U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 leesburg Pike, Suite 2000 Falls Church, Virginia 20530

Allen C. Ladd Allen C. Ladd, P .C. 607 Pendleton Street, Suite 202 Greenville, SC 29601-0000

OHS/ICE Office of Chief Counsel - SOC 146 CCA Road Lumpkin, GA 31815

Immigrant & Refugee Appellate Center | www.irac.net

Name: NEILLE, MAURICE LEROY

A 045-856-729

Date of this notice: 3/21/2014

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

DOYutL ct2./Vt.)
Donna Carr Chief Clerk

Enclosure
Panel Members: Greer, Anne J.

schuckec Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Maurice Leroy Neille, A045 856 729 (BIA Mar. 21, 2014)

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 20530

NEILLE, MAURICE LEROY A045-856-729 OIC WILLIAM MCMINN STEWART DETENTION CENTER 146 CCA ROAD LUMPKIN, GA 31815

OHS/ICE Office of Chief Counsel - SOC 146 CCA Road Lumpkin, GA 31815

Immigrant & Refugee Appellate Center | www.irac.net

Name: NEILLE, MAURICE LEROY

A 045-856-72 9

Date of this notice: 3/21/2014

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,

DoYutL t!t1/VL)
Donna Carr Chief Clerk

Enclosure
Panel Members: Greer, Anne J.

schuckec

Userteam: Docket

Cite as: Maurice Leroy Neille, A045 856 729 (BIA Mar. 21, 2014)

U.S. Department of Justice

Executiv _Office for Immigration Review Falls Church, Virginia 20530

Decision of the Board of Immigration Appeals

File:

A045 856 729 - Lumpkin, GA

Date:

MAR 2120\4

In re: MAURICE LEROY NEILLE a.k.a. Maurice Leroy Neille, Jr. IN REMOVAL PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL ON BEHALF OF RESPONDENT: CHARGE: Notice: Sec. 237(a)(2)(A)(iii), l&N Act [8 U.S.C. 1227 (a)(2)(A)(iii)] Convicted of aggravated felony Allen C. Ladd, Esquire

APPLICATION: Removability

On November 4, 2013, an Immigration Judge found the respondent removable as charged based on his July 16, 2012, federal conviction for abusive sexual conduct under 18 U.S.C. 2244(a)(2). The respondent, a lawful permanent resident who is a native and citizen of St. Kitts-Nevis, now appeals. The record will be remanded. We review an Immigration Judge's findings of fact, including findings regarding witness credibility, under a "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i) (2013). We review all other issues, including questions of law, discretion, and judgment, under a de novo standard. 8 C.F.R. 1003.l(d)(3)(ii). The Immigration Judge determined that the respondent's offense of conviction for abusive sexual conduct under 18 U.S.C. 2244(a)(2) was categorically an aggravated felony crime of violence pursuant to section IOI(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)(F) (l.J. at 2-3). Thus, the Immigration Judge found the respondent removable as charged (1.J. at 3). The respondent appealed, arguing that his offense of conviction does not meet the definition of a crime of violence under either 18 U.S.C. 16(a) or (b), and therefore is not
an

aggravated felony under section 101(a)( 43)(F) of the Act.

We are unable to conduct a meaningful review of the case, however, because the
Immigration Judge did not provide an analysis to support his conclusion.

See Matter of S-H-,

23 I&N Dec. 462 (BIA 2002). We will remand the record for the Immigration Judge to set forth his analysis regarding why the respondent's abusive sexual conduct offense is an aggravated felony crime of violence. On remand, the parties should be given an opportunity to present evidence regarding the respondent's conviction and removability. The respondent also should have an opportunity to apply for any relief for which he currently may be eligible.

Cite as: Maurice Leroy Neille, A045 856 729 (BIA Mar. 21, 2014)

,.

..

i.

A045 856 729

Accordingly, the following order will be entered.

ORDER: The record is remanded for further proceedings consistent with this opinion and for the entry of a new decision.

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Maurice Leroy Neille, A045 856 729 (BIA Mar. 21, 2014)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT LUMPKIN, GEORGIA

Immigrant & Refugee Appellate Center | www.irac.net

File: A045-856-729 In the Matter of

November 4, 2013

MAURICE LEROY NEILLE RESPONDENT

) ) ) )

IN REMOVAL PROCEEDINGS

CHARGE:

Section 237(a)(2)(A)(iii)

aggravated felony, crime of violence.

APPLICATIONS:

None.

ON BEHALF OF RESPONDENT: PRO SE ON BEHALF OF OHS: SARAH MAZZIE

ORAL DECISION OF THE IMMIGRATION JUDGE Exhibits: 1. Notice to Appear 2. Record of respondent's July 16, 2012 conviction for abusive sexual contact in violation of 18 U.S.C. 2244(a)(2) (seven pages). 3. Form 1-213.
---

4 .-Findings of fact and conclusions of law';"

Exhibit 1 was served on respondent on September 24, 2013. On November 4, 2013, in accordance with respondent's pleas the

allegation in Exhibit 1 were sustained, and respondent was found by clear and convincing evidence to be removable as charged in Exhibit 1. St. Kitts-Nevis is designated as the country of removal.

Immigrant & Refugee Appellate Center | www.irac.net

On October 21, 2013, respondent requested time to get a lawyer. I gave respondent until October 28, 2013. On October 28, 2013, respondent again requested a continuance to get a lawyer. I gave respondent until 1O o'clock on November 4, 2013 to get a lawyer. On the 28th of October I advised respondent that if he were to come to court on the 4th of November and he still did not have a lawyer that I would deem that he had given up his right to a lawyer and that he would represent himself. On November 4, 2013, respondent came to court and indicated he still did not have a lawyer and indicated he planned to represent himself. I find that respondent's conviction in Exhibit 2 categorically is an aggravated felony crime of violence. Respondent admitted that he served essentially all 24 months of his sentence to imprisonment. In conducting my analysis of respondent's conviction I have specifically considered cases of Matter of Almanza-Arenas, 24 l&N Dec. 771 (BIA 2009), and Zaidi v. Ashcroft, 374 F.3d 357 (5th Cir. 2004). I understand that to determine whether respondent has been convicted of an aggravated felony, an Immigration Court must first employ a categorical approach wherein it compares the elements of the statutes forming the basis of respondent's conviction with the elements of the generic crime, that is the offense as commonly understood. See Descamps v. U.S., 133 S. Ct. 2276, 2281 (2013); see also Jaggernauth v. U.S. Att'y Gen., 432 F.3d 1346, 1353 (11th Cir. 2005); see also Taylor v. U.S., 495 U.S. 575, 598 (1990); see also Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007). Respondent's conviction categorically qualifies as an eategorieally offense only

A045-856-729

November 4, 2013

if the statute's elements are the same or narrower than those of the generic offense. That is the Court must presume that the conviction rested upon nothing more than the least of the acts criminalized and then determine whether those acts are encompassed

Immigrant & Refugee Appellate Center | www.irac.net

by the generic federal offense charged in this case. To amount to a crime of violence.i. respondent's offense must be an offense that has as the element the attempted use of threat and use of physical force against the person or property of another; or any other offense that is-by its nature involves a substantial risk of physical force against the person or property of another may be used in the course of committing the offense. See 18 U.S.C. 16. Using the above approach and the cases previously cited.i. I find that respondent's conviction in Exhibit 2 categorically is an aggravated felony crime of violence. Because of respondent's conviction he is not eligible for cancellation of removal or asylum or for voluntary departure. Accordingly, I have entered the following order. ORDERS Respondent will be removed from the United States to St. Kitts-Nevis. A written order reflecting the above decision will be provided separately and made part of the record.

Please see the next page for electronic signature

DAN TRIMBLE Immigration Judge

A045-856-729

November 4, 2013

Immigrant & Refugee Appellate Center | www.irac.net

'

A045-856-729

November 4,

2013

')

. ..

/Isl/
Immigration Judge DAN TRIMBLE trimbled on January 6, 2014 at 5:28 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

November 4, 2013

A045-856-729