U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Qffice ofthe Clerk
5/07 leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS LIT.Nork Co. PrisonNOR

3400 Concord Road
York, PA 17402

Name: LOPEZ-MONCADA, EDER

A 046-081-498
Date of this notice: 11/17/2016

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

bonrtL

{!t1/vL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger

Usertea m: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Eder Lopez-Moncada, A046 081 498 (BIA Nov. 17, 2016)

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Hertz-Bunzl, Noah
Kramer Levin Naftalis & Frankel LLP
1177 Avenue of the Americas
30th Floor
New York, NY 10036

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Qffice ofthe Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS LIT.Nork Co. Prison/VCR

3400 Concord Road
York, PA 17402

Name: LOPEZ-MONCADA, EDER

A 046-081-498

Date of this notice: 11/17/2016

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. 1292.5(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 court of appeals within 3 0 days of the date of the decision.
Sincerely,

Doruu.., C

t1/v'L)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley. Roger

Userteam:

Cite as: Eder Lopez-Moncada, A046 081 498 (BIA Nov. 17, 2016)

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LOPEZ-MONCADA, EDER
A046-081-498
c/o PIKE COUNTY CORRECTIONAL FAC
175 PIKE COUNTY BOULEVARD
LORDS VALLEY, PA 18428

U.S. Deprtment of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A046 081 498 - York, PA

Date:

In re: EDER LOPEZ-MONCADA a.k.a. Eder Lopez

NOV 1 7 2016

APPEAL
ON BEHALF OF RESPONDENT: Noah Hertz-Bunzl, Esquire
ON BEHALF OF DHS: Jon D. Staples
Assistant Chief Counsel
CHARGE:
Notice: Sec.

237(a)(2)(A)(iii), I&N Act [8 U. S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony under section I0l(a)(43)(F) of the Act

APPLICATION: Termination
The Department of Homeland Security ("DHS") appeals from an Immigration Judge's
August 24, 2015, decision terminating removal proceedings against the respondent. The
respondent, a native and citizen of Mexico and a lawful permanent resident of the United States,
was convicted in 2012 of assault in the second degree in violation of title 11, section 612 of the
Delaware Code Annotated, a "class D felony." The only issue on appeal is whether that
conviction renders the respondent removable as an alien convicted of an "aggravated felony"-to
wit, a "crime of violence" under 18 U.S.C. 16(b) for which the term of imprisonment is at least
1 year. See sections 10l(a)(43)(F) and 237(a)(2)(A)(iii) of the Immigration and Nationality Act,
8 U.S.C. I l0l(a)(43)(F), 1227(a)(2)(A)(iii).
While this appeal was pending, the United States Court of Appeals for the Third Circuit
invalidated 18 U.S.C. 16(b) as unconstitutionally vague. See Baptiste v. Attorney General,
No. 14-4476, slip op. at 30-43 (3d Cir. November 8, 2016). That decision is controlling here,
and is dispositive of the sole issue in dispute. Accordingly, we will dismiss the DHS's appeal
from the Immigration Judge's decision terminating the proceedings.
ORDER: The appeal is dismissed.

Cite as: Eder Lopez-Moncada, A046 081 498 (BIA Nov. 17, 2016)

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IN REMOVAL PROCEEDINGS

,,_,

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATieN COURT
3400 CONCORD ROAD, SUITE 2
YORK, PA 17402

IN THE MATTER OF
LOPEZ-MONCADA, EDER

FILE A 046-081-498

DATE: Aug 24, 2015

UNABLE TO FORWARD - NO ADDRESS PROVIDED

V ATTACHED
A IS FINAL
:, ,,: :

IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECI.SION

UNLESS AN. APPEAL IS FILED W+TH THE. BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR'DAiS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
BOARD OF IMMIGRATION APPEALS
MUST BE MAILED TO:
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041
ATTACHED IS'A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c} (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS ORSECTION 240(c) (6),
8 U.S.C. SECTION 1229a(c} (6) IN REMOVAL PROCEEDINGS . . IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
3400 CONCORD ROAD, SUITE 2
YORK, PA 17402
OTHER:
DVQ
COURT CLERK
IMMIGRATION COURT
CC: DISTRICT COUNSEL, C/0 YORK PRISON
3400 CONCORD ROAD
YORK, PA, 174020000

FF

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Irrunigration Law Office of Nina Qureshi Esq.

Qureshi, Nina G
901 N. Market St.
Suite 1000
Wilmington, DE 19801

'

IN THE MATTER OF
LOPEZ-MONCADA, Eder

)
)

)
)

IN REMOVAL PROCEEDINGS
A 046-081-498

Respondent

ON BEHALF OF RESPONDENT:
Nina Qureshi, Esq.
901 N. Market Street
Suite 1000
Wilmington, DE 19801

ON BEHALF OF DHS:
Jon Staples, Esq.
Assistant Chief Counsel
Immigration and Customs Enforcement
York, PA

ORDER TERMINATING REMOVAL PROCEEDINGS

Respondent is a native and citizen of Mexico. Ex. 1. He was admitted to the United States as a
lawful permanent resident on April 29, 1997. Id.
On March 16, 2012, respondent was convicted in the Superior Court for New Castle County of
Second Degree Assault, in violation of 11 Del. Code 612. OHS Evidence, Tab C. He was
sentenced to eight years' imprisonment, suspended. Id.
On May 13, 2015, the Department of Homeland Security (OHS) filed a Notice to Appear (NTA)
charging respondent as removable under section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act (INA), as an alien convicted of an aggravated felony defined in section
I0l(a)(43)(F), a crime of violence for which a term of imprisonment of one year or longer is
imposed. Ex. 1.
JOJ(a)(43)(F) of the INA -Crime of Violence

Section I01(a)(43)(F) of the INA defines the term "aggravated felony" to include a crime of
violence under 18 U.S.C. 16, for which the term of imprisonment is at least one year. 18 U.S.C.
16 defines a crime of violence as:

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
YORK, PENNSYLVANIA

(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

The statute under which respondent was convicted enumerates 11 distinct offenses. Because the
statute is divisible, and the judgment is silent as to which subsection respondent violated, it is
appropriate to look to the record of conviction Descamps v. United States, 133 S. Ct. 2276
(2013). Count one of the indictment, to which respondent pled guilty, tracks the language of both
subsections (a)(l) and (a)(2) 1 :
(a) A person is guilty of assault in the second degree when:
( I ) The person recklessly or intentionally causes serious bodily injury to another person; or
(2) The person recklessly or intentionally causes physical injury to another person by
means of a deadly weapon or dangerous instrument
As the record of conviction does not specify which subsection respondent was convicted of
violating, or whether respondent acted knowingly or recklessly, the court must assume the least
culpable conduct required to commit the offense. Here, the least culpable conduct is recklessly
causing serious bodily injury to another. 11 Del. Code 612(a)(l). Crimes committed with a
reckless mens rea are insufficient to constitute a crime of violence under l 6(a). Tran v.
Gonzales, 4 14 F.3d 464 (3d Cir. 2005). Accordingly, the court would find that respondent's
offense is not a crime of violence under 18 U.S.C. 16(a).
The question then becomes whether or not the respondent's crime is a crime of violence as that
term is defined in section l 6(b). Here, the crime in question is a felony. The issue, then, is
whether the crime, 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.
In Aguilar v. Att'y Gen., 663 F.3d 692 (3d Cir. 2012), the Third Circuit held that a recklessly
committed offense will constitute a crime of violence under l 6(b), as long as there is a
substantial risk that intentional force will be used during the commission of the offense.
However, crimes committed with "pure'' recklessness, where the perpetrator runs no risk of
intentionally using force in committing the offense, or where force is used accidentally, fall
1

Count one of the indictment states that respondent Hdid intentionally or recklessly cause physical injury to Marshall
Carcoura by means of... a deadly weapon as defined by Title 11, Section 222 of the Delaware Code, or did
intentionally or recklessly cause serious physical injury to Marshall Carcoura. DHS Evidence, Tab C (emphasis
added)

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(b) any other 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.

.'

outside the ambit of 16(b). 633 F.3d at 698-99. "Pure" recklessness exists where the mens rea
of a crime lacks an intent, desire, or willingness to use force or cause harm at all. Id. at 697
(quoting United States v. Parson, 955 F.2d 858, 866 (3d Cir. 1992)).

A person acts recklessly with respect to an element of an offense when the person is aware
of and consciously disregards a substantial and unjustifiable risk that the element exists or
will result from the conduct. The risk must be of such a nature and degree that disregard
thereof constitutes a gross deviation from the standard of conduct that a reasonable person
would observe in the situation. A person who creates such a risk but is unaware thereof
solely by reason of voluntary intoxication also acts recklessly with respect thereto.
11 Del. Code 23 l(e). Although recklessness under Delaware law requires that the actor
disregard a substantial and justifiable risk, such conduct does not equate to the actor's disregard of
the risk of the intentional use of force. As the least culpable conduct necessary to sustain a
conviction under 11 Del. Code 612(a)(l ) lacks an intent, desire, or willingness to use force or
cause harm, the court finds that respondent's conviction cannot constitute a crime of violence
under 18 U.S.C. 16(b).
Moreover, the court finds that there is a realistic probability that Delaware would apply 11 Del.
Code 612(a)(l) to conduct that would not constitute a crime of violence under section 16(b).
See Gonzalez v. Duenas-Alvarez, 549 U.S. 183 (2007); Matter of Ferreira, 26 I&N Dec. 415 (BIA
2014). In DeHorty v. State, 817 A.2d 804 (Del. 2002), appellant was convicted of assault under
11 Del. Code 612(a)(l) after she recklessly drove her vehicle into a horse drawn buggy. The
court upheld the conviction, finding that "the folly of approaching a horse drawn vehicle at night
on a dark, narrow country road in attempting to pass within 100 feet of an intersection at a speed in
excess of the posted 50 mile per hour speed limit constituted reckless conduct which caused the
collision resulting in serious injury to the buggy's three occupants." Id. Further, in Kirk v. State,
889 A.2d 283 (Del. 2005), the Supreme Court of Delaware upheld a conviction under 11 Del. Code
612(a)(l ) where appellant poured spiced rum on a stove burner, which started a fire that resulted
in the deaths of three people. As neither of these cases involve conduct that involves a substantial
risk that intentional force will be used, there is a realistic probability that Delaware would punish
conduct under 11 Del. Code 612(a)(l) that would not constitute a crime of violence under
16(b).
The court finds that respondent's conviction under 11 Del. Code 612(a) does not constitute a
crime of violence under section l 0 I(a)(43)(F) of the INA. As this is the ground of removal
charged by DHS, respondent's proceedings must be terminated.

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In defining a reckless mens rea, the Delaware Code states:

,.

.,

ORDER

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Respondent's proceedings are TERMINATED.

August 24, 2015

Walter Durling
U.S. Immigration Judge