Medrano-Vasquez v. Holder

UNPUBLISHED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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. We deny the
petition for review.
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.” 18 U.S.C. § 16(2006). A crime of domestic violence means 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.” Mbea v. Gonzales, 482 F.3d 276, 279 (4th Cir.
2007). We generally consider “the nature of the offense as
defined by statute, not the conduct at issue in any particular
case.” Id. (citations omitted). In a limited class of cases,
however, where the definition of 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, which retain their judicially
determined meanings.” Md. Code Ann., Crim. Law § 3-201(b).
Maryland case law further defines assault as “an attempted
battery or an intentional placing of a victim in reasonable
apprehension of an imminent battery. A battery . . . includes
any unlawful force used against a person of another, no matter
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how slight.” Kirksey, 138 F.3d at 125 (internal quotation marks
and citations omitted). This court has observed that, “under
the definition of assault and battery in Maryland, it remains
unclear whether we can say categorically that the conduct
encompassed in the crime of battery constitutes the use of
physical force against the person of another to the 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. Id., 138 F.3d
at 124.
Clearly, the supporting documents 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. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
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