the Department of Homeland Security (DHS) and upheld the termination of proceedings upon finding second degree assault under Del. Code. Ann. Tit. 11, § 612(a)(2) not to be a crime of violence aggravated felony. The Board concluded that the statute neither required the use of force nor involved a substantial risk that the offender would intentionally use force. The decision was written by Vice Chairman Charles Adkins-Blanch.
In this unpublished decision, the Board of Immigration Appeals (BIA) denied an appeal from the Department of Homeland Security (DHS) and upheld the termination of proceedings upon finding second degree assault under Del. Code. Ann. Tit. 11, § 612(a)(2) not to be a crime of violence aggravated felony. The Board concluded that the statute neither required the use of force nor involved a substantial risk that the offender would intentionally use force. The decision was written by Vice Chairman Charles Adkins-Blanch.

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Published by: Immigrant & Refugee Appellate Center, LLC on Oct 11, 2013
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Gautam J.

JAGANNATH
Social Justice Collaborative
317 Washington Street, #128
Oakland, CA 94607
Name: TUROU, BIT AR
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leeburg Pike. Suite 2000
Falls Church, Vrginia 20530
OHS LIT .Nork Co. PrisonNOR
3400 Concord Road
York, PA 17402
A 205-829-460
Date of this notice: 10/4/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Sincerely,
Do Cw
Donna Car
Chief Clerk
Trane
Userteam: Docket
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For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Bitar Turou, A205 829 460 (BIA Oct. 4, 2013)
TUROU, BITAR
A205-829-60
YORK COUNTY
3400 CONCORD ROAD
YORK, PA 17402
Name: TUROU, BITAR
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leebur Pik, Suite 2000
Fals Church, Vrginia 20530
OHS LIT.Nork Co. PrisonNOR
3400 Concord Road
York, PA 17402
A 205-829-460
Date of this notice: 10/4/2013
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 attorey or representative has been served wit 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 afrs a 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:
Adkins-Blanch, Charles K.
Sincerely,
Do c a
Donna Carr
Chief Clerk
Trane
Useream: Docket
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Cite as: Bitar Turou, A205 829 460 (BIA Oct. 4, 2013)
"
·�
U.S. Department of Justice
Executive Ofce fr·Imigation Review
Decision of the Board of Imigation Appeals
Falls Church, Virginia 20530
File: A205 829 460 - York, Pensylvaa
In re: BITAR TUROU
I REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RSPONDENT: Gauta J. Jagganath, Esquire
ON BEHALF OF DHS:
CHARGE:
Jefey T. Bubier
Senior Attorey
·OT
4 ?013
. .
Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S. C. § 1227(a)(2)(A)(iii)] -
Convicted of aggravated felony
APPLICATION: Terination of Removal Proceedings
The Depament of Homelad Security ("DHS") timely appeals fom a Immigation Judge's
May 6, 2013, decision, terinating removal proceedings against the respondent. The appeal will be
dismissed.
The Boad reviews an Immigration Judge's fndings of fct, including fndings as to the credibility of
testimony, under te "clearly eroneous" standad. Sºº 8 C.F.R. § 1003.l(d)(3)(i); Mcuºr o| K-S-H-,
23 l&N Dec. 629 (BIA 2003); M¤||ºr o| 3-H-, 23 I&N Dec. 462 (BIA 2002). The Boad reviews
questions of law, discretion, ad judgent ad all oter issues in a appea of a Immigration Judge's
decision de novo. óºº 8 C.F.R. § 1003.l(d)(3)(ii).
The respondent is a native ad citizen of the Republic of Palau. On August 8, 2012, the respondent
wa convicted pursuat to a guilty plea in Delawae of the flony ofense of Assault in the Second
Degree, in violation of DEL. CODE. AN. Tit. 11, § 6 l 2(a)(2), fr which he wa sentenced to a ter of
8 yeas in prison, 5 yeas to be suspended aer having served 1 � years, and the remaining 18 months to
be served on probation (Exh. 2). The Imigration Judge fund tat the OHS failed to establish tat the
respondent's 2012 Delaware Assault in te Second Degree conviction qualifes as a "crime of violence"
under 18 U.S.C. § 16,
I
ad a aggravated flony under section 101(a)(43)(F) of te Immigration ad
Nationality Act, 8 U.S. C. § 110l(a)(43)(F), ad terinated proceedings. This appea fllowed.
1 Under 18 U.S. C. § 16, the ter "crime of violence" meas either "(a) a ofense that has as an element
the use, atempted use, or threatened use of physical frce against the person or propery of aoter, or
(b) ay other ofense that is a flony ad tat, by its nature, involves a substantial risk tat physical frce
against the person or proper of another may be used in the course of commiting the ofense."
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Cite as: Bitar Turou, A205 829 460 (BIA Oct. 4, 2013)
. i
A205 829 460
On de novo review, we agee with te Immigation Judge (l.J. at 3) tat te statute at issue does not
involve "the use, atempted use, or threatened use of physical frce against the person or propery of
aother," as a statutory element, ad thus, it canot not qualif as a "crime of violence" under 18 U.S.C.
§ 16(a). Furhermore, the United States Cour of Appeas fr the Third Circuit, where ts matter ases,
ha fund that the crime of violence deftion uder § 16(b) refrs to those ofenses where there is "a
substatial risk that the actor will |a|ºa||oa¤||, use physical frce in commiting his crme" (emphasis
added). 3ºº Ïr¤a r Goar¤|ºr, 414 F.3d 464, 472 (3d Cir. 2005); rºº ¤|ro Hºa¸ r ßICL, 493 F.3d 303,
307 (3d Cir. 2007).
The Supreme Court in Moa:º|ºýº r Ho|1ºr 133 S. Ct. 1678 (2013), indicated that a "categorical
approach" must frst be employed to deterine whether a state ofense qualifes as a "aggravated
flony" under the Act, which requires examinng "not to the fcts of the paicula prior case," but
instead to whether "the state sttte defng the crime of conviction" categorcally fts within the
"generic" fderal defnition of a coresponding aggravated felony. 3ºº |1 at 1684 (citing
Goar¤|ºr r Duºa¤r-A|r¤rºr, 549 U.S. 183, 185-187 (2007)). In addition, "[w]here . . . a statte
criminalizes diferent kinds of conduct, some of which would constitute [aggavated felonies] while
others would not," te cour may apply a modifed categorical approach, where the cou "may look
beyond the statutory elements to deterine the particula pa of the statute under which the defndat
was actually convicted." 3ºº Dºa|r r A||¸ Gºa o| |6º C3, 633 F.3d 201, 206 (3d Cir. 2011). In tis
case, the Delawae ofense of Assault in the Second Degee may be commited in eleven diferent ways,
some of which may involve either a intentional or a reckless mental state, such tat the statute is
divisible ad would not categorically quaif as a "crime of violence" (l.J. at 3). Applying the modifed
categorical approach to the conviction records submited by the DHS, te Immigration Judge fud that
he could not determine the ters of te respondent's change of plea to Count 1 of the Gd Jur's
Indictment, which was modifed fom Assault in the First Degee to the lesser included ofense of
Assault in the Second Degee. 1 Ts modifcation chages the mºar ºº¤ required of te ofense fom
that of |a|ºa||oa¤||, causing physical injuy to aother person exclusively, to a more expasive reading
of the mºar rº¤ requirement which not only allows fr the defendat to also be convicted fr ºº:t|ºrr|,
causing physical inju to anoter person, but also adding the requrement that it by means of a deadly
weapon or a dangerous instrument, a well (emphasis added).
The court in ³gu||¤r r A||omº, Gºaºr¤| o| C3 663 F.3d 692 (3d Cir. 2011), considered that
although "[mjºw rº¤ is not fatued in [the § 16(b)] defnition, both the Supreme Cou and [tis] cour
have considered mºw rº¤ when deterining what consttutes a crime of violence under § l 6{ )," and
"[ u ]nder those precedents, crimes involving a mºar rº¤ of negligence or of a varat of reckessness that
[te cou has] called 'pure' recklessness have been held not to be crimes of violence under § 16(b)
because, by their nate, they do not rase a substtial risk tat physical frce may be used. I1 at 696.
·(citing Ï·¤a r Goar¤|ºr, ru¤r¤ at 465; and Lºo:¤| v Ar6:ro0, 543 U.S. 1, 11 (2004)).
As noted by the Supreme Cour in Moa:º|ºý r Ho|1ºº as it must frst "exaine what the state
conviction necessarily involved, not the fcts underlying the case, [the Court] must presume that the
1 The statutory laguage of DEL. CODE. AN. tit. 11, § 612(a)(2), provides in relevat pa, that a person
comits Assault in the Second Degree when he "recklessly or intentionally causes physical inju to
aother person by means of a deadly weapon or a dangerous instrment. . ..
2
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Cite as: Bitar Turou, A205 829 460 (BIA Oct. 4, 2013)
. (·
A205 829 460
conviction 'rested upon [nothing] more than te least of th[e] acts' criminalized, and then determine
whether even tose acts are encompassed by the generic fderal ofense." I1 at 1684 (citing
Jo»aroa r Ca||º1 3|¤|ºr, 559 U.S. !JJ, !J7 (2010)). The Cou waed, however, that the "fcus on
the minimum conduct criminalized by te state statute is not a invitation to apply 'legal imagination' to
the state ofense; there must be 'a reaistic probability, not a theoretical possibility, that the State would
apply its statute to conduct tat fals outside the generic defnition of a crime.'" !1 at 1684-85 (citing
Gow¤|ºr v. Duºa¤r-A|r¤rºr, ru¤r¤, �t 197).
Thus, in this case, we fnd te Immigration Judge properly applied the categorical aalysis set frth
by te Court in Moa:r|ºý r Ho|1ºr, and relevant Delawae state cases ad statutory authority, and
correctly deterined that the minimum conduct necessary to obtain a conviction under Delawae's
Assault in the Second Degree, the statute of conviction in this case, is "pure recklessness," which has
been fund where "the peretrator rs no risk of intentionally using frce in commiting his crime, or
where frce is used accidentally," ad deterined tat this falls outside the purview of§ 16(b) (l.J. at 4).
3ºº Ca||º1 3|¤|ºr r !¤rroa, 955 F .2d 858, 866 [J1 Cir. 1992), abrogated on other grounds by
ߺg[ r Ca||º1 3|¤|ºr, 553 U.S. !J7 (2008). The Immigation Judge noted that the Supreme Cou of
Delawae considered te element of recklessness in Delaware's Assault in the Second Degree ofense in
DºHorg r 3|¤|º, 8!7 A.2d 804 (Del. Supr. 2002), fnding in tat case that the "flly of approaching a
horse-drawn vehicle at nigt on a dak, narow county road and atempting to pass within 100 feet of an
intersection at a speed in excess of the posted 50 m.p.h. speed limit constitted reekess conduct which
caused the collision resulting in serious injury to te buggy's tee occupats .. " In reaching its decision,
the cou careflly exained DEL. CODE. AN. Tit. !!, § 263, which defnes te elements of negligent
and reckless causation.
Fuherore, "recklessness" in Delaware is defned by DEL. CODE AN. TITLE !! §2J! ( e ), which
provides, in pertinent part, as fllows:
§ 231. Defnitions relating to state of mind
(e) "Recklessly".--A person acts recklessly with respect to a element of a ofense when the
person is awae of and consciouly disregads a substantial and unjustifable risk that te
element exists or will result fom te conduct. Te risk must be of such a natue ad degee that
disregad thereof constitutes a gross deviation fom the standard of conduct that a reasonable
person would observe in the situation. A person who creates such a risk but is unawae thereof
solely by reason of voluntary intoxication also acts recklessly with respect thereto.
As noted by the respondent on appea, while the "application of [Delawae's defnition of
recklessness contemplates that the actor would have known tat physical injuy was at risk, recklessness
in [Delaware's Assault in the Second Degree ofense] does not contemplate that the actor undertook a
'substatial risk of intentional frce'," and, "although the actor disregarded the risk of injury, te statute
does not require that te actor know tat tere is a substantial risk of intentional use of frce." 3ºº R's
brief at !J Citing to cases applying Delaware's defnition of recklessness to other ofenses, the
respondent argues that Delaware considers recklessness in the context of a "disregad of the rsk of a
resulting physical injury," and not ''the substantial risk of the intentional use of frce." 3ºº |1 (citing
Lºu|r r Dº|¤u¤rº, 977 A.2d 898 (Table) (Del. Supr., 2009) (Delawae Supreme Cou in a case
involving reckless endangerent in the frst degree, fund the defndant must have "recklessly
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Cite as: Bitar Turou, A205 829 460 (BIA Oct. 4, 2013)
¹: ,
A205 829 460
engage[dfn conduct, which creates a substtial risk of death to anoter person."); ߤ||º, v. Uº|¤u¤rº,
925 A.2d 503 {Table) (Del.Supr.,2007) (Delaware Supreme Cou noted in a case involving a chage of
frst degee murder by abuse or neglect, that the state had to prove that te defndat recklessly caused
te deat of her newbor son when she wa "aware of and consciously disregard[ ed] a substatial and
unjustifable risk" ofhs death.). Moreover, in K|rtv. 3|¤|º 889 A.2d 283 {Table) (Del. Supr., 2005), in
a case simila to the Tird Circuit's decision in Ïr¤a v. Gow¤|ºr ru¤r¤ where the court fud the
Penylvania crime of reckless bug or exploding was not a crime of violence under § 16(b) as it did
not involve the intentional use of physical frce, the defndat was chaged and convicted of Assault in
te Second Degree, where the court fund the defendant's conduct ador mºar rº¤ with respect to the
criminal ofense, |º, where the defndant poured r on one of the stove buers, which stared a fre
that caused the deats of a fther and two of his children and serious injuries to several other individuals
in te apaent building, met the criteria of "recklessly" as defned in the Delawae Code. Notably, as
in Ϻ¤a, there is no indication that the crme involved or created a "substantial risk of the intentional use
of physical frce" in committing the ofense.
Furthermore, the respondent on appeal cites to statute's requirement as to te use of eiter a deadly
weapon or dagerous instrument to cause physical inju to the victim. 3ºº DEL. CODE. AN. tit. 1 1,
§ 612(a)(2). However, as agued by the respondent, to be convicted in Delaware of Assault in the
Second Degee, covers "a broad swat of items tat ae characterized as deadly or dangerous may be
used. 3ºº R s brief at 11 (citing DEL. CODE. AN. Tit. 11, §§ 222(4), (5)). Included aong these
dagerous instuments are chemical sprays, ºg mace, tear gas, pepper spray, etc. We canot say that
the use of these sprays presents a substatial risk that the actor will |a|ºa||oa¤||j use physical frce in
commtting his crime in violation of the Delaware statute.
Consequently, we agree wit the respondent's contention that pursuat to the Cout's decision in
Moa:r|ºý v. Ho|1ºr, there is "a realistic probability, not a teoretical possibility," that te State of
Delaware would apply its Assault in the Second Degee statute to conduct tat falls outside the generic
defnition of a crime of violence. 3ºº |1 at 1684-85. Thus, we are not persuaded by te appellate
arguments presented by the DHS, and afrm the Immigration Judge's conclusion that the respondent's
2012 Delawae Assault in the Second Degree conviction does not quaif as a "crime of violence" under
either 18 U.S. C. § § 16(a) or (b), and a conviction fr a aggravated felony under section 10l (a)(43)(F) of
the Act. As such, we concur with the Immigation Judge's conclusion that the DHS could not meet its
burden of proof as to the respondent's removabilit by clear, convincing, and unequivocal evidence, and
fnd that he properly terinated these proceedings. 3ºº section 240(c)(l)(A) of the Act, 8 U.S. C.
§ 1229a(c)(l)(A).
Accordingly, the fllowing order will be entered.
ORDER: Te Department of Homelad Security's appeal is dismissed.
4
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Cite as: Bitar Turou, A205 829 460 (BIA Oct. 4, 2013)
c
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
YORK, PENNSYLVANIA
File: A205-829-460 May 6, 2013
In the Matter of
BITAR TUROU
RESPONDENT
CHARGES:
APPLICATIONS:
)
}
)
)
IN REMOVAL PROCEEDINGS
237{a){2}{A}{iii) of the Immigration and Nationality Act {INA); an
alien at any time afer admission convicted of an aggravated felony
as defined in Section101 {a){43){F) of the INA, a crime of violence
as defined in Section 16 of Title 18 of United States Code, but not
including a purely political ofense (for which the term of
imprisonment ordered is at least one year).
ON BEHALF OF RESPONDENT: PRO SE
ON BEHALF OF OHS: RICHARD O'BRIEN, ESQUIRE, ASSISTANT CHIEF COUNSEL
Immigration and Customs Enforcement
York, Pennsylvania
ORAL DECISION OF THE IMMIGRATION JUDGE
Respondent is a 41 year old male, native and citizen of Palau. On March 19,
2013, the Deparment of Homeland Security filed a notice to appear in this mater. The
filing of the Notice ·to Appear vested jurisdiction with this Cour. That document is
marked as Exhibit No. 1.
1
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On April 15, 2013, the Cour took pleadings. The respondent admitted
allegations 1 through 5. So the question before the Court was whether or not the
respondent was removable as charged. The Cour marked a packet of documents into
the record as Exhibit No. 2 on April 15, 2013.
On April 16, 2013, the Deparment of Homeland Security submitted a brief to the
Cour in suppor of the aggravated felony charge. In the Government's brief, the
Government argued that notithstanding the fact that the respondent's criminal ofense
could have been carried out recklessly, tnonetheless, the respondent had been
convicted of a crime of violence as that term is defined in Section 101 (e}(43}(F) in
accordance with Aquilar v. Attorney General of the United States, 663 F.3d 692 (3rd Cir.
2011).
Under Section 101 (a)(43}(F) of the INA, the term :aggravated felony: is defined
as a :crime of violence: as that term is defined in 18 United States Code Section 16 for
which the term or imprisonment is at least one year. Under 18 United States Code
I Section 16, the term crime of violence is defined as .a) an ofense that has as an
element to the use or attempted use or threatened use of physical force against the
person or property of another; or f b) any other ofense 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 ofense.
To qualif as a crime of violence within the meaning of 18 United States Code
Section 16(a}, the criminal statute must require a mens rea of specific intent to use
force, mere recklessness is insuficient. Tran v. Gonzales, 414 F.3d 464, 470 (3rd Cir.
2005).
It is not dispositive if the crime may be proven by a showing of specific intent. All
that is necessary to place is outside of Section 16(a) is that it could be established with
A205-829-460 2 May 6, 2013
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proof of a lesser mens rea. See Id. Here, the Cour would find that assuming the facts
in the case in the best light for the Government that the respondent was convicted
under 11 Delaware Code Section 612(a)(2). That provision states "a person is guilty of
assault in the second degree when it is clear the person recklessly or intentionally
causes physical injur to another by means of a deadly weapon or a dangerous
instrument." Here, the Court would find that force is not an element of the ofense.
Accordingly, the Cour would find that the respondent's crime is not a crime of
violence as that term is defined in 18 United States Code Section 16(a).
The question then becomes whether or not the respondent's crime is a crime of
violence as that term is defined in 18 United States Code Section 16(b). Here, the
crime in question is a felony. The issue then is whether, by its nature, the crime
involves a substantial risk that physical force against the person or propery of another
may be used in the course of committing the ofense.
In determining whether a crime is an aggravated felony, the Cour first, as a
preliminary matter, applies the categorical approach. That isJ that it looks e to the
statute of conviction only to determine whether it satisfies the generic definition of
aggravated felony. Where, however, the statute is divisible, that is that it defines cerain
ofenses that may be aggravated felonies and cerain ofenses that are not, the Cour is
permited to look at the statute of conviction to determine under which provision of the
divisible statute the respondent was convicted.
Here the statute is divisible. Section 612(a)(2) states "if the person recklessly or
intentionally causes physical injur to another by means of a deadly weapon or a
dangerous instrument." The indictment in the respondent's case does not contain a
charge for assault in the second degree. Rather, it appears that the respondent pied
down from a charge of assault in the first degree. The terms of the amendedm count
A205-829-460 3 May 6, 2013
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in question are not available to the Cour. Accordingly, the Court cannot look to that to
determine which of the visible elements in the statute the respondent was convicted.
Accordingly, the Cour must take the provision in question at its minimum and
therefore look to whether the respondent's conviction for recklessly causing physical
injury to another person by means of a deadly weapon or a dangerous instrument is a
crime of violence as that term is defined in 18 United States Code Section 16(b).
Crimes committed with pure recklessnessJ where the perpetrator runs no risk of
intentionally using force in committing his crime, or where force is used accidentally, fall
outside of Section 16(b). Aguilar v. Attorney General, 663 F. 3d 692, 698-99 (3rd Cir.
2011) quoting Tran, 414 F.3d 465.
In the Third Circuit "pure" recklessness "exists when the mens rea of a crime
lacks an intent desire or willingness to use force or cause harm at all." Aguilar, 663
F.3d at 697 (quoting United States v. Parson, 955 F.2d 858, 866 (3rd Cir. 1992)
aggregated on other grounds by Begay v. United States, 553 U.S. 137 (2008)).
The Cour in Aguilar contrasted a "pure" recklessness crime. Reckless burning is
discussed in Tran with a classic example of a p.rime covered by 18 United States Code
Sections 16(b)J burglarJ- Nnoting that only the latter involved the risk of intentional
physical force. Aguilar, 663 F .3d at 698.
Here, the Cour finds that the ofense in question could be violated through pure
recklessness. In making this finding, the Cour considers the decision of the Supreme
Cour of Delaware in the DeHor v. State, 817 A.2d 804 (Supreme Cour of Delaware
2002). In that case, the defendant was recklessly driving an automobile at night when
she ran into a horse drawn bug

y within 100 feet of an intersection, on an unlighted,
unmarked shoulder less narrow country road. The Cour found that "the folly of
approaching a horse drawn vehicle at night on a dark narrow countI road in attempting
A205-829-460 4 May 6, 2013
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C.
to pass within 100 feet of intersection at �g speed in excess of the posted 50 mile§
per hour speed limit constituted reckless conduct which caused the collision resulting in
serious injury to the buggy's three occupants.-" -.nd therefore, constituted assault in
the second degree. In reaching its decision, the Cour carefully examined 11 Delaware
Code Section 263. which defined reckless or negligent causation.
Here, the Cour finds that the respondent could have been convicted of the
ofense through pure recklessness. Accordingly, the Cour would find that the Third
Circuits decision in Aquilar, 663 F.3d at 698-99. does not apply. Accordingly, the Cour
finds that the Government has failed to establish by clear and convincing evidence that
the respondent is removable as charged. It does not appear that the respondent is
otherise removable from the United States.
Accordingly, it is the order of the Cour that these proceedings be terminated
without prejudice to re-filing.
signature
A205-829-60
Please see the next eaqe for electronic
ANDREW R. ARTHUR
Immigration Judge
5 May 6, 2013
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/Isl/
Imigration Judge ANDREW R. ARTHUR
arthura on June 6, 2013 at 9:15 PM GMT
A205-829-60 6 May 6, 2013
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