...

U.S. Department of Justice

Executive Office for Immigration Review
Board ofImmigration Appeals
Office of the Clerk
5/07 Leesburg Pike, Suite 2000
Falls Church. Virginia 2204 /

OHS/ICE Office of Chief Counsel - KAN

2345 Grand Blvd., Suite 500
Kansas City, MO 64108

Name: LAICER, RAVI SATULO

A 096-675-284
Date of this notice: 10/15/2015

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

DOY1.ltL C

tViA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Geller, Joan B
Cole, Patricia A.
Malphrus, Garry D.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Ravi Satulo Laicer, A096 675 284 (BIA Oct. 15, 2015)

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

Mansori, Hena G
National Immigrant Justice Center
208 South LaSalle Street
Suite 1300
Chicago, IL 60604

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A096 675 284 - Kansas City, MO

In re: RAVI SATULO LAICER

Date:

OCT 15 2015

APPEAL
ON BEHALF OF RESPONDENT: Hena G. Mansori, Esquire
APPLICATION:

Termination of proceedings

This case is before us pursuant to an August 7, 2014, order of the United States Court of
Appeals for the Eighth Circuit granting the government's unopposed motion to remand the
proceedings to the Board. The respondent has filed a supplemental brief on remand and has
requested termination of these proceedings. The respondent's appeal will be sustained.
We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003.l(d)(3)(ii).
The respondent is a native of India, citizen of Tanzania, and a lawful permanent resident of
the United States since 2008. By a Notice to Appear dated June 19, 2013, the respondent was
charged with removability under section 237(a)(2)(A)(iii) of the Immigration and Nationality
Act (Act), 8 U.S.C. 1227(a)(2)(A)(iii), as an alien who has been convicted of an aggravated
felony crime of violence as defined under section 10l(a)(43)(F) of the Act, 8 U.S.C.
1101(a)(43)(F) (Exh. 1). The removal charge was based on the respondent's 2012 conviction
for aggravated battery in violation of Kansas Statutes (K.S.) section 21-3414(a)(2)(A).
On August 15, 2013, the Immigration Judge found the respondent to be removable as
charged, and ineligible for relief from removal. On January 15, 2014, the Board dismissed the
respondent's appeal of the Immigration Judge's decision. Subsequently, the respondent filed
a motion to reconsider which was denied by the Board.
In its motion before the court of appeals, the government requested a remand "for the Board
to reconsider if a conviction under section 21-3414(a)(2)(A) of the Kansas statutes required
proof of intentional or reckless conduct, and any other relevant issues."

Upon our de novo review, we find that the Department of Homeland Security (DHS) has not
met its burden of proving by clear and convincing evidence that the respondent is removable as
charged for having been convicted of an aggravated felony crime of violence as defined under
section 10l(a)(43)(F) of the Act. See section 240(c)(3)(A) of the Act.

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Cite as: Ravi Satulo Laicer, A096 675 284 (BIA Oct. 15, 2015)
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IN REMOVAL PROCEEDINGS

A096 675 284

The Immigration Judge determined, under a modified categorical analysis, that the
respondent pleaded guilty to and was convicted of aggravated battery in violation of K.S. section
21-3414(a)(2)(A) (Exhs. 2a,4f). Neither party disputes this finding.

Under 18 U.S.C. 16(a), an offense is a crime of violence if it "has as an element the use,
attempted use, or threatened use of physical force against the person or property of another."
See also Matter of Velasquez, 25 l&N Dec. 278, 283 (BIA 2010) (physical force must be the
intentional use of violent force that is capable of causing physical pain or injury to another
person).
Under 18 U.S.C. 16(b}, a crime of violence includes "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." The substantial risk referred to in
l 6(b) "relates not to the general conduct or to the possibility that harm will result from
a person's conduct,but to the risk that the use of physical force against another might be required
in committing a crime." Leocal v. Ashcroft, 543 U.S. 1,10 (2004).
The respondent's conviction is not categorically an aggravated felony crime of violence
under 18 U.S.C. 16(a) or (b). K.S. section 21-3414(a)(2)(A), the statute under which the
respondent was convicted, defines an aggravated battery offense as "recklessly causing great
bodily harm to another person or disfigurement of another person." An offense under
K.S. 21-3414(a)(2)(A) is a felony under Kansas and federal law.
As defined in K.S. section 21-3201(c) reckless conduct is in relevant part "conduct done
under circumstances that show a realization of the imminence of danger to the person of another
and a conscious and unjustifiable disregard of that danger." Additionally, the reckless
requirement of reckless aggravated battery does not require a specific state of mind; instead,K.S.
section 21-3201 only requires that a person take an unjustifiable risk which results in a harmful
touching to the person of another. State v. Spicer, 30 Kan. App. 2d 317,324 (2002).
The Eighth Circuit has found that reckless offenses cannot be crimes of violence under
18 U.S.C. 16. See United States v. Torres-Villalobos, 487 F.3d 607, 615-16 (8th Cir. 2007);
see also United States v. Castleman, 134 S. Ct. 1405, 1414 n.8 (2014) (stating that "the Courts of
Appeals have almost uniformly held that recklessness is not sufficient" to satisfy the "use" of
physical force requirement of 18 U.S.C. 16).
Because the statute under which the respondent was convicted requires the offense to have
been committed recklessly, a violation of K.S.A. 21-3414(a)(2)(A) is categorically not a crime of
violence within the meaning of section 10l(a)(43)(F) of the Act. Therefore, the OHS has not
met its burden to establish by clear and convincing evidence that the respondent is removable as

2
Cite as: Ravi Satulo Laicer, A096 675 284 (BIA Oct. 15, 2015)

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

Section 10l(a)(43)(F) of the Act includes in the definition of an aggravated felony "a crime
of violence (as defined in section 16 of title 18, United States Code, but not including a purely
political offense) for which the term of imprisonment (is) at least 1 year." See Matter of S-S-,
21 l&N Dec. 900 (BIA 1997).

A096 675 284

charged under section 237(a)(2)(A)(iii) of the Act for having been convicted of an aggravated
felony crime of violence. See section 240(c)(3)(A) of the Act.
Accordingly, the following orders will be entered.

FURTHER ORDER: The respondent's removal proceedings are terminated.

3
Cite as: Ravi Satulo Laicer, A096 675 284 (BIA Oct. 15, 2015)

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

ORDER: Upon reconsideration, this Board's January 15, 2014, decision is vacated, and the
respondent's appeal is sustained.