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Jose Mauricio Diaz, A029 012 746 (BIA Nov. 19, 2013)

Jose Mauricio Diaz, A029 012 746 (BIA Nov. 19, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) reopened proceedings and remanded the record for further consideration of whether second degree assault under Md. Code Ann., Crim. Law 3-203, is crime of violence aggravated felony in light of the intervening decisions in Karimi v. Holder, 715 F.3d 561 (4th Cir. 2013), and Descamps v. United States, 133 S.Ct. 2276 (2013). The decision was written by Member Molly Kendall-Clark.
In this unpublished decision, the Board of Immigration Appeals (BIA) reopened proceedings and remanded the record for further consideration of whether second degree assault under Md. Code Ann., Crim. Law 3-203, is crime of violence aggravated felony in light of the intervening decisions in Karimi v. Holder, 715 F.3d 561 (4th Cir. 2013), and Descamps v. United States, 133 S.Ct. 2276 (2013). The decision was written by Member Molly Kendall-Clark.

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12/12/2013

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U.S.

Department of Justice Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk
Falls Ch11rch, Virginia 20530 5107 Leesbu,.g Pike, Suite 2000

Yacub, Ivan, Esq. Yacub Law Offices 307 E. Annandale Rd., #201 Falls Church, VA 22042

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

BAL

Immigrant & Refugee Appellate Center | www.irac.net

Name: DIAZ, JOSE MAURICIO

A 029-012-746

Date of this notice: 11/19/2013

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

Don.nL ct1IVLJ
Donna Carr Chief Clerk

Enclosure Panel Members: Kendall-Clark, Molly

yungc Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Jose Mauricio Diaz, A029 012 746 (BIA Nov. 19, 2013)

U.S. Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk
Falls Church, Virginia 20530 5107 Leesburg Pike, Suire 2000

DIAZ, JOSE MAURICIO A029·012-746 WORCESTER COUNTY JAIL 5022 JOYNER ROAD SNOW HILL, MD 21863

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

BAL

Immigrant & Refugee Appellate Center | www.irac.net

Name: DIAZ, JOSE MAURICIO

A 029-012-746

Date of this notice: 11/19/2013

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,

DonnL ct1/VL)
Donna Carr Chief Clerk

Enclosure Panel Members: Kendall-Clark, Molly

yungc Userteam: Docket

Cite as: Jose Mauricio Diaz, A029 012 746 (BIA Nov. 19, 2013)

·'

.

·

U.S. Department of Justice
Executive Office for Immigration Review Falls Church, Virginia 20530

Decision of the Board of Immigration Appeals

File:

A029 012 746 - Baltimore, MD

Date:

NOV 1 9·2ot3

In re: JOSE MAURICIO DIAZ IN REMOVAL PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

MOTION ON BEHALF OF RESPONDENT: APPLICATION: Reopening Ivan Yacub, Esquire

On March 13, 2013, the Immigration Judge found the respondent removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C.

§ 1227(a)(2)(A)(iii)

(alien convicted of an aggravated felony as defined in section 10l(a)(43)(F) of the Act, 8 U.S.C.

§ 10l(a)(43)(F), to wit: crime of violence), found him ineligible for relief from removal, and
ordered his removal to El Salvador. The Immigration Judge also denied the respondent's motion to continue the proceedings for post-conviction relief. On June 27, 2013, the Board dismissed the respondent's appeal from the Immigration Judge's decision denying the motion to continue. On September 25, 2013, the respondent filed the instant motion to reopen before the Board. section 240(c)(7) of the Act, 8 U.S.C. be remanded to the Immigration Judge. During his removal hearing, the respondent, through former counsel, admitted that he had been convicted of second-degree as�ault under Md. Code Ann., Crim. Law conceded that he was removable based on that conviction. The United States Court of Appeals for the Fourth Circuit has observed that Maryland's second-degree assault statute reaches both violent and nonviolent touching. not categorically crimes of violence. U.S.
v.

See

§ 1229a(c)(7); 8 C.F.R. § 1003.2(c). The Department of

Homeland Security has not opposed this motion. The motion will be granted, and the record will

§ 3-203, and

Following the

Immigration Judge's decision, the circuit court concluded that convictions under that statute are

See Karimi v. Holder, 715 F.3d 561, 568 (4th Cir. 2013); Harcum, 587 F.3d 219, 224 (4th Cir. 2009). Also subsequent to the Immigration Judge's See Descamps
v.

decision, the U.S. Supreme Court addressed the appropriate application of an elements-based examination of a statute of conviction.

United States, 133 S.Ct. 2276 (2013).

In light of the recent relevant decisions from the Supreme .Court and the Fourth Circuit, the Board will grant the motion to reopen and remand the record to permit the Immigration Judge to reexamine the issue of removability in the first instance, and to enter a new decision. 8 C.F.R.

See

§ I 003.l(d)(3)(iv) (limiting the Board's fact-finding ability on appeal).

The Board,

however, expresses no opinion regarding the outcome of proceedings on remand. 1

1

Inasmuch as the proceedings will be remanded for a new decision regarding removability, the

Board will not at this time consider the ineffective assistance of counsel claim raised in the instant motion.

Cite as: Jose Mauricio Diaz, A029 012 746 (BIA Nov. 19, 2013)

·

A029 012 746

Accordingly, the following orders will be entered. ORDER: The motion to reopen is granted. FURTHER ORDER: The record is remanded to the Immigration Judge for further

proceedings consistent with the decision.

Immigrant & Refugee Appellate Center | www.irac.net

R THE BOARD

2

Cite as: Jose Mauricio Diaz, A029 012 746 (BIA Nov. 19, 2013)
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