U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

Crescenzo Deluca Law Offices of Crescenzo Deluca 81 Wolcott Hill Road Wethersfield, CT 06109

OHS/ICE Office of Chief Counsel - BOS P .0. Box 8728 Boston, MA 02114

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Name: FRACZEK, IRENEUSZ

A 030-973-737

Date of this notice: 5/9/2013

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

DcrutL ct1/lA)
Donna Carr Chief Clerk

Enclosure
Panel Members: Pauley, Roger Greer, Anne J. Guendelsberger, John

yungc
Userteam: Docket

Cite as: Ireneusz Fraczek, A030 973 737 (BIA May 9, 2013)

U.S.

Department of Justice

Decision of the Board oflmmigration Appeals

Executive Office for Immigration Review Falls Church, Virginia 22041

File:

A030 973 737 - Boston, MA

Date:

MAY

9 Z0\3

In re: IRENEUSZ FRACZEK a.k.a. Dariusz Bilek a.k.a. Eric Fraczek

APPEAL ON BEHALF OF RESPONDENT: CHARGE: Notice: Sec. 237(a)(2)(A)(iii), l&N Act [8 U.S.C. 1227( a)(2)(A)(iii)] Convicted of aggravated felony 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony 237(a)(2)(A)(iii), I& N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony Crescenzo Deluca, Esquire

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Lodged: Sec.

Sec.

APPLICATION: Termination

The respondent, a native and citizen of Poland, appeals from the Immigration Judge's decision dated December 7, 2012 , sustaining all three charges of removability under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii), and ordering him removed from the United States. The Department of Homeland Security (DHS) has not responded to the appeal. The appeal will be sustained and the proceedings will be terminated. We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion. 8 C.F.R. 1003.l(d )(3)(ii). There is no dispute that the respondent pled guilty to and was convicted of an attempt to commit burglary in the third degree pursuant to sections 53A-103 and 53A-49 of the Connecticut General Statutes (1.J. at 2-3; Exh. 4). For this offense he was sentenced to 3 years imprisonment, suspended after I year served, and 3 years of probation (l.J. at 3; Exh. 4). Under section 53A-103 of the Connecticut General Statutes, "[a] person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein." Connecticut law defines the term "building" to include "any watercraft, aircraft, trailer, sleeping car, railroad car or other structure or vehicle or any building with a valid certificate of occupancy. Conn. Gen. Stat. 53A- l OO(a)(l ). In light of this definition, the Immigration Judge concluded that a violation of section 53A-103 of the Connecticut General

Cite as: Ireneusz Fraczek, A030 973 737 (BIA May 9, 2013)

A030 973 737

. Statutes was not categorically a burglary offense within the meaning of section 10l(a)(43)(G) of the Act, 8 U.S.C. l101(a)(43)(G), because the state statute is broader than the generic definition of burglary (I.J. at 4). See Taylor
v.

United States, 495 U.S. 575, 598 (1990) ("the

generic, contemporary meaning of burglary contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime."). Conducting a modified categorical inquiry, the Immigration Judge considered the plea colloquy and found that the factual basis on which the state judge relied clearly indicated that the "building" to which the respondent intended to enter or remain unlawfully was an occupied apartment (I.J. at 5; Exh. 5). On this basis, he concluded that the respondent's offense constituted an aggravated felony as defined by section 10l(a)(43)(U) of the Act, an attempt to commit a burglary offense as defined by section 10l(a)(43)(G) of the Act (I.J at 5). The Immigration Judge further concluded that the respondent's offense constituted an aggravated felony as defined by section 10l(a)(43)(F) of the Act, a crime of violence, as well as an attempt to commit a crime of violence (I.J. at 5). See Leocal v Ashcroft, 543 U.S. 1, 10 (2004) (noting that burglary is a crime of violence because it, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime). Where an alien was convicted by means of a plea, an Immigration Judge conducting a modified categorical inquiry is "generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented" or which was "confirmed by the defendant."
Shepard
v.

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United States, 544 U.S. 13, 16, 26 (2005).

pied guilty pursuant to North Carolina

A lf ord, 400 U.S. 25 (1970), which permits a defendant

The record reflects that the respondent

to plead guilty without a specific admission to facts required to support a conviction (I.J. at 3; Exh. 5 at 5). In accepting the respondent's plea, the state judge summarized the prosecutor's recitation of the facts, but it is not clear that this recitation served as the factual basis for the respondent's conviction (Exh. 5 at 3, 5). The judge acknowledged that the respondent did not necessarily agree with the prosecutor's version of the facts (Exh. 5 at 5). The judge did not make an explicit finding regarding the factual basis of the respondent's conviction and there is no indication in the record that the respondent confirmed or assented to any of the facts alleged by the prosecution, nor was the judge required to find the particular factual basis alleged by the government in order to accept the plea and convict the respondent. admitted-facts equating to generic burglary. See Shepard States v. McMurray, 653 F.3d 367, 378-82 (6th Cir. 2011).
v.

Accordingly, we cannot

conclude that the respondent's conviction necessarily involved-or that his plea necessarily
United States, supra, at 24; United

In light of the foregoing, the DHS has not met its burden of demonstrating by clear and convincing evidence that the respondent is removable for having been convicted of an aggravated felony as defined by section 101(a)(43)(U) of the Act, an attempt to commit a burglary offense as defined by section 101(a)(43)(G) of the Act. Additionally, because the record does not clearly establish that the respondent's attempted offense falls within the generic burglary definition, the DHS has not met its burden of demonstrating by clear and convincing evidence that the respondent is removable for having been convicted of an aggravated felony crime of violence as defined by section 101(a)(43)(F) of the Act, or for having been convicted of an attempt to commit such an offense. Accordingly, the respondent's appeal will be sustained and these proceedings will be terminated. The following order shall be entered.

Cite as: Ireneusz Fraczek, A030 973 737 (BIA May 9, 2013)
.MOUW.I

A030 973 737

ORDER: The respondent's appeal is sustained and these removal proceedings are terminated.

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Cite as: Ireneusz Fraczek, A030 973 737 (BIA May 9, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT BOSTON, MASSACHUSETTS

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File:

A030-973-737

December 7 ,

2012

In the Matter of

IRENEUSZ FRACZEK RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

Immigration and Nationality Act (INA) Section 237(a) (2)(A)(iii) - in that after admission the respondent was convicted of an aggravated felony, a crime of violence, 101(a)(43)(F); as described in INA Section - in INA Section 237(a) (2) (A} (iii}

that after admission the respondent was convicted of an aggravated felony as defined_ in INA Section lOl(a) (43)(U), violence, an attempt or conspiracy as lOl(a) (43)(F), a crime of - in described in INA Section least one year;

for which the term of imprisonment is at INA Section 237(a)(2)(A)(iii)

that admission the respondent was convicted of an aggravated felony as described in INA Section lOl(a)(43) (U), an attempt or conspiracy as lOl(a) (43) (G), a theft described in INA Section

OE burglary offense for which the term of

APPLICATION:

Termination.

ON BEHALF OF RESPONDENT: ON BEHALF OF OHS:

CRESCENZO DELUCA

BERNARD MENENDEZ

ORAL DECISION OF THE IMMIGRATION JUDGE 1

Removal proceedings against the respondent were initiated on October 15, 2012, with the filing in Immigration Court of a The Notice alleged that the respondent was not

Notice to Appear.

Immigrant & Refugee Appellate Center | www.irac.net

a citizen or national of the United States but was a native and citizen of New Poland; that he was admitted to the United States at 1972, 2003, as a lawful permanent he was convicted in the

York on or about February 29, and that on September 3,

resident;

Superior Court at New

Britain for the offense of an attempt to

commit burglary in the third degree in violation of Connecticut General Statute Section 53A-103, of three years. for which he received a sentence

He was charged with removability pursuant to INA as having been convicted of an a

Section 237(a)(2)(A)(iii),

aggravated felony as described in INA Section lOl(a) (43) (F) , crime of violence as defined in Section 16 of Title 18.

In an I-261 filed by the Department of Homeland Security on November 30, 2012, the Government added additional charges These charges allege that the respondent

against the respondent.

was also removable as having been convicted of an aggravated felony pursuant to INA Section 237(a)(2)(A) (iii) for having been convicted of an aggravated felony described in INA Section lOl(a)(43)(U), an attempt to conunit a crime of violence for which

the term of imprisonment is at least one year and an attempt to commit a theft or burglary offense for which the term of imprisonment is at least one year. See Exhibit 1-A. 2012, were filed by the

Written pleadings dated November 19,

A030-973-737

December 7,

2012

respondent,

through counsel.

In these pleadings,

respondent

admitted to the allegations but denied the original charge of removability. See Exhibit 2. The respondent filed a motion to

Immigrant & Refugee Appellate Center | www.irac.net

terminate proceedings.

See Exhibit 3.

The Government offered into evidence Exhibits 4 and 5, consisting of the conviction record from September 3, 2003, in

which the respondent pled guiltyL 4::-e pursuant to North Carolina v. Alford, to a charge of attempted burglary in the third degree. confinement which was all 2003 hearing

He received a sentence of three years' suspended.

Exhibit 5 consists of the September 3,

and the transcript of that hearing.

Exhibit 6 is an amended

motion to terminate proceedings addressing the two charges of removability set forth in the I-261, as Exhibit 1-A. Exhibit 7

consists of the three statutes from Connecticu that pertain to this case. The respondent's motion to terminate is denied. September 3, 2003, On

the respondent pled guilty under the documents 400 U.S. 25 (1970)

set forth in North Carolina v. Alford, (hereinafter "Alford")

to amend the burglary in the third degree

to attempted burglary in the third degree in violation of Connecticut General Statute Sections 53A-103 and 53A-49; he was

sentenced to three years of imprisonment with the execution suspended after one year a nd three years of probation. See Exhibit 4. The Court finds that the Department of Homeland Security has

A030-973-737

December 7,

2012

established by clear and convincing evidence that the respondent is removable on both of the charges in the I-261: attempt to

conunit a crime of violence and an attempt to commit burglary and

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as well as removable under the original charge of removability set forth in the Notice to Appear at Exhibit 1. Where a person

is charged with an aggravated felony as defined in Section lOl (a) (43) (U) of the Act, the Department of Homeland Security

bears a two-part burden to demonstrate by clear and convincing evidence the respondent was convicted of engaging in either a conspiracy or an attempt within the meaning of INA Section lOl (a) (43) (U) and that the object of the attempt or conspiracy is of

an aggravated felony as defined in Sections lOl (a) (43) (A-Tl the INA. See Matter of S- I-K-, 24 I&N Dec. 324, 326

(BIA 2007) .

Because an attempt in Connecti9ut comports with the conunon law definition of attempt applied by the Board of Immigration Appeals, the Department of Homeland Security has sustained the See State v. Fauntleroy, 921 Atlantic

first part of its burden. 2nd 622 (Connecticut 2007 ) ; 226, 228-29 (BIA 2010) .

Matter of Richardson,

2 5 I&N Dec.

With respect to the second part of the Department of Homeland Security's burden, the Connecticut Burglary Statute, is broader than the

Connecticut General Statute Section 53A-103,

generic Federal definition of burglary because the term building includes many other structures such as vehicles and aircrafts. See Connecticut General Statute Section 53A-100(a) (1) .

A03Q-973.:..7 37

December 7,

2012

Because the statute is divisible,

the Court must resort to

the record of conviction which includes the respondent's judgment of conviction and plea colloquy4tt. States, 544 U.S. 13 (2005) . See Shepherd v. United

Immigrant & Refugee Appellate Center | www.irac.net

In the respondent's Alford plea,

the

state criminal judge accepted the respondent' s guilty plea as "voluntary and made with understanding and made with the assistance of competent and effective counsel" and determined "there are factual bases for the pleas ". Exhibit 5. The factual

basis upon which the state criminal judge relied clearly indicated that the "building" to which the respondent attempted to enter or remain unlawfully was an occupied apartment. Exhibit 5. Thus, See

the object of the respondent's attempt is a

"burglary offense" within the definition of an aggravated felony in INA Section 101(a) (43) (G) , as well as a crime of violence as See Matter of Perez, 22 I&N

defined in 18 U.S.C. Section 16(b) . Dec. 1325 (BIA 2000)

(defining "burglary offense" in Section

lOl(a) (43) ( G) by the generic definition of burglary in the model penal code) ; Leocal v. Ashcroft, 543 U.S. 1, 10 (2004) (finding

that the generic crime of burglary,

by its nature,

involves a

substantial risk that the burglar will use force against a victim in completing the crime) .

A030-973-737

December 7,

2012

Accordingly,

the Court finds that OHS met its burden to

establish by clear and convincing evidence that the respondent is removable as charged in the I-261 at Exhibit 1-A and that he was

Immigrant & Refugee Appellate Center | www.irac.net

convicted of the attempted commission of both burglary and attempted commission of a crime of violence. With respect to the original charge in the NTA, the Court

finds that under the circumstances set out in the plea colloquy-:1:-a at Exhibit 5, the respondent's attempted forced entry into a

dwelling inherently involves a substantial risk of actual violence, and therefore the original allegation in the Notice to

Appear at Exhibit 1 is also sustained. According to the respondent's counsel, he does not have any

other valid basis for relief from removal inasmuch as he has sustained aggravated felony charges under the Act. The

respondent' s only viable form of relief would be protection under the Convention against Torture, counsel, and the respondent, through

does not believe that that form is a viable form of

relief from removal. Inasmuch as it does not appear as if the respondent does have a form of relief from removal available to him, will order that he be removed to Poland. The Court sustains all charges of removability for the reasons set out above and will order his removal to Poland. the Court

A030-97 3-737

December 7,

2012

ORDER IT IS HEREBY ORDERED that the respondent be removed to Poland.

Immigrant & Refugee Appellate Center | www.irac.net

December 7,

2012

Please sea the next page or alectron..f.c 5iqnature

STEVEN F.

DAY

Immigration Judge

A030-973-737

December 7,

2012

/Isl/
Immigration Judge STEVEN F. days on January 29, DAY

2013 at 11:19 AM GMT

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A030-973-737

December 7,

2012