REIDER, NICHOLAS A.

PAIR PROJECT
254 FRIEND STREET., 5TH FLOOR
BOSTON, MA 02114
Name: RUEDA-PEREZ, LUIS
U.S. Department of Justice
Executive Ofce fr Immigration Review
8oaJo/ Iooiga|ioppea|s
upceo/|/ec|es
5107 leesbur Pike, Suite 2000
Falls Church, Virginia 22041
OHS/ICE Ofice of Chief Counsel - BOS
P.O. Box 8728
Boston, MA 02114
A098-241-147
Date of this notice: 11/17/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Malphrus, Garry D.
Mullane, Hugh G.
Pauley, Roger
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Luis Rueda-Perez, A098 241 147 (BIA Nov. 17, 2011)
RUEDA-PEREZ, LUIS (A 098-241-147)
20 BRADSTON STREET
BOSTON, MA 02118
Name: RUEDA-PEREZ, LUIS
U.S. Department of Justice
Executive Ofce fr Immigration Review
8oaJo/Iooiga|ioAppea|s
upceo/|/ec|es
5107 leesburg Pike. Suire 2000
Fals Church. lri11ia 21041
OHS/ICE Ofice of Chief Counsel - BOS
P.O. Box 8728
Boston, MA 02114
A098-241-147
Date of this notice: 11 /1712011
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 sered with this
decision pursuant to 8 C.F.R. 1292.5(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 cour of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Malphrus, Garry D.
Mullane, Hug G.
Pauley, Roger
Sincerelv.
D/ c f.
Donna Carr
Chief Clerk
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Cite as: Luis Rueda-Perez, A098 241 147 (BIA Nov. 17, 2011)
U.S. Department of Justice
Executive Ofce fr Imigation Review
Decision of the Board of Imigation Appeals
Falls Church, Virginia 22041
File: A098 241 147 - Boston, M
In re: LUIS RUEDAPEREZ a.k.a. Luis Rueda
IN RMOVAL PROCEEDINGS
APPEAL AND MOTION
Date:
ON BEHALF OF RESPONDENT: Nicholas A. Reider, Esquire
CHARGE:
HUY 1!/JII
Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -
Convicted of aggravated flony as defned by 10l(a)(43)(f.
APPLICATION: Tennination
The respondent, a lawfl penanent resident and native and citizen of Mexico, appeals the
Immigration Judge's June 1, 2011, decision ordering him removed. Te Deparment of Homeland
Security has not fled a brief on appeal. The appeal will be sustained and the record will be
remanded.
We review fndings of fct, including the detenination of credibility, under a clearly erroneous
standard. 8 C.F.R. 1003.l(d)(3)(i). We review questions of law, including whether the parties
have met the relevant burden of proof, and issues of discretion under a de novo standard. 8 C.F.R.
1003.l (d)(3)(ii).
On March 17, 2010, the respondent pied guilty to simple assault, a misdemeanor in violation of
New Hampshire law (Respondent's plea agreement, docket number 276784). N.H. Rv. STAT
631 :2-a. For this conviction, the respondent was sentenced to 12 months incarceration, with
11 months suspended, and 2 years of good behavior (Respondent's plea ageement). Based on this
conviction, the Department of Homeland Security commenced removal proceedings by issuing him
a Notice to Appear, charging him as removable under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C.
1227(a)(2)(A)(iii), fr having been convicted of an aggravated flony crime of violence in violation
of section |Ol (a)(43)(F) of the Act, 8 U.S.C. 1101(a)(43)(F). The respondent denied removability
and fled a motion to terminate proceedings, arguing that his conviction did not constitute a crime
of violence under 18 U.S.C. 16(a).1 The Immigration Judge denied the motion to teninate and,
1 The Immigration Judge correctly fund that the respondent's misdemeanor ofense cannot
constitute a crime of violence under 18 U.S.C. l 6(b ), which is limited to flony ofenses. The
respondent's ofense is puishable by a maximum ten of imprisonment of I year. See N.H. RV.
STAT 631 :2-a(II). As such, it is also a misdemeanor under federal law. See 18 U.S.C. 3559(a)(5)
(classifing "flonies" as ofenses punishable by a ten of imprisonment of more than one year).
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Cite as: Luis Rueda-Perez, A098 241 147 (BIA Nov. 17, 2011)
A098 241147
as the respondent did not apply fr any frms of relief, ordered him removed. The respondent now
appeals fom this decision.
The respondent argues that the Immigration Judge incorrectly applied the First Circuit's
decisions in United States v. Nason, 269 F.3d 10 (1st Cir. 2001), and United States v. Bookr,
644 F .3d 12, 17-18 (1st Cir. 2011 ), in determining that his conviction fr simple assault in
New Hampshire is a crime of violence, as those cases are inapplicable in the context of 18 U .S.C.
l 6(a). The respondent fher argues that the Immigration Judge should have applied the
controlling precedent, namely, this Board's decision in Matter of Velasquez, 25 I&N Dec. 278 (BIA
2010), which adopted the United States Supreme Court's reasoning in Johnson v. United States,
130 S.Ct. 1265 (2010).2
Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act states that an alien is removable
if he has been convicted of a crime of violence, as defned in 18 U.S.C. 16. See section
10l(a)(43)(F) of the Act. A crime of violence, in relevant part, is defned as "an ofense that has
as an element the use, attempted use, or threatened use of physical frce." 18 U.S.C. 16(a).
Therefre, a state statute that contains as an element the use, attempted use, or theatened use, of
physical frce will constitute a crime of violence under the Act. Te relevant statute of conviction
reads:
A person is guilty of simple assault if he:
(a) Purposely or kowingly causes bodily injury or unprivileged physical contact to
another; or
(b) Recklessly causes bodily injur to another; or
(c) Negligently causes bodily injur to another by means of a deadly weapon.
N.H. RV. STAT 631 : 2-a. In analyzing whether "physical frce" is an element of the respondent's
conviction, the Immigration Judge applied the First Circuit's holding in United States v. Nason,
supra. Nason, a criminal sentencing case, held that the plain and unambiguous meaning of the term
"physical frce" within the defnition of"misdemeanor crime of domestic violence," constituted any
degree of physical frce, including the proscribed "ofensive physical contact" within Maine's
assault statute. See United States v. Nason, supra, at 18-20; see also 18 U.S.C. 922(g)(8), (9).
Applying Nason, the Immigration Judge determined that the defnition of "physical frce" under
18 U .S.C. 16(a) is broad enough to encompass all degrees of frce under New Hampshire's simple
assault statute, including "unprivileged physical contact." Further, as "unprivileged physical
2 As an initial jurisdictional matter, we note that the respondent fled a motion with the Immigration
Judge on June 16, 2011, asking him to reconsider his June 1, 2011, decision. Te respondent then
fled a timely appeal with the Board on June 29, 2011, at which time jurisdiction vested with us. See
8 C.F.R. 1003.23(b)(l ). On July 6, 2011, the Immigration Judge issued an order denying the
respondent's motion to reconsider. However, as the respondent fled his appeal prior to te
Immigation Judge's response to the motion to reconsider, the Immigation Judge did not have
jurisdiction to consider the motion. Id; see also Matter of Patino, 23 l&N Dec. 7 4 (BIA 200 | ). As
such, we will address the respondent's appeal as well as his motion to reconsider.
2
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Cite as: Luis Rueda-Perez, A098 241 147 (BIA Nov. 17, 2011)
A98 241 147
contact" is the least necessary degree of frce required fr a conviction under that statte, the
Immigation Judge fund that the respondent's conviction is categorically a crime of violence. We
disagree.
In Matter a/Velasquez, supra, the Board held that the "physical frce" necessary to establish that
an ofense is a crime of violence under the Act requires "violent" frce, or frce capable of causing
physical pain or injury to another person. Matter of Velasquez, supra, at 283. We adopted the
Court's reasoning in Johnson v. United States, which fund that "physical frce" required "violent"
frce in the context of the Armed Career Criminal Act ("ACCA"). Johnson v. United States, supra,
at 1273; see also 18 U.S.C. 924(e)(l ), (2)(B)(i). I adopting the holding in Johnson, we noted
that the ACCA's defnition of"violent flony'' is, in pertinent part, identical to that in 18 U.S.C.
16(a). See Matter of Velasquez, supra, at 282.
Unlike the statutes construed in Matter of Velasquez and Johnson v. United States, the statute
constred in United States v. Nason involved the interpretation of "physical frce" in the context of
18 U .S.C. 922(g)(9), which prohibits possession of a frearm by an individual convicted of a
misdemeanor crime of domestic violence. The phrase "misdemeanor crime of domestic violence"
prohibits the "use, attempted use, or threatened use of physical frce . . . that would reasonably be
expected to cause bodily injury." See 18 U.S.C. 922(g)(8)(C)(ii); United States v. Nason, supra,
at 16 (emphasis added). In construing the phrase "physical frce" in section 922(g)(9), the Nason
court noted that by adding the qualifing phrase "that would reasonably be expected to cause bodily
injur," Congess intended to create a limitation to the amount of physical frce required. See
United States v. Nason, supra, at 16-17. The Court went on to state that, as the statute already
contained a qualifing phrase limiting the type of frce proscribed, this suggested that Congress did
not intend fr the term "physical frce" to be frther limited. Id Applying this reasoning, inter alia,
the cour fund that "physical frce" includes all types of physical frce. Id. at 17-18.
The statute construed by the Nason court is substantively diferent fom 18 U.S. C. 16( a), which
contains no additional qualifing phrase to the ter "physical frce." On the contrary, the statutor
language defning "violent felony" in 18 U .S.C. 924( e )(2)(B)(i) (as it pertains to crimes against the
person) is virtually identical to 18 U.S.C. l 6(a). This similarity was noted by the Johnson court.
See Johnson v. United States, supra, at 1270-71. Moreover, this distinction was recognized by the
First Circuit as a reason not to construe section 16 as similar to section 922(g)(9). See United States
v. Bookr, supra, at 19-20 (reasoning that as the two statutes have signifcant diferences, "the case
fr analogizing 922(g)(9) to 16 is particularly weak"). As such, we conclude that our decision
in Matter of Velasquez, relying on the interpretation of the phrase "physical frce" by the Court in
Johnson v United States, is distinguishable fom United States v. Nason, as the statute analyzed in
Nason contains substantively diferent language fom the ACCA or 18 U.S.C. 16(a).
3
3
We also note that the First Circuit stated in United States v. Booker that its holding in Nason is
distinguishable fom Johnson, as Johnson specifcally stated that it was interpreting the phase
"physical frce" within the context of the statutory defnition of"violent felony," and did not reach
whether "the phrase has the same meaning in the context of defning a misdemeanor crime of
domestic violence." Johnson v. United States, supra, at 1273.
3
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Cite as: Luis Rueda-Perez, A098 241 147 (BIA Nov. 17, 2011)
A098 241147
As such, we agree with the respondent and conclude that our decision in Matter of Velasquez,
supra, controls the fcts presented in this case, such that the "physical frce" necessa to establish
that the respondent's ofense is a "crime of violence" fr purposes of the Act must be "violent" frce,
that is, frce capable of causing physical pain or injury to another person.
4
Tuing to an analysis of the respondent's conviction, we must deterine whether a simple
assault conviction under section 631 :2-a of the New Hapshire Revised Statutes requires the use,
attempted use, or threatened use of violent physical frce under 18 U.S.C. 16(a). As New
Hampshire has provided that "unprivileged physical contact" includes all physical contact not
justifed by law or consent, State v. Michaud, 20 A.3d 1012 (N.H. 2011), we conclude that some
ofenses punishable under this statute do not necessarily require "violent" frce, or frce capable of
causing physical pain or injury to another person. Thus, the respondent's conviction fr simple
assault in New Hapshire is not categorically a crime of violence under section 101(a)(43)(F) of the
Act. As such, the modifed categorical approach must be applied. See Matter of Milian, 25 I&N
Dec. 197, 199-200 (BIA 2010) (discussing documents that may be considered in applying modifed
categorical approach). The record will therefre be remanded fr consideration of evidence
regarding whether the respondent's ofense constitutes a crime of violence under the modifed
categorical approach. Accordingly, the fllowing orders will be entered.
ORER: The appeal is sustained.
FURTHER ORER: The record is remanded to the Immigation Judge fr fher proceedings
consistent with the fregoing opinion and fr the entry of a new decision.
4 As we agree with the respondent that the Immigration Judge applied the incorect legal standard
in fnding his conviction to be a crime of violence, we decline to address any additional aguments
he raises in his June 13, 2011, motion to reconsider befre the Immigration Judge.
4
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Cite as: Luis Rueda-Perez, A098 241 147 (BIA Nov. 17, 2011)
\
UITED STATES IMIGRTION COURT
JFK FEDER BLDG. , ROOM 320
BOSTON, M 02203
IN THE REMOVA CASE OF
RUDA-PEREZ, LUIS
RESPONDENT
ORDERS
CASE NO.: A098-241-147
.) Th
_
is/
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1
morandum of the Court's Decision and Orders entered on

This memorandum is solely for the
convenience of the parties. The oral or written Findings, Decision
and Orders is the official opinion in this case. ( ) Both parties
waived issuance of a formal oral decision in the case.
/
The respondent w

s ordered REMOVED from the United States to

M f s , (
( ) in absentia.
ponnts application for VOLUTAY DEPATURE was DENIED and
respondent was ordered removed to , in the
alternative to
Respondent's application for VOLUNTAY DEPATURE was GRTED until

' upon posting a voluntary departure bond in the amount

of $ to OHS within five business days from the date of this
Order, with an alternate Order of removal to
or Respondent shall present to DHS within
( ) thirty days ) sixty days from the date of this Order, all
necessary travel documents for voluntary departure.
Respondent's application for ASYLU was ( ) granted ) denied
( ) withdraw with prejudice.
( ) subject to the ANA CP under the INA section 207(a) (5).
( ) Respondent knowingly filed a FRIVOLOUS asylum application.
Respondent's application for WITHHOLING of removal under INA
section 24l(b) (3) was ( ) granted ( ) denied ( ) withdrawn with
prejudice.
Respondent's application for WITHHOLDING of removal under the Torture
Convention was ( ) granted ( ) denied ) withdraw with prejudice.
Respondent's application for DEFERRA of removal under the Torture
Convention was ( ) granted ( ) denied ( ) withdrawn with prejudice.
Respondent's application for CACELLTION of removal under section
( ) 203 (b) of NACA, ( ) 240A(a) ) 240A(b) (l) ( ) 240A(b) (2)
of the INA, was ( ) granted ( ) denied ( ) withdrawn with prejudice.
If granted, it was ordered that the DHS issue all appropriate documents
necessary to give effect to this Order. Respondent ( ) is ( ) is not
subject to the AN A CAP under INA section 240A(e) .
Respondent's application for a WAIVER under the INA section
was ( ) granted ( ) denied ( ) withdraw or
) other ( ) The conditions imposed by
INA section 216 on the repondent's permanent resident status were removed.
Respondent's application for AJUSTMENT of status under section
of the ( ) INA ( ) NACA ( ) was
( ) granted ( ) denied ( ) withdrawn with prejudice. If granted,
it was ordered that DHS issue all appropriate documents necessary to
give effect to this Order.
CASE NBER: 098-241-147 RESPONENT: RUEDA-PEREZ, LUIS
Respondent's status was RESCINDED pursuant to the INA section 246.
Respondent's motion to WITHDRW his application for admission was
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I .
granted ) denied. If the respondent fails to abide by any of
the conditions directed by the district director of DHS, then the
alternat Order of removal shall become immediately effective without
further notice or proceedings: the respondent shall be removed from
the United States to
Respondent was AMITTED as a until
As a condition of admission, the respondent was
ordered to post a $ bond.
Case was ( ) TERMINATED ) with ) without prejudice
AMINISTRATIVLY CLOSED.
Respondent was orally advised of the LIMITATION on discretionary
relief and consequences for failure to depart as ordered.
[ ] If you fail to voluntarily depart when and as reqired, you shall
be suject to civil money penalty of at least $1,000, but not more than
$5,000, and be ineligible for a period of 10 years for any further
relief under INA sections 240A, 240B, 245, and 248 (INA Section 240B(d)).
[ ] If you are under a final order of removal, and if you willfully fail
or refuse to 1) depart when and as required, 2) make timely application
in good faith for any documents necessary for departure, or 3) present
yourself for removal at the time and place required, or, if you conspire
to or take any action designed to prevent or hamper your departure, you
shall be suject to civil money penalty of up to $500 for each day under
such violation. (INA section 274D(a)). If you are removable pursuant
to INA 237(a), then you shall further be fined and/or imprisoned for up
to 10 years. (INA section 243 (a) (1)).
Other:
Date: Jun 1, 2011
APPEA: ) waived > reserved
PAUL M. GAGNON, Judge
by ( . Respondent ( ) OHS ( ) Both
DUE BY:
7-/'//
THIS DOCUMENT WA
TO: [ l D ]
DATE:
.. -3 11
I

CERTIFICATE OF SERVICE
SERVD BY: [ ] MAIL [ JPERSONA SERVICE
Officer
AIEN [/] Alien's ATT/REP [ 1 AIEN c/o Custodial
BY: [ ] COURT STAFF [ ] JUGE
--
Y2
I 1:;. , ...
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