BIA Vacates Order of DeportationPublished: Jun 19, 2007 By: Matthew L. Kolken Source: My Source
The Immigration Judge (IJ) in Buffalo found that his conviction, a mere violation, and a lesser crime than simple assualt, consituted a crime of violence. NYSPL §240.26 is a divisible statute.
The IJ, relying upon a police report, found that my client was convicted under subsection (1) of NYSPL §240.26, which requires an individual with the intent to harass, annoy, or alarm another person to stike, shove, kick, or otherwise subject an individual to physical contact, or attempt or threaten to do the same.
On appeal I argued that the IJ erred in finding that the Respondent conceded removability under subdivision (1) of NYSPL §240.26, when no such concession was made by my client, where the certificate of conviction did not set forth which of the three subdivisions of the statute my client was convicted under, and there was no other proof before the Court that indicated which subdivision he was convicted under.
The Board of Immigration Appeals agreed, sustaining our appeal, vacating the IJ's order of removal, and terminated removal proceedings.