V-A-K


Cite as 28 I&N Dec. 630 (BIA 2022) Interim Decision #4051 Matter of V-A-K-, Respondent Decided August 17, 2022 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals A conviction for second degree burglary of a dwelling under section 140.25(2) of the New York Penal Law is categorically a conviction for generic burglary under section 101(a)(43)(G) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(G) (2018), because the statute requires burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation. United States v. Stitt, 139 S. Ct. 399 (2018), followed. FOR THE RESPONDENT: Anne E. Doebler, Esquire, Buffalo, New York FOR THE DEPARTMENT OF HOMELAND SECURITY: Sydney V. Probst, Assistant Chief Counsel BEFORE: Board Panel: WILSON, GOODWIN, and GORMAN, Appellate Immigration Judges. GOODWIN, Appellate Immigration Judge: In a decision dated February 11, 2020, an Immigration Judge found that the respondent was not removable as charged under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii) (2018), for having been convicted of an attempted aggravated felony burglary offense under sections 101(a)(43)(G) and 101(a)(43)(U) of the INA, 8 U.S.C. § 1101(a)(43)(G) and (U) (2018), and granted his application for cancellation of removal for certain permanent residents under section 240A(a) of the INA, 8 U.S.C. § 1229b(a) (2018). 1 The Department of Homeland Security (“DHS”) has appealed from this decision. 2 The respondent has filed a brief in opposition to DHS’ appeal. 1 The Immigration Judge also determined that the respondent was removable for having been convicted of two or more crimes involving moral turpitude under section 237(a)(2)(A)(ii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(ii). The respondent has not challenged that finding, and thus the issue is not before us. 2 The Immigration Judge also determined that the respondent was not removable for having been convicted of an aggravated felony crime of violence under sections 101(a)(43)(F) and 237(a)(2)(A)(iii) of the INA, 8 U.S.C. §§ 1101(a)(43)(F) and 1227(a)(2)(A)(iii). DHS has not meaningfully challenged that finding and thus appeal of that issue is waived. See, e.g., Matter of D-G-C-, 28 I&N Dec. 297, 297 n.1 (BIA 2021). 630 Cite as 28 I&N Dec. 630 (BIA 2022) Interim Decision #4051 The appeal will be sustained, and the respondent will be ordered removed from the United States. I. FACTUAL AND PROCEDURAL HISTORY The respondent is a native and citizen of Ukraine 3 who is a lawful permanent resident of the United States. On February 10, 2017, the respondent was convicted of attempted burglary in the second degree in violation of sections 110.00 and 140.25(2) of the New York Penal Law and was sentenced to 2 years in prison. He was placed in proceedings, and the Immigration Judge found him to be removable and granted his application for cancellation of removal for certain permanent residents pursuant to section 240A(a) of the INA, 8 U.S.C. § 1229b(a). As the respondent’s removability has been established, it is the respondent’s burden to establish eligibility …

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals