Collins, Anthony D.

Collins & Marin, P.C.

55 Town Line Road, 3rd Floor
Wethersfield, CT 06109
Name: GENEGO, KWEI
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5/07 leesburg Pik, Suite 2000
Fals Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - HAR
P. 0. Box 230217
Hartford, CT 06123-0217
A 047-376-145
Date of this notice:
10/2/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Cole, Patricia A.
Wendtland, Linda S.
Pauley, Roger
Sincerely,
Do cL
Donna Carr
Chief Clerk
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Kwei Genego, A047 376 145 (BIA Oct. 2, 2014)
GENEGO, KWEI
A047-376-145
FRANKIN COUNTY HOUSE OF
CORRECTION
160 ELM STREET
GREENFIELD, MA 01301
Name: GENEGO, KWEI
U.S. Department of Justice
Executive Offce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Fals Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - HAR
P. 0. Box 230217
Hartord, CT 06123-0217
A 047-376-145
Date of this notice: 10/2/2014
Enclosed is a copy of the Board's decision in the above-refrenced case. This copy is being
provided to you as a courtesy. Your atorney 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 fom the United States or affrms an Immigration Judge's decision ordering that you
be removed, any petition fr review of the attached decision must be fled with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Cole, Patricia A.
Wendtland, Linda S.
Pauley, Roger
Sincerely,
Do c C
Donna Carr
Chief Clerk
Useream:
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Cite as: Kwei Genego, A047 376 145 (BIA Oct. 2, 2014)
'
U.Si Deparment of Justice
Decision of te Boad of Imigation Appeals
Executive Ofce fr Imigation Review
Falls Church, Virginia 20530
File: A047 376 145 - Haford, CT
In re: KWEI GENEGO a.k.a. Cyril Genego
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Anthony D. Collins, Esquire
CHARGE:
OCT
.20t
Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -
Convicted of aggravated felony (as defned in section 101(a)(43)(F))
Sec. 237(a)(2)(A)(iii), l&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -
Convicted of aggravated flony (as defned in section 101(a)(43)(G))
APPLICATION: Terination
The respondent, a native ad citizen of Ghaa ad a lawfl permaent resident of te
United States, appeals the Mach 10, 2014, decision of a Immigration Judge fnding him
removable as chaged. 1 The record will be remaded.
On Januay 20, 2012, the respondent was convicted of third degree buglay in violation of
Conecticut General Statutes Annotated ("CGSA") 53a-103, ad sentenced to 4 yeas of
imprisonent (1.J. at 1; Exhs. 1, 4, ad 5). The statute of conviction provides: "[a] person is
guilty of burgla in the third degree when he enters or remains unlawflly in a building with
intent to commit a crime therein." CGSA 53a-103. "A person 'enters or remains unlawflly'
in or upon premises when the premises, at the time of such entry or remaining, ae not
open to the public ad when the actor is not otherise licensed or privileged to do so." CGSA
53a-100(b). Conecticut fer defnes "building" to include "ay watercraf, arcraf, tailer,
sleeping ca, ralroad ca or other structue or vehicle or ay building with a valid cerifcate of
occupacy." CGSA 53a-100(a)(l).
The Immigration Judge concluded that CGSA 53a-103 is not categorically a burglay
ofense within the meaing of section 101(a)(43)(G) of the Immigration ad Nationality Act,
8 U.S.C. 1101(a)(43)(G), because the state statte is broader tha the generic defnition of
bugla (l.J. at 2). See Talor v. United States, 495 U.S. 575, 59
8 (1990) ("the generc,
contemporay meang of burglay contains at least the fllowing elements: a unlawl or
uprvileged entry into, or remaining in, a building or other structure, wit intent to commit a
crime."); Mater of Perez, 22 I&N Dec. 1325 (BIA 2000) (fnding that it would confict with
1 The respondent did not apply fr relief fom removal (1.J. at 1-2; Tr. at 11).
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Cite as: Kwei Genego, A047 376 145 (BIA Oct. 2, 2014)
A047 3 76 145
Talor's generic defnition of buglay to hold tat buglay of a vehicle in violation of Texas
law was a buglay ofense under section 101(a)(43)(G) of te Act). Applying te modifed
categorica approah pursuat to Descamps v. United States, 133 S. Ct. 22 76 (2013), te
Immigration Judge held tat te Depaent of Homelad Securit ("DHS ") established that te
respondent's conviction was fr a aggravated felony, as defned in section 10l(a)(43)(G), by
submiting a plea colloquy showing tat the respondent was convicted of buglaizing a dwelling
(l.J. at 2; Ex. 5). See 8 C.F.R. 1240.8(a) (stating tat te DHS beas the buden of proving
removability by clea ad convincing evidence). The Immigration Judge also held tat te DHS
demonstated that te respondent categoricaly was convicted of a aggavated felony, as defned
in section 101(a)(43)(F) of te Act, because burglay involves substatia risk of te use of
physical frce (l.J. at 2-3). See 18 U.S. C. 16(b); Leocal v. Ashcrof, 543 U. S. 1, 10 (2004).
Terefre, te Immigation Judge denied te respondent's motion to terinate.
On appea, te respondent contends tat te Immigration Judge erroneously concluded tat
CGSA 53a-103 is divisible under Descamps. We agree. A cr statte is divisible, so as
to wa at application of the modifed categorical inquiry pursuat to Descamps, only if: (1) it
lists multiple discrete ofenses as enuerated ateratives or defes a single ofense by refeence
to disjuctive sets of "elements" more t one combination of which could support a conviction;
ad (2) at least one, but not all, of tose listed ofenses or combinations of disjuctive elements
is a categorical match to te relevat generic stdad. Matter of Chairez, 26 I&N Dec. 349,
353 (BI 2014) (citing Descamps v. United States, supra, at 2281, 2283). CGSA 53a-103
defnes a single ofense (burglay) by refrence to a disjunctive set of elements, more t one
combinion of which could support a conviction (e.g., a building or a vehicle). See CGSA
53a-100(a)(l). However, a state statute ca be divisible into sepaate ofenses uder Descamps
only if state law requires juy uaimity regading te element in question. See
Mater of Chairez, supra, at 354-55.
The DHS, which beas te burden of proof, has not come frwad with ay authorit to
establish the statte's divisibility under Descamps. I one relevat case, a Conecticut cou
stated tat it is well setled tat a motor vehicle is included witin te defnition of "building"
pursuat to CGSA 53a-100(a)(l). State v. Adams, 539 A.2d 1022, 102 7 ( Con. App. 1988).
Thus, te cou rejected te defendat's claim tat his conviction fr trd degee burglay was
based on insufcient evidence of his intent to commit a crime inside a "building" where te
evidence only demonstated his intent to comit a crime inside a vehicle. Id at 1026-27. In
oter words, te juy was not required uaimously to agree that the defndat entered or
remaned unlawlly in a vehicle, as opposed to some other "building" tat was a stcture
included witin Connecticut's defnition of buglay. See id Therefre, we conclude tat te
Immigation Judge was not authorized to consult the respondent's record of conviction to
determine wheter he ulawflly entered a building, as opposed to a vehicle. The DHS tus has
not met its buden of demonstating by clea ad convincing evidence tat te respondent is
removable fr having been convicted of a aggravated felony bugla ofense, as defned in
section 101(a)(43)(G) of te Act.
Concerg te chage under section 101(a)(43)(F) of te Act, a crime of violence may be
defned fr immigration puoses as "ay ofense tat is a flony ad tat, by its natue, involves
a substtial risk tat physical frce against te person or propery of aother may be used in te
2
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Cite as: Kwei Genego, A047 376 145 (BIA Oct. 2, 2014)
A0
4
7 3 76 145
couse of committing the ofense. " 18 U. S. C. 16(b). Te aalysis required uder te
United States Sentencing Guidelines ad the Armed Caeer Crimina Act, considered by te
Supreme Cou in Descamps, difers fom te aalysis required fr deterining whether a crime
aouts to a crime of violence fr imigration purposes. Thus, wheter tird degree bugla
pursuat to CGSA 53a-103 constitutes a generic bugla ofense has no beaing on wheter it
aouts to a aggravated flony crime of violence under the Act. The question presented is
whether a person who commits te ofense of trd degree buglay in violation of CGSA 53a-
103 necessaily disregads te substatial risk tat, in te couse of commiting tat ofense, he
or she will have to use physical frce against te person or propert of aoter. Moreover, te
relevat inquiry is not wheter CGSA 53a-l 03 ca sometimes be violated witout physica
frce being used aganst te person or proper of aother; rater, it is necessa to determine
whether the conduct encompassed by te elements of te ofense presents a substatia risk of
the use of physical frce in the ordina case. See James v. United States, 550 U. S. 192,
208 (200 7); Mater ofU Singh, 25 I&N Dec. 670, 67 7-78 (BIA 2012). As the Cout explained:
[t]he proper inquiry is wheter the conduct encompassed by te elements of te
ofense, in the ord case, presents a serious potential risk of injuy to aother.
One ca aways hyotesize uusual cases in which even a prototypicaly violent
crime might not present a genuine rsk of inu- fr exaple, a attempted
muder where the g, ubeknowst to the shooter, had no bullets. Or . . . one
could imagine a extortion scheme where a aonymous blakmailer treatens to
release emba assing persona inforation about the victim uless he is maled
regula payments. In bot cases, the risk of persona inju to te victim
approahes zero. But that does not mea that the ofenses . . . ae categorically
nonviolent.
James v. United States, supra, at 208.
2
The Immigration Judge acknowledged te respondent's aguent tat the DHS has not
show tat his conviction was fr a crime of violence because altough substtial use of
physical frce is inerent in buglay of a dwelling, it is not inerent in burgla of a vehicle
(l.J. at 3). Yet, he held tat regadless of whether a dwelling or vehicle is involved, buglay
necessaily entals a substatial risk of using physical frce (1.J. at 3). See Leocal v. Ashcrof,
supra, at 10. At te sae time, it is possible t hypothesize cases in which te Conecticut
bugla statte at issue might not present a genuine risk of the use of frce. The statute of
conviction provides: "[a] person is guilty of buglay in te tird degree when he enters or
remains unlawflly in a building with intent to comit a crime therein. " CGSA 53a-103
(emphasis added). Te statute also does not appaently require tat te crime to be commited
2
We note tat te Supreme Cout i James v. United States, supra, addressed te defnition of
"violent flony" uder the Ared Caeer Crimin Act, which refrences te risk of physical
injury to aoter, while the aalysis of a crime of violence under 18 U. S. C. 16(b) fcuses on
te risk of the use of physical/orce. See Leocal v. Ashcrof, supra, at 10 n. 7.
3
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Cite as: Kwei Genego, A047 376 145 (BIA Oct. 2, 2014)
A04 7 3 76145
afer remaining ulawlly in a building (which may be a vehicle, aong other tngs) be a
felony, as opposed to some relatively minor crime. See id.
However, as noted above, the proper inquiry is not whether CGSA 53a-l 03 ca sometimes
(or hypotetically) be violated without physical frce being used aganst the person or proper
of aoter. We will remad fr application of the correct categorical stadad, which
requires determining whether te DHS has show tat "in te ordina case, " a violation of
CGSA 53a-l 03 presents a substatial risk of te use of physical frce aganst the person or
propery of aoter, as necessa to fnd tat the respondent was convicted of a crime of violence
aggravated felony. See James v. United States, supra, at 208.3 On remad, te paes may
submit additional evidence ad aguent perg to ay relevat issue. This may include case
law illustating how CGSA 53a-l 03 has been applied in the ord case.
Accordingly, te fllowing order is entered.
ORDER: The record is remaded fr fher proceedings consistent with ts opinion ad te
entr of a new decision.
OR T BOARD
v
Boad Member Roger A. Pauley concurs in te reversal of the fnding below that te
respondent's conviction constitutes bugla but respectflly dissents fom a remad on te issue
wheter it is a aggravated flony crime of violence. I would afte Im igation Judge on
tis issue ad dismiss the appeal. See Escudero-Arciniega v. Holder, 702 F.3d 781 (5t Cir.
2012) (vehicle buglay is a aggravated felony crime of violence where statte requires
uautorized ent accompaied by intent to commit flony or tef). Any hypotetica violaton
involving remaning uawflly in a vehicle wit intent to commit a crime would not represent
the "ordinay case" ad in ay event would not be without a substatial risk of te use of frce
(e.g., if te vehicle's owner were present or reted).
3 Entering and remaning ulawflly in a building ae altertive meas of violating
CGSA 53a-103, as opposed to altertive elements. See State v. Cote, 46 A.3d 256, 267 ( Con.
App. 2012) ("To convict the defndant of bugla in te tird degee, te state was required to
prove beyond a reasonable doubt tat te defndat entered or remned unlawflly in a buildig
wt intent to commit a crie terein. ") (interal quotation omitted). Terefre, since CGSA
53a-103 is not divisible in tis respect, it is not permissible to consult te respondent's record
of conviction in a modifed categorical aysis to deterine whether he was convicted of
entering or remanng ulawlly. See Mater of Chairez, supra, at 354-55. We ae aso awae
of no autority holding tat the statte is divisible regading the "crime" intended to be
commited aer entering or remaining unlawflly.
4
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Cite as: Kwei Genego, A047 376 145 (BIA Oct. 2, 2014)
U.S. DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRTION COURT
450 MAIN ST., ROOM 628
HARTFORD, CT 06103
In the Matter of: Case No.: A047-376-145
GENEGO, KWEI
IN REMOVAL PROCEEDINGS
RESPONDENT
ORDER OF THE IMMIGRATION JUDGE
Upon the basis of respondent's admissions, I have determined that the
respondent is subject to removal on the charge(s) in the Notice to Appear.
Respondent has made no application for relief from removal.
It is HEREBY ORDERED that the respondent be removed from the United States
to GHANA on the charge(s) contained in the Notice to
Appear.
Any alien against whom a final order of removal is outstanding by reason of
being a member of any of the classes described in INA section 237(a), who
willfu.lly fails or refuses to present himself or herself for removal at the
time and place required by the Attorney General shall be fined and/or
imprisoned for up to ten years. Further, any alien who willfully fails or
refuses to depart from the United States pursuant to inal r moval order
or present for removal at the time and place by the General
shall pay a civil penalty of not more than $ C
day the alien is in violation of this
M c g ati;n s:!
Appeal: NO (A/I/B)
\ y:

aj: Mp 10, 2014
Appeal Due By: Apr 9, 2014

Form EOIR 7 - 4T (REMOVAL Order)
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