U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5/07 l.cesb11rg Pike. S11ite 2000 Falls Ch11rch, Virginia 12041

Keast, Rachael, Esquire Michael K. Mehr, Esquire Law Offices of Michael K. Mehr 100 Doyle Street, Suite A Santa Cruz, CA 95062

OHS/ICE Office of Chief Counsel - SFR P 0 Box 26449

. .

Immigrant & Refugee Appellate Center | www.irac.net

San Francisco, CA 94126-6449

Name: COVARRUBIAS TEPOSTE, CIRILO AARON

A078-469-158

Date of this notice: 5/13/2011

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Holmes, David B.

Cite as: Cirilo Aaron Covarrubias-Teposte, A078 469 158 (BIA May 13, 2011)

U.S. Department of Justice

Executive Office for Immigration Review
.

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File:

A078

469 158 - San Francisco, CA

Date:

MAY 18 2011

In re: CIRILO AARON COYARRUBIAS-TEPOSTE

IN REMOVAL PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

MOTION ON BEHALF OF RESPONDENT: Rachael Keast, Esquire Michael K. Mehr, Esquire ON BEHALF OF DHS: Margaret R. Curry Deputy Chief Counsel

The removal proceedings will be terminated. On May 15, 2008, the Board affirmed an Immigration Judge's decision ordering the respondent removed from the United States as an alien convicted of an aggravated felony. Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii). Specifically, the respondent had been convicted in California of willfully and maliciously discharging a firearm at an inhabited dwelling house or vehicle, in violation of California law, and the Board found that this was a "crime of violence" under

18 U.S.C. 16.

The United States Court of Appeals for the Ninth Circuit decided in Covarrubias Teposte v. Holder, 632 F.3d 1049 (9th Cir. 623 F.3d

2011), amending and superceding Covarrubias Teposte v. Holder, 1094 (9th Cir. 2010), that the respondent's California conviction was not categorically a

crime of violence under 18 U.S.C. 16. Therefore, the court concluded, the Board erred in affirming the Immigration Judge's decision finding the respondent subject to removal as an aggravated felon. The court also stated that as the Board". . . did not apply the modified categorical approach and the government did not raise it on appeal, we limit our analysis to the categorical approach." Covarrubias Teposte v. Holder, supra, 632 F.3d at

1053.

At the end of its decision, the Ninth Circuit stated that"We therefore grant the petition for review and vacate the order of removal. PETITION GRANTED, ORDER VACATED." Covarrubias Teposte v. Holder, supra, 632 F.3d at 1055-56 (emphasis in original). Both parties have filed briefs, and numerous other filings, in this case. The Department of Homeland Security (the "DHS") argues that the Board should remand the case to the Immigration Judge so it may lodge additional removal charges against the respondent, based on a separate crime for assault with a deadly weapon, and for further proceedings concerning whether the respondent's crime of willfully and maliciously discharging a firearm at an inhabited dwelling house or vehicle is an aggravated felony under the modified categorical approach, or whether it qualifies as a crime involving moral turpitude.

Cite as: Cirilo Aaron Covarrubias-Teposte, A078 469 158 (BIA May 13, 2011)
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A07846918
,

The respondent argues that the Ninth Circuit did not remand the case to the Board, and

proceedings should be terminated (Respondent's Br. at

2).

While taking into consideration the arguments of the DHS, our understanding of the Ninth Circuit's order is that it did not remand the case to us for further proceedings, but effectively terminated these proceedings. In many other cases, the court has stated, in no uncertain terms, that proceedings are remanded to the Board for further action (Respondent's Br. at from the court. Covarrubias Teposte v. Holder, supra,

5). Here, however, there is no such directive 632 F .3d at I 055-56.

Immigrant & Refugee Appellate Center | www.irac.net

Indeed, before the Ninth Circuit ruled in this case, the government sought to have the case remanded to the Board so that the Board could consider whether the respondent's crime of willfully and maliciously discharging a firearm at an inhabited dwelling house or vehicle is an aggravated felony under the modified categorical approach (DHS Br. at motion to remand on July 21,

3-4). The Ninth Circuit denied the

2009.

Based on the Ninth Circuit's decision in this case, we must, and will, terminate these proceedings. ORDER: Removal proceedings against the respondent are hereby terminated.

FOR THE BOARD

Cite as: Cirilo Aaron Covarrubias-Teposte, A078 469 158 (BIA May 13, 2011)