Gustavo Aldunate Morales v. Jefferson Sessions III

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-1718 GUSTAVO ADEMAR ALDUNATE MORALES, Petitioner, v. JEFFERSON B. SESSIONS III, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: May 10, 2018 Decided: June 8, 2018 Before DUNCAN and AGEE, Circuit Judges, and SHEDD, Senior Circuit Judge. Petition for review denied by unpublished per curiam opinion. ARGUED: Alfred Lincoln Robertson, Jr., ROBERTSON LAW OFFICE, PLLC, Alexandria, Virginia, for Petitioner. Anna Juarez, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Chad A. Readler, Acting Assistant Attorney General, Melissa Neiman-Kelting, Assistant Director, Melissa K. Lott, Civil Division, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Petitioner Gustavo Ademar Aldunate Morales, a native and citizen of Bolivia and a Lawful Permanent Resident of the United States, pleaded guilty under Virginia law to misdemeanor driving while intoxicated (DWI) and felony failure to appear. After he completed his incarceration and probation, the Department of Homeland Security (“DHS”) determined he was removable under the Immigration and Nationality Act (“INA”) for previously failing to appear for his trial in Virginia. See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(T). Aldunate argued he was not removable under the INA for his Virginia crime. The immigration judge (“IJ”) agreed with DHS, Aldunate appealed to the Board of Immigration Appeals (“BIA”), and the BIA dismissed the appeal. Because we conclude the BIA did not err, we deny the petition for review. I. In 2004, Aldunate was indicted in Virginia for driving while intoxicated and causing serious bodily injury to another person (DWI-maiming). On March 18, he signed an Appearance at Trial form, acknowledging that he would face a felony charge if he did not appear for his trial on May 4, 2004. The form contained the seal of the Arlington County, Virginia Circuit Court Clerk, but no judge’s signature. Aldunate was released on bond. When he failed to appear for his trial, a judge in the Arlington County Circuit Court issued a capias order for his arrest and an order requiring his surety to show cause why his bond should not be revoked. Aldunate was then indicted for failing to appear under Virginia Code § 19.2-128(B), and he later pleaded guilty to misdemeanor DWI and 2 felony failure to appear. He was sentenced to incarceration and probation, and his supervision ended in 2006. An alien who commits an aggravated felony is deportable. 8 U.S.C. § 1227(a)(2)(A)(iii). Under the INA, committing a state failure to appear crime constitutes an aggravated felony if it is “an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed.” § 1101(a)(43)(T) (“INA definition”); see also Matter of Garza-Olivares, 26 I. & N. Dec. 736, 739 (B.I.A. 2016) (dividing the INA definition into ...

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