RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 23a0097p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ MARIO BANUELOS-JIMENEZ, │ Petitioner, │ > No. 22-3331 │ v. │ │ MERRICK B. GARLAND, Attorney General, │ Respondent. │ ┘ On Petition for Review from the Board of Immigration Appeals; No. A 200 684 221. Decided and Filed: May 10, 2023 Before: GILMAN, McKEAGUE, and GRIFFIN, Circuit Judges. _________________ COUNSEL ON BRIEF: Nathan R. Bogart, BOGART, SMALL + ASSOCIATES, Fayetteville, Arkansas, for Petitioner. Rebekah Nahas, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. GRIFFIN, J., delivered the opinion of the court in which McKEAGUE, J., joined. GILMAN, J. (pp. 9–14), delivered a separate dissenting opinion. _________________ OPINION _________________ GRIFFIN, Circuit Judge. Petitioner Mario Banuelos-Jimenez petitions for review of the Immigration Judge’s and Board of Immigration Appeal’s (BIA’s) decisions denying cancellation of removal. The immigration judge concluded, and the BIA affirmed, that his state conviction for third-degree No. 22-3331 Banuelos-Jimenez v. Garland Page 2 assault on a family member was a crime of violence and, therefore, he was statutorily ineligible for cancellation of removal. We agree and deny the petition for review. I. Banuelos-Jimenez, a native and citizen of Mexico, arrived in the United States in 1999. The Department of Homeland Security began removal proceedings against him in 2010, but those proceedings were administratively closed and re-calendared at the Department’s request. Then in 2017, Arkansas police arrested Banuelos-Jimenez following a “screaming” incident with his wife. He was charged with, and pleaded guilty to, third-degree assault on a family or household member, Ark. Code Ann. § 5-26-309. The DHS subsequently re-initiated removal proceedings in 2018. Banuelos-Jimenez applied for cancellation of removal. The Immigration Judge denied his application, concluding that the Arkansas statute was a crime of violence: Banuelos-Jimenez acted at least recklessly and “crimes of violence encompass not only crimes that require specific intent but also . . . engage in reckless conduct.” Administrative Record, p. 67. Banuelos- Jimenez appealed, and the BIA affirmed. Despite an intervening change in law when the Supreme Court held that a crime of violence does not encompass reckless conduct, see Borden v. United States, 141 S. Ct. 1817 (2021), the BIA nevertheless concluded that Banuelos-Jimenez’s conviction was a crime of violence—his conduct was also purposeful and, thus, necessarily involved a threat of force capable of causing physical pain or injury. This petition for review followed. II. We review questions of law de novo, including whether a prior offense constitutes a crime of violence under 18 U.S.C. § 16. Van Don Nguyen v. Holder, 571 F.3d 524, 528 (6th Cir. 2009). “Where the BIA reviews the immigration judge’s decision and issues a separate opinion, rather than summarily affirming the immigration judge’s decision,” as happened here, “we review the BIA’s decision as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). No. 22-3331 Banuelos-Jimenez v. Garland Page 3 Banuelos-Jimenez is eligible for cancellation if he meets certain criteria, among …
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