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Click here for the full text of this decision FACTS:Noe De Jesus Gonzalez-Garcia was a native and citizen of Mexico, admitted to the United States as a lawful permanent resident. After his admission, in 1986, Gonzalez was convicted of two counts of aiding and abetting the entry of an illegal alien. In 1989, he was convicted in Texas state court of theft of an automobile. Finally, in 1998, Gonzalez was convicted in Texas state court of assault. On April 28, 1998, the Immigration and Naturalization Service (INS) issued a Notice to Appear charging Gonzalez as removable based on the theft conviction, which was identified as a crime of moral turpitude. The INS later filed a supplemental Notice to Appear charging that Gonzalez was removable pursuant to the alien smuggling convictions. During the hearings the immigration judge (IJ) asked Gonzelez if he had been convicted of any other crimes beside those alleged. Gonzalez admitted that he had been convicted for “push[ing]” his wife. After the hearings, the IJ found that the theft conviction was a crime of moral turpitude, rendering Gonzalez removable pursuant to 8 U.S.C. �1227(a)(2)(A)(i). The IJ also found that Gonzalez was removable under �1227 (a)(1)(E)(i) for his alien smuggling convictions. Gonzalez asserted that he was eligible for waiver of deportation pursuant to the Immigration and Nationality Act (INA) �212(c) or for cancellation of removal under 8 U.S.C. �1229b(a)(2). The IJ denied relief, concluding that the car theft conviction interrupted the seven years of continuous presence needed for cancellation of removal. Gonzalez petitioned the court to review the final order of removal issued by the Board of Immigration Appeals (BIA). The BIA initially affirmed the IJ’s order removing Gonzalez based on his 1985 and 1986 convictions and remanded to the IJ to consider his claim for discretionary relief pursuant to INA �212(c). On remand the immigration judge ordered Gonzalez removed based on a 1998 Texas assault conviction. The IJ concluded Gonzalez was not entitled to discretionary relief because the conviction was a crime of violence (COV) that occurred after the effective dates of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA). HOLDING:Order reinstated and cause remanded. Gonzalez contends that his Texas assault conviction does not constitute a crime of violence as defined by 18 U.S.C. �16. He maintains that the assault offense for which he was convicted did not have as an element the intentional use of physical force. Section 16 defines crime of violence as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” or a felony offense that involves a substantial risk that physical force will be used against the person or property of another. To determine whether an offense is a COV, the court reviews whether a defined offense is, in the abstract, a COV without looking to the underlying facts of the conviction. Because the offense of assault could be committed without the use of physical force, the court agrees that this offense does not qualify as a COV. The court states that, while a “harmful” touching likely involves as an element the use, attempted use or threatened use of destructive or violent force against the person of another necessary to quality for a crime of violence sentence enhancement, an “offensive” touching may not involve such an element. The court therefore reasons that “offensive or provocative contact” does not necessarily involve the use of physical force and that subsection (a)(3) of the Texas assault statute does not constitute a COV, and Gonzalez is not removable for that offense. Because Gonzalez is not removable for committing a crime of domestic violence, the court goes on to address whether he is entitled to present his claim for 212(c) relief or cancellation of removability. The court determines that because Gonzalez is not removable pursuant to the offense of assault, he is entitled to have his claim for discretionary relief considered by the BIA. Accordingly, the court reinstates the BIA’s original order of removal based on the 1985 and 1986 convictions and remands the case to the BIA for consideration of Gonzalez’s claim for discretionary relief. OPINION:Davis, J.; Davis, Smith and Dennis, JJ.

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