Ricardo Medrano-Vasquez v. Eric Holder, Jr.

Filing 920100115

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-1793

RICARDO ERNESTO MEDRANO-VASQUEZ, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Submitted:

December 16, 2009

Decided:

January 15, 2010

Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Timothy W. Davis, LAW OFFICE OF TIMOTHY W. DAVIS, LLC, Baltimore, Maryland, for Petitioner. Tony West, Assistant Attorney General, William C. Peachey, Assistant Director, Rebecca Hoffberg, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Ricardo Ernesto Medrano-Vasquez, a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals ("Board") dismissing his appeal from the

immigration judge's order finding he was removable based on his two Maryland convictions for assault in the second degree. The

Board found that one of the convictions was an aggravated felony and the other conviction was a crime of domestic violence,

either of which may be grounds for removability. petition for review.

We deny the

An "aggravated felony" is a "crime of violence (as defined in section 16 of Title 18 . . .) for which the term of imprisonment at [sic] least one year." 8 U.S.C.

§ 1101(a)(43)(F) (2006).

A "crime of violence" is defined 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 (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." (2006). A crime of domestic violence means 18 U.S.C. § 16 any crime of

violence as defined by § 16 against a person committed by a current or former spouse. See 8 U.S.C. § 1227(a)(2)(E)(i).

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This court has held that the "question of whether a conviction falls within the ambit of 18 U.S.C. § 16 is a

categorical one." 2007).

Mbea v. Gonzales, 482 F.3d 276, 279 (4th Cir.

We generally consider "the nature of the offense as

defined by statute, not the conduct at issue in any particular case." however, Id. (citations omitted). where the definition of In a limited class of cases, the crime of conviction is

"ambiguous and will not necessarily provide an answer to whether the prior conviction was for a crime of violence, [the court] look[s] beyond the definition of the crime to examine the facts contained in the charging document on which the defendant was convicted." United States v. Kirksey, 138 F.3d 120, 124 (4th

Cir. 1998) (alterations added). In Maryland, one who violates Md. Code Ann., Crim. Law § 3-203(a) "is guilty of the misdemeanor of assault in the

second degree and on conviction is subject to imprisonment not exceeding 10 years." Md. Code Ann., Crim. Law § 3-203(b). The

crime of assault encompasses "the crimes of assault, battery, and assault and battery, Md. which Code retain Crim. their Law as § judicially 3-201(b). attempted reasonable

determined Maryland

meanings." law

Ann.,

case an

further

defines placing

assault of a

"an in

battery or

intentional

victim

apprehension of an imminent battery.

A battery . . . includes

any unlawful force used against a person of another, no matter 3

how slight."

Kirksey, 138 F.3d at 125 (internal quotation marks This court has observed that, "under

and citations omitted).

the definition of assault and battery in Maryland, it remains unclear whether in we the can crime say of categorically battery of that the the the conduct use of

encompassed physical

constitutes another to

force

against

the

person

degree

required to constitute a crime of violence."

Id.

Accordingly,

because there is ambiguity as to whether second degree assault in Maryland constitutes a crime of violence, the Board was

required to look beyond the elements of assault. at 124. Clearly, the supporting documents

Id., 138 F.3d

for

both

convictions, including the statements of probable cause, support the finding that Medrano-Vasquez had a conviction for conduct that amounted to an aggravated felony and another conviction for conduct that amounted to a crime of domestic violence.

Accordingly, we find no error in the Board's decision. We deny the petition for review. oral argument because in the the facts and legal before We dispense with contentions the court are and

adequately

presented

materials

argument would not aid the decisional process. PETITION DENIED

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