                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-2343



JOSE VASQUEZ RIVAS,

                                                    Petitioner,

          versus


MICHAEL B. MUKASEY, Attorney General,

                                                    Respondent.



                            No. 06-1160



JOSE VASQUEZ RIVAS,

                                                    Petitioner,

          versus


MICHAEL B. MUKASEY, Attorney General,

                                                    Respondent.



On Petitions for Review of Orders of the Board of Immigration
Appeals. (A42-072-865)
Argued:   October 30, 2007             Decided:   December 7, 2007


Before WILKINSON and GREGORY, Circuit Judges, and Jerome B.
FRIEDMAN, United States District Judge for the Eastern District of
Virginia, sitting by designation.


Remanded by unpublished per curiam opinion.


ARGUED: Michael Mitry Hadeed, BECKER, HADEED, KELLOGG & BERRY,
P.C., Springfield, Virginia, for Petitioner.          Eric Warren
Marsteller, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF:
Miguel Rodriquez Rivera, BECKER, HADEED, KELLOGG & BERRY, P.C.,
Springfield, Virginia, for Petitioner. Peter D. Keisler, Assistant
Attorney General, M. Jocelyn Lopez Wright, Assistant Director,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      Jose Vasquez Rivas petitions this court for review of two

orders     issued   by    the   Board     of    Immigration    Appeals       that       both

affirmed the Immigration Judge’s decision that Rivas is removable

from the United States. We remand to the Board of Immigration

Appeals     (“BIA”)      for    further     proceedings       because    (1)       it    is

impossible to discern from the record whether the IJ and the BIA

evaluated Rivas’s removability status in light of the correct

version of the statute under which Rivas was convicted; (2) the BIA

should have the first opportunity to determine whether the version

of the statute under which Rivas was convicted is “divisible;” and

(3) the BIA should have the first opportunity to consider the

import of intervening authority on Rivas’s removability status.



                                           I.

      Rivas, a native and citizen of Spain, was admitted to the

United     States   in    August    1990.        In   November   1996,       Rivas      was

convicted in the Circuit Court of Fairfax County, Virginia, of

Destruction of Property under § 18.2-137 of the Virginia Code. The

court sentenced Rivas to two years imprisonment, suspending all but

forty-five days of that sentence.                     On November 14, 2003, the

Immigration and Naturalization Service served Rivas with a Notice

to Appear, charging him removable pursuant to § 237(a)(2)(A)(iii)

of   the   Immigration     and     Nationality        Act   (“INA”),    as    an    alien


                                            3
convicted of an aggravated felony, namely, a “crime of violence” as

defined in 18 U.S.C. § 16, for which the term of imprisonment is

one year or more. See 8 U.S.C. § 1101(a)(43)(F) (2000).

     On March 2, 2004, the Immigration Judge (“IJ”), in an oral

decision, declared that the offense of Destruction of Property

found in Va. Code § 18.2-137 constitutes a “crime of violence”

under 18 U.S.C. § 16, as incorporated by INA § 101(a)(43)(F).   See

8 U.S.C. § 1101(a)(43)(F). Reasoning that Rivas’s crime was (1) a

felony that (2) involves a risk of physical force against property,

the IJ ordered him removed to Spain.

     On November 4, 2005, the BIA affirmed without opinion the IJ’s

decision, making it the final agency determination. See 8 C.F.R.

§ 1003.1(e)(4).   Rivas filed a motion to reconsider, which the BIA

denied on January 30, 2006. Rivas filed petitions for review of

both orders with this court, which this court consolidated.



                                II.

     For the reasons that follow, we remand this case to the BIA for

a determination of whether Rivas’s conviction constitutes a “crime

of violence.” The basic principles governing remand are well-

established.   It is a fundamental principle of administrative law

that “a ‘judicial judgment cannot be made to do service for an

administrative judgment.’”   Gonzales v. Thomas, 547 U.S. 183, 186

(2006) (quoting SEC v. Chenery Corp., 318 U.S. 80, 88 (1943)).


                                 4
Thus, as a general matter, we should remand a case to an agency “for

decision of a matter that statutes place primarily in agency hands.”

INS v. Ventura, 537 U.S. 12, 16 (2002). This principle rests on the

“basic proposition that a reviewing court may not decide matters

that Congress has assigned to an agency.”                          W. Va. Highlands

Conservancy, Inc. v. Norton, 343 F.3d 239, 248 (4th Cir. 2003).

Federal   law    entrusts    the     Attorney      General     with    the       task   of

determining whether an alien is removable from the United States for

having    been   convicted     of     an       “aggravated    felony.”       8    U.S.C.

§ 1227(a)(2)(A)(iii).

      Here, we remand to the BIA for consideration of whether Rivas’s

conviction constitutes a “crime of violence” as defined in 8 U.S.C.

§ 16(b), and thus renders Rivas removable from the United States as

an aggravated felon. 8 U.S.C. § 1101(a)(43)(F).                     We remand to the

BIA so that it can clarify whether, in affirming without opinion the

IJ’s determination that Rivas’s conviction constituted a crime of

violence, it was applying the correct version of the statute under

which Rivas was convicted.           Rivas was convicted in 1996 under the

version of Va. Code § 18.2-137 then in effect.                         However, the

Department of Homeland Security’s brief to the IJ contained a

version of § 18.2-137 that was enacted in 1999 and differs in

material ways from the 1996 version.                    Indeed, the record of

proceedings for Rivas’s initial petition for review does not include

the   version    of   §   18.2-137    in   effect     at     the   time   of     Rivas’s


                                           5
conviction.    Thus, it is unclear whether either the IJ or the BIA

was considering the correct version of § 18.2-137.

     Remand is appropriate for two additional reasons.             First, the

BIA should have an opportunity to consider in the first instance

whether the version of § 18.2-137 in effect in 1996 is “divisible.”

This determination bears directly upon the analysis of whether

Rivas’s conviction constitutes a “crime of violence.” If the BIA --

after looking at the statutory definition of the offense pursuant

to the “categorical approach” set forth in Taylor v. United States,

495 U.S. 575, 600-02 (1990) -- determines that the version of

§ 18.2-137 under which Rivas was convicted is “divisible,” the BIA

would   be   obliged   to   consult   other   conclusive   court   documents

permitted under the “modified categorical approach” to determine

whether Rivas’s conviction is a “crime of violence.”          See Gonzales

v. Duenas-Alvarez, 549 U.S. __ (2007); Soliman v. Gonzales, 419 F.3d

276, 284 (4th Cir. 2005).        Moreover, the BIA would then have the

opportunity to analyze whether it can consult documents beyond those

generally permitted under the “modified categorical approach” to

determine whether Rivas was convicted of a “crime of violence.” See

In re Babaisakov, 24 I. & N. Dec. 306, 316-21 (BIA 2007).

     Second, remand will give the BIA a chance to consider whether

Rivas was convicted of a “crime of violence” in light of our recent

decision interpreting that term in 18 U.S.C. § 16(b). Garcia v.

Gonzales, 455 F.3d 465 (4th Cir. 2006). In Garcia, we made clear


                                      6
that for a conviction to qualify as a crime of violence under                   18

U.S.C.   §   16(b),     “the   substantial    risk    involved    [must]   be   a

substantial risk that force will be employed as a means to an end

in the commission of the crime, not merely that reckless conduct

could result in injury.” Id. at 469. Neither the IJ nor the BIA had

the opportunity to determine whether the crime for which Rivas was

convicted met this standard. Therefore, it is appropriate to remand

to the BIA for consideration of that issue.

     In essence, this court is unable to review Rivas’s petition at

this point because the BIA has given us nothing to review. “It will

not do for a court to be compelled to guess at the theory underlying

the agency’s action; nor can a court be expected to chisel that

which must be precise from what the agency has left vague and

indecisive.” SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). While

the BIA may of course issue summary decisions, see Blanco de

Belbruno v. Ashcroft, 362 F.3d 272, 281-82 (4th Cir. 2004), in light

of the foregoing circumstances and issues requiring resolution, this

court    needs   more    in    this   case   than    the   BIA   has   provided.

Accordingly, it is the BIA, not this court, that should have the

first opportunity to “bring its expertise to bear upon the matter”:

“it can evaluate the evidence; it can make an initial determination;

and, in doing so, it can, through informed discussion and analysis,

help a court later determine whether its decision exceeds the leeway

that the law provides.”         Ventura, 537 U.S. at 17.


                                        7
     For the foregoing reasons, we remand for further proceedings

consistent with this opinion.

                                                         REMANDED




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