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In this unpublished decision, the Board of Immigration Appeals (BIA) terminated proceedings upon finding aggravated burglary under Tenn. Code Ann. 39-14-403 is not an aggravated felony under INA 101(a)(43)(G). The Board noted that burglary under Tennessee law is broader than the generic federal definition because a "habitation" can include vehicles. The decision was written by Member Anne Greer and joined by Member John Guendelsberger and Member Roger Pauley.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) terminated proceedings upon finding aggravated burglary under Tenn. Code Ann. 39-14-403 is not an aggravated felony under INA 101(a)(43)(G). The Board noted that burglary under Tennessee law is broader than the generic federal definition because a "habitation" can include vehicles. The decision was written by Member Anne Greer and joined by Member John Guendelsberger and Member Roger Pauley.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) terminated proceedings upon finding aggravated burglary under Tenn. Code Ann. 39-14-403 is not an aggravated felony under INA 101(a)(43)(G). The Board noted that burglary under Tennessee law is broader than the generic federal definition because a "habitation" can include vehicles. The decision was written by Member Anne Greer and joined by Member John Guendelsberger and Member Roger Pauley.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
BATON ROUGE, LA 70808 Name: LLOYD, SAMUEL JOHN PHILIP U.S. Department of Justice Executive Ofice fr Immigration Review Board o. f /111111igratio11 Appeals Ofice o. f the Chief Clerk 5107 Leesburg Pike. Suite 2000 Falls Church, Virginia 20530 OHS/ICE OFFICE OF CHIEF COUNSEL-OAK P.O. BOX 1128 OAKDALE, LA 71463-1128 A029-971-939 Date of this Notice: 0412812014 Enclosed is a copy of the Board's decision and order in the above-referenced case. Enclosure Panel Members: Greer, Anne J. Guendelsberger, John Pauley, Roger A. Sincerely, Donna Carr Chief Clerk For more unpublished BIA decisions, visit www.irac.net/unpublished I m m i g r a n t
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w w w . i r a c . n e t Cite as: Samuel John Philip Lloyd, A029 971 939 (BIA Apr. 28, 2014) U.S. Deparent of Justce Executive Ofce fr Imigation Review Decision of te Boad of Imigation Appeals Falls Church, Virginia 20530 File: A029 971 939 - Oakdae, LA In re: SAMUEL JOH PHILIP LLOYD I REMOVAL PROCEEDINGS APPEAL Date: ON BEHF OF RESPONDENT: Jaes Andrew Spokes, Esquire ON BEHALF OF DHS: CHGE: Cassie A. Togersen Assistat Chief Counsel APR 2 8 Z014 Notce: Sec. 237(a)(2)(A)(iii), l&N Act [8 U.S.C. 1227(a)(2)(A)(iii)J - Convicted of aggavated felony APPLICATION: Termination of proceedings Te respondent appeals the Immigration Judge's November 14, 2013, decision fnding h removable a chaged and ordering h removed fom te United States. The appea will be sustained, ad the proceedings will be terminated. On appeal, the respondent contends that the Immigation Judge ered in determining that his September 20, 2010, conviction fr the ofense of aggavated buglay in violation of Tenessee Code Annotated section 39-14-403, is a aggavated felony under section 10l(a)(43)(G) of te Imgaton ad Natonality Act, 8 U.S.C. 1101(a)(43)(G) (.J. at 2-3). See Respondent's Bref at 5-7. I ts regad, te respondent agues, inter a/ia, te Igaton Judge ered f fnding tat his conviction falls within the generic meaning of a "burglay" becaue of te overly broad deftion of the ter "habitation" a used in the Tennessee statte which includes, inter alia, vehicles. See id. Te respondent was convicted under section 3 9-14-403 of the Tenessee Code defng "aggavated burglay" as a "burglary of a habitation as defned" by sections 39-14-401 ad 402 of the Tennessee Code. Section 39-14-401 defnes "habitation" to include "ay stucture, including buildings, module units, mobile homes, tailers, and tents, which is defned or adapted fr overght accommodation of persons." See T.C.A. 39-14-401(l)(A). It also defnes 'habitation" to include "a self-propelled vehicle tat is designed or adapted fr the overght accomodation of persons," and "each separately secured or occupied portion of te stcte or vehicle ad each stucture appurenant to or connected with the stucture of vehcle." See T .C.A. 39-14-401(l)(B) ad (C). I addition, te "Comments of the Tenessee Sentencing Commission" that accompany section 39-14-403 of te Tennessee Code provide that "[t]he ter 'habitation,' . . . is broader tha 'building' because it includes vehicles and stctures other tha buildings." See id. I m m i g r a n t
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w w w . i r a c . n e t Cite as: Samuel John Philip Lloyd, A029 971 939 (BIA Apr. 28, 2014) A029 971 939 The basic elements of a generic burglary offense are: ( 1) unlawfl or unprivileged entry into, or remaining in; (2) a building or other structure; (3) with the intent to commit a crime. See Talor v. United States, 495 U.S. 575, 598 (1990); see also Lopez-Elias v. Reno, 209 F.3d 788 (5th Cir. 2000); Matter of Perez, 22 l&N Dec. 1325 (BIA 2000). The Tennessee statute under which the respondent was convicted includes, inter alia, vehicles in its definition of "habitation." The record of conviction in this case does not clarif what type of "habitation" was the subject of the respondent's conviction (Exh. 3). As such, the Department of Homeland Security has not estalished the respondent's removability as charged based on a conviction for an aggravated felony burglary ofense, as defned by section 101(a)(43)(G) of the Act, on the basis of the evidence presented. Accordingly, the appeal will be sustained, and the proceedings will be terminated. ORDER: The appeal is sustained, and the proceedings are terminated.
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w w w . i r a c . n e t Cite as: Samuel John Philip Lloyd, A029 971 939 (BIA Apr. 28, 2014)