BOSTON (CN) — The First Circuit this week canceled the deportation of a 30-year resident of the United States, rejecting a Board of Immigration Appeals ruling that assault and battery with a “dangerous weapon,” which can be a “common object,” is necessarily a crime of moral turpitude.
The Monday ruling vacating the removal order against Joao Lopes Coelho and remanding with instructions to the Board of Immigration Appeals does not indicate Lopes’ nation of origin. Joao is a Portuguese-language name.
He entered the United States without inspection in 1986 and has lived here ever since, and has a U.S. citizen son. In 1996, he pleaded guilty to assault with a deadly weapon against his wife. Neither the weapon nor any other details of the incident are provided in First Circuit Judge Sandra Lynch’s ruling for the unanimous three-judge panel.
At issue is whether the Board of Immigration Appeals (BIA) committed reversible error when it upheld the immigration judge’s ruling that the Massachusetts crime of assault with a deadly weapon is necessarily a crime of moral turpitude under the Immigration and Nationality Act, codified and amended in “scattered sections” of 8 U.S.C.
Throughout the 15-page ruling, Lynch refers to a crime involving moral turpitude as a CIMT and assault and battery with a deadly weapon as ABDW.
The Department of Homeland Security did not begin removal proceedings against Lopes until 2010, after an immigration judge ruled, and ruled again on reconsideration, that assault with a deadly weapon “is categorically a CIMT because of the presence of an aggravating element, namely the use of a dangerous weapon,” Lynch wrote.
She continued: “The IJ further acknowledged that Massachusetts case law defines ‘dangerous weapon’ to include ‘common objects,’ but noted that this definition ‘should not be a determinative factor because it is the defendant’s use of the object in a dangerous manner which is the vile act.’”
The BIA rulings came after Lopes sought cancellation of removal, conceding that he is “removable,” but seeking discretionary relief, due to exceptional and extreme hardship to his son.
Neither the immigration judge nor the BIA accepted it, but the First Circuit vacated the BIA ruling and remanded with instructions to consider whether assault and battery with a deadly weapon, as defined in Massachusetts, is necessarily a crime of moral turpitude.
Lopes and his attorneys argue that his crime was the result of reckless behavior, and under Massachusetts law, one need not understand the repercussions of his or her actions for them to be deemed criminally reckless.
“Simply put, we are left with too many questions about the BIA’s thinking on the mental state required for a Massachusetts reckless ABDW conviction and cannot proceed with reviewing the BIA’s CIMT determination before those questions are resolved,” Lynch wrote.
Joining Lynch on the panel were First Circuit Judges Juan Torruella and William Kayatta Jr.
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