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Villanueva v. Holder

United States Court of Appeals, First Circuit

April 24, 2015

FREDY VILLANUEVA, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General, Respondent

PETITIONS FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.

Eduardo Masferrer and Masferrer & Associates, P.C. on brief for petitioner.

Joyce R. Branda, Acting Assistant Attorney General, Civil Division, Terri J. Scadron, Assistant Director, Office of Immigration Litigation, and Corey L. Farrell, Attorney, Office of Immigration Litigation, Civil Division, on brief for respondent.

Before Lynch, Chief Judge, Kayatta and Barron, Circuit Judges.

OPINION

Page 52

LYNCH, Chief Judge.

This is a petition for review of a Board of Immigration Appeals (BIA) determination that petitioner Fredy Villanueva is ineligible for consideration for discretionary relief from removal under a special program. The BIA's result depends on an analytical error, and petitioner is eligible for consideration. We remand so that petitioner may be considered for discretionary relief.

In June 2009, Villanueva, a native of El Salvador living in the United States, was charged with removability for being a non-citizen present in the United States without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). Villanueva sought relief from removal by requesting review of an earlier denial of his application for Temporary Protected Status (TPS)

Page 53

under 8 U.S.C. § 1254a. The TPS statute affords undocumented immigrants protection from removal from the United States upon a determination by the Attorney General that conditions in the individual's home country prevent his or her safe return. Shul-Navarro v. Holder, 762 F.3d 146, 147 (1st Cir. 2014). The Attorney General designated El Salvador for TPS in 2001 because of a disruption of living conditions in El Salvador resulting from a series of earthquakes that occurred that year. See Designation of El Salvador Under Temporary Protected Status Program, 66 Fed. Reg. 14,214 (Mar. 9, 2001); see also Shul-Navarro, 762 F.3d at 147.

A non-citizen is ineligible for TPS if he or she has been convicted of an " aggravated felony." See 8 U.S.C. § § 1158(b)(2)(A)(ii), (B)(i); id. § 1254a(c)(2)(B)(ii). After an October 2011 hearing, the Immigration Judge (IJ) denied Villanueva's application for TPS on the ground that he had a 2006 conviction for third-degree assault under Connecticut law, which the IJ determined was a " crime of violence" under 18 U.S.C. § 16, and therefore an " aggravated felony." See 8 U.S.C. § 1101(a)(43)(F) (defining " aggravated felony" to include " a crime of violence (as defined in [18 U.S.C. § 16], but not including a purely political offense) for which the term of imprisonment [is] at least one year" ). The BIA affirmed the IJ's ruling and later denied Villanueva's motion for reconsideration.[1]

Villanueva now petitions for review of the BIA's decisions, arguing that the agency erred in its determination that his conviction for third-degree assault under Connecticut law constituted a " crime of violence." Applying de novo review to the BIA's analytical method, see United States v. Fish, 758 F.3d 1, 4 (1st Cir. 2014), " including its determination that a non-citizen's criminal conviction is grounds for removal," Patel v. Holder, 707 F.3d 77, 79 (1st Cir. 2013), we agree with Villanueva. Accordingly, we vacate the BIA's decision and remand this case to the agency for further proceedings.

The statute of conviction, Conn. Gen. Stat. § 53a-61, provides as follows:

A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person ...

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