In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for reconsideration of whether second degree assault under Md. Code Ann. Crim. Law 3-203 is a crime of violence aggravated felony in light of the respondent's argument that the statute is not divisible under the intervening decisions in Descamps v. United States, 133 S.Ct. 2276 (2013), and Karimi v. Holder, 715 F.3d 561 (4th Cir. 2013). The decision was written by Member Anna Mann and joined by Member Hugh Mullane and Member Michael Creppy.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for reconsideration of whether second degree assault under Md. Code Ann. Crim. Law 3-203 is a crime of violence aggravated felony in light of the respondent's argument that the statute is not divisible under the intervening decisions in Descamps v. United States, 133 S.Ct. 2276 (2013), and Karimi v. Holder, 715 F.3d 561 (4th Cir. 2013). The decision was written by Member Anna Mann and joined by Member Hugh Mullane and Member Michael Creppy.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for reconsideration of whether second degree assault under Md. Code Ann. Crim. Law 3-203 is a crime of violence aggravated felony in light of the respondent's argument that the statute is not divisible under the intervening decisions in Descamps v. United States, 133 S.Ct. 2276 (2013), and Karimi v. Holder, 715 F.3d 561 (4th Cir. 2013). The decision was written by Member Anna Mann and joined by Member Hugh Mullane and Member Michael Creppy.
583 Frederick Road, Suite 3A Catonsville, MD 21228 Name: MURRAY, PHILLIP ANDREW U.S. Department of Justice Executive Ofce fr Immigration Review Board of Immigration Appeals Of fice of the Clerk 5107 Leesburg Pike. Suite 2000 Falls Church. Virginia 22041 DHS/ICE Ofice of Chief Counsel - BAL 31 Hopkins Plaza, Room 1600 Baltimore, MD 21201 A 055-213-731 Date of this notice: 9/20/2013 Enclosed is a copy of the Board's decision and order in the above-referenced case. Enclosure Panel Members: Mullane, Hugh G. Mann, Ana Creppy, Michael J. Sincerely, DO c t Donna Carr Chief Clerk Userteam: Docket I m m i g r a n t
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w w w . i r a c . n e t Cite as: Phillip Andrew Murray, A055 213 731 (BIA Sept. 20, 2013) For more unpublished BIA decisions, visit www.irac.net/unpublished MURRAY, PHILLIP ANDREW A055-213-731 WORCESTER COUNTY JAIL 5022 JOYNER ROAD SNOW HILL, MD 21863 Name: MURRAY, PHILLIP ANDREW U.S. Department of Justice Executive Ofce fr Immigration Review Board oflmmigration Appeals Offce of the Clerk 5 !07 Leesburg Pike. S11ile 2000 Fals Church. Virginia 22041 OHS/ICE Ofice of Chief Counsel - BAL 31 Hopkins Plaza, Room 1600 Baltimore, MD 21201 A 055-213-731 Date of this notice: 9/20/2013 Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a cout1esy. 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 fom the United States or afrms an 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: Mullane, Hugh G. Manng Ana Creppy, Michael J. Sincerely, Do Ct Donna Carr Chief Clerk | ', ; ,*, Useream: _ I m m i g r a n t
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w w w . i r a c . n e t Cite as: Phillip Andrew Murray, A055 213 731 (BIA Sept. 20, 2013) w ' f > + t ' U.S. Deparent of Justice Decision of the Board of Imigation Appeals Executive Ofce fr Imigation Review Falls Church, Virginia 22041 File: AOSS 213 731 - Baltimore, MD In re: PHILLIP ANDREW MRY IN REMOVAL PROCEEDINGS APPEAL Date: ON BEHALF OF RESPONDENT: John E. Gallagher, Esquire ON BEHALF OF DHS: CHARGE: Kala S. Baker Assistant Chief Counsel SE? 2 0 2013 Notice: Sec. 237(a)(2)(A)(iii), I &N Act [8 U.S.C. 1227(a)(2)(A)(iii)] - Convicted of aggavated flony APPLICATION: Termination of proceedings The respondent, a native .ad citizen of Grenada, appeals fom the decision of te Immigation Judge, dated April 25, 2013, fnding him removable as chaged. The appeal will be sustained and the record remanded fr fher proceedings. We review the fndings of fct, including deterinations of credibilit, made by the Immigration Judge under a "clearly eroneous" standard. 8 C.F.R. 1003.1(d)(3)(i). We review all other issues, including whether or not the paies have met the relevant burden of proof, ad issues of discretion, under a de novo standard. 8 C.F.R. 1003.l(d)(3)(i). Te respondent was convicted on to counts of second degee assault on April 25, 2011, and then, convicted again, on March 13, 2012, under section Md. Code An., Crim. Law 3-203. For each of te counts fr the frst ofense he was sentenced to 12 months in prison ad he was sentenced to 18 months fr the second ofense (Tr. at 34, 50; Exhs. 1 and 2). He was also convicted on May 14, 2012, of unlawfl taing of a motor vehicle in violation of Md. Code An+_ Crim. Law 7-105, and sentenced to 3 years of imprisonment (Id). The Immigration Judge fund tht the respondent's thef crme was not necessarily a aggravated flony, but that his asault crimes were crmes of violence and aggravated felonies under section 101(a)(43)(F) of the Act, 8 U.S.C. 1101(a)(43)(F) (l.J. at 3). Md. Code Ane_ Crim. Law 3-203 provides: I m m i g r a n t
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w w w . i r a c . n e t Cite as: Phillip Andrew Murray, A055 213 731 (BIA Sept. 20, 2013) - f AOSS 213 731 Assault in te second degree Prohibited (a) A person may not commit an assault. Penalty Id (b) Except as provided in subsection ( c) of this section, a person who violates subsection (a) of this section is guilty of te misdemeanor of assault in the second degee ad on conviction is subject to imprsonent not exceeding I 0 yeas or a fne not exceeding $2,500 or both. A crime of violence fr purposes of section 10l(a)(43)(F) of the Act relies on the defnition fund at 18 U.S.C. 16. To qualif as a crime of violence under 18 U.S.C. 16(a), the ofense must have as an element the use, atempted use, or threatened use of physical frce against the person or property of another; to qualif uder section l 6(b ), it must be a felony that, by its nature, involves a substatial risk tat physical frce against the person or property of anoter may be used in the course of comitting the ofense. See generally Leocal v. Ashcrof, 543 U.S. I (2004). On appeal, the only agwent raised by the respondent is that Md. Code An., Crim. Law 3-203(a) is not divisible ad that the minimal conduct falls below that required to fnd it is a crime of violence under 18 U.S.C. 16. Subsequent to the Immigration Judge's decision, te Supreme Court addressed the appropriate application of an elements-based examination of a statute of conviction. See Descamps v - _ United States, 133 S.Ct. 2276 (June 20, 2013); see also Karimi v. Holder, 715 F.3d 561 (4th ir .. 2013). It is appropriate to permit the Immigration Judge to reexamine the issue of removability in the frst instance in light of the Court's holding. See 8 C.F.R. 1003.l{d)(3)(iv) (limiting te Boad's fct-fnding ability on appeal). We will therefre remad the record fr fer proceedings ad the enty of a new decision. We express no opinion as to the outcome of proceedings on remad. ORDER: The record is remaded to the Immigation Judge fr frher proceedings consistent with the fregoing opinion and fr the enty of a new decision. 2 I m m i g r a n t
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w w w . i r a c . n e t Cite as: Phillip Andrew Murray, A055 213 731 (BIA Sept. 20, 2013) .` ` : ;e -. .. -- I:MIGRATION COURT 31 HOPKINS PLAZA, ROOM 440 BALTIMORE, M 21201 In the Matter of Case No.: AOSS-213-731 MRRAY, PHILLIP ADREW Respondent IN REOVAL PROCEEDINGS ORDER OF THE I:MIGRATION JUDGE This is a sumary of the oral decision entered on April 25, 2013. This meorandum is solely for the convenience of the parties. If the proceedings should be appealed or reopened, the oral decision will become the official opinion in the case. [X ] The respondent was ordered removed from the United States to GRNAA [ I ] [ ] or in the alternative to . Respondent's application for voluntary departure was denied ad respondent was ordered removed to or in the alterative to . Respondent's application for voluntar departure was granted until upon posting a bond in the aount of $ with an alterate order of reoval to . Relpondent's application for: [ ] Asylum was ( )granted ( )denied( )withdrawn. [ ] Withlding of removal was ( )grated ( )denied )withdrawn. [ ] A Wafver under Section was ( )grated ( )denied ( )withdraw. [ ] Cancellation of removal under section 240A(a) was ( )grantd ( )denied ( )withdraw. Respondent's application for: [ ] Cancellation under section 240A(b) (1) was ( ) granted ) denied ( ) withdrawn. If granted, it is ordered that the respondent be issued all appropriate docuents necessary to give effect to this order. Cancellation under section 240A(b) (2} was ( )granted ( )denied ( )withdraw. If granted it is ordered that the respondent be issued all appropriated documents necessary to give effect to this order. Adjustment of Status under Section was ( )granted ( )denied ( )withdraw. If granted it is ordered that the respondent be issued all appropriated docuets necessary to give effect to this order. Respondent's application of ( ) withholding of removal ( ) deferral of removal under Article III of the Convention Against Torture was ( ) granted ( ) denied ( ) withdrawn. / . ,,, Respondent's status was rescinded under section 246. . ... ' Respondent is admitted to the United States as a until ' . As a condition of adission, respondent is to post a $ '.. end. Respondent kowingly filed a frivolous asylu application after proper notice. Respondent was advised of the limitation on discretionary relief for failure to appear as ordered in the Imigration Judge's oral decision. Proceedings were terinated. Other: Date: Apr 25, 2013 0 PHILLIAS .Imigration Judge Appeal: Waivserv Appe<l Due By: .ff /J: ' I m m i g r a n t
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' Alien Number: 055-213- 731 Alien Name: MURRY, PHILLIP ADREW A. LIMITATIONS ON DISCRETIONAY RELIEF FOR FAILURE TO APPEAR 1. You have been scheduled for a removal hearing, at the time and place set forth on the attached sheet. Failure to appear for this hearing other than because of exceptional circumstances beyond your control** will result in your being found ineligible for certain forms of relief under the Immigration and Nationality Act (see Section A. below) for a period of ten {10) years after the date of entry of the final order of removal. 2. You have been scheduled for an asylum hearing, at the time and place set forth on the attached notice. Failure to appear for this hearing other than because of exceptional circumstances beyond your control** will result in your beingfound ineligible for certain forms.of relief under the Immigration and Nationality Act (see Section A. Below) for a period of ten (10} years from the date of your scheduled 'hearing. 3. You have been granted voluntary departure from the United States pursuant to section 240B of the Immigration and Nationality Act, and remaining in the United States beyond the authorized date other than because of exceptional circumstances beyond your control** will result in your being ineligible for certain forms of relief under the Immigration and Nationality Act (see Section A. Below) for ten (10) years from the date of the scheduled departure or the date of unlawful reentry, respectively. Your voluntary departure bond, if any, will also be breached. Additionally, if you fail to voluntarily depart the United States within the time period specified, you shall be subject to a civil penalty of not less than $1000 and not more than $5000. A order of removal has been entered against you. If you fail to appear pursuant to a final order of removal at the time and place . ordered by the DHS, other than because of exceptional circumstances - bey6hd your control** you will not be eligible for certain forms of relief under the Immigration and Nationality Act (see Section A. below) for ten (10) years after the date you are scheduled to appear. **the term "exceptional circumstances" refers to circumstances such as serious illness of the alien or death of an immediate relative of the alien, but not including less compelling circumstances. THE 1) FORMS OF RELIEF FROM REMOVAL FOR WHICH YOU WILL BECOME INELIGBLE ARE: Voluntary departure as provided for in section 240B of the :' 2) 3) Immigration and Nationality Act; `^ Cancellation of removal as provided for in section 240A of. th Immigration and Nationality Act; and | Adjustment of status or change of status as provided for in Section 245, 248 or 249 of the Immigration and Nationality Act. This written notice was provided to the alien in English. Oral notice of the contents of this notice must be given to the alien in his/her native language, or in a language he/she understands by the Immigration Judge. Date: Apr 25, 2013 Immigration Judge: CERTIFICATE OF THIS DOCUMENT WAS SERVED BY: MIL (M) PER;V TO: [ ] [ ] ALIEN c/o Custodial Officer DATE: BY: COURTSTAFF ] EOIR-33 [ ] EOIR-28 DHS
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w w w . i r a c . n e t UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT BALTIMORE, MARYLAND File: A055-213-731 April 25, 2013 In the Matter of: PHILLIP ANDREW MURRAY ) ) ) ) IN REMOVAL PROCEEDINGS DETAINED RESPONDENT CHARGES: Immigration and Nationality Act Section 237(a)(2)(A)(iii) - as one who afer admission has been convicted of an aggravated felony as defined in Section 101 (a)(43)(F) of the Act, a crime of violence (as defined in Section 16 of Title 18 of the United States Code, but not including a purely political ofense) fr which the term of imprisonment ordered is at least one year; Immigration and Nationality Act Section 237(a)(2)(A)(iii) - as one who at any time afer admission has been convicted of an aggravated felony as defined in Section 101 (a)(43)(G) of the Act, a law relating to a theft ofense (including receipt of stolen propery or a burglary ofense) for which a term of imprisonment of at least one year was imposed. APPLICATION: None. ON BEHALF OF RESPONDENT: JOHN GALLAGHER, Esquire 583 Frederick Road, Suite 3A Catonsville, Maryland 21228 ON BEHALF OF DHS: KARLA BAKER, Esquire Assistant Chief Counsel Immigration and Customs Enfrcement Ofice of Chief Counsel 31 Hopkins Plaza, 16th Floor Baltimore, Maryland 21201 1 I m m i g r a n t
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w w w . i r a c . n e t ORL DECISION OF THE IMMIGRTION JUDGE The respondent is a male alien native and citizen Grenada. He was sered with a Notice to Appear dated September 24, 2012. The Notice to Appear is in this record as Exhibit 1. It indicates the respondent is not a citizen or a national of the United States, but a native and citizen of Grenada [Exhibit 1]. The Notice to Appear indicates the respondent was admited to the United States through Charlotte, Norh Carolina, on or about July 9, 2005, as a lawul permanent resident (F-12), but that on April 25, 2011, he was convicted in the District Cour of Maryland for Montgomery County fr the offense of two counts of second degree assault in violation of Marland Criminal Code Section 3.203 and that he was sentenced to a term of imprisonment of 12 months each (Exhibit 2) (by oral amendment indicates 24 months). Additionally in the Notice to Appear it indicates that on March 13, 2012, the respondent was convicted in the District Cour of Maryland for Montgomer County fr the offense of second degree assault in violation of Maryland Statute 3-203 under a different case number and that he was sentenced to a term of imprisonment of 18 months [Exhibit 1 ]. The Notice to Appear alleges that on May 14, 2012, the respondent was convicted in the District Cour of Marland fr Montgomery County for the offense of unlawul taking of a motor vehicle in violation of Maryland Statute CR. 7 .105 and that he was sentenced to a term of imprisonment of three years [Exhibit 1 ]. Based on those factual allegations, the Deparment of Homeland Security alleges that the respondent is removable from the United States under INA Section 237(a)(2)(A)(iii) as one who at any time afer admission has been convicted of an aggravated felony as defined in Section 101(a)(43)(F) of the Act, a crime of violence (as defined in Section 16 of Title 18 United States Code, but not including a purely political ofense) for which a term of imprisonment ordered is at least one year and under INA Section 237(a)(2)(A)(iii) as A055-213-731 2 April 25,2013 I m m i g r a n t
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w w w . i r a c . n e t one who at any time after admission has been convicted of an aggravated felony as defined in Section 101(a)(43)(G) of the Act relating to a thef ofense, including receipt of stolen propery or a burglar offense, fr which a term of imprisonment of at least one year was imposed [Exhibit 1]. The respondent appeared before the Immigration Cour and, through counsel, admited Allegations 1 through 9 contained in the charging document with the oral amendment to reflect a term of imprisonment of 24 months, as amended by OHS on December 13, 2012. The respondent denied removability under INA Section 237(a)(2)(A)(iii) as one convicted of an aggravated felony relating to a thef ofense arising out of the unlawful taking of a motor vehicle. On this record as ofered by the Department of Homeland Security, which is Exhibit 2 containing the record of conviction, this Cour fund that the Department of Homeland Security is unable to establish the respondent's removability as an aggravated felon under 237(a)(2)(A)(iii) based on the theft ofense relating to the unlawful taking of a motor vehicle. However, the Cour finds that the respondent's removability under INA Section 237(a)(2)(A)(iii) as one convicted of an aggravated felony fr a crime of violence fr which a term of imprisonment of at least one year has been imposed has been established by evidence that is clear and convincing as is required under Section 240(c) of the Immigration and Nationality Act. See also Woodby v. INS, 385 U.S. 276 (1966) [decided in the context of deporation proceedings]. The Cour next turns to the respondent's applications for relief. As noted by the Cour and conceded by counsel, the respondent has not submited any applications fr relief. He acknowledges that absent application fr relief, he is subject to removal from the United States under 237(a)(2)(A)(iii) as one who has been convicted of a crime of violence fr which a term of imprisonment of at least one year has been imposed. A055-213-731 3 April 25, 2013 I m m i g r a n t
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w w w . i r a c . n e t Absent applications for relief, it is the order of this Cour that the respondent be removed from the United States to Grenada as charged. ORDER IT IS ORDERED that the respondent be removed from the United States to Grenada as charged under INA Section 237(a)(2)(A)(iii). A055-213-731 PHILLIP T. WILLIAMS Immigration Judge 4 April 25, 2013 I m m i g r a n t
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w w w . i r a c . n e t CERTIFICATE PAGE I hereby certify that the attached proceeding before JUDGE PHILLIP T. WILLIAMS, in the matter of: PHILLIP ANDREW MURRAY A055-213-731 BALTIMORE, MARYLAND was held as herein appears, and that this is the original transcript thereof fr the file of the Executive Ofice for Immigration Review. J FREE STATE REPORTING, lnc.-2 JUNE 23, 2013 (Completion Date) I m m i g r a n t