Hua Fang v. Ashcroft

MEMORANDUM **

Hua Fang, a native and citizen of China and a lawful permanent resident of the United States, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming an Immigration Judge’s (“IJ”) order of removal. We grant the petition and remand with instructions to vacate the order of removal.

We have jurisdiction pursuant to 8 U.S.C. § 1252 (b). Where, as here, the BIA summarily affirms the IJ’s decision without opinion, we review the IJ’s decision as the final agency determination. Falcon Carriche v. Ashcroft, 350 F.3d 845, 855 (9th Cir.2003). Fang argues that his conviction for misdemeanor assault under Montana law does not constitute a conviction for a “crime of domestic violence” rendering him removable under 8 U.S.C. § 1227 (a)(2)(E). Whether a state law conviction constitutes a removable offense is a question of law we reviewe de novo. Coronado-Durazo v. INS, 123 F.3d 1322, 1324 (9th Cir.1997). Because the parties are familiar with the factual and procedural history of this case, we will not recount it here.

I

The IJ erroneously concluded that a conviction for misdemeanor assault under Mont.Code Ann. § 45-5-201 categorically qualified as a…