Matter of CANCINOS-MANCIO, 28 I&N Dec. 708 (BIA 2023)

Matter of CANCINOS-MANCIO, 28 I&N Dec. 708 (BIA 2023) 

Matter of CANCINOS-MANCIO, 28 I&N Dec. 708 (BIA 2023) – Under the modified categorical approach, an Immigration Judge may consider the transcript of a plea colloquy in determining the factual basis of a plea. “The transcript of the respondent’s change of plea hearing demonstrates that the factual basis for the respondent’s amended plea was for an aggravated assault with a deadly weapon under section 13-1204(A)(2) of the Arizona Revised Statutes, in which the underlying assault was committed by intentionally placing another person in reasonable apprehension of imminent physical injury under section 13-1203(A)(2). The respondent contends that this offense does not require the level of force necessary to constitute a crime of violence pursuant to 18 U.S.C. § 16(a).

The Ninth Circuit, however, has held that a conviction for aggravated assault under sections 13-1203(A)(2) and 13-1204(A)(2) of the Arizona Revised Statutes does categorically constitute a crime of violence under 18 U.S.C. § 16(a). Cabrera-Perez, 751 F.3d at 1007.

As the respondent’s offense qualifies as a crime of violence under 18 U.S.C. § 16(a), for which he was sentenced to 3.5 years in prison, we affirm the Immigration Judge’s conclusion that the respondent is removable under section 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony crime of violence. Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.