Hernandez-Aquino

MEMORANDUM ***

Having prevailed in his petition for review challenging the order of the Board of Immigration Appeals (Board) finding him removable as an alien convicted of an aggravated felony, petitioner now seeks attorneys’ fees and expenses incurred in this court under the Equal Access to Justice Act, 28 U.S.C. § 2412 (d)(1)(A). Petitioner was convicted of driving with a blood alcohol level of .08% or more, in violation of California Vehicle Code section 23152(b). He contends that the Board’s position that his crime constituted a crime of violence under 8 U.S.C. § 1101 (a)(43)(F) was not substantially justified.

I.

In finding petitioner removable, the Board relied on its prior decisions that a conviction for driving under the influence of alcohol or drugs constitutes a conviction of a crime of violence as defined in 18 U.S.C. § 16 . In re Magallanes-Garcia, Interim Decision 3341, 1998 WL 133301 (BIA 1998), and In re Puente-Salazar, Interim Decision 3412, 1999 WL 770709 (BIA 1999). At the time of the Board’s decision on November 17, 2000, those decisions were good law; they were not overruled until 2002. See In re Ramos, Interim Decision 3468, 2002 WL 1001049 (BIA 2002). In…