Unpub. BIA mandatory detention victory in Va.

Thomas K. Ragland writes: "Attached is a BIA decision I just received in a hard-fought case.  DHS charged my client, who was convicted in Virginia of misdemeanor attempted sexual battery, with aggravated felony “sexual abuse of a minor” – and insisted he was subject to mandatory detention.  I challenged the aggfel charge in Immigration Court, the IJ agreed and ordered release on $10K bond.  DHS appealed to the BIA and invoked the automatic stay at 8 CFR 1003.19(i)(2), ensuring he would not be released.  I filed a habeas petition in ED Va. and, one week later, DHS relented and withdrew the automatic stay.  My client was released but DHS aggressively litigated the BIA appeal.  Nearly a year and a half later, the BIA has dismissed DHS’s appeal, agreeing that the conviction is not an aggfel under proper application of the modified categorical approach and controlling Fourth Circuit law.  The BIA also agreed that DHS failed to prove my client is a danger to the community or a flight risk."  Matter of X-, Sept. 8, 2011.