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Victor Enrique Tally-Barrios, A041 736 376 (BIA Oct. 8, 2013)

Victor Enrique Tally-Barrios, A041 736 376 (BIA Oct. 8, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) sustained the respondent’s appeal and terminated proceedings upon finding a fourth degree sexual offense under former Md. Code Ann. Art. 27, § 464C, is not a categorical crime of violence under 18 U.S.C. 16(a) because the statute does not require the use of force. The Board further found that use of the modified categorical approach was improper in light of the Supreme Court’s decision in Descamps v. United States, 133 S. Ct. 2276 (2013). The decision was written by Vice Chairman Charles Adkins-Blanch and joined by Member Anne Greer and Member Neil Miller.
In this unpublished decision, the Board of Immigration Appeals (BIA) sustained the respondent’s appeal and terminated proceedings upon finding a fourth degree sexual offense under former Md. Code Ann. Art. 27, § 464C, is not a categorical crime of violence under 18 U.S.C. 16(a) because the statute does not require the use of force. The Board further found that use of the modified categorical approach was improper in light of the Supreme Court’s decision in Descamps v. United States, 133 S. Ct. 2276 (2013). The decision was written by Vice Chairman Charles Adkins-Blanch and joined by Member Anne Greer and Member Neil Miller.

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11/23/2013

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U.S.

Department of Justice

Executive Office for Immigration Review
Board ofImmigration Appeals Office of the Clerk
5 J 07 Leesburg Pike. Suite 2000 Falls Church, Virginia 20530

Riely, John T., Esquire John T. Riely, Attorney At Law 4405 East West Highway, Ste. 601 Bethesda, MD 20814-0000

OHS/ICE Office of Chief Counsel 31 Hopkins Plaza, Room 1600 Baltimore, MD 21201

BAL

Immigrant & Refugee Appellate Center | www.irac.net

Name: TALLY - BARRIOS, VICTOR ENR...

A 041-736-376

Date of this notice: 10/8/2013

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

Don.rtL ct1/VL)
Donna Carr Chief Clerk

Enclosure
Panel Members: Adkins-Blanch, Charles K. Greer, Anne J. Miller, Neil P.

Trane Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Victor Enrique Tally-Barrios, A041 736 376 (BIA Oct. 8, 2013)

U.S. Department of Justice

Executive Office for Immigration Review
Board ofImmigration Appeals Office ofthe Clerk
5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 20530

TALLY· BARRIOS, VICTOR ENRIQUE A041-736-376 WORCESTER COUNTY JAIL 5022 JOYNER ROAD SNOW HILL, MD 21863

OHS/ICE Office of Chief Counsel - BAL 31 Hopkins Plaza, Room 1600 Baltimore, MD 21201

Immigrant & Refugee Appellate Center | www.irac.net

Name: TALLY· BARRIOS, VICTOR ENR...

A 041-736-376

Date of this notice: 10/8/2013

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 affirms 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,

DCin.ltL ct1/VL)
Donna Carr Chief Clerk

Enclosure
Panel Members: Adkins-Blanch, Charles K. Greer, Anne J. Miller, Neil P.

Trane Userteam: Docket

Cite as: Victor Enrique Tally-Barrios, A041 736 376 (BIA Oct. 8, 2013)

(.·· .,

U.S.

Department of Justice

Decision ofthe Board of Immigration Appeals

Executive Office for Immigration Review Falls Church, Virginia 22041

File: A041 736 376 - Baltimore, MD In re: VICTOR ENRIQUE TALLY-BARRIOS a.k.a. Victor Tally IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: John T. Riely, Esquire ON BEHALF OF DHS: Carri e E. Johnston Senior Attorney

Date:

OCT

8 2013

Immigrant & Refugee Appellate Center | www.irac.net

CHARGE: Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] Convicted of aggravated felony

APPLICATION: Termination

The respondent appeals from an Immigration Judge's April 24, 2013, decision ordering him removed from the United States. The Department of Homeland Security ("DHS") opposes the appeal. The appeal will be sustained and the removal proceedings will be terminated. The respondent, a native and citizen of Guatemala, has been a lawful permanent resident of the United States since 1989. In June 1996, the respondent was convicted of a fourth degree sexual offense in violation of Md. Code Ann. Art. 27,§ 464C, a misdemeanor for which he was sentenced to a term of imprisonment of 1 year in county jail (suspended). 1 In a notice to appear filed in January 201 3, the DHS alleged that the foregoing conviction renders the respondent removable as an alien convicted of an "aggravated felony," to wit, a "crime of violence" under 18 U.S.C.§ 16 for which the term of imprisonment was at least I year. Sections 10l(a)(43)(F) and 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101 (a)(43)(F), 1227(a)(2)(A)(iii). The Immigration Judge sustained that charge in an interim decision dated April 9, 2013, and on April 24, 201 3, he ordered the respondent removed. On appeal, the respondent argues that his offense of conviction was not a "crime of violence" under 18 U.S.C. § 16. We review that q uestion de novo. See 8 C.F.R. § 1003.l(d)(3)(ii). For present purposes, 18 U. S. C. § 16 defines the term "crime of violence" to mean "an offense that has as an element the use, attempted use, or threatened use of physical force against

1 Md. Code Ann. Art. 27 was repealed in 2002. See 2002 Md. Laws Ch. 26 (H.B. 11). The offense formerly proscribed by Art. 27, § 464C is presently codified, as amended, at Md. Code Ann . § 3-308.

Cite as: Victor Enrique Tally-Barrios, A041 736 376 (BIA Oct. 8, 2013)
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Ao41 736 376 the person or property of another."2 As used in § 16(a), the word "use" denotes volition, see Leocal v. Ashcroft, 543 U. S. 1, 9 (2004), the phrase "physical force" denotes a violent, active application of force capable of causing physical pain or injury to another person, see Matter of Velasquez, 25 I&N Dec. 278, 281-82 (BIA 2010) (relying on Johnson v. United States, 559 U.S. 133 (2010)), and the term "element" denotes a fact about the crime that must necessarily be proven beyond a reasonable doubt to obtain a conviction, see Chrzanoski v. Ashcroft, 327 F.3d 188, 192 (2d Cir. 2003). To determine whether an alien' s offense qualifies as a crime of violence under§ 16(a), we apply the "categorical approach," which requires us to focus on the statutory definition of the crime rather than the facts underlying the respondent's particular violation. Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85 (2013). In 1995, when the respondent committed his offense, Maryland law defined a "fourth degree sexual offense" as follows, in pertinent part:

Immigrant & Refugee Appellate Center | www.irac.net

§ 464C Fourth 4egree sexual offense.
(a) Elements of the offense. -A person is guilty of a sexual offense in the fourth degree if the person engages: (1) In sexual contact with another person against the will and without the consent of the other person; or (2) .. . [I]n a sexual act with another person who is 14 or 1S years of age and the person performing the sexual act is four or more years older than the other person [but under 21 ]; or (3) ... [I]n vaginal intercourse with another person who is 14 or 15 years of age and the person performing the act is four or more years older than the other person [but under 21]. (b) Penalty. - Any person violating the prov1s1ons of this section is guilty of a misdemeanor and upon conviction is subject to imprisonment for a period of not more than one year, or a fine of not more than $1,000, or both fine and imprisonment. Md. Code Ann Art. 27, § 464C (Michie 1976, 1994 Supp.). The Immigration Judge found that this statute defines a categorical crime of violence because each of its paragraphs required proof that the accused deliberately used physical force that was capable of causing pain or injury to the victim. We respectfully disagree with that interpretation of the statute.
.

When the respondent committed his offense, the phrase "sexual contact" used in§ 464C(a)(l) was defined to mean "the intentional touching of any part of the victim's or actor's anal or genital areas or other intimate parts for the purposes of sexual arousal or gratification or for abuse of either party .. .. " Md. Code Ann Art. 27, § 46l(f) (Michie 1976, 1978 Supp.). Although the nonconsensual sexual touching of another person's intimate parts is unquestionably
.

2

The respondent' s offense was a misdemeanor and thus 18 U.S.C.§ 16(b)-which applies only to felonies-is inapplicable.
2

Cite as: Victor Enrique Tally-Barrios, A041 736 376 (BIA Oct. 8, 2013)
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A041 736 376

offensive, there is nothlng in Maryland law to suggest that such a touching must have been accomplished by ·means of violent physical force (or attempted or threatened force) in order to have constituted an offense. On the. contrary, it was precisely the absence of actual or threatened force that distinguished a fourth degree sexual offense from the more aggravated first, second, and third degree sexual offenses then defined by Md. Code Ann Art. 27, §§ 464, 464A, and 464B. Thus, we conclude that the offense defined by former section 464C(a)(l) did not have the use, attempted use, or threatened use of violent physical force as an "element" within the meaning of§ 16(a).
.

Immigrant & Refugee Appellate Center | www.irac.net

A similar analysis applies to former sections 464C(a)(2) and 464C(a)(3). Although those provisions required more invasive sexual contact than paragraph (a){l), neither required physical compulsion or coercion of the victim. See Md. Code Ann Art. 27,§ 461(e) (Michie 1976, 1978 Supp.); Md. Code Ann . Art. 27,§ 46l(g) (Michie 1 976, 1 978 Supp.). By their terms, paragraphs (a)(2) and (a)(3) encompassed non-coercive "statutory rape" offenses, as distinct from forcible "sexual acts" (which were classified as first or second degree sexual offenses under§§ 464 and 464A) and acts of forcible "vaginal intercourse" (which were classified as "rape" under §§ 462 and 463). As paragraphs (a)(2) and (a)(3) did not require the victim to be an involuntary participant in the prohibited "sexual act" or act of "vaginal intercourse," those paragraphs did not require proof beyond a reasonable doubt that the accused used (or attempted or threatened to use) violent physical force against the person of the victim. Accordingly, we conclude that offenses defined by former sections 464C(a)(2) and (a)(3) also did not have the use, attempted use, or threatened use of violent physical force as elements for purposes of the crime of violence definition.
.

As the DHS has not demonstrated that the respondent was convicted of a categorical crime of violence, we must next decide whether any basis existed for the Immigration Judge to conduct a "modified categorical" inquiry of the sort contemplated in Shepard v. United States, 544 U.S. 13 (2005). As the Supreme Court has very recently explained, the modified categorical approach is a tool which helps courts to implement the categorical approach by supplying them with a mechanism to identify the "elements'' of offenses arising under "divisible" criminal statutes. See Descamps v. United States, 1 33 S. Ct. 2276, 2285 (201 3). Under Descamps, the modified categorical approach applies only if: (1 ) the statute of conviction is "divisible" in the sense that it lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of elements, more than one combination of which could support a conviction, and (2) some (but not all) of those listed offenses or combinations of disjunctive elements are a categorical match to the relevant generic standard. Id. at 2281, 2283. The modified categorical approach does not apply merely because the elements of a crime can sometimes be proved by reference to conduct that fits the generic federal standard; in the view of the Descamps Court, such crimes are "overbroad" but not "divisible." Id. at 2285-2286, 2290-2292. As the Descamps Court explained, the modified categorical approach retains the categorical approach' s central feature: a focus on the elements, rather than the facts, of a crime. And it preserves the categorical approach' s basic method: comparing those elements with the generic offense's. All the modified approach adds is a
3

Cite as: Victor Enrique Tally-Barrios, A041 736 376 (BIA Oct. 8, 2013)

o

I

, A.041 736 376 mechanism for making that comparison when a statute lists multiple, alternative elements, and so effectively creates "several different ... crimes." . .. If at least one, but not all of those crimes matches the generic version, a court needs a way to find out which the defendant was convicted of. That is the job, as we have always understood it, of the modified approach: to identify, from among several alternatives, the crime of conviction so that the court can compare it to the generic offense. 1 33 S. Ct. at 2285 (internal citation omitted).

Immigrant & Refugee Appellate Center | www.irac.net

Viewed in this light, former section 464C is not "divisible" vis-a-vis 18 U.S.C.§ 16(a), so as to warrant a modified categorical inquiry. Specifically, although former section 464C listed three discrete offenses as enumerated alternatives, none of those three offenses had as an element the use, attempted use, or threatened use of violent physical force against the person or property of another, so as to categorically match § 16(a). Although the conduct underlying some violations of former section 464C may have involved the deliberate use of violent physical force against a victim, under Descamps that is not sufficient to justify a modified categorical inquiry.
In conclusion, the respondent's conviction for a fourth degree sexual offense in violation of Md. Code Ann. Art. 27, § 464C (Michie 1976, 1 994 Supp.) does not render him removable under section 237(a)(2)(A)(iii) of the Act as an alien convicted of a "crime of violence" aggravated felony. Accordingly, the Immigration Judge' s decision sustaining that charge will be reversed. The respondent is not charged under any other ground of removal, moreover, and therefore the proceedings shall be terminated.

ORDER: The appeal is sustained and the removal proceedings are terminated.

4

Cite as: Victor Enrique Tally-Barrios, A041 736 376 (BIA Oct. 8, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REV IEW UNITED STATES IMMIGRATION COURT BALTIMORE, MARYLAND

File: A041-736-376 In the Matter of

April 24, 2013

Immigrant & Refugee Appellate Center | www.irac.net

VICTOR ENRIQUE TALLY-BARRIOS . RESPONDENT

) ) ) )

IN REMOVAL PROCEEDINGS

CHARGES:

APPLICATION:

None.

ON BEHALF OF RESPONDENT: JOHN RILEY ON BEHALF OF OHS: MARY LEE

ORAL DECISION OF THE IMMIGRATION JUDGE The respondent is a citizen and national of Guatemala who was placed in removal proceedings when the Notice to Appear was filed with the Immigration Court. The respondent appeared at a Master Calendar and admitted the factual allegations, that is that he is not a citizen of the United States, is a citizen of Guatemala, was admitted to the United States at Houston, Texas, about March 4, 1989, as an immigrant.and on June 19, 1996, was convicted in Circuit Court of Montgomery County, Rockville, Maryland, for the offense of fourth degree sexual offense in violation of

1

Criminal Law Article 27 Section 464(c) of the Annotated Code of Maryland and he further admitted he was sentenced to a term of imprisonment of one year. The respondent denied the charge of 237(a)(2(A)(iii) of the Act. However, the Government submitted a conviction document on April 20, 2013, and, based upon the

Immigrant & Refugee Appellate Center | www.irac.net

reading of the conviction document, the Court finds that the respondent was in fact convicted as charged and, therefore, is removable as an aggravated felony. Subsequently the respondent's counsel filed a motion to terminate proceedings arguing that the respondent was not an aggravated felon. After considering the positions of the parties, the Court concluded on April 9, 2013, that the respondent's conviction for fourth degree sexual assault in violation of the Maryland Code as alleged and sentenced to a year of imprisonment constitutes a crime of violence and, thus, is an aggravated felony as defined under Immigration and Nationality Section 101(a)(43)(F) and, therefore, denied the motion to terminate. The Court further ordered that the respondent is removable to Guatemala as charged. Today the counsel for the respondent initially argued that the respondent had adjusted his status in the United States rather than having visa processed abroad. The documentation reflected in the Government's filing with conviction documents has a _ stamp indicating that he indeed was admitted as an immigrant. In addition, the respondent admitted the allegation that he was admitted to the United States at Houston, Texas, on March 4, 1989, as an immigrant. Accordingly, the Court does not see that the respondent is eligible for any prospective relief as initially stated by the counsel for the responder:it. The Court hereby incorporates its decision of April 9, 2013, and orders that the respondent be removed from the United States to Guatemala.

A041-736-376

2

April 24, 2013

ORDER

IT IS HEREBY ORDERED that the respondent be removed from the United
States to Guatemala.

Immigrant & Refugee Appellate Center | www.irac.net

Please see the next page for electronic signature
DAVID W.CROSLAND Immigration Judge

A041-736-376

3

April 24, 2013

/Isl/ Immigration Judge DAVID W.CROSLAND crosland on June 26, 2013 at 4:11 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net
April 24, 2013

A041-736-376

4

_,...·.

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE DAVID
W.CROSLAND, in the matter of:

VICTOR ENRIQUE TALLY-BARRIOS

Immigrant & Refugee Appellate Center | www.irac.net

A041-736-376

BALTIMORE, MARYLAND

was held as herein appears, and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.

LINDA DOCK (Transcriber) FREE STATE REPORTING, lnc.-2 JUNE 18, 2013 (Completion Date)

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