Immigration Appeals Decisions

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

James C. Ten Broeck, Jr., Esquire

Seth B. Fitter
Senior Attorney

On February 9, 2005, we dismissed the appeal of the Immigration Judge’s August 26, 2004, decision that found that the respondent was removable as charged, determined that he was not eligible for any relief from removal, and ordered him removed. The respondent, a native and citizen of Mexico and lawful permanent resident of the United States, appealed that decision to the United States Court of Appeals for the Seventh Circuit. On February 7, 2007, the Seventh Circuit granted the request to remand the case to the Board for further consideration in light of Lopez v. Gonzales, 549 U.S. 47 (2006). [FN1] The record will be remanded.

In pertinent part, the Immigration Judge determined that the respondent was ineligible for cancellation of removal as an aggravated felon based on his State convictions for possession of cocaine. Section 240A(a)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)(3). See United States v. Pacheco-Diaz, 506 F.3d 545 (7th Cir. 2007); 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 of the respondent’s application for relief. 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.
David B. Holmes
FOR THE BOARD

FN1. The Court order was not brought to the Board’s attention until June 2009 and a complete copy of the Court’s order was not received until November 2009.

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Mari Matsumoto, Esquire

Anne McElearney
Assistant Chief Counsel

Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § 1182(a)(6)(A)(i)] – Present without being admitted or paroled

In a decision dated September 15, 2008, an Immigration Judge denied the respondent’s motion to suppress evidence, specifically the Record of Deportable Alien (Form I-213), and also the respondent’s request to terminate proceedings; the respondent was granted voluntary departure. The respondent’s appeal will be dismissed.

On March 3, 2008, the respondent was attempting to take a ferry from Orcas Island, Washington, to Anacortes, Washington, when he was stopped at a checkpoint and questioned by Department of Homeland Security (DHS) Border Patrol agents. From this questioning, the DHS created the Form I-213 which indicated that the respondent had admitted he had no legal status here and was a national of Mexico. This document was submitted into evidence in order to establish that the respondent was removable as charged above. The respondent asserts that this evidence was obtained in violation of the Constitution as well as regulatory requirements for processing aliens; he argues that the proceedings should have been terminated.

First, the respondent argues that the Immigration Judge erred in finding that no seizure had occurred when the respondent was questioned by DHS at the checkpoint (I.J. at 7); in so holding, he asserts that the Immigration Judge failed to assess the constitutionality of the checkpoint which must be reasonably implemented and executed in order to pass muster under the Fourth Amendment (Respondent’s Br. at 10-16). See Illinois v. Lidster, 540 U.S. 419 (2004).

Although we cannot agree with the Immigration Judge that checkpoint stops and interrogations do not constitute “seizures” under the Fourth Amendment (I.J. at 7), we also cannot find that the respondent’s constitutional rights were violated during the stop. See Michigan Dept. Of State Police v. Sitz, 496 U.S. 444 (1990) (stating that the stop of a vehicle during a checkpoint program constitutes a seizure within the meaning of the Fourth Amendment). Specifically, the United States Supreme Court has held that immigration-related checkpoints, while constituting a seizure under the Fourth Amendment, are considered reasonable without needing a warrant if limited to brief questioning and determining whether the person being questioned is an alien; the stop and seizure includes both the initial questioning and secondary inspection. United States v. Martinez-Fuerte, 428 U.S. 543, 556-67 (1976). In fact, the Court held that even when aliens are referred to a secondary inspection based solely on Mexican ancestry, there is no constitutional violation — border patrol officers “must have wide discretion in selecting the motorists to be diverted for the brief questioning involved.” Id. at 563-64.

The respondent correctly points out that a Washington District Court has held that the inspection site at Anacortes is not a border or the “functional equivalent” of a border and that a warrantless search which revealed a ferry passenger had 85 pounds of marijuana in his car was the result of an unreasonable search and seizure (Respondent’s Br. at 12, 15). United States v. Graham, 117 F. Supp. 2d 1015, 1017-20 (W.D. Wa. 2000). We also acknowledge the respondent’s argument that the inspection done at the Anacortes checkpoint is very different from that allowed by the Supreme Court in United States v. Martinez-Fuerte, supra (Respondent’s Br. at 13-16). The former is not an international border and generally involves domestic travel from islands and the mainland in Washington state (Respondent’s Br. at 13). See United States v. Graham, supra, at 1016. There may also be issues regarding the level of intrusion at the Anacortes checkpoint as opposed to the one discussed in Martinez-Fuerte, as noted by the respondent (Respondent’s Br. at 14-15). See id. at 1021-22.

Nevertheless, there are also significant differences between this case and Graham, supra. There, a person’s car was searched for drugs without reasonable suspicion, probable cause, or a warrant. Here, the respondent was asked one question regarding his alienage. The DHS has the right by statute to ask an alien about his alienage under section 287(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1357(a)(1). See 8 C.F.R. § 287.8(b) (2010) (discussing interrogation and brief detention of persons believed to be illegally in the United States); see also 8 C.F.R. § 287.5(b)(1) (designating border patrol agents as immigration officers with the power to act under section 287(a)(3)). Furthermore, the DHS may briefly detain a person for questioning if the officer has a a reasonable suspicion that the person is in the United States illegally. 8 C.F.R. § 287.8(b)(2). The only issue then, as noted by the Immigration Judge, would be whether the Border Patrol officers who questioned the respondent acted reasonably (I.J. at 7).

Although the Supreme Court has held that the Fourth Amendment exclusionary rule generally does not apply in deportation proceedings, where the main issues are identity and alienage, it has left open the possibility that the exclusionary rule might apply in cases involving “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984); see also Orhorhaghe v. INS, 38 F.3d 488, 492-93 (9th Cir. 1994) (holding that even in administrative proceedings, where the exclusionary rule ordinarily does not apply, evidence must be excluded if obtained in deliberate violation of the Fourth Amendment or by conduct which a reasonable officer should know is unconstitutional).

We are unable to find evidence that DHS agents engaged in an egregious violation of the Fourth Amendment such that the manner in which the respondent was interrogated or processed would be considered fundamentally unfair (see Respondent’s Br. at 9). Here, the respondent was stopped and questioned about his alienage. The respondent claims that since the two border patrol officers who testified could not recall the respondent answering he was from Mexico during the primary inspection, any subsequently obtained evidence was the result of an unlawful seizure (Respondent’s Br. at 16-18; see I.J. at 5).

However, while neither officer could recall asking the initial questions about the respondent’s alienage during primary inspection (see Tr. at 31, 76-77), one officer stated that he does remember conducting the initial primary inspection and he testified about the procedure which is generally followed during such an inspection (Tr. at 55-61). Both border patrol officers testified that the inspection is done quickly and that the only question which is asked is with regard to alienage or, relatedly, citizenship (Tr. at 25-26, 36, 50, 55). Once a person responds in such a way as to alert the officers that he or she may not be legally permitted to enter or to be in the United States, the person is referred to secondary inspection (Tr. at 27-28). Although the officers who testified did not recall the respondent answering the initial question regarding alienage, one did recall “the situation” (Tr. at 62). Apparently, another officer had contacted him during the primary inspection because the respondent’s friend needed assistance (Tr. at 63). The respondent was then asked a second time whether he was legally allowed to be in the United States and the respondent answered in the negative, according to the border patrol officer who testified (Tr. at 63).

It is at that point that the respondent was referred to secondary inspection and the other officer clearly remembered the respondent answering “Mexico” when asked where he was from during the secondary inspection (Tr. at 39-40). We cannot find that this process constitutes an egregious violation of the Fourth Amendment and indeed it is a process authorized by the Immigration and Nationality Act, as noted above. As pointed out by the Immigration Judge, there was no physical force used and no evidence that the respondent was mistreated (I.J. at 7). We cannot find that the respondent’s Fourth Amendment rights were violated by the DHS’s questioning and ultimate arrest of the respondent.

The respondent also alleges a number of due process violations. He argues that the statements on the Form I-213 are unreliable because they constitute hearsay (Respondent’s Br. at 25-26); in addition, he asserts that the statements he made to DHS officials were made under duress (Respondent’s Br. at 22-25). Finally, the respondent argues that his due process rights were violated because he repeatedly asked for an attorney but was denied one and that he was interrogated despite his request (Respondent’s Br. at 21-22). Since the evidence produced by the DHS is unreliable and the product of an unlawful search, the respondent asserts the DHS has not met its burden of establishing removability (Respondent’s Br. at 18).

Hearsay is generally admissible in immigration proceedings. Rojas-Garcia v. Ashcroft, 339 F.3d 814, 823 (9th Cir. 2003). Furthermore, unless evidence shows that the Form 1-213 contains false information or that it was obtained through duress, the Form I-213 has been found admissible as proof of alienage. See Espinoza v. INS, 45 F.3d 308, 309-10 (9th Cir. 1995); see also Matter of Ponce-Hernandez, 22 I&N Dec. 784, 785 (BIA 1999); Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988). The DHS submitted a certified Form I-213 and presented two witnesses to authenticate the form. The respondent does not allege that the Form I-213 contains false information and we cannot find evidence that his statements were coerced.

The respondent argues that the fact that he was worried about his friend’s health, a friend he was helping get to a hospital at the time he was stopped, shows that the answers he gave to Border Patrol officers were not voluntary (Respondent’s Br. at 24). The record does not support the respondent’s argument inasmuch as the respondent’s friend was apparently helped by officers to obtain medical attention; there is no indication that the respondent was forced to answer questions merely because the friend was apparently worried about him leaving her. The respondent appears to rely on the “delay and stress” that his friend experienced as grounds not to admit the evidence about his alienage, but we cannot find any support to require suppression on this basis (Respondent’s Br. at 24); there is no indication that he was coerced.

The respondent submitted the Border Patrol Field Manual into evidence which states that officers must cease questioning upon an arrestee’s request for an attorney and that the arrestee must be given a reasonable time to contact an attorney (see Respondent’s Br. at 22). The respondent asserts that questioning did not cease during secondary inspection and that although he was given a list of legal providers, it was inadequate because given to him late in the day, when the attorney’s office was closed, and that there were no rooms available for him to have discussed his case with an attorney anyway (Respondent’s Br. at 22).

Again, we cannot find that the respondent has established that his due process rights were violated. The respondent provides no indication as to what questioning occurred which would have prejudiced him after his’initial response during primary inspection regarding his alienage. See Vides-Vides v. INS, 783 F.2d 1463, 1469 (9th Cir. 1986); United States v. Calderon-Medina, 591 F.2d 529, 531 (9th Cir. 1979). Furthermore, he was given the names of local attorney services while in secondary inspection (Tr. at 47-48); therefore, we find that the border patrol officials followed the proper procedure for notifying the respondent of his right to obtain counsel. See United States v. Leasure, 122 F.3d 837, 840 (9th Cir. 1997) (stating that “[s]tops and routine questioning are the norm at the border in the primary inspection areas. In most cases, the earliest that a person could be in custody is at the point when she is moved into a secondary inspection and asked to exit her vehicle while it is searched”); see also Samayoa-Martinez v. Holder, 558 F.3d 897, 901-02 (9th Cir. 2009) (determining that the formal removal proceedings do not commence until a Notice to Appear has been flied in the immigration court, which is when the DHS is required to advise aliens of their right to counsel).

Finally, the respondent asserts that the Form 1-213 is inadmissible because regulations require that it be prepared by a different examining officer than the arresting officer (Respondent’s Br. at 18-21 (citing 8 C.F.R. § 287.3(a) and United States v. Calderon-Medina, supra, at 531)). The Immigration Judge found that no regulatory violation occurred in processing the respondent because the interviewing officer was not the same as the officer who signed the charging documents (I.J. at 6 (citing Navarro-Chalan v. Ashcroft, 359 F.3d 19, 23 (1st Cir. 2004))).

The respondent argues that the Immigration Judge’s reliance on Navarro-Chalan is in error because the United States Court of Appeals for the Ninth Circuit has found that 8 C.F.R. § 287.3 applies to an “interrogation” of an alien and has remanded to the Board to determine whether statements made in a similar case should be suppressed (Respondent’s Br. at 20-21 (citing Rodriguez-Echeverria v. Mukasey, 534 F.3d 1047, 1051 (9th Cir. 2008))). However, we find the factual scenario in Rodriguez-Echeverria distinguishable. In that case, the respondent was not arrested until over an hour after secondary inspection and was held more than 16 hours before being asked to give a recorded statement; she was also placed in a locked room overnight and made to remove her shoes and belt. Id. Unlike Rodriguez-Echeverria, the respondent here was made aware of his right to counsel during secondary inspection (Tr. at 48); he was not held for an extended amount of time prior to being made aware of his rights and he has failed to show any impropriety by the DHS.

ORDER: The respondent’s 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 60 days from the date of this order or any extension beyond that time as may be granted by the Department of Homeland Security (“DHS”). See section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b); see also 8 C.F.R. §§ 1240.26(c), (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.

WARNING: If the respondent files a motion to reopen or reconsider prior to the expiration of the voluntary departure period set forth above, the grant of voluntary departure is automatically terminated; the period allowed for voluntary departure is not stayed, tolled, or extended. If the grant of voluntary departure is automatically terminated upon the filing of a motion, the penalties for failure to depart under section 240B(d) of the Act shall not apply. See Voluntary Departure: Effect of a Motion To Reopen or Reconsider or a Petition for Review, 73 Fed. Reg. 76,927, 937-38 (Dec. 18, 2008) (to be codified at 8 C.F.R. 99 1240.26(c)(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 73 Fed. Reg. at 76,938 (to be codified at 8 C.F.R. § 1240.26(i)).
Roger A. Pauley
FOR THE BOARD

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

Joyce Antila Phipps, Esquire

The respondent, a native and citizen of Egypt, has appealed from the Immigration Judge’s December 3, 2008, summary order granting voluntary departure. [FN1] In his brief, which we have construed as a motion, the respondent specifically asserts, through counsel, that he is seeking a remand in order to have a new visa petition allegedly filed on his behalf by his wife adjudicated by the Department of Homeland Security. The motion, which is not accompanied by any evidence, cursorily asserts that a new “visa petition has been re-filed” and that “[e]vidence of [the] bona fides of the marriage will be provided.” We will dismiss the appeal because it does not identify any errors in the Immigration Judge’s decision. [FN2] We will also deny the motion because it does not demonstrate that the respondent is prima facie eligible for adjustment of status, which is the only matter over which the Immigration Judge might have jurisdiction in these particular circumstances. Accordingly, the following orders will be entered.

ORDER: The appeal is dismissed.

FURTHER ORDER: The motion to remand is denied.

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 60 days from the date of this order or any extension beyond that time as may be granted by the Department of Homeland Security (“DHS”). See section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. 5 1229c(b); see also 8 C.F.R. 5§ 1240.26(c), (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.

WARNING: If the respondent files a motion to reopen or reconsider prior to the expiration of the voluntary departure period set forth above, the grant of voluntary departure is automatically terminated; the period allowed for voluntary departure is not stayed, toiled, or extended. If the grant of voluntary departure is automatically terminated upon the filing of a motion, the penalties for failure to depart under section 240B(d) of the Act shall not apply. See Voluntary Departure: Effect of a Motion To Reopen or Reconsider or a Petition for Review, 73 Fed. Reg. 76,927, 937-38 (Dec. 18, 2008) (to be codified at 8 C.F.R. 5§ 1240.26(c)(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 73 Fed. Reg. at 76,938 (to be codified at 8 C.F.R. 5 1240.26(i)).
Jim Hilz
FOR THE BOARD

FN1. The Immigration Judge issued a summary order in lieu of an oral or written decision. This action was appropriate inasmuch as the respondent expressly admitted the factual allegations, conceded the charge of removability, and did not seek any form of relief from removal other than voluntary departure, which was granted by the Immigration Judge (Exh. 1; Tr. at 10-18, 101-103, 111-112, 118-119, 124-130). See Matter of A-P-, 22 I&N Dec. 468 (BIA 1999); 8 C.F.R. § 1240.12(b).

FN2. We note that the respondent’s counsel wrote in an attachment to the respondent’s Notice of Appeal that “[t]his appeal raises substantive legal issues regarding the nature of persecution.” However, counsel for the respondent has not identified any persecution-related issues, including in the appeal brief that she thereafter filed with this Board, and we further note that the respondent specifically denied at the hearing having any fear of returning to his native Egypt. See Tr. at 122-123. Also, counsel for the respondent acknowledged at the hearing that voluntary departure was the only form of relief sought by the respondent (Tr. at 111-112) and that, given the grant of voluntary departure, there was nothing left for the Immigration Judge to adjudicate (Tr. at 118-119). Additionally, we note that it is asserted on appeal that the respondent did not have legal representation during the first set of hearings before an Immigration Judge. Counsel for the respondent has not identified any prejudice to the respondent caused by such lack of legal representation early in the proceedings. A review of the hearing transcript reveals no evidence of prejudice. The Immigration Judges ensured at all times that the respondent’s due process rights were protected. Several continuances were granted to enable the respondent to obtain legal representation, which he eventually did.

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

Adam Ruiz, Esquire

This case was last before us on January 14, 2010, at which time we dismissed the respondent’s appeal from the Immigration Judge’s denial of his request for a continuance to pursue post-conviction relief. The respondent has now filed a timely motion to reconsider and reopen proceedings on February 16, 2010. The Department of Homeland Security (DHS) has not responded to this motion, which will be denied.

As a motion to reconsider, we find no reason to disturb our prior decision. Therein, we found that the respondent’s proffer of a court order issued in the Circuit Court of the Second Judicial Circuit, in and for the Leon County, Florida, did not negate the respondent’s conviction for immigration purposes. In our previous decision, we recognized that the court dismissed the respondent’s conviction following fulfillment of his deferred prosecution requirements, and that in the Eleventh Circuit, a conviction dismissed due to rehabilitation or completion of probation remains a conviction for purposes of removal (Bd. Dec. at 2). The respondent does not identify specific error in this prior decision, or call our attention to a change of law stated or relied therein. See Matter of O-S-G-, 24 I&N Dec. 56 (BIA 2006); Matter of Cerna, 20 I&N Dec. 399 (BIA 1991). Accordingly, as a motion to reconsider, the respondent’s motion will be denied.

With his motion, the respondent has submitted further documentation which he claims demonstrates that his conviction was, in fact, dismissed for constitutional reasons. He has presented a copy of a motion which he claims he filed in the Second Judicial Circuit Court, as well as an unopposed motion to withdraw his no contest pleas and an order from the Second Judicial Circuit Court granting the respondent’s unopposed request. However, while the motion for post-conviction relief outlines various constitutional arguments regarding the validity of the respondent’s conviction, neither the motion to withdraw his plea, nor the Court’s order, references these arguments as a basis for granting the withdrawal request. [FN1]

We do not find that this evidence carries the respondent’s burden under Matter of Pickering, 23 I&N Dec. 621 (BIA 2003). See also Matter of Chavez, 24 I&N Dec. 272 (BIA 2007). Thus, the respondent has failed to demonstrate that the proffered evidence would change the result of our previous decision, wherein we found that the respondent’s evidence indicated that his conviction had been dismissed following the fulfillment of his deferred prosecution program requirements (Bd. Dec. at 2). See Matter of Coelho, 20 I&N Dec. 464 (BIA 1992). Incidentally, the respondent has also failed to demonstrate that the proffered evidence “was not available and could not have been discovered or presented at the former hearing.” See 8 C.F.R. § 1003.2(c)(1). Accordingly, we find no reason to disturb our previous decision, and the following order will be entered.

ORDER: The motion is denied.
Frederick D. Hess
FOR THE BOARD

FN1. The respondent’s unopposed motion states only that “the Defendant and the State have reached an agreement to resolve the Defendant’s pending rule 3.850 motion. Pursuant to the agreement, the parties agree that the Defendant should be permitted to withdraw his previously entered no contest pleas.”

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

Andres Z. Bustamante, Esquire

Mary A. Young
Assistant Chief Counsel

Notice: Sec. 212(a)(2)(A)(i)(I), I&N Act [8 U.S.C. § 1182(a)(2)(A)(i)(I)] – Crime involving moral turpitude (withdrawn)

Lodged: 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)(G), I&N Act [8 U.S.C. § 1101(a)(43)(G)]

The Department of Homeland Security (DHS) appeals the Immigration Judge’s April 16, 2009, decision terminating proceedings with prejudice. The respondent has filed a motion for summary affirmance. The motion for summary affirmance will be denied, and the appeal will be sustained.

This appeal presents questions of law and discretion, which the Board reviews de novo. 8 C.F.R. § 1003.1(d)(3)(ii). When this matter was last before the Board, we held in our May 19, 2006, decision that the respondent was not eligible for a section 212(c) waiver but remained eligible for a section 212(h) waiver because the existing record did not establish that his convictions for receiving stolen property were aggravated felonies.

In intervening precedent, we held that a conviction for receiving stolen property under Cal. Penal Code § 496(a), the statute under which the respondent was convicted, is categorically an aggravated felony. Matter of Cardiel, 25 I&N Dec. 12 (BIA 2009). The Ninth Circuit later reached the same conclusion. Verdugo-Gonzalez v. Holder, 581 F.3d 1059 (9th Cir. 2009). Accordingly, the respondent’s convictions render him removable as charged and ineligible for a section 212(h) waiver. The DHS’s failure to expand the record on remand is of no consequence, as the existing record is sufficient to establish that the respondent was convicted of receiving stolen property under Cal. Penal Code § 496(a). We will sustain the appeal and order the respondent removed from the United States.

ORDER: The appeal is sustained.

FURTHER ORDER: The motion for summary affirmance is denied.

FURTHER ORDER: The respondent shall be removed from the United States to Guatemala.
Edward R. Grant
FOR THE BOARD

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

Christine M. Hernandez, Esquire

Weldon S. Caldbeck
Assistant Chief Counsel

The respondent appeals from the Immigration Judge’s custody order dated April 13, 2010, finding that he lacked jurisdiction to redetermine the conditions of the respondent’s custody. The reasons for the Immigration Judge’s custody order are set forth in a bond memorandum created by the Immigration Judge on April 20, 2010.

The respondent is charged with removability under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii) based upon his conviction on July 10, 2008, for felony menacing with a real or simulated weapon. In order for the Immigration Judge to have jurisdiction to redetermine the conditions of the respondent’s custody, the respondent bears the burden of establishing that the Department of Homeland Security, Immigration and Customs Enforcement (“DHS”), is substantially unlikely to prevail on the charge of removability under section 237(a)(2)(A)(iii) of the Act. See Matter of Joseph, 22 I&N Dec. 799 (BIA 1999).

The respondent’s conviction for felony menacing required that the respondent knowingly place or attempt to place another person in fear of imminent serious bodily injury by the use of a deadly weapon or by representing that he or she is armed with a deadly weapon. As the Immigration Judge correctly determined, the respondent’s conviction is categorically a crime of violence because, under either subsection of Colorado Revised Statutes § 18-3-206(1), it has as an element the threatened use of physical force against the person of another. In this regard, the respondent’s assertion on appeal, through counsel, that the United States Court of Appeals for the Fifth Circuit has held that Colorado’s felony menacing statute is not a crime of violence under 18 U.S.C. § 16(a) is incorrect. The decision cited by the respondent is a federal district court case that has no precedential value even within the Fifth Circuit, and is not controlling authority in the jurisdiction of the United States Court of Appeals for the Tenth Circuit where the instant case arises.

The Tenth Circuit has never ruled in a manner consistent with the respondent’s legal argument on appeal and respondent’s contentions on appeal do not persuade this Board that representing that one is armed with a deadly weapon as a means of placing or attempting to place another person in fear of imminent serious bodily injury does not constitute a threatened use of physical force against the person of another. Therefore, the respondent has failed to establish that the DHS is substantially unlikely to prevail on the charge of removability under section 237(a)(2)(A)(iii) of the Act.

Inasmuch as the respondent has failed to establish that the DHS is substantially unlikely to prevail on the charge of removability under section 237(a)(2)(A)(iii) of the Act, the Immigration Judge is without jurisdiction to redetermine the conditions of the respondent’s custody by operation of 8 C.F.R. § 1003.19(h)(2)(i)(D). Accordingly, the Immigration Judge’s decision is affirmed pursuant to this Board’s authority under 8 C.F.R. § 1003.1(e)(5) and the following order will be entered.

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

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

John W. McPhail
Assistant Chief Counsel

The respondent appealed from the February 18, 2010, decision in which the Immigration Judge found him removable; determined that he did not apply for, and did not demonstrate eligibility for, any relief from removal; and ordered him removed from the United States to Honduras or, alternatively, Mexico. [FN2] The appeal will be dismissed. The request for oral argument is denied.

The Immigration Judge determined that the respondent was removable as charged, as convicted of an aggravated felony under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii), in conjunction with section 101(a)(43)(A) of the Act, 8 U.S.C. § 1101(a)(43)(A). As substantiated by conviction documents (Ex. 2), the respondent has a July 21, 2006, Texas conviction for “aggravated sexual assault of a child,” for which crime he was sentenced to imprisonment of 20 years. The record reflects that the respondent was admitted to the United States as a lawful permanent resident on December 1, 1990.

We find correct the Immigration Judge’s conclusions concerning the respondent’s removability and ineligibility for relief, upon our de novo review.

On appeal, the respondent maintains that he is innocent of his crime, that his conviction is invalid due to ineffective assistance from criminal counsel, and that he intends to pursue post-conviction relief including a petition for a writ of habeas corpus with the criminal court. He has acknowledged that his direct appeal of his conviction was dismissed (Br. at 1). With regard to the validity of the conviction, it is well-established that this Board and the Immigration Judges cannot go behind the record of conviction to determine an alien’s guilt or innocence. See, e.g., Matter of Danesh, 19 I&N Dec. 669 (BIA 1988); see also section 101(a)(48)(A) of the Act. The fact that the respondent may be pursuing post-conviction relief in the form of a collateral attack on a conviction in state criminal court does not affect the finality of that conviction for federal immigration purposes. See Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992). The respondent has presented no evidence with this appeal that any attack on his conviction has resulted in any vacatur or has even been filed with the criminal court. Instead, he has submitted documentation substantiating that he has filed a state bar complaint against his former criminal attorney. The respondent’s speculation that his conviction might be invalid does not change the finality for immigration purposes of such conviction, unless and until it were to be overturned by a criminal court. See Matter of Ponce de Leon, 21 I&N Dec. 154 (A.G. 1997; BIA 1997, 1996). To the extent that the respondent is asking this Board to consider his writ of habeas corpus, the Board has limited jurisdiction and does not have authority to consider writs of habeas corpus. Such jurisdiction lies with the federal courts. See 28 U.S.C. § 2241.

Accordingly, we will dismiss the appeal.

ORDER: The appeal is dismissed.
Charles K. Adkins-Blanch
FOR THE BOARD

FN1. As a courtesy, we are sending a copy of this opinion to: Kyle P. Singhal, P.O. Box 17868, Fort Worth, Texas 76102. A Form EOIR-27 Notice of Entry of Appearance as Attorney or Representative Before the Board was submitted by Kyle Singhal, a law student, who did not comply with the requirements of the Board’s Practice Manual, chapter 2.5.

FN2. The proceedings before the Immigration Judge in this matter were completed in Houston, Texas through video conference pursuant to section 240(b)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(2)(A)(iii).

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

Michael A. Mansfield
Assistant Chief Counsel

Notice: Sec. 237(a)(1)(B), I&N Act [8 U.S.C. § 1227(a)(1)(B)] – In the United States in violation of law

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

The respondent, a native and citizen of the Czech Republic, has appealed the decision of an Immigration Judge dated February 10, 2010, finding him removable as charged, denying his request for voluntary departure pursuant to section 240B of the Immigration and Nationality Act, 8 U.S.C. § 1229c, and ordering him removed to the Czech Republic. The request for oral argument is denied. The appeal will be dismissed.

We review Immigration Judges’ findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. § 1003.1(d)(3)(i), (ii). [FN1]

Pursuant to our authority at 8 C.F.R. § 1003.1(e)(5), and on de novo review, we affirm the decision of the Immigration Judge for the reasons expressed in the Immigration Judge’s decision. See I.J. at 2-4. To the extent that the respondent argues on appeal that “I a native and citizen of Czech Republic, understanding of English poor. I was not provided with an interpreter” (Respondent’s Notice of Appeal), the record reflects that the respondent filed a motion to reopen with the Immigration Judge based on these same allegations. The Immigration Judge granted the motion to reopen on March 8, 2010. Thereafter, the respondent appeared at his subsequent removal hearings with counsel of his own choosing, who spoke on the respondent’s behalf before the Immigration Judge. See 8 C.F.R. § 1240.3. The respondent has not raised any argument on appeal concerning the assistance he received from his attorney. Further, the respondent has not established that the lack of an interpreter at his final hearing on February 10, 2010, prejudiced his claim in any way or materially affected the outcome of this case, particularly in light of our agreement with the Immigration Judge’s finding that the respondent is ineligible for relief from removal due to his conviction for an aggravated felony (I.J. at 2-4). See Ibrahim v. U.S.I.N.S., 821 F.2d 1547 (11th Cir. 1987) (to prevail on a due process challenge to a deportation proceeding, an alien must show substantial prejudice).

For the foregoing reasons, the following order will be entered.

ORDER: The respondent’s appeal is dismissed.
Charles K. Adkins-Blanch
FOR THE BOARD

FN1. The respondent’s request for voluntary departure was made after May 11, 2005. Thus, the amendments made to the Act by the REAL ID Act of 2005 are applicable to the respondent’s claim.

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

John M. Pope, Esquire

Paul M. Habich
Assistant Chief Counsel

The Department of Homeland Security (“the DHS”) appeals from an Immigration Judge’s order dated September 11, 2009, ordering the respondent released from DHS custody upon posting a bond of $10,000. See section 236(a) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a) (2006). The reasons for the Immigration Judge’s custody order are set forth in a bond memorandum prepared on October 21, 2009. The record will be remanded for further proceedings.

The DHS argues that the Immigration Judge was without authority to redetermine the conditions of the respondent’s custody under 8 C.F.R. § 1003.19(h)(2)(i)(D) because the respondent failed to establish that she is not properly included as an alien in removal proceedings subject to detention under section 236(c)(1) of the Act, 8 U.S.C. § 1226(c)(1). Specifically, the DHS argues that the respondent’s felony conviction under section 13-2006 of the Arizona Revised Statutes is a crime involving moral turpitude. On appeal, the respondent argues that we should dismiss the DHS appeal because she is not subject to detention under section 236(c)(1) of the Act.

Applicable regulations preclude an Immigration Judge from redetermining the custody status of an alien who is subject to mandatory detention. 8 C.F.R. § 1003.19(h)(2)(i)(D) (2009). However, an alien may seek a determination from the Immigration Judge that she is “not properly included” within the mandatory detention class. 8 C.F.R. § 1003.19(h)(2)(ii). An alien is considered not properly included in such a class if the Immigration Judge or the Board determines that the DHS is “substantially unlikely” to prove a removal charge subjecting the alien to mandatory custody. Matter of Joseph, 22 I&N Dec. 799, 806 (BIA 1999). In a so-called “Joseph” hearing, the respondent bears the burden of establishing that DHS would be substantially unlikely to prevail on a charge of removability under a section of the Act mandating custody, here, section 212(a)(2)(A)(i)(II) of the Act. See Matter of Joseph, 22 I&N Dec. 799 (BIA 1999); Matter of Kotliar, 24 I&N Dec. 124 (BIA 2007). [FN1]

The respondent’s conviction under section 13-2006 of the Arizona Revised Statutes is for criminal impersonation, which is a class 6 felony under state law. The statute provides that “[a] person commits criminal impersonation by: 1. Assuming a false identity with the intent to defraud another; or 2. Pretending to be a representative or some person or organization with the intent to defraud; or 3. Pretending to be, or assuming a false identity of, an employee or a representative or some person or organization with the intent to induce another person to provide or allow access to property. []. Ariz. Rev. Stat. § 13-2006.

As to the question whether the DHS was “substantially unlikely” to prevail on a “crime involving moral turpitude” charge under section 212(a)(2)(A)(i)(II) of the Act, the fact that a given statute is divisible does not necessarily mean that an alien has carried her burden to show that the DHS will not likely prevail on the charge. Moreover, the standards enunciated by the Attorney General in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), would apply. In that case, the Attorney General stated that a crime involving moral turpitude is a crime that “involves both reprehensible conduct and some form of scienter,” whether specific intent, deliberateness, willfulness, or recklessness. Id. at 706 & n.5. Furthermore, the Attorney General determined that if all cases that have a “reasonable probability” of being prosecuted under the statute of conviction involve the requisite “reprehensible conduct” and “scienter,” then the offense qualifies categorically as a crime involving moral turpitude, notwithstanding the “theoretical possibility” that some non-turpitudinous crimes could also be prosecuted under the same statute. Id. at 697-98 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

The Immigration Judge found that the Arizona statute at issue here (13-2006) is divisible, with subsections (1) and (2) involving turpitudinous conduct (i.e., an “intent to defraud”) and subsection (3) potentially not involving such conduct (I.J. at 3). The Immigration Judge also found that, under a modified categorical approach, the record lacked evidence reflecting that the conduct underlying the respondent’s conviction was turpitudinous (Id. at 3-4). In rendering this decision, the Immigration Judge noted that the subsection of Arizona law under which the respondent’s conviction arose is unclear from the “judicially noticeable” documents of record-i.e., the indictment, the judgment, jury instructions, a signed guilty plea, and the transcript of plea proceedings, and that these documents did not reflect turpitudinous conduct (I.J. at 3-4 & n.3). We find that the Immigration Judge misapplied the Attorney General’s decision in Matter of Silva-Trevino, supra. We also find distinguishable the case cited by the Immigration Judge for the proposition that the Arizona statute at issue is divisible. See I.J. at 3 (citing Blanco v. Mukasey, 518 F.3d 714 (9th Cir. 2008)).

First, the Blanco v. Mukasey case involves a California statute prohibiting the provision of false identification to a police officer, a law that is substantially different from the Arizona statute at issue. Specifically, section 148.9(a) of the California Penal Code provides that “[a]ny person who falsely represents or identifies himself or herself as another person or as a fictitious person to any peace officer…upon a lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the investigating officer is guilty of a misdemeanor.” See Cal. Penal Code s. 148.9(a). To convict a defendant under the statute, the prosecutor does not need to show that the individual had specific intent to obtain a benefit or cause another to be liable on his behalf; rather, the prosecutor “need only establish general intent … that the defendant intended to do the act which forms the basis of the crime, whether or not he knew that the act was unlawful.” Blanco v. Mukasey, supra (citing People v. Robertson, 223 Cal.App.3d 1277, 1281-82, 273 Cal.Rptr. 209 (Cal.Ct.App. 1990), rev’d on other grounds by People v. Rathert, 24 Cal.4th 200, 99 Cal.Rptr.2d 779, 6 P.3d 700, 704-05 (2000)). Thus a conviction under California Penal Code § 148.9(a) requires a showing that the individual knowingly misrepresented his or her identity to a peace officer, but does not require that the individual thereby knowingly attempted to obtain anything of value.

In contrast, even subsection (3) of the Arizona statute requires proof of a specific intent that may necessarily involve turpitude-i.e., the intent to “induce another person to prove or allow access to property.” Ariz. Rev. Stat. § 13-2006(3). The requirement to prove this specific intent distinguishes the Arizona statute from the California law involved in Blanco v. Mukasey, supra. There, the Ninth Circuit stated that the intent involved in a violation of section 148.9(a) of the California Penal Code was simply a showing of specific intent to avoid arrest or trial. People v. Robertson, supra, 223 Cal.App.3d at 1281-82, 273 Cal.Rptr.209. Although giving a false name or date of birth to a police officer clearly “violates a duty owed to society to obey the law and not to impede the investigation of crimes,” this alone does not make the crime one that involves moral turpitude, because “[i]f this were the sole benchmark for a crime involving moral turpitude, every crime would involve moral turpitude.” Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1070-71 (9th Cir. 2007).

The Blanco v. Mukasey case stated that under Ninth Circuit jurisprudence, a crime involves fraudulent conduct, and thus is a crime involving moral turpitude, if intent to defraud is either “explicit in the statutory definition” of the crime or “implicit in the nature” of the crime. Id. at 719 (citing Goldeshtein v. INS, 8 F.3d 645, 648 (9th Cir. 1993)). Intent to defraud is implicit in the nature of the crime when the individual makes false statements in order to procure something of value, either monetary or non-monetary. Blanco v. Mukasey, supra, at 719. Fraud therefore does not equate with mere dishonesty, because fraud requires an attempt to induce another to act to his or her detriment. See id. (citing Black’s Law Dictionary 685 (8th ed.2004)). The Blanco court concluded that “[o]ne can act dishonestly without seeking to induce reliance. Our cases have therefore recognized fraudulent intent only when the individual employs false statements to obtain something tangible.” See id. (citations omitted).

Accordingly, we consider the question whether the last prong of the Arizona statute categorically involves moral turpitude left open by Blanco v. Mukasey, supra, and we will remand this matter for the Immigration Judge’s resolution of the issue in the first instance. That is, a specific intent to induce another’s reliance on an impersonation appears to be required by subsection (3) of section 13-2006 of the Arizona statutes. An assessment by the Immigration Judge should be made of whether turpitudinous conduct necessarily results in violations of this subsection. Furthermore, the Immigration Judge should, applying Matter of Silva-Trevino, and in light of the foregoing discussion, assess the entire Arizona statute at issue to determine whether there is a “reasonable probability” of an Arizona prosecution under section 13-2006 that reaches conduct that does not involve moral turpitude. Matter of Silva-Trevino, supra at 697. Finally, in the event that the Immigration Judge still concludes that the statute is divisible, the matter is not settled. The respondent bears the burden not just of showing that a statute is divisible, but that the DHS is substantially unlikely to prevail in proving the moral turpitude charge. That determination will involve consideration of the evidence of record, and in the Ninth Circuit, at least those documents that the court has previously identified as comprising the record of conviction. Tijani v. Holder, 598 F.3d 647, 650 (9th Cir. 2010). But see Matter of Silva-Trevino, supra, at 699-700. [FN2]

Accordingly, the record will be remanded for the Immigration Judge to make the above-noted findings of fact and law.

ORDER: The record is remanded for further proceedings consistent with this order.
Roger A. Pauley
FOR THE BOARD

FN1. The Immigration Judge’s order is unclear on this point, as she indicates that “[t]he Department has the burden to demonstrate that the respondent is subject to mandatory detention based upon charge of removability specified in section 236(c)(1) of the Act” (I.J. at 3).

FN2. The Attorney General concluded that a wider range of documents-beyond those comprising the record of conviction-are appropriate evidence to determine whether turpitudinous conduct arises where a statute is divisible. Contrary to the Immigration Judge’s belief, the Ninth Circuit has reserved decision on this aspect of Matter of Silva-Trevino, supra. See Marrmolejo-Campos v. Holder, 558 F.3d 903, 907 n. 6 (9th Cir. 2009) (en banc).

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

James S. Yi
Senior Attorney

The respondent has appealed from the Immigration Judge’s decision dated April 19, 2010. The Immigration Judge issued a bond memorandum setting forth the reasons for her bond decision on May 7, 2010. The Immigration Judge found that the respondent presented a risk of flight and ordered the respondent’s release upon payment of an $11,000 bond pursuant to section 236(a) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a). On appeal, the respondent argues that the Immigration Judge was unfair and requests a reduction in his bond. 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).

We agree with the Immigration Judge’s masons for finding some risk of flight from future removal proceedings under the circumstances of the respondent’s case, such that an $11,000 bond amount was necessary to insure the respondent’s presence at future proceedings. In particular, we note that while the respondent has demonstrated strong ties to his community, the respondent has a recent criminal history and has failed to demonstrate a likelihood that he will be granted relief from removal. Under these circumstances, we find that the respondent has failed to establish that an $11,000 bond amount is unreasonable under the circumstances of his case. See Matter of Guerra, 24 I&N Dec. 37 (BIA 2006); Matter of Patel, 15 I&N Dec. 666 (BIA 1976). Accordingly, the following order will be entered.

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