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Roberts v. Holder

United States Court of Appeals, Eighth Circuit

March 20, 2014

Shaun M. Roberts, Petitioner
v.
Eric H. Holder, Jr., Attorney General of the United States, Respondent

Submitted October 23, 2013.

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

For Shaun M. Roberts, Petitioner: Marcus Anton Jarvis, Jarvis Law Firm, Burnsville, MN.

For Eric H. Holder, Jr., Attorney General of the United States, Respondent: Scott Baniecke, U.S. Immigration & Naturalization Service, Bloomington, MN; David V. Bernal, Yedidya Cohen, Karen Yolanda Drummond, Ilissa M. Gould, Carl H. McIntyre, Anthony Cardozo Payne, U.S. Department of Justice, Ben Franklin Station, Washington, DC.

Before BYE, SMITH, and BENTON, Circuit Judges.

OPINION

Page 929

PER CURIAM.

Petitioner Shaun Roberts seeks review of a decision of the Board of Immigration Appeals (BIA) affirming the decision of an immigration judge (IJ) ordering Roberts's removal. The IJ found Roberts statutorily ineligible for cancellation of removal, because he concluded that Roberts's prior conviction for aiding and abetting third-degree assault was an " aggravated felony." Conviction for an " aggravated felony" renders him ineligible for cancellation of removal or waiver of inadmissibility pursuant to 8 U.S.C. § 1182(h). Roberts challenges that finding on two grounds. First, he argues that his prior conviction is not an " aggravated felony." Second, he contends that even if his conviction is an " aggravated felony," the ineligibility provisions of § 1182(h) do not apply to him, because he is seeking an adjustment of status, rather than admission. For the reasons stated below, we deny the petition for review.

I. Background

Shaun Roberts is a native and citizen of the Bahamas. At the age of nine, he entered the United States as a non-immigrant visitor. Two years later, he adjusted his status to Lawful Permanent Resident (LPR). Now age 42, Roberts resides in Minnesota and has not left the United States since his entry.

Roberts has two criminal convictions relevant to this appeal. In 1989, he was convicted of second-degree burglary, in violation of Minnesota Statutes Annotated § 609.582. In 2000, he pleaded guilty to third-degree assault, on an aiding and abetting theory, in violation of Minnesota Statutes Annotated § 609.223 subdivision 1.

In 2011, the Department of Homeland Security (DHS) served Roberts with a Notice to Appear in immigration court. DHS charged Roberts with removability on two bases. First, he was charged as removable for having committed two post-admission crimes involving moral turpitude, pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii). Second, he was charged as removable for having committed a post-admission " aggravated felony, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). In response, Roberts applied for cancellation of removal under 8 U.S.C. § 1229b(a), adjustment of status under 8 U.S.C. § 1255, and a waiver of inadmissibility under 8 U.S.C. § 1182(h).

The IJ found Roberts removable as charged and ordered his removal. The IJ concluded that third-degree assault, as defined by Minnesota law, is an " aggravated felony." Specifically, the IJ found that third-degree assault is a categorical " crime of violence" under 18 U.S.C. § 16(a). That conviction rendered Roberts ineligible for both cancellation of removal and a § 1182(h) waiver of inadmissibility. Roberts appealed to the BIA. The BIA affirmed the IJ, concluding that third-degree assault is a categorical " crime of violence"

Page 930

under 18 U.S.C. ยง 16(b). Roberts ...


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