U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Office of the Clerk
5107 Leesburg Pike, SuUe 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - BOS

P .0. Box 8728
Boston, MA 02114

Name: DELGADO FERNANDES, JOSE ...

A 089-408-582
Date of this notice: 7/6/2016

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

DOWU- c

t1/v't.)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.

Userteam: Docket

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Cite as: Jose Maria Delgado Fernandes, A089 408 582 (BIA July 6, 2016)

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Graves, William E
Graves & Doyle
100 State Street, 9th floor
Boston, MA 02109

U,S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A089 408 582 - Boston, MA

Date:

JUL - 6 2016

In re: JOSE MARIA DELGADO FERNANDES a.k.a. Jose Fernandes

MOTION
ON BEHALF OF RESPONDENT: William Earl Graves, Esquire
APPLICATION: Motion to terminate
The respondent, a native and citizen of Cape Verde, has appealed from the Immigration
Judge's August 6, 2015, decision, ordering the respondent removed from the United States.
During the pendency of the appeal, the respondent filed a motion to terminate proceedings. The
Department of Homeland Security ("DHS") has not responded to the motion. The respondent's
proceedings will be terminated.
We review Immigration Judges' findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, de novo. See 8 C.F.R.
1003.l(d)(3)(i), (ii).
The respondent was charged with being subject to removal for having been convicted of an
aggravated felony crime of violence and a crime of domestic violence pursuant to sections
237(a)(2)(A)(iii) and 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C.
1227(a)(2)(A)(iii), 1227(a)(2)(E)(i). The charges of removability were supported by evidence
of the respondent's 2009 conviction for domestic simple assault. In his motion, the respondent
submitted evidence that the relevant 2009 conviction was vacated for substantive defects in the
underlying criminal proceeding. As the conviction underlying the charges of removability
against the respondent has been vacated on substantive defects, we will terminate proceedings
against the respondent. See Matter ofPickering, 23 l&N Dec. 621 (BIA 2003); see also Rumierz
v. Gonzales, 456 F.3d 31 (1st Cir. 2006). Accordingly, the following order will be entered.
ORDER: The proceedings are terminated.

FOR

Cite as: Jose Maria Delgado Fernandes, A089 408 582 (BIA July 6, 2016)

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IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BOSTON, MASSACHUSETTS

DELGADO FERNANDES, Jose Maria, )

a.k.a. Fernandes, Jose
)
A 089-408-582
)

)
)

Respondent
CHARGES:

In Removal Proceedings
DETAINED

Immigration and Nationality Act (INA or Act) 237(a)(2)(A)(iii): Alien

who, at any time after admission, has been convicted of an aggravated
felony as defined in section 10l(a)(43)(F) of the Act, a law relating to a
crime of violence; and
INA 237(a)(2)(E)(i): Alien who, at any time after entry, has been
convicted of a crime of domestic violence, a crime of stalking, or a crime
of child abuse, child neglect, or child abandonment

APPLICATIONS:

Termination of Proceedings

ON BEHALF OF RESPONDENT
William E. Graves, Esq.
Graves & Doyle
100 State Street, 9th Floor
Boston, Massachusetts 02109

ON BEHALF OF DBS
Assistant Chief Counsel
Office of the Chief Counsel
15 New Sudbury Street, Room 425
Boston, Massachusetts 02203

ORDER OF THE IMMIGRATION JUDGE

I. Procedural History
The Respondent, Jose Maria Delgado Fernandes, is a thirty-eight year old native and
citizen of Cape Verde. Exh. I. On February 13, 2014, the Department of Homeland Security
(OHS) personally served the Respondent with a Notice to Appear (NTA} alleging that the
Respondent (1) is not a citizen or national of the United States; (2) is a native and citizen of Cape
Verde; {3) was granted lawful permanent resident (LPR) -status on .September 20, 2008; (4)
submitted a plea of "nolo" on or about June 8, 2009, in the Rhode Island Superior Court at
Providence, for the offense of "Domestic-Simple Assault/Battery," in violation of R.I. Gen.
Laws Ann. 11-5-3, 12-29-5; (5) received, for the aforementioned conviction, a one-year
suspended sentence; (6) is, based on the aforementioned conviction and consequent sentence,
considered an aggravated felon under section 18 U.S.C. 16, United States Code, a law defining
crimes of violence; and (7) arrived at Boston Logan International Airport as a returning LPR on
February 13, 2014. Id. On the basis of these allegations, the NTA charges the Respondent as
1

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IN THE MATTER OF:

removable from the United States pursuant to INA 237(a)(2)(A)(iii), as an alien convicted of a
crime of violence aggravated felony; and INA 237(a)(2)(E)(i), as an alien convicted of a crime
of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child
abandonment. Id. The NTA ordered the Respondent to appear before the Boston Immigration
Court (Court) to show why he should not be removed from the United States. Id.

On July 22, 2015, the Respondent filed a Motion to Terminate. See Resp't's Mot. to
Terminate (July 22, 2015). The Court will now issue a decision on this motion.
II. Standards of Law
A. Removability

At the conclusion of removal proceedings, the Immigration Judge shall decide whether an
alien is removable from the United States. INA 240(c)(l)(A) (2015). The determination of the
Immigration Judge shall be based only on the evidence produced during proceedings. See id. In
the case of an alien who has been admitted to the United States and is charged with removability,
DHS bears the burden of establishing that the alien is removable as charged by clear and
convincing evidence. Id. at 240(c)(3)(A); see 8 C.F.R. 1240.S(a) (2015).
Pursuant to INA 237(a)(2)(A)(iii), an alien is removable if, at any time after his
admission into the United States, he has been convicted of an aggravated felony. See INA
237(a)(2)(A)(iii). INA 10l{a)(43)(F) defines an aggravated felony as a crime of violence, as
defined in 18 U.S.C. 16, for which the term of imprisonment is at least one year. See id.
10l(a)(43)(F). The Act specifies that "any reference to a term of imprisonment or a sentence
with respect to an offense is deemed to include the period of incarceration or confinement
ordered by a court of law regardless of any suspension of the imposition or execution of that
imprisonment or sentence in whole or in part.'' Id. at 101(a)(48)(B).
Pursuant to INA 237(a)(2)(E)(i), an alien is removable if, at any time after his entry into
the United States, he has been convicted of a crime of domestic violence. Id. at
23 7(a)(2)(E)(i). A ,crime ,qualifies :as :a ,crime of -domestic v.iolen:ce under the Act -only if it is a
crime of violence, as defined in 18 U.S.C. 16, against a person committed by an individual
bearing a certain domestic relationship to the person, including a current or former spousal
relationship. See id.
Section 16 of Title 18, United States Code defines a crime of violence as
(a) An offense that has as an element the use, attempted use, or threatened use
of physical force against the person or property of another, or

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On February 18, 2015, the Respondent appeared represented at the Court. He filed a
Written Pleading conceding the allegations numbered (1) through (3), above; and denying the
allegations numbered (4) through (7), above, and both charges of removability. Exh. 2. On his
Written Pleading, he designated Cape Verde as the country to which his removal should be
directed, in the event that his removal is ordered. Id. He also indicated that he intended to seek
from relief from removal in the form of termination of proceedings. Id

(b) Any offense that is a felony, and that, by its nature, involves a substantial
risk that physical force against the person or property of another may be
used in the course of committing the offense.

To determine whether a state conviction qualifies as an offense/ground of removability

defined in the Act, Courts employ a categorical approach. This approach involves comparing the
elements of the state statute of conviction to the elements of the offense defined in the Act, as
interpreted by the Board. See Descamps v. United States, 133 S.Ct. 2276, 2281 (2013).2 The
state conviction qualifies as an offense defined in the Act if its elements are the same as, or
narrower than, the elements of the offense defined in the Act. See id. The state statute does not
qualify as an offense defined in the Act if it "criminalizes a broader swath of conduct" than the
offense defined in the Act. See id. at 2281-82. When analyzing a state conviction under the
categorical approach, a court should presume that the state conviction rested upon nothing more
than the least of the acts criminalized by the state statute, and then determine whether even those
acts are equivalent to or encompassed by the offense defined in the Act. See Moncrieffe v.
Holder, 133 S.Ct. 1678, 1684 (2013).
When a state statute of conviction is divisible - i.e., when it sets out one or more of the
elements of the offense in the alternative - a court may use a modified categorical approach to
determine which statutory alternative of the state law formed the basis of a respondent's criminal
conviction. See Descamps, 133 S.Ct. at 2281; Moncrieffe, 133 S.Ct. at 1684; see also United
States v. Carter, 752 F.3d 8, 17-18 (1st Cir. 2014) (establishing the First Circuit's approach to
divisibility by declaring a statute prohibiting "intentionally, knowingly, or recklessly causing
1 Section 16(b) defines a crime of violence similarly to way the residual clause of the Armed Career Criminal Act
(ACCA) defines a violent felony. See 18 U.S.C. 924(e)(2)(B)(ii) (defining a violent felony, in part, as a felony
that "involves conduct that presents a serious potential risk of physical injury to another''); United States v.
Chambers, 555 U.S. 122, 133 n.2 (2009) ("18 U.S.C. 16(b) .. . closely resembles ACCA's residual clause); cf.
United States v. Fish, 758 F.3d 1, 5 (1st Cir. 2014) (citing United States v. Leahy, 473 F.3d 401,412 (1st Cir. 2007)
-and explaining that while the Supreme Court and the First Circuit have treated tb.e "risk ofphysical injury" provision
of the ACCA's residual clause as reaching conduct beyond the scope of 18 U.S.C. 16(b), neither has in any way
suggested that the reverse is true). In Johnson v. United States, No. 13-7120, slip op. at 5-6 (U.S. June 26, 2015),
the Supreme Court declared the ACCA's residual clause unconstitutionally vague because the clause "leaves grave
uncertainty about how to estimate the risk posed by a crime," and because it "leaves uncertainty about how much
risk it takes for a crime to qualify as a violent felony." While the Supreme Court's holding in Johnson arguably
calls into question the constitutionality of 18 U.S.C. 16{b), the Court is not aware of a published or unpublished
decision explicitly extending the rationale and holding of Johnson to this section.
2
In Descamps, 133 S.Ct. at 2291, the Supreme Court "reserve[d] the question whether, in determining a crime's
elements, a ... court should take account not only of the relevant statute's text, but ofjudicial rulings interpreting
it/' then referenced relevant state case law.

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18 U.S.C. 16. 1 The Board of Immigration Appeals (BIA or Board) has concluded that a
criminal offense qualifies as a crime of violence, as defined in 18 U.S.C. 16(a), only when it
involves "violent force - that is, force capable of causing physical injury or pain to another
person." Matter of Velazquez, 25 l&N Dec. 278, 281-82 (BIA 2011) (finding the ACCA's
definition of 'violent felony' in 18 U.S.C. 924(e)(2)(b)(i) identical to 18 U.S.C. 16(a)'s
definition of 'crime of violence,' and consequently determining that the Supreme Court
interpretation of 'violent felony' under 18 U.S.C. 924(e)(2)(B)(i) controlled the Board's
interpretation of 'crimes of violence' under 18 U.S.C. 16(a)).

B. Termination of Proceedings

Immigration Judges have the regulatory authority to terminate removal proceedings. 8

C.F.R. 1240.1 2(c). Termination of proceedings generally occurs when an Immigration Judge
determines on the merits that an alien is not removable as charged in the NTA. Matter of
Avetisyan, 25 I&N Dec. 688, 695 n. 6 (BIA 201 2). An Immigration Judge's termination of
proceedings constitutes a final order concluding the proceedings. Id. at 695. Following
termination, and in the absence of a successful appeal or motion, DRS may institute new
proceedings against the alien only through the filing of a new charging document. Id.
III.Findings of Fact and Conclusions of Law
A. Removability

The Court finds, by clear and convincing evidence, that the Respondent is removable
pursuant INA 237(a)(2)(A)(iii), as an alien convicted of a crime of violence aggravated felony;
and pursuant to INA 237(a)(2)(E)(i), as an alien convicted of a crime of domestic violence.
See INA 237(a)(2)(A)(iii), (E)(i); 240(c)(l ){A), (3)(A). The Respondent has admitted his
alienage and LPR status. See Exhs. 1 , 2. The Record establishes that on June 8, 2009, he
entered a "nolo plea'' to a charge of "simple assault/domestic," and consequently, received a
suspended sentence of one year's imprisonment and one year's probation. See Judgment of
Conviction and Commitment (Case No.: P2-2009-041 8A). The Respondent's removability
therefore turns on whether his crime of conviction qualifies as a crime of violence aggravated
felony and/or a crime of domestic violence under the Act.
The Rhode Island statute criminalizing "simple assault/domestic" is titled "Simple assault
or battery," and provides,
(a) Except as otherwise provided in 11-5-2, every person who shall make an
assault or battery or both shalJ be imprisoned not exceeding one year or
fined not exceeding one thousand dollars ($ 1,000) or both.
(b) When the provisions of ''The Domestic Violence Prevention Act," chapter
29 of title 12, are applicable, the penalties for violation of this section shall
also include the penalties as provided in 12-29-5.

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bodily injury or offensive physical contact to another person" divisible into "six permutations").
When utilizing the modified categorical approach, the Court may examine documents related to
the criminal conviction, such as the "charging document and jury instructions, or in the case of a
guilty plea, the plea agreement, plea colloquy, or some comparable judicial record of the factual
basis for the plea." Moncrieffe, 1 33 S.Ct. at 1684. The purpose of the modified categorical
approach is not to determine what a defendant and state judge must have understood as the
factual basis of the prior plea, but only to assess whether the plea was to the version of the crime
in the state statute equivalent to or encompassed by an offense defined in the Act. See
Descamps, 1 33 S.Ct at 2284. ''The modified approach thus acts not as an exception, but instead
as a tool. It retains the categorical approach's central feature: a focus on the elements, rather than
the facts, of a crime." Id. at 2285.

The Respondent's Judgment of Conviction establishes that he was convicted of simple

assault under the Rhode Island Statute. See Judgment of Conviction and Commitment (Case
No. : P2-2009-0418A). Furthermore, the Respondent's Criminal Complaint alleges that the
Respondent both assaulted and battered his victim, Christina Fernandes. See Criminal
Complaint (Dec. 1, 2008); see also Moncrieffe, 133 S.Ct. at 1684. Additionally, a Criminal
Information concerning the Respondent's offense indicates that the Respondent was initially
charged under R.I. Gen. Laws Ann. 11-5-2 for "assault[ing] Christina Fernandes with a
dangerous weapon." See Criminal Information (No.: P2/09-0418A); see also Moncrieffe, 133
S.Ct. at 1684. Considering these documents, the Court rejects the Respondent's argument that
his record of conviction is inconclusive concerning whether the Respondent was convicted of
assault or battery. See Resp't's Mot. to Terminate, p. 5 (July 22, 2015). The Respondent's
record of conviction clearly establishes that he was convicted of assault under R.l. Gen. Laws
Ann. 11-5-3. Based on the First Circuit's analysis of this offense, and the Respondent's
suspended sentence of imprisonment for one year, the Respondent's conviction qualifies as a
crime of violence aggravated felony under the Act. See INA 10l{a)(43)(F); Lopes, 505 F.3d at
63; Judgment of Conviction and Commitment (Case No.: P2-2009-0418A). The Respondent is
therefore removable pursuant to INA 237(a)(2)(A)(iii). See INA 237(a)(2)(A)(iii).
The Respondent's conviction for "simple assault/domestic'' under the Rhode Island
statute implicates the provisions of ''The Domestic Violence Protection Act." See Judgment of
Conviction .:and Commitment (Case N-0 .: P2-2009-04l8A) (.emphasis .added); R.L Gen. Laws
Ann. 11 -5-3(b ). The portion of the Respondent' statute of conviction criminalizing domestic
simple assault is divisible through its reference to Rhode Island's "Domestic Violence Protection
Act," which criminalizes, alternatively, various offenses - including simple assault - committed
against various "family or household member[s]" - including "spouses [and] former spouses."
3
See R.I. Gen. Laws Ann. 1 1-5-3(b}, 12-29-2(a)-(b); see also Carter, 752 F.3d at 17-18. As
3 The Court notes that the Respondent's NTA alleges that the Respondent's offense was in violation ofR.I. Gen.
Laws Ann. 1 1-5-3, 1 2-29-5. Exh. l. R.I. Gen. Laws Ann. 1 2-29-5 describes the penalties for violating Rhode

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R.I. Gen. Laws Ann. 11-5-3. The Respondent is correct that the Rhode Island statute is
divisible; it proscribes "assault or battery or both," alternatively. See Resp't's Mot. to Terminate,
pp. 4-5 (July 22, 2015); Carter, 752 F.3d at 17-18. Applying the modified categorical approach,
the United States Court of Appeals for the First Circuit (First Circuit) has determined that a
conviction for assault under R.I. Gen. Laws Ann. 11-5-3 "satisfies the statutory definition of
'crime of violence' [under 18 U.S.C. 16(a)] because it has as an element the attempted use, or
threatened use of physical force against the person or property of another." Lopes v. Keisler, 505
F.3d 58, 63 (1st Cir. 2007). The First Circuit based its conclusion on the fact that Rhode Island
case law defines 'assault' as "an unlawful attempt to offer, withforce or violence, to do corporal
hurt to another, whether from malice or wantonness." See id. at 62 (citing State v. McLaughlin,
621 A.2d 170, 177 (R.I. 1993) (emphasis in original); see also Descamps, 133 S.Ct. at 2291.
The First Circuit further noted that "under Rhode Island law, there can be no assault without the
presence of physical force." See id. at 63; State v. Torres, 787 A.2d 1214, 1221 (R.I. 2002);
State v. Pule, 453 A.2d 1095, 1097 {R.I. 1982) (assault requires the use or force or violence).
The First Circuit has not addressed whether a conviction for battery under the Rhode Island
statute qualifies as a crime of violence aggravated felony. See Lopes, 550 F.3d at 62 (not
reaching the quest,ion).

B. Termination of Proceedings
Because the Court has determined that the Respondent is removable pursuant to INA
237(a)(2)(A)(iii), as an alien convicted of a crime of violence aggravated felony; and INA
237(a)(2)(E){i), as an alien convicted of a crime of domestic violence, the Court will decline to
terminate the Respondent's proceedings. See Matter ofAvetisyan, 25 I&N Dec. at 695 n. 6. The
Court's denial of the only relief the Respondent seeks will result in an order of removal issued
against the Respondent. See Exh. 2.
ORDERS
IT IS HEREBY ORDERED THAT the Respondent's MOTION TO TERMINATE is
DENIED.
IT IS FURTHER ORDERED THAT the Respondent be REMOVED to CAPE
VERDE.
APPEAL RIGHTS
Both parties have the right to appeal the decision of the Immigration Judge in this case. 8
C.F.R. 1003.38(a). A party wishing to appeal this decision must provide notice to the Board of
Immigration Appeals on or before 30 calendar days from the date of this decision. Id. at
1003.38(b).

h, .

LEONARD I.. SHAPIRO

United States Immigration Judge

Island's "Domestic Violence Protection Act," which, as indicated by R.I. Gen. Laws Ann. 1 1-5-J(b), encompasses
all sections of"chapter 29 of title 12" of the Rhode Island General Laws. The Court therefore considers this entire
chapter relevant to the Respondent's conviction for domestic simple assault.

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discussed above, the Respondent's Judgment of Conviction establishes that he was convicted of
simple assault. See Judgment of Conviction and Commitment (Case No.: P2-2009-0418A); R.I.
Gen. Laws Ann. 1 2-29-2(a). The Respondent's Criminal Complaint indicates that he
committed his offense against "Christina Fernandes (wife)." See Criminal Complaint (Dec. 1,
2008); see also Moncrieffe, 133 S.Ct. at 1684. The Respondent's record of conviction therefore
establishes that his Rhode Island conviction qualifies as a crime of violence committed against a
current spouse. See Lopes, 505 F.3d at 63 (determining that simple assault under R.I. Gen. Laws
Ann. 11-5-3 is a crime of violence under 18 U.S.C. 1 6(a)). Consequently, this offense
renders the Respondent removable pursuant to INA 237(a)(2)(E)(i).
See INA
237(a)(2)(E)(i).