In a petition for review of the BIA's order holding that petitioner was subject to removal on the grounds that his criminal conviction for second degree assault under extreme emotional disturbance under Kentucky law was an aggravated felony and that his conviction for reckless homicide was a crime of moral turpitude, the petition is granted: where 1) the BIA erred when it applied the post-IIRIRA definition of "aggravated felony" to petitioner's case because the issuance of an arrest warrant by the INS which had not been canceled constituted an "action taken" for purposes of triggering application of the pre-IIRIRA definition of an aggravated felony; and 2) neither of petitioner's prior convictions constituted an aggravated felony under the pre-IIRIRA definition. The matter is remanded for reconsideration of whether petitioner's conviction for reckless homicide constitutes a crime involving moral turpitude.
Argued: December 5, 2008
Decided and Filed: September 9, 2009
Opinion by Judge Stamp
Blair O'Connor, U.S. Department of Justice, Washington, DC