United States Court of Appeals For the Eighth Circuit ___________________________ No. 16-2164 ___________________________ Daniel Oginga Onduso lllllllllllllllllllllPetitioner v. Jefferson B. Sessions, III, Attorney General of the United States lllllllllllllllllllllRespondent ___________________________ No. 17-1526 ___________________________ Daniel Oginga Onduso lllllllllllllllllllllPetitioner v. Jefferson B. Sessions, III, Attorney General of the United States lllllllllllllllllllllRespondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: October 18, 2017 Filed: December 20, 2017 ____________ Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges. ____________ GRUENDER, Circuit Judge. Daniel Onduso petitions for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal of a removal order. The BIA correctly determined that Minnesota misdemeanor domestic assault qualifies as a crime of domestic violence and, accordingly, that Onduso’s conviction for this offense rendered him ineligible for cancellation of removal. Therefore, we deny the petition. Onduso, a native and citizen of Kenya, legally entered the United States as a temporary visitor in January 1999. He overstayed his six-month visa and has resided here unlawfully ever since. On June 8, 2009, the Department of Homeland Security commenced removal proceedings against Onduso by issuing a Notice to Appear (“NTA”), charging him as removable for remaining in the United States for a period longer than permitted. See 8 U.S.C. § 1227(a)(1)(B). After a series of proceedings not relevant here, an immigration judge (“IJ”) found Onduso removable as charged in the NTA and ineligible for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1)(C), due to his 2004 Minnesota conviction for domestic assault. See Minn. Stat. § 609.2242, subd. 1. On appeal, the BIA rejected Onduso’s claim that this misdemeanor offense does not categorically qualify as a “crime of domestic violence” based on its analysis of Minnesota case law and our relevant crime-of- violence determination in United States v. Salido-Rosas, 662 F.3d 1254, 1256 (8th Cir. 2011) (concluding that “[k]nowingly or purposely causing or attempting to cause -2- bodily injury or making another person fear imminent bodily harm necessarily requires using, attempting to use, or threatening to use physical force”). Onduso then filed a motion to reconsider, arguing that the BIA’s analysis was “starkly in opposition” to in its approach in Matter of Guzman-Polanco I, 26 I&N Dec. 713 (B.I.A. 2016). In that case, which arose in the First Circuit, the BIA held that Puerto Rico third-degree battery was not a crime of violence because it could be committed “by means that do not require the use of violent physical force,” such as by poisoning a victim. See id. at 717-18. Applying similar logic, Onduso argued that Minnesota misdemeanor domestic assault did not categorically qualify as a crime of domestic violence under 8 U.S.C. § 1227(a)(2)(E)(i). In ruling on Onduso’s motion, the BIA first observed that “[t]he record . . . does not specify whether [he] violated subsection 1 or subsection 2” of Minn. Stat. § 609.2242, subd. 1. It went on to conclude, however, that this ambiguity was irrelevant, as both subsections categorically qualify as crimes of ...
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