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Upinderjit Singh, A048 029 730 (BIA Sept. 27, 2013)

Upinderjit Singh, A048 029 730 (BIA Sept. 27, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA), following an unopposed remand from the Fourth Circuit, remanded for further consideration of its determination in Matter of U. Singh, 25 I&N Dec. 670 (BIA 2012), that a conviction for stalking in violation of Cal. Penal Code 646.9(a) is categorically an aggravated felony crime of violence under 18 U.S.C. 16(b). The decision was written by Member Roger Pauley and joined by Member Hugh Mullane and Member John Guendelsberger.
In this unpublished decision, the Board of Immigration Appeals (BIA), following an unopposed remand from the Fourth Circuit, remanded for further consideration of its determination in Matter of U. Singh, 25 I&N Dec. 670 (BIA 2012), that a conviction for stalking in violation of Cal. Penal Code 646.9(a) is categorically an aggravated felony crime of violence under 18 U.S.C. 16(b). The decision was written by Member Roger Pauley and joined by Member Hugh Mullane and Member John Guendelsberger.

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Published by: Immigrant & Refugee Appellate Center, LLC on Oct 23, 2013
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11/05/2013

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Jobe, Rober B., Esq.

Law Ofice of Rober B. Jobe
550 Kearny Street, Suite 200
San Francisco, CA 94108
Name: SINGH, UPINDERJIT
U.S. Department of Justice
Executive Ofce fr Imigration Review
8aoráaf Ioo|çrot|anaj]cols
u¡ccaft/cc|crk
5107 Leeburg P;ke. Suite 2000
Falls Church, Vrginia 22041
OHS/ICE Ofice of Chief Counsel - WAS
500 12th St., SW, Mail Stop 5902
Washington, DC 20536
A 048-029-730
Date of this notice: 9/27/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Mullane, Hugh G.
Guendelsberger, John
Pauley, Roger
Sincerely,
DC c l
Donna Carr
Chief Clerk
williame
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Upinderjit Singh, A048 029 730 (BIA Sept. 27, 2013)
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US. Bepartmeat �ti e

Exe�utive Ofce fr  m�tion Review •
) �
Falls Church, Vir@ia 22041
File: A048 029 730 - Alington, VA
In re: UPIERJIT SIGH
IN REMOVAL PROCEEDIGS
APPEAL
Decision of te Board of Imigaton Appeals
Date:
ON BEHALF OF RSPONDENT: Rober B. Jobe, Esquire
ON BEHALF OF DHS: Ada L. Berg
Assistant Chief Counsel
CHARGE:
Notice: Sec. 212(a)(2)(A)(i)(I), l&N Act [ 8 U.S.C. {1182(a)(2)(A)(i)(
I
)
] -
Crme involving moral turpitde
APPLICATION: Waiver of inadmissibilit under section 212(h) of the Act
This case is befre us instantly pursuant to a remand fom the United States Cour of Appeals
fr the Fou Circuit fled on July 5, 2012. The case was befre us initially on January 19, 2012,
when we upheld a Febray 7, 2011, Immigration Judge decision fnding te respondent
removable as charged, but vacated te Immigration Judge's decision granting the respondent a
waiver of inadmissibilit under section 212(h) of te Act. Matter of U Singh, 25 I&N Dec. 670
(BIA 2012). The respondent is a native and citizen oflndia. The Immigration Judge granted the
respondent's waiver afer concluding tat he could not fnd the respondent's stalking conviction
uder section 646.9(b) of te Califria Penal Code to be a crime of violence because he was not
bound by ou decision to te contary in Matter of Malta, 23 I&N Dec. 656 (BIA 2004), a the
United States Court of Appeals fr te Nint Circuit had reversed te decision in Malta-Espinoza
v. Gonales, 478 F.3d 1080, 1083-84 (9th Cir. 2007).
In our published decision, Matter of U Singh, supra, we reached two main conclusions: ( 1) a
decision by a fderal cou of appeals reversing a precedent decision of the Board is not binding
authority outside the circuit in which the case aises, and (2) a stalking ofense fr harassing
conduct in violation of section 646.9(b) of the Califria Penal Code is a crime of violence under
section 101(a)(43)(F) of te Immigration ad Nationality Act, 8 U.S.C. {1101(a)(43)( F). We
also pointed out that because te respondent at bar was removable fr having commited a crime
involving moral tpitde, it was his burden to show tat his conviction was not a aggavated
felony. See 8 C.F.R. {1240.S(d). As a result, we overed the Immigation Judge's grat of a
waiver of inadmissibility under section 212(h) of te Act ad ordered the respondent removed to
his native India.
The mater is now befre us fllowing a June 25, 2012, uopposed motion to remad befre
te Fou Circuit requesting te record be reted to the Board fr frer proceedings.
Specifcally, te Fourt Circuit remanded te record fr fher proceedings in light of its decision
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Cite as: Upinderjit Singh, A048 029 730 (BIA Sept. 27, 2013)
I •
A048 029 7 30 .
in United State v. Vann, 660 F.3d 771 (4t Cir. 2011). Vann, supra, at 774-75, provides in
relevat pa tat in te context of convictions tat were eligible fr sentence enhacements under
te Armed Career Criminal Act, a defendant who pleads guilt to a conunctively worded
indictment with a disjunctively worded statte pleads guilty only to te elements necessa fr a
conviction and not necessaly to everyting listed in te indictment. See also Young v. Holder,
697 F.3d 976 985-88 (9t Cir. 2012) (en bane) (same; but noting that oter circuits apply state
rater tan federal law to resolve issue). We will remand the record fr fer proceedings.
Te Califria staling statte at issue provides in relevat pa tat "[a ]ny person who
willflly, maliciously, ad repeatedly follows or willflly ad maliciously harasses anoter person
and who makes a credible teat with te intent to place that person in reasonable fea fr his or her
safty, or te safety of his or her immediate fmily is guilty of te crime of stalking .... " CAL.
PENAL CODE § 646.9(a) (emphasis added}. Te "fllowing" component of the statute was not
addessed below. We ask tat te I igration Judge consider wheter te stalking statte at
issue is categorically a crime of violence. lf he concludes tat it is not, he then should conduct a
modifed categorical analysis of te statute. To aid the Immigration Judge in tis analysis, the
paies should be allowed to submit additional evidence wit regad to te respondenfs
conviction. Te Immigration Judge should then determine wheter te respondent was convicted
of "fllowing/' "haassing,'' or bot, in ligt of Vann, supra. Finally, the Imigation Judge
should consider wheter te respondent has met his burden in this case to show tat his conviction
is not a aggavated flony baring him fom a waiver of inadmissibilit under section 212(h).
Salem v. Holder, 647 F.3d 111, 115 (4th Cir. 2011); 8 C.F.R. § 1240.8(d).
Accordingly, the fllowing order will be issued:
ORER: Te' record is remanded to the Immigration Judge fr the afrementioned reasons,
and fr enty of a new decision, consistent with this order.
t . . . . . . . . _
2
.  .$ . . �
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Cite as: Upinderjit Singh, A048 029 730 (BIA Sept. 27, 2013)

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