Raad Al-Masaudi v. Merrick Garland, No. 21-2166 (8th Cir. 2022)
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Petitioner petitions for review of a decision of the Board of Immigration Appeals denying his application for relief from removal to Iraq. The Eighth Circuit concluded that there is no basis to set aside the decision of the Board, and denied the petition for review.
Petitioner first challenges the Board’s conclusion that he is removable under 8 U.S.C. Section 1227(a)(2)(E)(i) as an alien convicted of a crime of child abuse. Congress did not define “crime of child abuse,” but the Board has defined the term in a series of precedential decisions, and Petitioner does not challenge the agency’s definition. The court explained that under the categorical approach the court considers whether the elements of the offense necessarily fit within the Board’s generic definition. The court wrote that it does not examine the specific facts of Petitioner’s case, but instead presumes that his conviction rested on the least of the acts criminalized by the Nebraska statute. Moncrieffe v. Holder, 569 U.S. 184 (2013).
Further, the court held that the Board reasonably concluded that the lesser charge did not diminish the gravity of the crime to the point where an offense involving serious bodily injury to a six-month-old was not particularly serious. The Board did not abuse its discretion in concluding that Petitioner was convicted of a particularly serious crime. Moreover, the court wrote that to the extent that Petitioner also challenges the Board’s weighing of the evidence in affirming the IJ’s decision, this court lacks jurisdiction to review the Board’s discretionary determination.
Court Description: [Colloton, Author, with Wollman and Shepherd, Circuit Judges] Petition for Review - Immigration. The Board of Immigration Appeals did not err in concluding that petitioner's offense of conviction -negligent child abuse resulting in serious injury in violation of Neb. Rev. Stat. Sec. 28-707(1), (5) -was categorically a crime of child abuse; the Board did not err in concluding petitioner was convicted of a particularly serious crime; the Board reviewed the IJ's denial of cancellation of removal by expressly adopting the IJ's reasons for denying the application; petitioner failed to show it was more likely than not he would be detained and tortured on the basis of his U.S. crimes if he returned to Iraq.
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