Immigration Appeals Decisions

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Shahzad Ahmed, Esquire

James E. M. Craig
Assistant Chief Counsel

Notice: Sec. 212(a)(2)(A)(i)(I), I&N Act [8 U.S.C. § l182(a)(2)(A)(i)(I)] – Crime involving moral turpitude

The respondent, a native and citizen of Jamaica, and a lawful permanent resident of the United States since 2007, timely appeals from the Immigration Judge’s May 13, 2009, decision. In that decision, the Immigration Judge found the respondent removable, as charged, based on her admissions (Tr. at 2), and record of conviction (Exh. 2), and denied her motion to terminate. The respondent’s appeal will be dismissed. The respondent’s request to proceed on appeal in forma pauperis is granted under 8 C.F.R. § 1003.8(a)(3). See Matter of Chicas, 19 I&N Dec. 114 (BIA 1984).

The Board reviews an Immigration Judge’s findings of fact, including findings as to the credibility of testimony, under the “clearly erroneous” standard. See 8 C.F.R. § 1003.1 (d)(3)(i) (2010); Matter of R-S-H-, 23 I&N Dec. 629 (BIA 2003); Matter of S-H-, 23 I&N Dec. 462 (BIA 2002). The Board reviews questions of law, discretion, and judgment and all other issues in an appeal of an Immigration Judge’s decision de novo. See 8 C.F.R. § 1003.1 (d)(3)(ii) (2010).

The respondent admitted (Tr. at 2), as alleged in the Notice to Appear (form I-862), that she was convicted on April 30, 2008, in the Circuit Court of the Ninth Judicial Circuit, in and for Orange County, Florida, of the offense of Grand Theft in the Third Degree, a third degree felony, in violation of Fla. Stats. Ann. § 812.014(2)(c)(1) (Exh. 2). The Immigration Judge determined that the respondent’s 2008 Florida Grand Theft conviction rendered her inadmissible and subject to removal under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I), as an alien convicted of a crime involving moral turpitude (“CIMT”).

Initially, we note that the Attorney General provided a framework for determining whether a particular offense constitutes a crime involving moral turpitude in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008). Under Matter of Silva-Trevino, supra, a categorical approach is to be employed under which the criminal statute at issue is to be examined to ascertain whether moral turpitude is intrinsic to all offenses that have a “realistic probability” of being prosecuted under that statute, Id. at 689-90. Next, if the issue cannot be resolved under the categorical approach, a modified categorical approach is to be taken, which requires inspection of specific documents comprising the alien’s record of conviction to discern the nature of the underlying conviction. Id. at 690. Finally, if the record of conviction is inconclusive, the Attorney General held that, because moral turpitude is not an element of the crime, evidence beyond the record of conviction may be considered when evaluating whether an alien’s offense constituted a crime involving moral turpitude. Id. at 690.

In this case, the statute that the respondent was convicted under states that a person commits theft if he or she knowingly obtains, uses, or endeavors to obtain or use the property of another “with intent to, either temporarily or permanently,” appropriate the property to his or her own use or to the use of any person not entitled to the use of the property, where the property is valued at more than $300 but less than $5,000. See Fla. Stats. Ann. § 812.014(2)(c)(1). We have long held that in order for a taking to be a theft offense that involves moral turpitude, a permanent taking must be intended. See, e.g., Matter of Grazley, 14 I&N Dec. 330, 333 (BIA 1973); Matter of N-, 7 I&N Dec. 356, 357 (BIA 1956). The parties agree that Fla. Stats. Ann. § 812.014(2)(c)(1) is divisible. We therefore must apply the modified categorical approach to determine the moral turpitude question.

In pertinent part, the respondent’s record of conviction includes an Information, and an Order and Sentence by the Criminal Court. However, these documents, standing alone, fail to indicate whether a permanent taking was intended by the respondent so as to constitute a CIMT. Therefore, under the guidelines set out by the Attorney General in Matter of Silva-Trevino, supra, because moral turpitude is not an element of the crime, evidence beyond the record of conviction may be considered when evaluating whether an alien’s offense constituted a crime involving moral turpitude. Id. at 690.

In this regard, we agree with the Immigration Judge that the charging affidavit (Exh. 2) clearly supports a finding that the respondent intended a permanent taking as reflected in her actions which included, taking items from a store display into a fitting room, removing the store sensors from the merchandise, concealing the merchandise in two shopping bags, and then proceeding to remove said merchandise from the store without rendering payment. We have previously held that it is reasonable to assume retail theft occurs with the intention of retaining merchandise permanently. See Matter of Jurado, 24 I&N Dec. 29, 33-34 (BIA 2006). Since the record indicates that the respondent took property from a business without rendering payment, we presume, like the Immigration Judge, that.such a taking constitutes a permanent taking and, therefore, is a crime involving moral turpitude. Cf. Matter of P-, 2 I&N Dec. 887 (BIA 1947) (determining that a retail theft offense was not a crime involving moral turpitude when there was affirmative evidence indicating that the taking was not intended to be permanent). Therefore, based upon the respondent’s record of conviction and considering the circumstances and nature of the crime at issue, we agree with the Immigration Judge’s determination that the respondent intended to accomplish a permanent taking of the store’s property, and that her offense constituted a crime involving moral turpitude rendering her inadmissible on that basis. [FN1]

Finally, having expressed no fear of persecution or torture if returned to Jamaica, the respondent has failed to establish her eligibility for any relief from removal. See section 240(c)(4)(A) of the Act, 8 U.S.C. § 1229a(c)(4)(A); 8 C.F.R. § 1240.8(d).

The respondent presents no arguments on appeal that would persuade us to disturb the Immigration Judge’s decision. See Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008). Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.
John Guendelsberger
FOR THE BOARD

FN1. We are not persuaded by the respondent’s appellate argument that her conviction does not constitute a crime involving moral turpitude under Jaggernauth v. U.S. Atty. Gen., 432 F.3d 1346 (11^th Cir. 2005). The issue before the Eleventh Circuit in Jaggernauth was whether the alien’s conviction constituted an aggravated felony under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101 (a)(43)(G), rendering her removable under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii). Although the statute is divisible, the record in Jaggernauth did not sufficiently establish that she was convicted of an aggravated felony. The case was remanded for further proceedings on the issue of whether her conviction rendered her removable for having been convicted of two crimes of moral turpitude. See Jaggernauth v. U.S. Atty. Gen., supra, at 1355-56. Here, although the respondent’s conviction is under the same divisible statute, the record indicates that she was convicted of a crime involving moral turpitude.

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Mario M. Lovo, Esquire

Richard Jurgens
Assistant Chief Counsel

The respondent, a native and citizen of Nicaragua, has timely filed a motion to reconsider the Board’s December 4, 2009, decision affirming without opinion the results of the decision below. The Immigration Judge concluded that the respondent failed to satisfy his burden of proof for adjustment of status under section 202 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), Title II of Pub. L. No. 105-100, 111 Stat. 2193 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997) (“NACARA”). Notwithstanding the arguments advanced, we find no error in our prior decision. Therefore, the motion to reconsider will be denied.

Even assuming that the respondent demonstrated that his physical presence in the United States commenced prior to December 1, 1995, he did not also demonstrate that thereafter he was physically present in this country on a continuous basis, as required. See 8 C.F.R. § 1245.13(e)(4). His failure to do so is established by his testimonial admissions, which reflect that he was out of the country for more than 180 days during the relevant time period. [FN1] See e.g., I.J. at 4-5; Tr. at 20-36 (reflecting that prior to December 1, 1995, he was present in the United States on April 5, 1995, but that he left the country in May 1995 and was absent through January 28, 1996, and was absent again from February 2, 1996, until December 1996).

Accordingly, the motion to reconsider is denied.

ORDER: The motion to reconsider is denied.
David B. Holmes
FOR THE BOARD

FN1. The relevant time flame for establishing continuous physical presence in the United States for section 202 NACARA relief is “since the last date on or before December 1, 1995, on which the applicant established commencement of physical presence” in this country. See 8 C.F.R. § 1245.13(e)(4). As explicitly stated in the comments to this regulation, “[a]ll absences between the last pre-December 2, 1995, date on which the applicant commenced physical presence and the date on which the application is approved count toward the 180-day maximum, with the exception of those periods for which time is tolled pursuant to § 245.13(o).” See 65 Fed. Reg. 15846, 15850 (March 24, 2000).

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Linda L. Walker, Esquire

Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] – Convicted of aggravated felony

The respondent, a native and citizen of Mexico, appeals from a March 8, 2010, Immigration Judge’s decision. Under then-controlling precedent of the United States Court of Appeals for the Fifth Circuit, the Immigration Judge determined that the respondent is removable as an aggravated felon based upon a controlled substance possession conviction that occurred after a prior controlled substance possession conviction had become final. However, on June 14, 2010, the United States Supreme Court held that an alien’s second simple drug possession offense is not an aggravated felony where the second conviction was not based on the fact of a prior conviction. Carachuri-Rosendo v. Holder, 560 U.S. -, 2010 WL 2346552 (2010), rev’g 570 F.3d 263 (5th Cir. 2009). We therefore will remand the record for the Immigration Judge to reconsider the respondent’s case in light of the Supreme Court’s decision.

Accordingly, the following order will be entered.

ORDER: The record is remanded for further proceedings.
John Guendelsberger
FOR THE BOARD

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Laura A. Michalec
Assistant Chief Counsel

Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] – Convicted of aggravated felony under section 101(a)(43)(F) of the Act

Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] – Convicted of aggravated felony under section 101(a)(43)(G) of the Act

Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] – Convicted of aggravated felony under section 101(a)(43)(U) of the Act

The respondent, a native and citizen of the Dominican Republic and a lawful permanent resident of the United States since his admission as an immigrant on or about December 5, 1993, has filed a timely appeal from an Immigration Judge’s April 27, 2010, decision. In that decision, the Immigration Judge found the respondent removable, as charged, based on his admissions (Tr. at 9-10) and record of convictions (Exhs. 3, 4), and statutorily ineligible for relief from removal, including cancellation of removal pursuant to section 240A(a)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)(3), on account of the respondent’s 2008 New York conviction for Robbery in the Third Degree and 2009 New York conviction for Attempted Robbery in the Second Degree, which the Immigration Judge found to constitute aggravated felony convictions, as defined under sections 101(a)(43)(F), (G), and (U) of the Act, 8 U.S.C. §§ 1101(a)(43)(F), (G), and (U). The appeal will be dismissed. The respondent’s request to proceed on appeal in forma pauperis is granted under 8 C.F.R. § 1003.8(a)(3). See Matter of Chicas, 19 I&N Dec. 114 (BIA 1984).

The respondent has presented no arguments on appeal that would persuade us to disturb the Immigration Judge’s decision. Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008). The respondent fails to detail what error or mistake was made with regard to the finding of removability, and based on the record before us, we agree with the Immigration Judge that the respondent is subject to removal from the United States based on the respondent’s admissions and record of convictions. See section 240(c)(3)(A) of the Act, 8 U.S.C. § 1229a(c)(3)(A). Moreover, although the respondent has expressed a concern about returning to the Dominican Republic because of his long years of lawful permanent residence in the United States and his significant family ties in this country, he has failed to establish his eligibility for any relief from removal, including cancellation of removal pursuant to section 240A(a)(3) of the Act. [FN1] See section 240(c)(4)(A)(i) of the Act, 8 U.S.C. § 1229a(c)(4)(A)(i); 8 C.F.R. § 1240.8(d).

Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.
Roger A. Pauley
FOR THE BOARD

FN1. We note, parenthetically, the respondent, in the Notice of Appeal, expressed a “general” fear for his safety and well-being if returned to the Dominican Republic. However, he fails to detail what is the basis for that fear or why he did not first raise the issue at the hearing before the Immigration Judge.

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Brian C. DiFranco, Esquire

The motion is denied. This case was last before the Board on December 18, 2009, when the Board dismissed the respondent’s appeal of an Immigration Judge’s decision denying the respondent’s application for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a). On May 17, 2010, the respondent filed a motion requesting reconsideration and sua sponte reopening. The respondent’s motion is untimely. See section 240(c)(7)(C) of the Act, 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(b), (c). Furthermore, the respondent, who was found to have acquired his lawful permanent resident status through fraud or misrepresentation, has not identified any error of fact or law in the Board’s previous decision that would alter the outcome. See 8 C.F.R. § 1003.2(b); see also Matter of O-S-G-, 24 I&N Dec. 56 (BIA 2006) (discussing the requirements for motions to reconsider). Cf. Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003) (finding that an alien who acquired permanent resident status through fraud or misrepresentation has never been “lawfully admitted for permanent residence” and is therefore ineligible for cancellation of removal under section 240A(a) of the Act). Significantly, we do not find the respondent’s mere disagreement with or disapproval of the outcome of our previous detailed decision sufficient to demonstrate either that we improperly evaluated or disregarded the facts and evidence presented or legal error.

Moreover, the respondent has not identified any changed circumstances in Mexico that would have excepted his untimely motion from the applicable time limitations. See 8 C.F.R. § 1003.2(c)(3)(ii). The respondent’s motion also fails to comply with both the statutory and regulatory requirements for reopening. See section 240(c)(7) of the Act; 8 C.F.R. § 100.3.2(c). The respondent’s motion does not contain any new or previously unavailable or unobtainable evidence demonstrating the respondent’s eligibility for any other forms of relief. [FN1]

Finally, we find no other reason for this Board’s further consideration of the respondent’s claim on our own motion pursuant to this Board’s sua sponte authority under 8 C.F.R. § 1003.2(a).

On this record, we find no reason to overlook the untimeliness of the respondent’s motion. Accordingly, the respondent’s motion is denied.
Frederick D. Hess
FOR THE BOARD

FN1. To the extent the respondent claims ineffective assistance of counsel, the respondent has not sufficiently shown patent error or complied with the requirements set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). See also Matter of Compean, 25 I&N Dec. 1 (A.G. 2009) (directing Board to apply Lozada standards to ineffective assistance of counsel claims pending the outcome of a rulemaking process); Matter of Assaad, 23 I&N Dec. 553 (BIA 2003).

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Miguel A. Lopez Feliciano
Law Student

Sheila I. Velez-Martinez
Licensed Attorney

Jorge Ramos
Senior Attorney

The respondent, a citizen and native of the British Virgin Islands, appeals from the decision of the Immigration Judge, dated March 10, 2010, finding he had been convicted of an aggravated felony and ordering him removed as charged under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii). The appeal will be dismissed.

We review the findings of fact, including determinations of credibility, made by the Immigration Judge under a “clearly erroneous” standard. 8 C.F.R. § 1003.1 (d)(3)(i). We review all other issues, including whether or not the parties have met the relevant burden of proof, and issues of discretion, under a de novo standard. 8 C.F.R. § 1003.1(d)(3)(i).

On June 29, 2004, the respondent was convicted of assault in the third degree in violation of 14 V.I.C. sections 297(2) and 11(a) and possession of a dangerous weapon during the commission of a crime of violence in violation of 14 V.I.C. section 2251. For the assault crime he was sentenced to 6 months in prison and he received 7 1/2 years for the dangerous weapon possession charge. The Immigration Judge found that the possession of a dangerous weapon during the commission of a crime of violence offense was divisible, with some offenses involving violence and others not. Applying a modified categorical approach, the Immigration Judge found that the respondent’s offense involved a substantial risk that physical force may be used and is therefore a crime of violence. We agree and the opinion of the Immigration Judge will be affirmed.

A crime of violence under section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) is defined, with reference to 18 U.S.C. section 16, as:

Id.

The respondent in this case was convicted under 14 Virgin Islands Code, section 2251(a)(2)(B) which provides:

Id.

The Immigration Judge applied a modified categorical approach and found that the respondent’s offense qualifies as a crime of violence under 18 U.S.C. §16(b). See Shepard v. United States, 544 U.S. 13 (2005); Taylor v. United States, 495 U.S. 575 (1990). Based on case law from a variety of circuit courts, the Immigration Judge found the possession of a dangerous weapon, with the intent to use it against another in a crime of violence, contains a substantial risk that physical force against a person will be used.

The respondent agrees that the crime is divisible and that a modified categorical approach is the proper analysis to use in this case. He then attempts to distinguish the various cases relied on by the Department of Homeland Security to illustrate that his crime was one of violence. He primarily argues that his weapon was a dangerous one, rather than a deadly weapon, discussed in some of the precedent decisions, and that an iron pipe is not inherently dangerous or deadly. The respondent however, was not convicted of simply possessing the weapon, but rather of possessing it with the intent to use it unlawfully against another. The criminal information also indicates that the unlawfulness at issue was an assault (Exh.2).

We agree with the Immigration Judge that the crime in question clearly involves a substantial risk of physical force and is an aggravated felony as a crime of violence under section 101(a)(43)(F) of the Act. Accordingly, the following order will be entered.

ORDER: The appeal is dismissed.
Edward R. Grant
FOR THE BOARD

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Daniel H. Malvin
Assistant Chief Counsel

Notice: Sec. 237(a)(2)(A)(ii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(ii)] – Convicted of two or more crimes involving moral turpitude

Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] – Convicted of aggravated felony as defined in section 101(a)(43)(F), I&N Act [8 U.S.C. § 1101(a)(43)(F)]

The respondent appeals the Immigration Judge’s February 18, 2010, decision holding that he is removable as charged under sections 237(a)(2)(A)(ii) and (iii) of the Immigration and Nationality Act, 8 U.S.C. §§ 1227(a)(2)(A)(ii), (iii). The Department of Homeland Security (DHS) has filed a motion for summary affirmance. The appeal will be dismissed.

We review findings of fact, including the determination of credibility, under a clearly erroneous standard. 8 C.F.R. § 1003.1(d)(3)(i). We review questions of law, including whether the parties have met the relevant burden of proof, and issues of discretion under a de novo standard. 8 C.F.R. § 1003.1(d)(3)(ii).

We adopt and affirm the decision of the Immigration Judge. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). The respondent’s second-degree robbery conviction under Cal. Penal Code § 211 is categorically a crime of violence. See Nieves-Medrano v. Holder, 590 F.3d 1057 (9th Cir. 2010) (citing United States v. Becerril-Lopez, 541 F.3d 881, 893 (9th Cir. 2008)); see also Johnson v. United States, 130 S. Ct. 1265 (2010) (holding that the physical force contemplated by 18 U.S.C. § 16 is violent force capable of causing physical pain or injury to another person). It is also a crime involving moral turpitude. See generally Matter of Jurado, 24 I&N Dec. 29, 33 (BIA 2006) (theft offenses involve moral turpitude). Likewise, the respondent’s vehicular burglary conviction is a crime involving moral turpitude because, under a modified categorical analysis, the record shows it involved an intent to commit theft. See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1020 (9th Cir. 2005).

Finally, the Immigration Judge did not err in considering the abstract of judgment. See United States v. Snellenberger, 548 F.3d 699 (9th Cir. 2008), cert. denied, 130 S. Ct. 1048 (2010) (describing types of records that comprise the record of conviction).

For these reasons, the appeal will be dismissed.

ORDER: The appeal is dismissed.
Edward R. Grant
FOR THE BOARD

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

David P. Finn
Assistant Chief Counsel

The respondent has appealed from the Immigration Judge’s decision dated April 20, 2010. The Immigration Judge issued a bond memorandum on May 26, 2010, setting forth the reasons for his bond decision. The Immigration Judge found the respondent subject to mandatory detention under section 236(c) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c). On appeal, the respondent argues that he has not been convicted of an aggravated felony that would subject him to mandatory detention. The respondent’s appeal will be dismissed.

The Board reviews an Immigration Judge’s findings of fact, including findings as to the credibility of testimony, under the “clearly erroneous” standard. 8 C.F.R. § 1003. 1(d)(3)(i); Matter of S-H-, 23 I&N Dec. 462, 464-65 (BIA 2002). The Board reviews questions of law, discretion, and judgment and all other issues in appeals from decisions of Immigration Judges de novo. 8 C.F.R. § 1003. 1(d)(3)(ii); Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008).

The Act prescribes mandatory detention for certain aliens, including those who, like the respondent, have been charged with commission of a controlled substance violation. See 8 U.S.C. § 1226(c)(1)(B). The regulations generally do not confer jurisdiction on an Immigration Judge over custody or bond determinations governing those aliens who are subject to mandatory detention. See 8 C.F.R. § 1003.19(h)(2)(i)(D). However, an alien may seek a determination by an Immigration Judge that the alien is “not properly included within” certain of the regulatory provisions which would deprive the Immigration Judge of bond jurisdiction, including the mandatory detention provisions at issue in this matter. See 8 C.F.R. § 1003.19(h)(2)(ii); Matter of Joseph, 22 I&N Dec. 799, 802 (BIA 1999). An alien will not be considered “properly included” within a mandatory detention category only when an Immigration Judge is convinced that the DHS is substantially unlikely to establish, at the merits hearing, the charge or charges that subject the alien to mandatory detention. See id.

The Immigration Judge found the respondent subject to mandatory detention under section 236(c) of the Act, based upon his determination that the respondent’s two convictions for Under the Influence of a Controlled Substance, Heroin and Opiates, constitute controlled substance violations under section 237(a)(2)(B)(i) of the Act, 8 U.S.C. § 1227(a)(2)(B)(i). The respondent’s argument on appeal fails to challenge the Immigration Judge’s determination that the respondent’s convictions are controlled substance violations. See 8 C.F.R. § 1003.19(h)(2)(ii); Matter of Joseph, 22 I&N Dec. 799, 802 (BIA 1999); see also, Matter of Cervantes, 22 I&N Dec. 560, 561 n.1 (BIA 1999) (expressly declining to address an issue not raised by party on appeal); Matter of Gutierrez, 19 I&N Dec. 562, 565 n.3 (BIA 1988) (same). Rather, the respondent argues that neither of his convictions constitute an aggravated felony, as defined in section 101(a)(43)(B) of the Act. Inasmuch as the respondent’s appellate argument fails to challenge the basis for the Immigration Judge’s determination that the respondent is subject to mandatory detention, we find that the respondent has failed to demonstrate error in the Immigration Judge’s decision. Accordingly, the following order will be entered.

ORDER: The respondent’s appeal is dismissed.
John Guendelsberger
FOR THE BOARD

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

David W. Leopold, Esquire

Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] – Convicted of aggravated felony

In a decision dated February 23, 2009, incorporating the interim order of February 11, 2009, the Immigration Judge found the respondent removable under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii). The Immigration Judge ordered the respondent removed from the United States to Jamaica. The respondent appealed. On July 30, 2009, the Board remanded the record. On March 1, 2010, the Immigration Judge again found the respondent removable and ordered him removed. The respondent has appealed. The request for oral argument is denied. The appeal will be dismissed.

The respondent is a 65-year-old native and citizen of Jamaica, who entered the United States as a lawful permanent resident on August 31, 1964. The respondent was convicted on March 20, 2008, in the United States District Court for the Northern District of Ohio, of aiding and abetting mail fraud. He was sentenced to 27 months in prison and ordered to provide $557,650 in restitution. He also contends that he should be allowed to apply for naturalization under section 329 of the Act based on his service in the United States Army from 1966 to 1973. He alleges he applied for naturalization in 1983, was interviewed in 1985, but never received notice of the approval of his application. The Immigration Judge found him removable and ineligible for relief on account of his conviction, which constitutes an aggravated felony. 8 U.S.C. §§ 1101 (a)(42)(M), 1227(a)(2)(A)(iii).

The Board remanded because, although the respondent had been asked if he wanted to continue proceedings to obtain counsel, the respondent had not been informed of the availability of free legal services or provided a list of such services. He also had not received a copy of the Immigration Judge’s February 11, 2009, interlocutory order denying his motion to terminate. The respondent is represented on remand and received a copy of the Immigration Judge’s order.

On appeal, the respondent contends the Notice to Appear was improperly issued, and the Department of Homeland Security (the “DHS”) has not met its burden of proof that he is an alien and not a citizen of the United States. According to the respondent, any admissions made at the first hearing, where he was not represented, cannot be relied upon. He claims that the Form I-213 is not reliable and does not prove that he is not a citizen of the United States or that he is removable. He argues the DHS should not have been allowed to submit certified copies of his conviction record, that the uncertified records are not sufficient to prove removability and that the Pre-sentence Report cannot be considered if not certified. He contends he became a United States citizen through his service in the Army, or, in the alternative, that he should be allowed to apply for naturalization.

The decision to institute deportation proceedings involves the exercise of prosecutorial discretion and is not a decision which the Immigration Judge or the Board may review. See Matter of Bahta, 22 I&N Dec. 1381 (BIA 2000); Matter of Roussis, 18 I&N Dec. 256 (BIA 1982); see also Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). Once the Notice to Appear is filed with the Immigration Court the Immigration Judge must reach a decision in accordance with the statute and regulations. We find nothing in the record, statutes, or regulations that convinces us that the DHS acted outside the scope of its authority by initiating these proceedings, or seeking an order of removal.

It is well-established that the burden to prove alienage is upon the DHS. 8 C.F.R. § 1240.8. When there is a claim of citizenship, however, one born abroad is presumed to be an alien and must go forward with the evidence to establish his claim to citizenship. Matter of Leyva, 16 I&N Dec. 118 (BIA 1977); Matter of A-M-, 7 I&N Dec. 332, 336 (BIA 1956); United States ex. Rel. Rongett v. Neelly, 207 F.2d 281, 284 (7th Cir. 1953). The respondent must present a preponderance of credible evidence sufficient to overcome the presumption of alienage which attached by reason of his birth in a foreign country. Matter of Tijerina-Villarreal, 13 I&N Dec. 327 (BIA 1969).

The respondent claims the Service has not carried its burden of proof. The respondent did not admit all the allegations in the Notice to Appear at the first hearing. He did not testify at the second hearing. Assuming the respondent’s agreement that he had entered as a lawful permanent resident cannot be considered, the Immigration Judge still properly relied on the Form I-213 in finding the respondent is an alien. Matter of Ponce-Hernandez, 22 I&N Dec. 784 (BIA 1999). In Murphy v. INS, 54 F.3d 605 (9th Cir. 1995) (Service retains burden of proof and persuasion to establish alienage by clear, unequivocal and convincing evidence), cited by the respondent, the Ninth Circuit found the Board had incorrectly shifted the burden of proof of alienage to the respondent. The court found the Form I-213 unreliable where the respondent testified that it was not correct, that someone else had provided the information, and where several different names were given for the respondent and his parents. The respondent here did not testify that the Form I-213 was incorrect and has never denied that he was born in Jamaica to a Jamaican father. Nothing about the Form I-213 indicates it is unreliable. It is not unusual to leave certain questions unanswered, to fail to number the first page, to include an ex-wife under spouse, or to fail to give a title to the Examining Officer. [FN1] In addition, he has continued to claim to have naturalized as a citizen of the United States. Thus, he has tacitly admitted his alienage at birth.

The record shows the respondent was convicted, as charged. Where the proceedings were remanded on other grounds it was proper to allow the DHS to enter the certified record of conviction on remand. The DHS was not required to meet the requirements for a motion to reopen. The Judgment of Conviction establishes the requirements of section 101 (a)(42)(M) of the Act, without recourse to the Pre-sentence report. The evidence meets the requirements of section 240(c)(3)(C) of the Act. The respondent does not argue the conviction would not be an aggravated felony under the Act.

The respondent did not become a naturalized citizen by taking the oath of loyalty to the United States. He did not become a United States citizen at the time of his examination. One must complete the process of becoming a naturalized citizen to be deemed a United States national. Salim v. Ashcroft, 350 F.3d 307, 309-10 (3d Cir. 2003). In 1987, only a federal court could administer the oath of citizenship. See former 8 U.S.C. § 1447 (1987). In 1990, the statute was amended to provide that the oath could be taken “in a public ceremony before the Attorney General or a court with jurisdiction under section 1421(b) of this title.” See 8 C.F.R. §§ 337.1, 1337.1 (oath taken in public ceremony). The respondent may apply to the DHS to naturalize under section 328 or 329 of the Act, 8 U.S.C. §§ 1439, 1440, but proceedings will not be continued or terminated to allow him to do so. See e.g. Matter of Acosta-Hidalgo, 24 I&N Dec. 103 (BIA 2007) (removal proceedings may only be terminated pursuant to 8 C.F.R. § 1239.2(f) where the DHS has presented an affirmative communication attesting to an alien’s prima facie eligibility for naturalization); accord, Zegrean v. Attorney General of the United States, 602 F.3d 273 (3d Cir. 2010); cf. Perriello v. Napolitano, 579 F.3d 135 (2d Cir. 2009). In any case, the respondent is not prima facie eligible for naturalization because he cannot clearly show good moral character. 8 C.F.R. § 329(d).

We find that the Immigration Judge correctly held that the respondent is a citizen of Jamaica and that he is removable as an aggravated felon. The respondent is not eligible for cancellation of removal because of his conviction for an aggravated felony. Section 240A(a)(3) of the Act, 8 U.S.C. § 1229b(a)(3). He has not claimed eligibility for asylum or withholding of removal, or relief under the Convention Against Torture. See sections 208(b) and 241(b), 8 U.S.C. §§ 1158(b) and 1231(b); 8 C.F.R. § 208.16. He does not meet the requirement to qualify for voluntary departure under section 240B(b) of the Act, 8 U.S.C. § 1229c(b), on account of his conviction.

In regard to the due process and equal protection argument, the Board is not empowered to find its governing statute unconstitutional. See Matter of Fuentes-Campos, 21 I&N Dec. 905 (BIA 1997); Matter of C-, 20 I&N Dec. 529 (BIA 1992); Matter of Hernandez-Puente, 20 I&N Dec. 335 (BIA 1991); Matter of Fede, 20 I&N Dec. 35 (BIA 1989).

Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.
Roger A. Pauley
FOR THE BOARD

FN1. His title (Assistant Field Office Director) does appear on the Notice to Appear. The only indicia of unreliability on the I-213 is the incorrect date at the top of the second page, which is unexplained. Nevertheless, the second page bears the respondent’s correct A-number and the date is not a matter of significance.

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Sherron Ashworth
Assistant Chief Counsel

The respondent, a native and citizen of Jamaica and lawful permanent resident of the United States, appeals from the Immigration Judge’s decision dated February 9, 2010, which ordered him removed from the United States. [FN1] The record will be remanded.

In the decision on appeal, the Immigration Judge determined, based on his multiple State convictions for possession of marijuana, that the respondent was an aggravated felon and therefore ineligible for cancellation of removal, as well as other forms of relief. Section 240A(a)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)(3). See United States v. Sanchez-Villalobos, 412 F.3d 572 (5th Cir. 2005); Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007). The United States Supreme Court recently held that when an alien has been convicted of a simple possession offense that has not been enhanced based on the fact of a prior conviction, he has not been “convicted” of a “felony punishable” as such under the Controlled Substances Act, 18 U.S.C. § 924(c)(2), and therefore has not been convicted of an aggravated felony for purposes of section 240A(a)(3) of the Act. See Carachuri-Rosendo v. Holder, No. 09-60, 2010 WL 2346552 (U.S. June 14, 2010). In light of this ruling, we find that it is appropriate to remand the case to the Immigration Court for further consideration. Accordingly, the record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.
John Guendelsberger
FOR THE BOARD

FN1. We note that the oral decision accompanying the Immigration Judge’s February 9, 2010, Order is dated February 11, 2010, which appears to be a clerical error.