           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         October 15, 2007

                                     No. 06-60636                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


SHAFAZZ SEERATTAN, also known as Safraz Seerattan

                                                  Petitioner

v.

PETER D KEISLER, ACTING U S ATTORNEY GENERAL

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A46 031 635


Before KING, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*
       Shafazz Seerattan, a native and citizen of Trinidad, was admitted to the
United States as a lawful permanent resident in 1996.                    In 2000, he was
convicted, under Texas Penal Code § 22.01(a)(1), of misdemeanor assault on his
spouse.      The Department of Homeland Security (DHS) began removal
proceedings for a crime of domestic violence. See 8 U.S.C. § 1227(a)(2)(E)(i).
Following a hearing, the IJ found that the assault was a crime of domestic


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 06-60636

violence and that, therefore, Seerattan was removable. However, the IJ found
that the assault conviction was not a Crime Involving Moral Turpitude (CIMT)
preventing adjustment of status. The IJ granted Seerattan’s application for
adjustment. See 8 U.S.C. § 1255. DHS appealed.
      On appeal, the BIA ruled that the assault was a CIMT and remanded the
matter for the IJ to determine if Seerattan was otherwise eligible for adjustment
of status. On remand, the IJ found Seerattan ineligible for adjustment of status
because the assault conviction was an aggravated felony as defined in 8 U.S.C.
§ 1101(a)(43). The IJ further found that Seerattan was ineligible for waiver or
voluntary departure. Seerattan appealed this decision and argued that he was
not removable. On appeal, the BIA implicitly found Seerattan removable. The
BIA further agreed with the IJ that Seerattan was ineligible for waiver of
removal and dismissed Seerattan’s appeal. Seerattan filed the instant petition
for review.
      Seerattan argues that the BIA erred in finding him removable for having
been convicted of a crime of domestic violence. This court reviews the BIA’s
rulings of law de novo. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir.
2001). Section 1227 defines a “crime of domestic violence” as a “crime of
violence” that is perpetrated by an individual with a particular relationship to
the victim, including, as relevant here, a spouse. 8 U.S.C. § 1227(a)(2)(E).
Section 1227(a)(2)(E) states that the term “crime of violence” is defined as it is
in 18 U.S.C. § 16. Id. Section 16 defines a “crime of violence” as: “(a) an offense
that has as an element the use, attempted use, or threatened use of physical
force against the person or property of another, or (b) any other offense that is
a felony and that, by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of
committing the offense.”
      While Seerattan’s petition for review was pending, we decided United
States v. Villegas-Hernandez, 468 F.3d 874 (5th Cir. 2006), cert. denied, 127 S.Ct.

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1351 (2007).   In Villegas-Hernandez, we determined that a misdemeanor
violation of Texas Penal Code § 22.01(a)(1) does not constitute a “crime of
violence” under 18 U.S.C. § 16. 468 F.3d at 882-83. Because a violation of
§ 22.01(a)(1) is not a “crime of violence” under § 16, it also is not a crime of
domestic violence under § 1227. See § 1227(a)(2)(E). Thus, the BIA erred when
it determined Seerattan was removable for a crime of domestic violence. See also
In re Hernandez-Castillo, A38 807 804 (BIA April 19, 2006) (unreported); In re
Flores-Aguirre, A36 597 320 (BIA May 10, 2006) (unreported).
      At the time that the BIA decided Seerattan’s appeal, Villegas-Hernandez
had not been issued. Therefore, the BIA has not had the opportunity to consider
its impact on Seerattan’s appeal and remand is appropriate to allow the BIA to
conduct further proceedings consistent with current circuit case law. See INS
v. Ventura, 537 U.S. 12, 16-17 (2002).
      VACATED AND REMANDED.




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