Submitted: October 18, 2017
Petition for Review of an Order of the Board of Immigration
SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.
GRUENDER, Circuit Judge.
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.
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 bodily injury or
making another person fear imminent bodily harm necessarily
requires using, attempting to use, or threatening to use
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 domestic violence under Eighth Circuit precedent.
See Matter of Guzman-Polanco II, 26 I&N Dec.
806, 808 (B.I.A. 2016) ("Our decision in Matter of
Guzman-Polanco [I] should not be read as attempting to
establish a nationwide rule addressing the scope of the use
of force through indirect means, including poisoning. Rather,
for our purposes, circuit law governs this issue . . .
."). Onduso then petitioned this court for review,
primarily arguing that we should reverse several of our prior
opinions concerning the application of the minimum-conduct
test in light of the Supreme Court's decision in
Moncrieffe v. Holder. See 569 U.S. 184,
190-91 (2013). We decline his invitation to
"rescue" the BIA from these purportedly
"stale" cases, particularly given that our recent
decision in Ramirez-Barajas v. Sessions rejected a
similar set of arguments in a case involving subsection 1 of
the same Minnesota statute. See Nos. 16-4014 &
17-1618, 2017 WL 6390314 (8th Cir. Dec. 15, 2017); see
also United States v. Eason, 829 F.3d 633, 641 (8th Cir.
2016) ("It is a cardinal rule in our circuit that one
panel is bound by the decision of a prior panel.").
"We review the BIA's legal determinations de
novo, " including whether a state offense qualifies
as a bar to cancellation of removal. Roberts v.
Holder, 745 F.3d 928, 930 (8th Cir. 2014) (per curiam).
The Immigration and Nationality Act authorizes the Attorney
General to cancel the removal of nonpermanent residents,
provided that, among other things, they have not been
convicted of a disqualifying criminal offense. See 8
U.S.C. § 1229b(b). This includes "crime[s] of
domestic violence, " see id. §
1227(a)(2)(E)(i), which are offenses involving any
"crime of violence"-as that term is defined in 18
U.S.C. § 16-directed against a person in a qualifying
domestic relationship, " id. Title 18, in turn,
defines "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.
18 U.S.C. § 16. Onduso concedes that he was in a
qualifying domestic relationship with the victim of his
assault, and it is undisputed that his conviction was for a
misdemeanor offense, not a felony, thereby negating the
application of § 16(b). Thus, the only question before
us is whether Minnesota misdemeanor domestic assault
categorically qualifies as a crime of violence under §
16(a), which we have treated as equivalent to the force
clause of the United States Sentencing Guidelines and the
Armed Career Criminal Act ("ACCA"). See
Roberts, 745 F.3d at 930-31.
was convicted of misdemeanor domestic assault under Minn.
Stat. § 609.2242, subd. 1, which provides:
Whoever does any of the following against a family or
household member . . . commits an assault and is ...