Immigration Appeals Decisions

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Nicomedes E. Suriel, Esquire

Paul M. Habich
Assistant Chief Counsel

The Department of Homeland Security (“DHS”) appeals the Immigration Judge’s October 2, 2009, decision terminating proceedings. The respondent has filed a motion for summary affirmance. The DHS’ appeal will be sustained and the record remanded to the Immigration Court.

We review the findings of fact, including the determination of credibility, made by the Immigration Judge under a “clearly erroneous” standard. See 8 C.F.R. § 1003.1(d)(3)(i). We review all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion, under a de novo standard. See 8 C.F.R. § 1003.1(d)(3)(ii); Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008); Matter of V-K-, 24 I&N Dec. 500 (BIA 2008).

On appeal, the DHS asserts that the Immigration Judge erred by determining that he could not consider a presentence investigation report to determine whether the respondent’s August 10, 2000, convictions for Aggravated Driving or Actual Physical Control While Under the Influence of Intoxicating Liquor or Drugs (hereinafter “Aggravated DUI”) constituted crimes involving moral turpitude (“CIMT”).

Inconsistent

The Immigration Judge determined that he could “only consider judicially noticeable documents in determining whether the respondent had been convicted of a [CIMT]” (I.J. at 5). He therefore concluded that he was precluded from considering a presentence investigation report (Exh. 3-B) which described the underlying conduct leading to the respondent’s Aggravated DUI convictions. Because the Immigration Judge did not consider this document, he could not determine whether the respondent had been convicted of actually driving the vehicle during the commission of these offenses, so as to constitute CIMTs. See Marmolejo-Campos v. Holder. 558 F.3d 903,906. 913 (9th Cir. 2009).

The Immigration Judge’s decision is inconsistent with Matter of Silva-Trevino, 24 I&N Dec. 687, 704 (AG 2008), holding that if the record of conviction does not resolve the CIMT question, an Immigration Judge may “consider any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question.” The Immigration Judge’s reliance, in part, on Marmolejo-Campos v. Holder, supra, at 903, as supporting his conclusion that he could not look beyond the formal record of conviction in determining whether a conviction constituted a CIMT is misplaced. In Marmolejo-Campos, the Court of Appeals for the Ninth Circuit specifically reserved judgment on the question of whether its prior case law, suggesting that review should be strictly confined to the conviction record, should be re-examined in light of Matter of Silva-Trevino. Nor do the other post-Matter of Silva-Trevino cases relied upon by the Immigration Judge reach the issue of what documents may be considered outside the record of conviction in determining whether an offense constitutes a CIMT, so as to preclude consideration of the presentence investigation report. See Morales-Garcia v. Holder, 567 F.3d 1058 (9th Cir. 2009); Uppal v. Holder, 576 F.3d 1014 (9th Cir. 2009).

We conclude that the Immigration Judge erred in determining that he could not consider the presentence investigation report. It is appropriate to consider this document in order to accurately resolve the moral turpitude question. Given that the document was prepared for sentencing and relied upon by the sentencing judge ( see Exh. 3-C, D, E), we conclude that it is reliable and the type of “additional evidence” referred to in Matter of Silva-Trevino,supra, at 704. We will thus reverse the decision below and remand for a new decision under the final step of Silva-Trevino. On remand, the Immigration Judge should consider the presentence investigation report and any other appropriate evidence in deciding whether the respondent’s offenses actually involved moral turpitude.

Accordingly, we enter the following orders.

ORDER: The DHS’ appeal is sustained.

FURTHER ORDER: The Immigration Judge’s order dated October 2, 2009, is vacated, and the record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

Neil P. Miller
FOR THE BOARD

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

Orest Bezpalko II, Esquire

Jeffrey T. Bubier
Senior Attorney

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

The respondent, a lawful permanent resident of the United States, is a native and citizen of Haiti. The Department of Homeland Security (“DHS”) appeals the October 13, 2009, decision of the Immigration Judge terminating these proceedings. The appeal will be dismissed.

On June 9, 2003, the respondent was convicted in the Municipal Court of Philadelphia County of retail theft in violation of title 18, section 3929 of the Pennsylvania Consolidated Statutes (I.J. at 2; Exh. 2, Tab B). It is undisputed that this amounts to a crime involving moral turpitude for immigration purposes (I.J. at 2). See Matter of Jurado-Delgado, 24 I&N Dec. 29, 33 (BIA 2006). In addition, on March 28, 2007, the respondent was convicted in the Court of Common Pleas of Delaware County of providing false identification to a law enforcement officer in violation of title 18, section 4914 of the Pennsylvania Consolidated Statutes (I.J. at 2; Exh. 2, Tabs C and D). The Immigration Judge held that the DHS failed to show that this conviction constitutes a crime involving moral turpitude, as the criminal statute requires no intent to mislead, impair, or obstruct the function of the government through dishonest means (I.J. at 2-4). Cf. id. at 34-35 (holding that a conviction under title 18, section 4904(a) of the Pennsylvania Consolidated Statutes does require such intent). The sole issue on appeal is whether this determination is erroneous.

The instant matter arises within the jurisdiction of the United States Court of Appeals for the Third Circuit, which employs the categorical approach in evaluating whether an offense meets the definition of moral turpitude. See Jean-Louis v. Attorney General of the United States, 582 F.3d 462,473-74 (3d Cir. 2009) (rejecting the Attorney General’s “realistic probability test” in Matter of Silva-Trevino, 24 I&N Dec. 687, 706-08 (A.G. 2008), and affirming the historically applied categorical approach). Pursuant to this approach, we must consider the criminal statute and the record of conviction, not the alien’s conduct. Partyka v. Attorney General of the United States, 417 F.3d 408, 411-12 (3d Cir. 2005); Knapik v. Ashcroft, 384 F.3d 84, 88, 90-91 (3d Cir. 2004). Furthermore, “a crime involves moral turpitude when ‘the least culpable conduct necessary to sustain a conviction under the statute’ can be considered morally turpitudinous.” Mehboob v. Attorney General of the United States, 549 F.3d 272,275 (3d Cir. 2008) ( quoting Partyka, supra, at 411). Thus, we must determine the least culpable conduct that could result in a conviction under the Pennsylvania statute, and compare that conduct to the definition of moral turpitude. See Matter of Olquin, 23 I&N Dec. 896, 896 (BIA 2006) ( citing Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001) (defining a crime involving moral turpitude as one that is “inherently base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons or to society in general.”).

The relevant statute of conviction provides:

18 Pa. Cons. Stat. § 4914 (2001). Based on this language, we find the respondent’s case distinguishable from Matter of durado-Delgado. The offense in that case involved a knowing misrepresentation with an intention to disrupt the performance of a public servant’s official duties. In contrast, the respondent’s offense does not require that the offender intend to prevent an officer from performing an official function. It also does not have as an element impairing and obstructing a function of a department of government by defeating its efficiency or destroying the value of its lawful operations by deceit, graft, trickery, or dishonest means. See Matter of Flores, 17 I&N Dec. 225,229 (BIA 1980). Furthermore, these elements do not appear to be implicit in the statute. In this regard, the Superior Court of Pennsylvania has upheld the conviction of a defendant under title 18, section 4914 of the Pennsylvania Consolidated Statutes where he provided police his “Muslim name,” which was different from his legal name. Commonwealth of Pennsylvania. v. Flamer, 848 A.2d 951 (Pa. Super. Ct. 2004). Finally, because the statute is not divisible in any relevant way, we may not apply the modified categorical approach, which would permit consideration of certain parts of the underlying record of conviction. See Evanson v. Attorney General of the United States, 550 F.3d 284, 291-92 (3d Cir. 2008) (discussing when various documents may be considered).

For these reasons, exercising our de novo review over legal issues, we agree with the Immigration Judge that the DHS has not proven that the respondent’s March 28, 2007, conviction under title 18, section 4904(a) of the Pennsylvania Consolidated Statutes was for a crime involving moral turpitude. See 8 C.F.R. § 1003.1(d)(3)(ii). Therefore, termination of these proceedings was appropriate. Accordingly, the following order is entered.

ORDER: The appeal is dismissed.

Roger A. Pauley
FOR THE BOARD

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

Sandrine Lisk, Esquire

Notice: Sec. 237(a)(2)(A)(i), I&N Act [8 U.S.C. § 1227(a)(2)(A)(i)] Convicted of crime involving moral turpitude

On May 2, 2006, the Board of Immigration Appeals, found that the respondent is removable, as charged, vacated the order to terminate proceedings, and remanded this matter to the Immigration Judge to consider whether the respondent was eligible for any relief from removal. The Immigration Judge, in light of the Board’s decision, on remand, declined to consider the motion to terminate and finding the respondent not eligible for any relief, ordered him removed to Mexico in a decision rendered on August 11, 2008. The respondent has appealed. The appeal will be dismissed.

On September 15, 2004, an Immigration Judge found the respondent not removable under section 237(a)(2)(A)(i) of the Immigration and Nationality Act (“Act”), 8 U.S.C. § 1227(a)(2)(A)(i), as one convicted of a crime of moral turpitude committed within 5 years of his entry and for which a sentence of 1 year or longer may be imposed. He terminated proceedings and the Department of Homeland Security (DHS) appealed. The respondent was convicted on a plea of guilty on November 19, 1999, in the District Court, Finney County, Kansas, of felony theft in violation of Kansas Statutes Annotated (KSA) 21-3701 (a). He was sentenced to 7 months in jail and 24 months probation. The presumptive sentence for this crime is between 6 and 8 months in prison.

The respondent, a 30-year-old native and citizen of Mexico, arrived in the United States on or about May 1, 1991. He was adjusted to a lawful permanent resident of the United States on May 2, 1996. The respondent argued on appeal that one convicted under KSA 21-3701(a) could not be sentenced to a year in prison unless the trial judge deviated from the presumptive sentence, a maximum of 8 months. In order to deviate from the range of sentence proposed, the trial court would have to find substantial and compelling reasons to impose a departure. If the trial judge departed from the sentencing guidelines, the defendant could appeal to the Kansas Court of Appeals. The Board found the respondent could have been sentenced to more than a year in prison for a violation of KSA 21-3701 (a) in its May 2, 2006, decision. The Immigration Judge correctly found she could not revisit removability on remand, where the purpose of the remand was stated to be to allow the respondent to apply for relief, if eligible. See Matter of M-D-, 24 I&N Dec. 138 (BIA 2007); Matter of Patel, 16 I&N Dec. 600 (BIA 1978). The respondent did not apply for any relief.

In his brief on appeal the respondent again argues that under the Kansas sentencing guidelines, he could not be sentenced to a year in prison for theft under KSA 21-3701(a). He maintains that the Board erred in mentioning criminal history as a thctor to be considered by the judge in departing from the presumptive sentence. The respondent argues that our previous decision was wrong as a matter of law. We will treat his appeal as a motion to reconsider our previous opinion. A motion to reconsider is used to allege errors in appraising the facts and the law and must be supported by precedent decisions. 8 C.F.R. § 1003.2(b)(1). See Matter of Tiwari, 20 I&N Dec. 254 (BIA 1991). We do not find that the respondent has cited to any mistake of fact or law to support a motion to reconsider.

The respondent argues that the Board by recognizing that certain defendants could be sentenced to a year or more in prison for violating KSA 21-3701(a) would become entangled in the consideration of various factors not evidenced in the statute, but which are recognized as sufficient reasons to depart from the presumptive sentence, such as, for example, the vulnerability of the victim, excessively brutal conduct, motive, relationship of defendant and victim, etc. See KSA 21-4716(b)(2) (sentencing guidelines). On the contrary, the respondent’s argument confuses the sentence actually imposed with the sentence which could have been imposed. In order to decide that the respondent could not have received a departure from the presumptive sentence, the Board would have to inquire whether any of the aggravating factors were present and whether they would amount to substantial and compelling reasons for a departure. Such an inquiry would be beyond the scope of the Board’s jurisdiction. It is sufficient for the Board to conclude that someone who was found guilty under KSA 21-3701 (a) could be sentenced to a year in prison. As an upward departure of up to double the maximum duration of the presumptive imprisonment term is allowed, the respondent could have been sentenced to up to 16 months in prison. KSA 21-4719(b)(2). It was not an error to refer to criminal history in our prior decision, because KSA 21-4719(b)(1) allows a trial judge to depart from the presumptive term of imprisonment: “… to impose a sentence which is proportionate to the severity of the crime of conviction and the offender’s criminal history;…”

Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.

Patricia A. Gole
FOR THE BOARD

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

Jamie B. Naini, Esquire

William A. Lund
Assistant Chief Counsel

Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § l182(a)(6)(A)(i)] Present without being admitted or paroled

The Department of Homeland Security (“DHS”) has filed a timely appeal of an Immigration Judge’s decision dated September 10, 2008. In that decision, the Immigration Judge found the respondent removable under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § l182(a)(6)(A)(i), based on his admissions and granted his request for pre-hearing voluntary departure pursuant to section 240B(a) of the Act, 8 U.S.C. § 1229c(a). The 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. See 8 C.F.R. § 1003.1 (d)(3)(i) (2009); 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) (2009); Matter of V-K-, 24 I&N Dec. 500 (BIA 2008); Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008).

Voluntary departure under section 240B(a) of the Act is considered pre-hearing or preconclusion voluntary departure, which allows for a voluntary departure period of up to 120 days and has less stringent eligibility criteria than post-conclusion voluntary departure under section 240B(b) of the Act. See Matter of Arguelles, 22 I&N Dec. 811,817 (BIA 1999); 8 C.F.R. §1240.26(b); see also Matter of Cordoba, 22 I&N Dec. 966,967 (BIA 1999); Matter of Ocampo, 22 I&N Dec. 1301, 1303 (BIA 2000). Most significantly, an alien may be granted voluntary departure under section 240B(a) of the Act without being required to establish good moral character. See Matter of Arguelles, supra, at 817. Thus, the Immigration Judge could properly grant this form of relief even if the respondent has certain criminal convictions, or has committed other actions indicative of a lack of good moral character. In this regard, the Immigration Judge in the matter before us concluded that the respondent’s 2008 Arkansas forgery conviction did not preclude the respondent from a grant of pre-hearing voluntary departure.

On appeal, the DHS argues that the Immigration Judge erred in granting the respondent’s request for voluntary departure prior to the conclusion of the proceedings because the respondent’s 2008 Arkansas forgery conviction is an aggravated felony offense as defined under section 101(a)(43)(R) of the Act, 8 U.S.C. § 1101(a)(43)(R).

The respondent cannot establish eligibility for pre-hearing voluntary departure, if he is removable as having been convicted of an aggravated felony under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii). See section 240B(a)(1) of the Act. However, in order to sustain a “forgery” aggravated felony ground of removability, it requires not only a forgery conviction but also a term of imprisonment of at least one year. See section 101 (a)(43)(R) of the Act. The record of conviction submitted by the DHS (Exh. 3) with regard to the respondent’s 2008 Arkansas forgery conviction indicates that the imposition of sentence in his case was suspended for a period of 36 months. As urged by the DHS on appeal, such deferred adjudications qualify as “convictions” for immigration purposes under section 101 (a)(48)(A) of the Act, 8 U.S.C. § 1101 (a)(48)(A). However, as the record of conviction (Exh. 3) does not reflect “a term of imprisonment of at least one year,” we agree with the Immigration Judge’s conclusion that although the respondent has sustained a criminal conviction, he has not been convicted of an aggravated felony (I.J. at 2).

Upon our de novo review, and considering the record on the whole, we see no reason to disturb the Immigration Judge’s decision to grant the respondent’s request for pre-hearing voluntary departure section 240B(a) of the Act, as a matter of discretion, particularly since an Immigration Judge has broader authority to grant voluntary departure in discretion under section 240B(a) than under section 240B(b). Matter of Arguelles, supra, at 817.

Accordingly, for the foregoing reasons, the decision of the Immigration Judge is affirmed, and the appeal will be dismissed.

ORDER: The appeal is dismissed.

FURTHER ORDER: Pursuant to the Immigration Judge’s order and conditioned upon compliance with conditions set forth by the Immigration Judge and the statute, the respondent is permitted to voluntarily depart the United States, without expense to the Government, within 120 days from the date of this order or any extension beyond that time as may be granted by the DHS. See section 240B(a) of the Act, 8 U.S.C. § 1229c(a); see also 8 C.F.R. §§ 1240.26(b), (f). In the event the respondent fails to voluntarily depart the United States, the respondent shall be removed as provided in the Immigration Judge’s order.

NOTICE: If the respondent fails to voluntarily depart the United States within the time period specified, or any extensions granted by the DHS, the respondent shall be subject to a civil penalty as provided by the regulations and the statute and shall be ineligible for a period of 10 years for any further relief under section 240B and sections 240A, 245, 248, and 249 of the Act. See section 240B(d) of the Act, 8 U.S.C. § 1229c(d); see also 8 C.F.R. §§ 1240.26(a), (j).

WARNING: If the respondent files a post-decision motion to reopen or reconsider prior to the expiration of the period allowed for voluntary departure, the grant of voluntary departure is automatically terminated, and the alternate order of removal will take effect immediately; the period allowed for voluntary departure is not stayed, tolled, or extended. The penalties for failure to depart under section 240B(d) of the Act shall not apply if the respondent has filed a post-decision motion to reopen or reconsider prior to the expiration of the period allowed for voluntary departure. See 8 C.F.R. § § 1240.26(b)(3)(iii), (e)(1).

WARNING: If, prior to departing the United States, the respondent files any judicial challenge to this administratively final order, such as a petition for review pursuant to section 242 of the Act, 8 U.S.C. § 1252, the grant of voluntary departure is automatically terminated, and the alternate order of removal shall immediately take effect. However, if the respondent files a petition for review and then departs the United States within 30 days of such filing, the respondent will not be deemed to have departed under an order of removal if the alien provides to the DHS such evidence of his or her departure that the Immigration and Customs Enforcement Field Office Director of the DHS may require and provides evidence DHS deems sufficient that he or she has remained outside of the United States. The penalties for failure to depart under section 240B(d) of the Act shall not apply to an alien who files a petition for review, notwithstanding any period of time that he or she remains in the United States while the petition for review is pending. See 8 C.F.R. § 1240.26(i).

David L. Neal
FOR THE BOARD

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

Phillipe Dwelshauvers, Esquire

The respondent appealed from the Immigration Judge’s bond decision dated December 8, 2009. The Immigration Judge issued a bond memorandum setting forth the reasons for the bond decision on December 17, 2009. The Immigration Judge found that the respondent, because he was convicted of violating section 69 of the California Penal Code, presented a danger to the community and a risk of flight and ordered the respondent held without bond. See Bond Memorandum at 2. On appeal, the respondent argues that he did not have an opportunity to present evidence or argument bearing on the issue of his dangerousness or risk of flight because proceedings below focused on whether he was subject to the mandatory detention provisions of section 236(c) of the Immigration and Nationality Act. [FN1] The respondent requests remand so that a hearing can be held to determine whether the respondent merits a discretionary bond pursuant to section 236(a) of the Act. The Department of Homeland Security (“the DHS”) has not filed a response to the respondent’s appeal.

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). 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. l(d)(3)(ii); Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008).

The respondent’s custody proceedings appear to be governed by section 236(a) of the Act. See Matter of Adeniji, 22 I&N Dec. 1102, 1111-13 (BIA 1999). Therefore, the respondent bears the burden to show that he does not present a threat to the community and a risk of flight from further proceedings. Id. In interpreting whether an alien has met this burden, we have found that unless the alien demonstrates that he is not a danger to the community upon consideration of the relevant factors, he should be detained in the custody of the DHS. See Matter of Drysdale, 20 I&N Dec. 815, 817 (BIA 1994). Only where the alien has proven that he is not a danger to the community does the likelihood that he will abscond become relevant. Id. Potentially dangerous aliens may be held in the custody of the DHS without bond during the pendency of removal proceedings. See Carlson v. Landon, 342 U.S. 524, 537-42 (1952).

Here, the respondent was convicted under section 69 of the California Penal Code of obstructing or resisting an executive officer in performance of his duties with threat or violence. See Cal. Penal Code § 69. The Immigration Judge stated that “[a]n element of the §69 [stet] includes the threat or use of violence. Additionally, the respondent has no equities other than an LPR mother.” Based on these two findings, the Immigration Judge found that the respondent was “a danger to the community … and a flight risk.” I.J. at 2.

We find that further proceedings are required. The Immigration Judge’s decision does not indicate the factors that she considered in determining that the respondent failed to overcome the presumption that he presents a danger to the community. Indeed, the only factor mentioned in this regard is the Immigration Judge’s statement that “an element of §69 includes the threat or use of violence.” While certainly the use of violence on an executive officer would raise the prospect of danger to the community, the record is lacking detail on the full range of factors that would bear on the ultimate issue of whether the conviction is indicative of the respondent’s danger to the community. Further, we take notice of the representation of counsel (uncontradicted by any statement of the Department of Homeland Security (“the DHS”)) that at the hearing below, there was no opportunity to present evidence bearing on the issues of dangerousness and flight risk. We cannot meaningfully exercise appellate review over the relevant questions raised in this appeal. We therefore will remand this matter for the parties to supplement the record and for a new decision on the respondent’s request for bond redetermination.

Accordingly, the following orders will be entered.

ORDER: The respondent’s appeal is sustained.

FURTHER ORDER: The record is remanded for further proceedings consistent with this order.

Anne J. Greer
FOR THE BOARD

FN1. The respondent’s contentions in this regard are supported by an affidavit of counsel. The affidavit indicates that the discussion during the hearing below focused on whether the respondent’s conviction was for an aggravated felony and, therefore, divested the Immigration Judge of jurisdiction to consider the request tbr a bond redetermination. Counsel stated that he did not offer evidence or argument with regard to the issue of dangerousness or flight risk.

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

Margarita Manduley, Esquire

Cindy C. Yu
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 as defined in section 101(a)(43)(F), I&N Act [8 U.S.C. § 1101(a)(43)(F)]

The Department of Homeland Security (DHS) appeals the Immigration Judge’s September 8, 2008, decision terminating proceedings. The respondent has filed an opposition. The appeal will be dismissed.

This appeal presents questions of law, which the Board reviews under a de novo standard 8 C.F.R. § 1003.1(d)(3)(ii). When this matter was previously before the Board on March 2, 2007, we remanded the record to the Immigration Judge to determine, under a modified categorical analysis, whether the respondent’s conviction for unlawfully causing a fire is a crime of violence as defined in 18 U.S.C. § 16(b). That provision defines a crime of violence as any felony “that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 16(b). The United States Court of Appeals for the Ninth Circuit has held that 18 U.S.C § 16(b) refers to a substantial risk that force will be intentionally used. Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1084 (9th Cir. 2007) (citing Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1129-31 (9th Cir. 2006) (en banc)).

The respondent was convicted of unlawfully causing a fire to an inhabited structure or inhabited property in violation of Cal. Penal Code § 452(b) (Deering 2005), which provides in relevant part:

Cal. Penal Code § 452(b). Recklessly setting fire to, burning or causing to be burned an inhabited structure or property does not in itself involve a substantial risk that physical force will intentionally be used against the property of another. See Leocal v. Ashcroft, 543 U.S. 1 (2004). In Tran v. Gonzales, 414 F.3 d 464 (3d Cir. 2005), cited approvingly by the Ninth Circuit in Fernandez-Ruiz v. Gonzales, supra, the United States Court of Appeals for the Third Circuit held that even the intentional starting of a fire does not involve a substantial risk of the intentional use of physical force. An example cited in that case is instructive here: a person who sets fire to a pile of leaves in his own yard but which is placed close to a neighbor’s house and causes the neighbor’s house to be burned could be convicted under Cal. Penal Code § 452(b). But that conduct does not involve a substantial risk of the use of physical force against the neighbor’s property. Such conduct certainly involves a substantial risk of injury or damage to property, but no such risk of using physical force against the property. “The’substantial risk’ in § 16(b)relates to the use of force, not to the possible effect of a person’s conduct.” Leocal v. Ashcroft, supra, at 10 n.7. Accordingly, we conclude that the respondent’s conviction is not a crime of violence. [FN1] The appeal will be dismissed.

In her appellate brief, the respondent asserts, and provides evidence, that her term of imprisonment was reduced to 364 days under Cal. Penal Code § 1203.3 (Deering 2008). A crime of violence is only an aggravated felony under section 101 (a)(43) of the Immigration and Nationality Act, 8 U. S.C. § 1101 (a)(43), if the term of imprisonment is at least 1 year. Given our conclusion that the respondent’s offense is not a crime of violence, a remand to assess the impact of the reduction in sentence is unnecessary.

ORDER: The appeal is dismissed.

Niel P. Miller
FOR THE BOARD

FN1. We disagree with the Immigration Judge’s conclusion that the record of conviction does not show that the respondent’s offense was committed against the “property of another” as required by 18 U.S.C. § 16(b). See Jordison v. Keisler, 501 F.3d 1134 (9th Cir. 2007) (holding that a conviction under Cal. Penal Code § 452(c) was not a crime of violence because the record of conviction did not preclude the possibility that the alien was convicted of causing a fire to his own property). The transcript of the respondent’s plea and sentencing identifies the “victim” of her crime. The respondent’s sentence includes an order that she stay away from the victim. The existence of a victim shows that the respondent’s crime involved the property of another.

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

Thomas P. Molloy
Assistant Chief Counsel

The respondent appeals from an Immigration Judge’s order dated October 7, 2009, denying his request for a change of custody status because the respondent’s motion seeking a custody redetermination “did not present materially changed circumstances since the prior custody hearing.” The Immigration Judge previously, on August 19, 2009, denied the respondent’s request for a change in custody status because the court lacked jurisdiction over the request. The appeal will be dismissed.

As background, we note that on February 23, 2009, we dismissed the respondent’s appeal of an Immigration Judge’s decision denying his request for custody redetermination because we found that we lacked jurisdiction over the appeal given the fact that the respondent was subject to a final order of removal under 8 C.F.R. part 1240. Indeed, the respondent was ordered removed by an Immigration Judge on April 9, 1996, and his appeal of that order was dismissed by this Board on August 31, 1998. The respondent did not appeal that order, but instead some 10 years later, in February 2008, filed a motion seeking reissuance of our decision. We denied this motion on April 1, 2008.

The respondent appealed the Board’s April 1, 2008, decision to the United States Court of Appeals for the Ninth Circuit, but the petition for review (“PFR”) was dismissed when the respondent failed to prosecute the appeal. The respondent claims that his PFR has been reinstated, and submits a September 10, 2009, Order of the Ninth Circuit reinstating the PFR and requiring that the respondent respond to an order to show cause within 21 days. No proof of such a response has been proffered. Yet the respondent appears to argue that the Ninth Circuit’s order triggers entitlement to a bond hearing, despite the fact that he has long been subject to a final order of removal, from which he absconded many years ago.

We reject the respondent’s argument and affirm the Immigration Judge’s order finding that the respondent’s most recent motion seeking a custody redetermination does not show any new circumstance that would cause the Immigration Judge to alter her earlier (August 19, 2009) conclusion that she had no jurisdiction over the respondent’s request. To the extent that the respondent relies on the recent holdings of the Ninth Circuit in Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008) and Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008) in claiming his right to an individualized assessment of his dangerousness and flight risk, we note that not every alien who has filed a PFR before the Ninth Circuit is entitled to a custody hearing before an Immigration Judge. See Diouf v. Mukasey, 542 F.3d 1222 (9th Cir. 2008). In Diouf v. Mukasey, supra, the Ninth Circuit declined to extend its reasoning in Casas-Castrillon v. DHS, supra, and Prieto-Romero v. Clark, supra, to provide for a custody hearing where an alien subject to a final order of removal files in the Ninth Circuit a petition for review of a denial of a motion to reopen or reconsider. This case, in which the respondent’s pending PFR in the Ninth Circuit relates only to the Board’s decision not to reissue its 1998 decision-and is not, therefore, a direct appeal of a final order of removal-is not governed by Casas-Castrillon v. DHS, supra, and Prieto-Romero v. Clark, supra.

We therefore decline to disturb the Immigration Judge’s decision that the respondent failed to indicate any changed circumstances that would cause her to change her August 19, 2009, decision finding that she lacked jurisdiction over the respondent’s request for a custody redetermination. Accordingly, the appeal will be dismissed for lack of jurisdiction.

ORDER: The appeal is dismissed for lack of jurisdiction.

Anne J. Greer
FOR THE BOARD

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

Kara Hanzler, Esquire

Alec J. Niziolek
Assistant Chief Counsel

The respondent, a lawful permanent resident and native and citizen of the Philippines, has appealed from the Immigration Judge’s bond decision dated September 10, 2009. On September 29, 2009, the Immigration Judge issued a memorandum explaining the reasons for her bond decision. The appeal will be sustained, and the record will be remanded.

The respondent is the subject of removal proceedings in which he was charged with deportability as an alien convicted of a controlled substance offense. Section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i). In a June 2008 decision, the Immigration Judge sustained the charge and denied the respondent’s application for cancellation of removal in the exercise of discretion. See section 240A(a) of the Act, 8 U.S.C. § 1229b(a). On September 24, 2008, we granted the respondent’s motion to remand. On remand, the Immigration Judge again sustained the charge of deportability and denied the respondent’s request for cancellation. On April 27, 2009, we affirmed.

In May 2009, the respondent filed a petition for review with the United States Court of Appeals for the Ninth Circuit (Docket #09-71336), which is still pending. After filing his petition, the respondent requested a custody redetermination hearing in Immigration Court pursuant to Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008). This decision held that an alien detained in immigration custody, whose order of removal the Board has affirmed, is entitled to seek a bond hearing under section 236(a) of the Act, 8 U.S.C. § 1226(a), until he or she enters the removal period after the Ninth Circuit has rejected his or her final petition for review, and the time to seek such review has expired, Id. at 948; see Prieto-Romero v. Clark, 534 F.3d 1053. 1060 (9th Cir. 2008). In the instant case, the Immigration Judge denied the respondent release on bond, finding that he poses a danger to the community and is a flight risk. See Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006) (stating that the non-exhaustive factors an Immigration Judge may consider in making a determination under section 236(a) of the Act include whether the alien has a fixed address, his or her length of residence, family ties, employment history, record of appearance at court proceedings, criminal record – including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offbnses, history of immigration violations, attempts to flee prosecution, and manner of entry into the United States).

We reverse the Immigration Judge’s determination that the respondent poses a danger to the community (I.J. at 2). See 8 C.F.R. § 1003.1(d)(3)(ii) (2010) (stating that the Board reviews questions of law de novo). The Immigration Judge based her determination on the respondent’s drug possession conviction and his disciplinary violation while in the custody of the Department of Homeland Security (DHS) (I.J. at 2-3). She found that the respondent’s drug conviction is “frequently accompanied by violence” (I.J. at 3). However, she cited no evidence to support her conclusion, and the record does not specifically indicate that the respondent’s offense involved violence. Furthermore, we agree with the respondent’s argument that although his disciplinary violation for engaging in sexual acts by way of masturbation was inappropriate and lewd, it does not necessarily demonstrate that he is a danger or violent threat to society. Accordingly, we do not find that the respondent poses a danger to the community under section 236(a) of the Act.

Additionally, we acknowledge the Immigration Judge’s concerns about the respondent’s risk of flight as a result of his removal order and small likelihood of success on appeal (I.J. at 3). However, the Immigration Judge noted that the respondent’s United States citizen father has offered to house him and make certain that he attends his proceedings (I.J. at 3). Consequently, we disagree that no amount of bond would be sufficient to ensure his presence at future removal proceedings. Accordingly, we reverse the Immigration Judge’s decision ordering the respondent detained on a “no bond” condition under section 236(a) of the Act, and find remand warranted. See 8 C.F.R. § 1003.1(d)(3)(ii), (iv). On remand, the Immigration Judge shall set a bond amount suitable to secure the respondent’s appearance at future proceedings.

ORDER: The respondent’s appeal is sustained.

FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion.

Anne J. Greer
FOR THE BOARD

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

John D. Holliday
Assistant Chief Counsel

Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § l182(a)(6)(A)(i)] – Present without being admitted or paroled

By an order dated October 19, 2009, an Immigration Judge sustained the respondent’s charge of removability. In that same opinion, the Immigration Judge concluded that the respondent had not established his eligibility for any form of immigration relief. The respondent has filed a timely appeal of that decision. The appeal will be dismissed.

This Board reviews the findings of fact made by the Immigration Judge, including the determination of credibility, under a “clearly erroneous” standard. 8 C.F.R. § 1003.1(d)(3)(i); Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008). We review all remaining issues under a de novo standard, such as whether the parties have met the relevant burden of proof and issues of discretion. 8 C.F.R. § 1003.1(d)(3)(ii); Matter of A-S-B-, supra; see also Matter of V-K-, 24 I&N Dec. 500 (BIA 2008). There is no clear error in the Immigration Judge’s factual findings. It is within this context that we review the present matter.

On appeal, the respondent principally argues that he is a citizen of this country, having obtained such status from his father, and that his removal proceedings should be terminated as a result. In the alternative, the respondent contends that the Immigration Judge erred in pretermitting his application for cancellation of removal under section 240A(b) of the Immigration and Nationality Act (“the Act”), 8 U.S.C. § 1229b(b). We will first consider the respondent’s citizenship claim.

In removal proceedings, the Department of Homeland Security (“DHS”) bears the initial burden of establishing an alien’s removability by clear and convincing evidence. See section 240(c)(3)(A) of the Act, 8 U.S.C. § 1229a(c)(3)(A); see also 8 C.F.R. § 1240.8(a); Matter of Tijerina-Villarreal, 13 I&N Dec. 327, 330 (BIA 1969). Evidence of an individual’s birth abroad, however, gives rise to a rebuttable presumption of alienage. The burden then shifts to the person asserting citizenship in the United States to prove that claim. See id.; see also Matter of A-M-, 7 I&N Dec. 332, 336 (BIA 1956).

The respondent does not dispute the fact that he was bom in Mexico on February 1, 1979. See I.J. at 3-4; Tr. at 44, 61. Given that concession, he must show by a preponderance of the evidence that he derived United States citizenship through his father under former section 321 (a) of the Act, 8 U.S.C. § 1432(a). [FN1] See Matter of Nwozuzu, 24 I&N Dec. 609 (BIA 2008); see also Matter of Tijerina-Villarreal, supra; Matter of Leyva, 16 I&N Dec. 118, 119 (BIA 1977); Matter of A-M-, supra. For reasons that will be set forth below, we conclude that the respondent has not met his burden of proof.

An alien can derive citizenship pursuant to former section 321(a) of the Act only upon the fulfillment of the following conditions:

(Emphasis added).

According to the record, the respondent’s parents never married, and only his father is a citizen of this country. See I.J. at 3-4; Tr. at 44, 61. The respondent also testified that although his father provided him with financial support, he did not ever reside with him while under the age of 18. See Tr. at 48-49. As such, the respondent has not shown that he can comply with section 321(a)(1), (a)(2), or (a)(3) of the Act. Furthermore, as the respondent has never been admitted to the United States as a lawful permanent resident, he could not derive United States citizenship pursuant to section 321(a) of the Act under any circumstances. See I.J. at 3, 5; Tr. at 61-62, 70, see also Matter of Nwozuzu, supra. Accordingly, the Immigration Judge did not err in denying the respondent’s motion to terminate the instant proceedings. We shall now turn to the respondent’s request for cancellation of removal under section 240A(b) of the Act.

The Act requires that every applicant seeking this particular form of relief be able to demonstrate that he:

Section 240A(b)(1) of the Act (emphasis added); see generally section 240(c)(4)(A)(i) of the Act; 8 C.F.R. § 1240.8(d); Matter of Almanza-Arenas, 24 I&N Dec. 771,774-75 (BIA 2009) (discussing the applicable burden of proof).

Here, the Immigration Judge pretermitted relief based upon his conclusion that the respondent had been imprisoned for more than 180 days, which precluded the respondent from establishing the requisite GMC for the purposes of cancellation of removal. See I.J. at 6-7; see also section 240A(b)(1)(B) of the Act; see generally section 101(f)(7) of the Act, 8 U.S.C. § 1107(f)(7) (barring individuals from establishing that they are of GMC if they have been imprisoned for an aggregate period of 180 days or more as a result of conviction). The respondent previously conceded that he was incarcerated in excess of 180 days pursuant to his conviction for driving under the influence. See I.J. at 4; Tr. at 45-46, 59-60, 75; see also Exh. 2. As the respondent’s length of confinement prevents him from demonstrating that he has been a person of GMC during the applicable time period, he cannot establish his statutory eligibility for cancellation of removal under section 240A(b) of the Act. The respondent has likewise failed to show that he is presently eligible for any other form of immigration relief.

Accordingly, the following order will be entered.

ORDER: The appeal is dismissed.

Roger A. Pauley
FOR THE BOARD

FN1. The record reflects that the respondent’s father became a naturalized citizen of the United States on September 26, 1996. See I.J. at 4-5; see also Exh. 3; Tr. at 44

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

William Z. Reich, Esquire

Denise C. Hochul
Senior Attorney

The respondent has appealed an Immigration Judge’s January 17, 2008, decision, finding the respondent removable as charged and ordering her removed to Canada. The Department of Homeland Security (“DHS”) has opposed the appeal. The appeal will be dismissed.

We review the findings of fact made by the Immigration Judge, including any determination of credibility, under a“clearly erroneous” standard. See 8 C.F.R. § 1003.1(d)(3)(i). We review all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion, under a de novo standard. See 8 C.F.R. § 1003. l(d)(3)(ii); see also Matter of, A-S-B-, 24 I&N Dec. 493,496 (BIA 2008).

The respondent was previously placed in removal proceedings in September 2003 by the issuance of a Notice to Appear (“NTA”), which alleged that she had been convicted of a controlled substance violation in 1985 and alleged that she failed to disclose any arrest or conviction when she applied for a visa in June 2003. On the basis of these allegations, she was charged under section 237(a)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(A), for being inadmissible at the time of entry under section 212(a)(2)(A)(i)(lI) for her drug violation, and under section 212(a)(6)(C)(i) for procuring admission by willful misrepresentation of a material fact. During those removal proceedings, the respondent, through counsel, admitted to the allegations, conceded removability, and requested voluntary departure (Tr. at 21, June l, 2004 hearing). The Immigration Judge granted the respondent 120 days to voluntarily depart in lieu of removal. The parties accepted the Immigration Judge’s decision as final and the respondent confirmed that she understood the ruling (Tr. at 23-24, June l, 2004 hearing).

On December 24, 2005, upon applying for admission to the United States at the Canadian border, the respondent was once again placed in removal proceedings. The NTA contained the very same factual allegations as the previous NTA and charged her under section 212(a)(2)(A)(i)(II) of the Act as removable for having been convicted of a controlled substance violation, and under section 212(a)(6)(C)(i) of the Act for engaging in fraud. Through new counsel, the respondent admitted to the drug conviction and her removability on this ground, but she denied that she made any misrepresentations in procuring her visa (Tr. at 6, Aug. 23, 2006 hearing). In this regard, the respondent’s attorney asserted that the respondent was never asked about prior arrests or convictions in applying for her visa, and argued that any concession to the contrary made by her former attorney constituted ineffective assistance of counsel. [FN1]

However, the Immigration Judge found that the doctrine of res judicata precluded the respondent from contesting and relitigating these issues, given the respondent’s prior admissions and concessions. The doctrine of res judicata “provides that a final judgment on the merits bars a subsequent action between the same parties over the same cause of action.” Channer v. Dep’t of Homeland Sec., 527 F.3d 275, 279 (2d Cir. 2008). Because the removal charges are not identical in both of the respondent’s proceedings, however, it is the doctrine of collateral estoppel which applies in the instant case.

The doctrine of collateral estoppel applies in removal proceedings when there has been a prior judgment between the parties that is sufficiently firm to be accorded conclusive effect, the parties had a full and fair opportunity to litigate the issues resolved by and necessary to the outcome of the prior judgment, and the use of collateral estoppel is not unfair. Matter of Fedorenko, 19 I&N Dec. 57 (BIA 1984). It precludes parties to a judgment on the merits in a prior suit from relitigating in a subsequent action issues that were actually litigated and necessary to the outcome of the prior suit. Id. Such a prior judgment conclusively establishes the ultimate facts of a subsequent removal proceeding, and bars reconsideration of issues of law resolved by the prior judgment, so long as the issues in both proceedings arise from virtually identical facts and there has been no change in the controlling law. Id. at67.

The prerequisites for collateral estoppel are satisfied in the respondent’s case. The Immigration Judge’s prior removal order was a final judgment between the same parties. Both the respondent and the DHS had a “full and fair opportunity” to litigate the factual issue of whether the respondent misrepresented her criminal history when applying for her visa and the legal issue of whether the respondent was removable on that basis. Thus, it is fair to accord the judgment conclusive effect.

The respondent’s argument that she did not have the opportunity to litigate the issue of fraud is belied by the record. She was given a full opportunity to do so, over the course of several hearings. In fact, when the respondent’s attorney indicated that the respondent may have received a pardon of her drug conviction in Canada, the Immigration Judge continued the case to allow her to discuss with the DHS the possibility of having the fraud charge withdrawn (Tr. at 13-14, Mar. 24, 2004 hearing). Apparently, no agreement to withdraw the charge was reached, as the respondent’s attorney admitted the allegations, conceded removability and sought only voluntary departure at the next hearing (Tr. at 21, June 1, 2004).

The respondent further contends that it is not clear from the record whether prior counsel actually admitted to both the drug charge and the fraud charge, as the Immigration Judge did not ask her to plead to each charge or allegation individually. However, the charges and allegations had been discussed at length during numerous previous hearings, and the respondent’s attorney had waived the reading of the allegations (Tr. at 1-2). Thus, counsel’s statement at the final hearing that the respondent was admitting to “the allegations” and conceding removability is sufficient in this case to cover all charges and allegations contained in the NTA (Tr. at 21, June 1, 2004 hearing). See Matter of Velasquez, 19 I&N Dec. 377, 382 (BIA 1986) (absent egregious circumstances, a distinct and formal concession made by counsel is binding on the alien).

The respondent also asserts that the Immigration Judge violated due process by refusing to play the audio tape of the prior hearing. To the contrary, the Immigration Judge offered to do just that, but the respondent’s attorney changed the subject and never returned to the issue (Tr. at 80). Likewise, the Immigration Judge’s denial of the respondent’s request to order a transcript of the prior proceedings did not violate due process (Tr. at 84), as all parties had listened to the tapes and the Immigration Judge had offered to replay the tape in court. Moreover, the respondent suffered no prejudice, as we have a full copy of the transcript before us on appeal. See, e.g., Garcia-Villeda v. Mukasey, 531 F.3d 141,149 (2d Cir. 2008) (“Parties claiming denial of due process in immigration cases must, in order to prevail, allege some cognizable prejudice fairly attributable to the challenged process”).

Accordingly, the respondent is barred by collateral estoppel from contesting or withdrawing her prior factual admissions. As such, her removability has been established and her appeal is dismissed.

ORDER: The respondent’s appeal is dismissed.

Neil P. Miller
FOR THE BOARD

FN1. The respondent also argued that her former attorney filed the wrong waiver on her behalf and misadvised her to attempt to re-enter the United States while her waiver was pending. However, although the respondent filed a bar complaint against former counsel, she has not submitted any affidavit, nor has she presented any proof that her former attorney has been notified of the allegations, as required by Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), for ineffective assistance of counsel claims.