U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Q[fice of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church. Virginia 22041

DHS LIT.Nork Co. PrisonNOR

3400 Concord Road
York, PA 17402

Name: JOHNSON, HOWARD ANTHONY

A 055-559-497
Date of this notice: 10/17/2016

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

DOwtL Ca.;vu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Geller, Joan B
Guendelsberger, John

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Howard Anthony Johnson, A055 559 497 (BIA Oct. 17, 2016)

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Smolens, Susan
Susan R. Smolens, Esq., P.C.
P.O. Box 491
Wayne, PA 19087

U.S. Department of Justice

Executive Office for Immigration Review
Board ofImmigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS LIT.Nork Co. PrisonNOR

3400 Concord Road
York, PA 17402

Name: JOHNSON, HOWARD ANTHONY

A 055-559-497
Date of this notice: 10/17/2016

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 30 days of the date of the decision.
Sincerely,

bon.rtL

{!t1/VL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:

Pauley, Roger
Geller, Joan 8
Guendelsberger. John

Userteam:

Cite as: Howard Anthony Johnson, A055 559 497 (BIA Oct. 17, 2016)

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JOHNSON, HOWARD ANTHONY

A055-559-497
c/o YORK COUNTY
3400 CONCORD ROAD
YORK, PA 17402

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A055 559 497 - York, PA

Date:

In re: HOWARD ANTHONY JOHNSON

OCT 1 7 2016

APPEAL
ON BEHALF OF RESPONDENT: Susan R. Smolens, Esquire
ON BEHALF OF DHS: Maureen C. Gaffney
Assistant Chief Counsel
CHARGE:
Notice: Sec.
Sec.

237(a)(2)(C), I&N Act [8 U.S.C. 1227(a)(2){C)] Convicted of firearms or destructive device violation (sustained)
237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony as defined in section 101(a)(43)(F) of the
Act

APPLICATION: Remand

The respondent, a native and citizen of Jamaica, timely appeals from the Immigration
Judge's June 3, 2016, decision. In that decision, the hnmigration Judge found him removable as
charged above, and ordered him removed from the United States to Jamaica. The Department of
Homeland Security ("OHS") opposes the appeal. The record will be remanded.
The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony and the likelihood of future events, under the "clearly erroneous"
standard. 8 C.F.R. 1003.l(d)(3)(i). See Matter ofZ-Z-0-, 26 I&N Dec. 586 (BIA 2015). The
Board reviews questions of law, discretion, and judgment and all other issues in appeals from
decisions oflmmigration Judges de novo. 8 C.F.R. 1003.l(d)(3)(ii).
The respondent was convicted on May 4, 2015, in a Pennsylvania criminal court pursuant to
a negotiated guilty plea to first degree felony aggravated assault in violation of 18 PA. Cons. Stat.
2702(a) (2015]. He was sentenced to a term of imprisonment of 2 - 5 years (Exhs. 2-D, 2-F).
18 PA. Const. Stat. 2702(b) provides, in pertinent part, that aggravated assault under
subsection (a)(l), (2) and (9) is a felony of the first degree. The issue is whether this is an
aggravated felony under section I0l(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C.
110l(a)(43)(F) (the term "aggravated felony" means a crime of violence (as defined in 18
U.S.C. 16) for which the term of imprisonment is at least I year). Section 16 of title 18, United
States Code provides that the term "crime of violence" means (a) an offense that has "as an
element the use, attempted use, or threatened use of physical force against the person" or
Cite as: Howard Anthony Johnson, A055 559 497 (BIA Oct. 17, 2016)

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IN REMOVAL PROCEEDINGS

A055 559 497

Even assuming that the statute is divisible, see Mathis v. United States, 136 S. Ct. 2243
(2016), we cannot tell from the record of conviction under which subsection or subsections the
respondent was convicted, inasmuch as the conviction was the result of a negotiated plea after
the complaint was filed alleging certain facts. Under the modified categorical approach, we
cannot go any further. See Mathis v. United States, supra. The respondent remains removable
on the firearms violation charge. The record will be remanded to the Immigration Judge to make
a new determination whether the respondent's aggravated assault offense constitutes a crime of
violence. Should the Immigration Judge determine that the offense is not a crime of violence,
then the respondent should be given an opportunity to apply for any relief from removal for
which he may be eligible.
Accordingly, the following orders will be entered.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new decision.

FOR THE BOARD

We observe that the United States Court of Appeals for the Third Circuit has not to date issued
a published decision finding 18 U.S.C. I6(b) to be unconstitutionally vague. This issue is now
before the United States Supreme Court. See Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir.
2015), cert. granted, 2016 WL 3232911 (U.S. Sept. 29, 2016) (No. 15-1498). It is well settled
that the Board does not have the authority to rule on the constitutionality of the statutes which we
administer. Matter of Cruz De Ortiz, 25 I&N Dec. 601, 605 (BIA 2011).

2
Cite as: Howard Anthony Johnson, A055 559 497 (BIA Oct. 17, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

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." 1 The Pennsylvania criminal statute is not categorically a
crime of violence because not all of the subsections contain crimes which are crimes of violence.
See Mathis v. United States, 136 S. Ct. 2243, 2253-54 (2016) (the only use of the modified
categorical approach the Court has ever allowed is to determine which element[s] played a part
in the defendant's conviction).

.
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
YORK, PENNSYLVANIA

In the Matter of

HOWARD ANTHONY JOHNSON

RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

237(a){2){C), 237{a)(2){A)(iii)

CHARGES:
APPLICATIONS:

ON BEHALF OF RESPONDENT: Susan Smolens, Esquire

ON BEHALF OF DHS: Corine Gaffney, Assistant Chief Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE

Respondent's a 29-year-old male alien, native citizen of Jamaica. He was
admitted as a permanent resident in June of 2003 at the age of 16. He was placed into
removal proceedings by issuance of a Notice to Appear Form 1-862 on December 28th,
2015. Respondent conceded the allegations, denied the aggravated felony.
Respondent's conviction for aggravated assault at 18 Pa. C.S. 2702(a)
where he received a term of imprisonment of 2.5 to five years, the court finds it
constituted an aggravated felony crime of violence as defined in INA Section
101 (a)(43)(F).

Immigrant & Refugee Appellate Center, LLC | www.irac.net

June 3, 2016

File: A055-559-497

In this regard, the court concurs with government counsel in its brief. The
court has also reviewed respondent's brief. Respondent in essence argued that the

reckless infliction of physical force. But the court disagrees. In dealing with the
definition of crime of violence under Title 18 U.S. Code Section 16(b), the least culpable
conduct really has no bearing. However, under 16(b) the court is to look at the
elements of the offense and determine if there's substantial risk that physical force may
be used in the course of committing that offense. See Aguilar v Attorney General, 663
F.3d 692 (3rd Cir. 2011) where the 3rd Circuit held at least in part that Section 16{b)
was crafted to include crimes that by their nature involve substantial risk of physical
force may be used in committing the offense and that 16(b) does not require like 16(a)
that actual force be an element of the offense. This follows the Supreme Court's
decision in Leocal v. Ashcroft, 543 U.S. 1 (2004). There, the Supreme Court held as
government counsel points out in its brief that a felony DUI offense is not a crime of
violence under Section 16(b) of the federal code. As interpreted by the 3rd Circuit, the
takeaway from Leocal is that 16(b) requires an analysis into its nature, and if there is a
substantial risk that force could be used within the context of that crime then we have a
crime of violence. We do not look at the crime's mens rea.
Accordingly, the court must concur with government counsel that the
government counsel met its burden of proof by clear and convincing evidence and the
respondent's conviction for Pennsylvania aggravated assault does constitute a crime of
violence under 18 U.S. Code Section 16(b).
Based upon the foregoing, the following orders are hereby entered:

ORDERS

AOSS-559-497

June 3, 2016

Immigrant & Refugee Appellate Center, LLC | www.irac.net

least culpable conduct standard is to be applied in this case, which would be the

The respondent is hereby ordered removed from the United States to

Jamaica.

signature

AOSS-559-497

WALTER A. DURLING
Immigration Judge

June 3, 2016

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Please see the next page for electronic

. '

/Is//
Immigration Judge WALTER A. DURLING

AOSS-559-497

Immigrant & Refugee Appellate Center, LLC | www.irac.net

durlingw on July 14, 2016 at 1:52 PM GMT

June 3, 2016