BIA Remands of Immigration Judge James Nugent from 01/01/2014 to 05/26/2016

U.S. Department of Justice
Executive Office for Immigration Review
Decision ofthe Board oflmmigration Appeals
Falls Church, Virginia 20530
File: - Haskell, TX
In re:
IN REMOVAL PROCEEDINGS
APPEAL AND MOTION
ON BEHALF OF RESPONDENT: Belinda Arroyo, Esquire
ON BEHALF OF DHS:
CHARGE:
Craig A. Harlow
Assistant ChiefCounsel
Date:
Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] -
MAY 122014
Convicted of aggravated felony (as defined in section 101(a)(43)(F))
(withdrawn)
Sec. 237(a)(2)(A)(ii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(ii)] -
Convicted oftwo or more crimes involving moral turpitude (sustained)
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))
(sustained)
APPLICATION: Section 212(c) waiver; adjustment of status; remand
The respondent, a native and citizen of Colombia and a lawful permanent resident of the
United States, appeals the November 5, 2012, decision of the Immigration Judge. The
Immigration Judge found the respondent removable based on the above-noted charges. He
also found the respondent ineligible for a waiver under former section 212(c) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(c) (repealed 1996), and adjustment of status
under section 245(a) of the Act, 8 U.S.C. § 1255(a). In addition, the respondent has filed new
evidence pertaining to his eligibility for adjustment, which we construe as a motion to remand.
See 8 C.F.R. § 1003.2(c)(4). The record will be remanded.
On , 1991, the respondent was convicted of theft in violation of Texas Penal Code
("TPC") § 31.03 (l.J. at 2; Exh. 2). The respondent was then convicted on 1995,
of burglary of a building in violation of TPC § 30.02(c)(1) (l.J. at 2; Exh. 2). He was sentenced
to a term of imprisonment of IO years, probated for 10 years (I.J. at 2; Exh. 2). Finally, on
2010, the respondent was convicted of theft of property worth at least $50 but less than
$500 in violation ofTPC § 31.03(e)(2)(A)(i) (I.J. at 2; Exh. 2). On the basis ofthese convictions,
the Immigration Judge found the respondent removable under sections 237(a)(2)(A)(ii) and
237(a)(2)(A)(iii) ofthe Act, 8 U.S.C. §§ 1227(a)(2)(A)(ii)and 1227(a)(2)(A)(iii) (1.J. at 3).
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Regarding relief, the respondent argued that his 1991 and 1995 convictions could be waived
under section 212(c). The Immigration Judge concluded that the respondent could not benefit
from section 212(c) because his 2010 conviction occurred after the statute was repealed (l.J. at 3).
See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div. C of Pub. L. No.
104-208, § 304(b), 110 Stat. 3009-546, 3009-597 (effective April 1, 1997). Along these lines,
the Immigration Judge rejected the respondent's argument that his 2010 conviction did not
trigger a "new ground of removability," as both charges ofremovability originate and are upheld
first in time by his 1991 and 1995 convictions, which occurred prior to Aprill, 1997 (l.J. at 3).
The respondent further asserted eligibility for adjustment of status. The respondent conceded
that he is ineligible for a waiver under section 212(h) of the Act, 8 U.S.C. § 1182(h), because he
was admitted as a lawful permanent resident in 1975 and his 1995 conviction was for an
aggravated felony. See section 10l(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G). However,
the respondent argued that he could adjust status by utilizing a section 212(c) waiver in
conjunction with the "petty offense" exception of section 212(a)(2)(A)(ii)(II) of the Act. As
discussed previously, the Immigration Judge concluded that the respondent's 2010 conviction
makes him ineligible for a waiver under section 212(c) (l.J. at 3-4). He also held that the petty
offense exception did not apply because it is limited to aliens who have committed only one
crime (1.J. at 3). See section 212(a)(2)(A)(ii)(II) ofthe Act.
Since the entry of the decision below, the Board has issued a decision refining the eligibility
criteria for a section 212(c) waiver in light of Judulang v. Holder, 132 S. Ct. 476 (2011). See
Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014). In pertinent part, the Board held that
a lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished
domicile in the United States and who is removable or deportable by virtue of a plea or
conviction entered before April 24, 1996, is eligible to apply for discretionary relief under former
section 212(c) of the Act unless the applicant has served an aggregate term of imprisonment of
at least 5 years as a result of one or more aggravated felony convictions entered between .
November 29, 1990, and April 24, 1996. Matter ofAbdelghany, supra, at 272. The respondent
was convicted on , 1995, of burglary ofa building in violation ofTPC § 30.02(c)(l)
and sentenced to a term of imprisonment of 10 years, probated for 10 years (l.J. at 2; Exh. 2).
This pre-April 24, 1996, conviction was for an aggravated felony, as defined in section
10l(a)(43)(G) of the Act. However, as the respondent's entire 10-year sentence was probated,
he did not serve at least 5 years of imprisonment as a result of the conviction, and he is thus
prima facie eligible for a section 212(c) waiver. See Matter of Abdelghany, supra, at 272.
Therefore, we reverse the holding that the respondent's 2010 conviction disqualifies him from
receiving a section 212(c) waiver. We further remand for a determination of whether the
responcJent has demonstrated eligibility for a section 212(c) waiver in the exercise of discretion.
See Matter ofAbdelghany, supra, at 272 (citing Moncrieffe v. Holder, 133 S. Ct. 1678, 1692
(2013)).
In addition, we observe that this case is distinguishable from Matter of Balderas, 20 I&N
Dec. 389 (BIA 1991). Balderas was charged in an earlier proceeding with having committed two
crimes involving moral turpitude: one a conviction for petty theft in 1983 and the other
a conviction for being an accessory to burglary in 1988. Balderas was granted section 212(c)
relief and was subsequently convicted of another petty theft offense in 1989. As a result, he was
again charged with removability for having committed two crimes involving moral turpitude, to
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wit, the 1988 accessory to burglary crime for which he had been granted section 212(c) relief and
the new 1989 petty theft offense. The Board held that "since a grant of section 212(c) relief
'waives' the finding of excludability or deportability rather than the basis of the excludability
itself, the crimes alleged to be grounds for excludability or deportability do not disappear from
the alien's record for immigration purposes." Id at 391. Thus, the charge was valid
notwithstanding that one of the two convictions had previously been the subject of a section
212(c) waiver.
In contrast, here there is no new charge based on an intervening conviction for a crime
involving moral turpitude; there is a charge in a single proceeding that the respondent has been
convicted of two crimes involving moral turpitude. Once it is hypothesized that the respondent
succeeds in obtaining section 212(c) relief with respect to his 1991 and 1995 convictions, this
charge is no longer viable. In other words, since a section 237(a)(2)(A)(ii) charge has two
essential pillars, the elimination of one of them (or in this case, two of them) by the grant of
a section 212(c) waiver necessarily topples the entire charge of removability. The section 212(c)
waiver would also eliminate the removability under section 237(a)(2)(A)(iii) of the Act
stemming from the 1995 conviction at which the waiver is directed. Consequently, should the
respondent succeed in his application for a section 212(c) waiver as to his 1991 and 1995
convictions, termination under the current charges would be warranted.
On remand, the parties may submit additional evidence and argument pertaining to any
relevant issue.
Accordingly, the following order is entered.
ORDER: The appeal is sustained and the record is remanded for further proceedings
consistent with this opinion and the entry of a new decision.
FORTHEBOARD <:::::::
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Executive Office for lounigration Review
File: - Dallas, TX
Decision ofthe Board ofImmigration Appeals
Date:
In re:
JAN -7 2014
APPEAL AND MOTION
ON BEHALF OF RESPONDENT: Isabel Cruz, Esquire
ON BEHALF OF DHS: Rob Dunikoski
Deputy Chief Counsel
APPLICATION: Continuance; remand
The respondent, a native and citizen of Colombia, appeals the decision of the Immigration
Judge, dated July 15, 2013, ordering his removal from the United States. He has also filed a
motion to remand. The Department ofHomeland Security is opposed to the respondent's appeal
and his motion to remand. The record will be remanded.
Considering the totality ofthe circumstances, we conclude that it is appropriate to remand the
record to the Immigration Judge in order to provide the respondent with an opportunity to further
present his claim to having automatically acquired United States citizenship. See Matter of
Hines, 24 I&N Dec. 544, 546 (BIA 2008). In support of his motion to remand, the respondent
has presented an Alien Documentation, Identification and Telecommunications card (Form 1-89)
which was executed prior to his 18th birthday. Whether the execution of such form is sufficient
to demonstrate that he was residing in the United States pursuant to a lawful admission for
permanent residence prior to his 18th birthday is an issue which should be considered by the
Immigration Judge, in the first instance, upon remand. See section 320(a) of the Immigration
and Nationality Act, 8 U.S.C. § 143 l(a).
We express no opinion regarding the remaining issues raised by the respondent on appeal or
the ultimate outcome of these removal proceedings at the present time. See Matter ofL-0-G-,
21 I&N Dec. 413 (BIA 1996). Moreover, even though the basis of this remand order is to
specifically provide the respondent with an opportunity to further present his claim to having
automatically acquired United States citizenship, the parties are not precluded from raising other
issues in remanded proceedings. The following order is entered.
ORDER: The respondent's motion to remand is granted and the record is remanded to the
Immigration Court for further proceedings consistent with the foregoing opinion and for the
entry ofa new decision.
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·u.s. Department ofJustice
Execur,ive Office for Immigration Review
File: - Dallas, TX
In re:
APPEAL
Decision of the Board ofImmigration Appeals
Date: JUL 15 2014
ON BEHALF OF RESPONDENT: Irene Ishak, Esquire
APPLICATION: Withholding ofremoval; Convention Against Torture
The respondent, a native and citizen of Jordan, appealed the Immigration Judge's decision,
dated August 19, 2013, which found that the respondent abandoned his applications for
withholding of removal pursuant to section 241(b)(3) of the Immigration and Nationality Act,
8 U.S.C. § 123 l(b)(3), and protection under the Convention Against Torture, due to his failure to
meet the filing deadline. The record will be remanded.
We review an Immigration Judge's findings of fact for clear error; but questions of Jaw,
discretion, and judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R.
§§ 1003.l(d)(3)(i),(ii).
On appeal, the respondent argues his due process rights were violated at his last hearing as
the proceedings were not translated into Arabic, his native language, and he did not fully
understand the instructions provided in the English language by the Immigration Judge regarding
the deadline for submission of this application for relief from removal. On de novo review, in
light of the totality of the circumstances presented in this matter, we will sustain the appeal and
reopen the proceedings to aliow the respondent to pursue his applications for withholding of
removal and protection under the Convention Against Torture. See, e.g. Tanwar v. I.NS.,
990 F.2d J252 (5th Cir. 1993) (finding immigration officials can reasonably rely on the
respondent's claim that he could speak, read, and write English). Accordingly, the following
order will be entered.
ORDER: The record is
consistent with this decision.
igration Judge for further proceedings
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U.S. Department ot'Justice
File: Dallas, TX
In re:
APPEAL AND MOTION
. .
Date:
JAN - 9 2014
ON BEHALF OF RESPONDENT: Garry L. Davis, Esquire
APPLICATION: Adjustment ofstatus mtder section 245(a) ofthe Act;
waiver ofinadmissibility under section 212(h) ofthe Act; remand
The respondent, a native and citizen of Kenya, appeals the decision of the hnrnigration
Judge, dated September 17, 2013, denying his application for adjustment of status under
section 245(a) ofthe hnrnigration and Nationality Act, 8 U.S.C. § 1255(a), in conjunction with a
waiver of inadmissibility under section 212(h) of the Act, 8 U.S.C. § 1182(h).1
The respondent
has also filed a motion to remand.
We will grant the respondent's motion to remand. The hnrnigration Judge denied the
respondent's application for relief as he tested positive for syphilis (I.J. at 3; Exh. 8). See
section 212(a)(l)(A)(i) of the Act. However, on appeal, the respondent has presented a new
sealed Report of Medical Examination and Vaccination Record (Form I-693) which, according
to his counsel, establishes that his condition has been successfully treated. As such, it appears
that, upon remand, the respondent may now be able to overcome the sole ground for the
hnrnigration Judge's decision to deny his application for relief. See Matter of Coelho,
20 I&N Dec. 464, 471 (BIA 1992).
We express no opinion regarding the ultimate outcome of this case at the present time. See
Matter ofL-0-G-, 21 I&N Dec. 413 (BIA 1996). The following order is entered.
ORDER: The respondent's motion to remand is granted.
FURTHER ORDER: The record is remanded to the Immigration Court for further
proceedings consistent with the foregoing opinion and for the entry ofa new decision.
1
The respondent, through counsel, has conceded that he is subject to removal from the United
States (I.J. at 1-2; Tr. at 21; Exhs. I, IA). Sections 237(a)(2)(A)(ii), (E)(i) of the Act, 8 U.S.C.
§§ 1227(a)(2)(A)(ii), (E)(i).
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Fal!S Church, Virginia 20530
File: Dallas, TX
In re:
APPEAL
Date:
JUN 27ZOJ<.;
ON BEHALF OF RESPONDENT: Patricia K. Conkright, Esquire
ON BEHALF OF DHS: Margaret M. Price
Assistant Chief Counsel
ORDER:
The respondent, a native and citizen ofMexico and a lawful pennanent resident ofthe United
States, has appealed from the Immigration Judge's decision dated February 5, 2014. We review
questions oflaw, discretion, andjudgment arising in appeals from decisions ofImmigration Judges
de novo, whereas we review findings of fact in such appeals under a "clearly erroneous" standard.
See 8 C.F.R. § 1003.l(d)(3).
The respondent has submitted evidence that appears to demonstrate that the Rockwall County,
Texas, District Court has issued a writ ofhabeas corpus setting aside his guilty plea in connection
with his 2013 conviction for Obstruction orRetaliation under Texas Penal Code § 36.06 (Group Exh.
2). We therefore will remand the record to allow the Immigration Judge to conduct appropriate fact-
finding to determine whether in fact the conviction has been overturned for purposes of the
immigration laws and the respondent is no longer removable as charged. See Matter ofAdamiak,
23 l&N Dec. 878 (BIA 2006).
Accordingly, the record is remanded to the Immigration Court for further proceedings.
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Falls Church, Vnginia 20530
File: Dallas, TX
Date:
In re:
APPEAL
ON BEHALF OF RESPONDENT: Furqan Sunny Azhar, Esquire
APPLICATION: Convention Against Torture
The respondent, a native and citizen ofSouth Sudan, appeals the decision ofthe Immigration
Judge, dated April 8, 2014, deeming the respondent's request for deferral of removal under the
Convention Against Torture ("CAT') abandoned. The respondent's appeal will be sustained and
the record will be remanded to the Immigration Judge for further proceedings.
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.l(d}(3}.
The IIJlllligration Judge concluded that the respondent had abandoned any request for deferral
ofremoval under the CAT because he did not file an application by the April 4, 2014, date set by
the court (I.J. at I). The respondent argues on appeal that he did not intend to abandon his
request for CAT protection, but that it was unclear what application form was supposed to be
submitted, At the March 18, 2014, hearing, the respondent was detained, unrepresented, and
appearing via video (Tr. at 14). He was advised that he could submit an application for deferral
of removal under the CAT, and was given just over 2 weeks to file that application and any
supporting evidence, by April 4, 2014 (Tr. at 18-21). The Immigration Judge told the court clerk
that the respondent needed "an I-589" (Tr. at 20). While it appears he may have been given the
form, the Form I-589 is entitled "Application for Asylum and Withholding ofRemoval." Under
the unique circumstances of this case, we find that the respondent could reasonably have been
confused about what he needed to submit by the April 4th deadline, and that he should not be
considered to have abandoned his application for CAT protection.
The respondent also argues on appeal that his conviction is not a particularly serious crime.
On remand, both parties may present further arguments on this issue and the Immigration Judge
should articulate his reasoning in determining whether the respondent's crime is particularly
serious, particularly in light ofrecent case law. See Matter ofG-G-S-, 26 I&N Dec. 339, 342-44
(BIA 2014). Accordingly, the following order will be entered.
ORDER: The respondent's appeal is sustained, the Immigration Judge's decision ofApril 8,
2014 is vacated, and the record is remanded for further proceedings consistent with this decision
and for entry ofa new order.
FOR THE BOARD
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· U.S. Department of Justice
Falls Church, 20530
File: - Dallas, TX Date: SEP l 9 20!4
In re:
APPEAL
ON BEHALF OF RESPONDENT: Steve Spurgin, Esquire
CHARGE:
Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] -
Convicted of aggravated felony
Sec. 237(a)(2)(B)(i), l&N Act [8 U.S.C. § 1227(a)(2)(B)(i)] -
Convicted ofcontrolled substance violation
APPLICATION: Deferral of removal
The respondent, a native and citizen of Mexico, and a lawful permanent resident of the
United States since 1989, appeals the March 28, 2014, decision of the Immigration Judge
denying his application for deferral of removal to Mexico pursuant to Article 3 of the
Convention Against Torture ("CAT"). 1
8 C.F.R. § 1208.17. The record will be remanded.
The respondent's claim to deferral of removal is based on his fear of a drug cartel in Mexico
whose members he testified believe he kept the approximately 70 kilograms of drugs he was
transporting for them. The Immigration Judge found that the respondent did not meet his burden
of proof of showing that it would be more likely than not he would be tortured by the
government of Mexico or by someone acting with the acquiescence or willful blindness of the
government (l.J. at 9). In addressing the issue of whether the Mexican government would
acquiesce in his torture, the Immigration Judge took judicial notice "of the fact that news reports
on a regular basis indicate that the government of Mexico is indeed attempting to put an end to
corruption and bring the drug cartels under control" (l.J. at 9). However, the Immigration Judge
did not identify in his decision any of the news reports upon which he took 'judicial notice" of
this fact.
As the Immigration Judge's decision did not properly analyze the respondent's application for
deferral of removal, we find it necessary to remand the record. See A1atter ofL-G-H-, 26 I&N
Dec. 365, 374 (BIA 2014). On remand, the parties should be afforded an opportunity to present
1
The respondent has not challenged the Immigration Judge's finding that his criminal
convictions render him removable as charged and ineligible for asylum, withholding of removal,
and withholding ofremoval under the Convention Against Torture (l.J. at 2-3).
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additional evidence related to the respondent's application for deferral of removal, including
testimony and updated country conditions materials. The Immigration Judge should then further
consider the respondent's request for that relief, including all necessary findings of fact.
ORDER: The record is remanded for further proceedings consistent with this decision.
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· U.S. Department ofJustice
File: - Dallas, TX
In re:
APPEAL
Decision ofthe Board of Immigration Appeals
Date: DEC 12 Z014
ON BEHALF OF RESPONDENT: Vinesh Patel, Esquire
CHARGE:
Notice: Sec. 237(a)(2)(A)(ii), l&N Act [8 U.S.C. § 1227(a)(2)(A)(ii)J -
Convicted oftwo or more crimes involving moral turpitude
Sec. 237(a)(2)(E)(ii), I&N Act [8 U.S.C. § 1227(a)(2XE)(ii)] -
Violated court protection order
Sec. 237(a)(2)(A)(iii), l&N Act [8 U.S.C. § 1227(aX2)(A)(iii)] -
Convicted ofaggravated felony (as defined in section IOl(a)(43)(F))
APPLICATION: Cancellation ofremoval under section 240A(a); continuance
The respondent appeals the May 13, 2014, decision of the Immigration Judge finding him
removable, denying his application for cancellation of removal under section 240A(a) of the
Immigration and Nationality Act, 8 U.S.C. § 1229b(a), and denying a continuance. The record
will be remanded to the Immigration Judge for further proceedings.
We review findings of fact, including findings as to the credibility of testimony, for clear
error, but questions of law, discretion, and judgment, and all other issues in appeals, de novo.
8 C.F.R. §§ l003.l(d)(3)(i), (ii).
The respondent, a native and citizen of Mexico and a lawful permanent resident of the
United States since 1989, concedes removability on the basis of sections 237(a)(2)(A)(ii) and
237(a)(2)(E)(ii) ofthe Act, but contests the charge under section 237(a)(2)(A)(iii) ofthe Act (1.J.
at 3; Tr. at 11). In 2006, the respondent sustained a conviction, pursuant to a guilty plea, for
a 2005 violation of a violation of section 22.0l(b)(2)(A) of the TEXAS PENAL CODE (TPC), a
third-degree felony offense for which he was sentenced to a term of confinement for I0 years,
probated for 10 years (l.J. at 2; Respondent's Br. at I; Exh. 2).
The Immigration Judge determined that the respondent was statutorily ineligible for
cancellation of removal under section 240A(a) of the Act, on the basis that his conviction
constituted an aggravated felony crime of violence (I.J. at 3). On appeal, the respondent
contends that the Immigration Judge erred in finding his conviction to be a crime of violence
because the minimum conduct necessary to sustain a conviction under TExAs PENAL CODE
section 22.0J(b)(2)(a) need not involve the use of physical force of any kind. However, the
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Immigration Judge did not conduct a categorical analysis of the statute of conviction as required
by Taylor v. United States, 495 U.S. 575, 598-99 (1990) (outlining the categorical approach to
analyzing criminal statutes). See Descamps v. United States, --- U.S.---, 133 S. Ct. 2276 (2013);
Moncrieffe v. Holder, --- U.S.---, 133 S. Ct. 1678 (2013); Shepard v. United States, 544 U.S. 13,
16, 26 (2005).
For the foregoing reason, we find it appropriate to remand the record for further analysis and
evaluation of the particular facts and evidence presented by the respondent. See Matter ofA-P-,
22 l&N Dec. 468, 477 (BIA 1999) ("an ora1 decision must accurately summarize the relevant
facts, reflect the Immigration Judge's analysis of the applicable statutes, regulations, and legal
precedents, and clearly set forth the Immigration Judge's legal conclusions"). In making a
determination as to whether the respondent is eligible for cancellation of removal under section
240A(a) of the Act, the Immigration Judge should clearly articulate the reasons for his
conclusion, including citations to relevant documents in the record and applicable legal
precedent. See Matter of A-P-, supra; 8 C.F.R. § 1003.!(d){3)(iv) (limiting the Board's fact
finding ability on appeal).
In light of the disposition, we need not address the respondent's argument that he should
have been granted a continuance to pursue a collateral attack upon his conviction (Notice of
Appeal (Form EOIR-26)). We offer no opinion as to the merits of the respondent's claims.
Accordingly, the following order will be entered.
ORDER: The Immigration Judge's May 13, 2014, decision is vacated and the record is
remanded for further proceedings and the entry of a new decision by the Immigration Judge.
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File: - Eden, TX1
In re:
APPEAL
NOTICE:
Decision ofthe Board ofhnmigration Appeals
Date: DEC - 92014
Charged: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] -
Convicted ofaggravated felony
ON BEHALF OF RESPONDENT: Pro se
The respondent, a native and citizen ofthe Philippines who was admitted to the United States
as a lawful pennanent resident on or about November 11, 2014, appeals the decision of the
Immigration Judge, dated August 21, 2014, ordering his removal from the United States. The
record will be remanded.
We review Immigration Judges' findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, de nova. 8 C.F.R. § I003.1(d)(3).
We are unable to adequately review the Immigration Judge's decision in this matter. See
Matter of S-H-, 23 I&N Dec. 462, 465 (BIA 2002) (given the Board's limited fact-finding
ability, it is "increasingly important for the Immigration Judge to make clear and complete
findings offact that are supported by the record and in compliance with controlling law.").
The Department of Homeland Security alleges that the respondent is subject to removal from
the United States under the provisions of section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii), because he has been convicted of an aggravated
felony, namely conspiracy to commit an offense which involves fraud or deceit in which the loss
to the victim or victims exceeds $10,000 (I.J. at 1-2; Exhs. 1 2). Sections 10l(a)(43)(M)(i), (U)
of the Act, 8 U.S.C. §§ 110l(a)(43)(M)(i), (U). While we consider the respondent's federal
conviction for Conspiracy to Commit Bank Fraud in violation of 18 U.S.C. §§ 1344 and 1349 to
constitute a qualifying offense for conspiracy to commit an offense which involves fraud or
deceit, the Immigration Judge has not conducted the "circumstance-specific" inquiry needed to
determine the amount of loss to the respondent's victim or victims. See Nijhawan v. Holder,
557 U.S. 29 (2009); James v. Mukasey, 464 F.3d 505 (5th Cir. 2006); Matter of Babaisalrov,
24 I&N Dec. 306, 319-20 (BIA 2007).
1
Removal proceedings before the Immigration Judge in this matter were completed at the Eden
Detention Center in Eden, Texas (see OPPM No. 04-06). The Immigration Judge conducted the
hearings there remotely from the Immigration Court in Dallas, Texas, via video teleconference
pursuant to section 240(b)(2)(A)(iii) ofthe Act.
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For the reasons set forth above, we will remand the record to the lmmigration Judge for
further proceedings and the entry of a new decision. The respondent appears to be requesting
that, upon remand, he be afforded an opportunity to present a copy of the plea agreement in
support of his claim that the restitution ordered was based upon "general conduct and/or
dismiss[ed] counts." The following order is entered.
ORDER: The Immigration Judge's decision is vacated and the record is remanded to the
Immigration Court for further proceedings consistent with the foregoing opinion and the entry of
a new decision.
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• U.S..Department of Justice
File: - Dallas. TX
In re:
APPEAL
ON BEHALF OF RESPONDENT: Maria Tu, Esquire
ON BEHALF OF OHS:
CHARGE:
Brandon C. Jaroch
Assistant Chief Counsel
Date:
FEB 27 2015
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 IOl(a)(43)(K)(i))
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 IOl{a){43)(U))
Lodged: Sec. 237(a)(2)(A)(i), l&N Act (8 U.S.C. § 1227(a)(2)(A)(i)] -
Convicted of crime involving moral turpitude
APPLICATION: Cancellation ofremoval under section 240A(a); asylum;
v.1thholding of removal; Convention Against Torture
The respondent appeals the October 22, 2014, decision of the Immigration Judge, finding her
removable and pretermitting her application for cancellation of removal under section 240A(a) of
the Immigration and Nationality Act, 8 U.S.C. § 1229b(a). The Immigration Judge also denied
her applications for asylum and withholding of removal under sections 208 and 24 I(b)(3) of the
Act, 8 U.S.C. §§ 1158, 123l(b)(3), and her request for protection under the Convention Against
Torture, 8 C.F.R. §§ 1208.16-.18. The Department of Homeland Security (OHS) opposes the
appeal. The record will be remanded for further proceedings.
We review findings of fact for clear error, but questions oflaw, discretion, and judgment, and
all other issues in appeals, de novo. 8 C.F.R. §§ 1003.l(d)(3)(i), (ii). Because the applications
were filed after May 11, 2005, they are subject to the provisions of the REAL ID Act of 2005.
The respondent is a native and citizen of China and a lawful permanent resident of the
United States since April 1995 (Exh. I). In 2014, the respondent sustained a conviction,
pursuant to a guilty plea, for violation of 18 U.S.C. § 371, conspiracy, and 18 U.S.C.
§ I952(a)(3), to use interstate facility to promote, manage, establish, carry on, or facilitate the
promotion, management, establishment, or carrying on, of any unlawful activity. "Unlawful
activity" is defined to include "any business enterprise involving ... prostitution offenses in
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violation of the law of the State in which they are committed or of the United States." 1
18 U.S.C. § 1952(b)(l). For this offense, the respondent was sentenced to I year and I day of
incarceration, 3 years ofsupervised probation, fees, and fines (Exh. 2A at 1; Exh. 6A, Tab 11 ).
To demonstrate statutory eligibility for cancellation of removal under section 240A(a) of the
Act, an alien must demonstrate that he or she has been lawfully admitted for permanent residence
for not less than 5 years, has resided in the United States continuously for 7 years after having
been admittecl in any status,
2
and has not been convicted of an aggravated felony. In addition to
satisfying the three statutory eligibility requirements, an applicant for relief under section 240A(a)
ofthe Act must establish that he or she warrants such relief as a matter ofdiscretion.
The Immigration Judge sustained the removability charge under section 237(a)(2)(A)(iii) of
the Act, 8 U.S.C. § 1227(a)(2)(A)(iii), determining that the respondent's conviction constituted a
conviction for an aggravated felony as defined in sections 10l(a)(43)(K)(i), (U) of the Act,
8 U.S.C. §§ 1101(a)(43)(K)(i), (U) (I.J. at 3 4; Tr. at 23) and, therefore, rendered the respondent
ineligible for section 240A(a) cancellation of removal (Tr. at 24-25). The Immigration Judge
sustained the removability charge under section 237(a)(2)(A)(i) of the Act, determining that the
respondent's conviction constituted a crime involving moral turpitude (CIMT) (l.J. at 4; Tr. at
23).
After pretermitting the respondent's application for section 240A(a) cancellation of removal,
the Immigration Judge determined that her aggravated felony conviction rendered her ineligible
for asylum under section 208 ofthe Act (J.J. at 6). He further concluded that her conviction was
for a particularly serious crime under section 241 (b)(3)(B)(ii), rendering her ineligible for
withholding of removal under the Act and under the Convention Against Torture (id.). The
Immigration Judge found the respondent not credible (l.J. at 7-9), a finding that she does not
challenge on appeal. See, e.g., Matter of Cervantes, 22 I&N Dec. 560, 561 n.1 (BIA 1999)
(expressly declining to address an issue not raised by party on appeal); Matter of Gutierrez,
19 J&N Dec. 562, 565 n.3 (BIA 1988) (same). Consequently, that issue is not preserved and is
not before us.
Finally, the Immigration Judge denied the respondent's application for deferral of removal
under the Convention Against Torture because she did not meet her burden of proof to
demonstrate that it is more likely than not that she will be subjected to torture by or vith the
1
The laws of the State in which they were committed are TEXAS PENAL CODE (TPC) § 43.02,
prostitution, 1111d TPC § 43.04, aggravated promotion of prostitution (J.J. at 2; Exh. 2A,
Indictment at 4).
2
The Immigration Judge did not make any findings of fact regarding the respondent's
continuous physical presence (l.J. at 2, 4). We observe that the stop-time rule does not extend to
section 240A(a)(l) because that provision's language refers only to lawful admission as
a permanent resident, while the stop-time rule applies only to "continuous residence or
continuous physical presence." See section 240A(a)(l), (d)(l); see also Sinotes--Cruz v. Gonzales,
468 F.3d 1190, 1197 (9th Cir.2006).
2
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acquiescence (to include the concept of willful blindness) of any government official if returned
to China. See 8 C.F.R. §§ 1208.16(c), 1208.18(a)(l).
On appeal, the respondent argues: (1) her conviction does not constitute an aggravated
felony, (2) her conviction does not constitute a ClMT, (3) if her conviction is a CIMT, then it
occurred more than 5 years after her admission as a lawful permanent resident, and (4) her
conviction does not constitute a particularly serious crime.
To determine whether the respondent's conviction is for an aggravated felony, we must
conduct a categorical analysis of the statute of conviction as required by Taylor v. United States,
495 U.S. 575, 598-99 (1990) (outlining the categorical approach to analyzing criminal statutes);
see Descamps 1•. United States, 133 S. Ct. 2276 (2013); Moncrieffe v. Holder, 133 S. Ct. 1678
(2013); Shepard v. United States, 544 U.S. 13, 16, 26 (2005). Under the categorical approach,
we compare the elements of the statute of conviction with a federal definition of the crime to
determine whether conduct proscribed by the statute is broader than the generic federal definition.
Section IOl(a)(43)(U) defmes an aggravated felony as "an attempt or conspiracy to commit
an offense described in this paragraph," while the underlying substantive offense at
section IOl(a)(43)(K)(i) of the Act defines an aggravated felony as "an offense that -{i) relates
to the owning, controlling, managing, or supervising of a prostitution business." The statute
under which the respondent was convicted, 18 U.S.C. § 1952(a)(3), prohibits interstate or foreign
travel or transportation with intent to "promote, manage, establish, carry on, or facilitate the
promotion. management, establishment, or carrying on, of any unlawful activity." We find that
the Immigration Judge failed to analyze sufficiently under Descamps v. United States, supra,
whether the statute is divisible under governing Fifth Circuit case law. See. e.g.,
Franco-Casasola v. Holder, 773 F.3d 33 (5th Cir. 2014).
As the United States Supreme Court explained, the modified categorical approach is a tool
that helps courts implement the categorical approach by supplying them with a mechanism to
identify the "elements" of offenses arising under "divisible" criminal statutes. See Descamps
v. United States, 133 S. Ct. 2276, 2285 (2013). Under Descamps, the modified categorical
approach applies only if: (I) the statute of conviction is "divisible" in the sense that it lists
multiple discrete offenses as enumerated alternatives or defines a single offense by reference to
disjunctive sets of elements, more than one combination of which could support a conviction;
and (2) some (but not all) of those listed offenses or combinations of disjunctive elements are a
categorical match to the relevant generic standard. Id. at 2281, 2283. The modified categorical
approach does not apply merely because the elements of the crime can sometimes be proved by
reference to conduct that fits the generic federal standard; in the view of the Descamps Court,
such crimes are "overbroad," but not "divisible." Id. at 2285-86, 2290-92 (emphasis added).
Similarly, the Immigration Judge did not provide analysis or authority for his conclusion that
the respondent's conviction was categorically for a crime involving moral turpitude (l.J. at 4). In
Matter ofLouissaint, 24 I&N Dec. 754 (BIA 2009), we decided that the categorical approach for
determining if a particular crime involves moral turpitude set forth in Matter ofSilva-Trevino,
24 I&N Dec. 687 (A.G. 2008), requires the traditional categorical analysis, which was used by
the United States Supreme Court in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), and
3
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,
includes an inquiry into whether there is a "realistic probability" that the statute under which the
alien was convicted would be applied to reach conduct that does not involve moral turpitude.
Under the first step ofthat framework, we conduct a categorical inquiry to examine the statute of
conviction and determine whether moral turpitude is intrinsic to all offenses that have a "realistic
probability" of being prosecuted thereunder. If the issue cannot be resolved under the
categorical approach, we use a modified categorical approach, which requires inspection of
specific documents comprising the alien's record of conviction to discern the nature of the
underlying conviction. Because the Immigration Judge did not provide any analysis, we find
remand appropriate.
Regarding whether the respondent's conviction is a particularly serious crime for purposes of
withholding of removal under section 241(b)(3) of the Act, the Immigration Judge did not apply
the analysis set out in Matier ofFrentescu, 18 l&N Dec. 244 (BIA 1982) (l.J. at 11 ). As such,
we conclude that the Immigration Judge analyzed the respondent's offense without sufficient
reference to the factors articulated in Matter ofFrentescu, supra, and find remand appropriate.
The respondent has not challenged the Immigration Judge's determination that she is
ineligible for deferral of removal under the Convention Against Torture (l.J. at 11 ). See, e.g.,
Matter of Cervantes, supra (expressly declining to address an issue not raised by party on
appeal); Matter o,fGutierrez, supra (same). Consequently, that issue is not preserved and is not
before us.
Upon review of the record. we conclude that the Immigration Judge's decision regarding the
respondent's conviction does not contain sufficient factual and legal analysis to allow us to
perform adequate appellate review. See Matter o,f S-H-, 23 I&N Dec. 462 (BIA 2002)
(explaining the importance of an Immigration Judge's decision containing clear and complete
findings of fact that are supported by the record and are in compliance with controlling Jaw).
Further analysis and fact finding is required regarding whether the respondent's conviction is an
aggravated felony, a crime involving moral turpitude, or a particularly serious crime. See
8 C.F.R. § 1003. l(d)(3)(i) (stating that the Board may not engage in fact-finding in the course of
deciding appeals). Accordingly, we will remand the record for further proceedings to resolve
these issues and for a determination regarding whether the respondent is removable and, if so,
whether she is eligible for relief from removal. On remand, the parties •Nill be afforded an
opportunity to present testimony or other evidence and argument. The Board expresses no
opinion regarding the ultimate outcome of these proceedings. The following order will be
entered.
ORDER: The record is remanded to the Immigration Court for further proceedings
consistent with the foregoing opinion and for the entry ofa new decision.
4
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File: - Dallas, TX Date:
APR 0 G2015
In re:
APPEAL
ON BEHALF OF RESPONDENT: Erika N. Salter, Esquire
APPLICATION: Continuance
The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's
decision dated December I0, 2014. We review questions oflaw, discretion, and judgment arising
in appeals from decisions of Immigration Judges de novo, whereas we review findings of fact in
such appeals under a "clearly erroneous" standard. See 8 C.F.R. § 1003. I(d)(3).
The respondent challenges the Immigration Judge's denial of his request for a continuance
pending further adjudication of his son's immigrant visa petition (Form I-130) submitted on his
behalf. At the time of the Immigration Judge's decision, the Department of Homeland Security
(DHS) had denied the respondent's son's visa petition for failure to respond to a request for
evidence. However, respondent's counsel represented that a response had been timely submitted.
The Immigration Judge accepted this representation but determined that a continuance was not
appropriate since no Form 1-130 remained pending.
An Immigration Judge may grant a continuance in a pending case if the respondent has
demonstrated good cause for the request. See Matter ofPerez-Andrade, 19 I&N Dec. 433 (BIA
1987); 8 C.F.R. §§ 1003.29, 1240.6. In Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), we
outlined the factors to be considered when an alien requests a continuance to await the adjudication
by the DHS ofa pending 1-130. We stated in Hashmi that "[d]elay that is not attributable to the
respondent augurs in favor of a continuance." 24 J&N Dec. at 793. We added that the
Immigration Judge may also consider any other procedural factors. In light of evidence
submitted on appeal that tends to confirm counsel's representations at the December 10, 2014,
hearing that the respondent's son had submitted a timely response to DHS's request for evidence in
support ofhis I-130, we find it apptopriate to remand the record to allow the Immigration Judge to
reconsider the request for a continuance in light of!!II ofthe Hashmi factors.
Accordingly, the following order will be entered. '·,,.
ORDER Tu
FOR THE BOA
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Executive Office Review
Decision of the Board oflmmigration Appeals
JAN 2 8 2016
In re:
APPEAL
ON BEHALF OF RESPONDENT: Rosalind Allison Kelly, Esquire
APPLICATION: Adjustment of status; waiver of inadmissibility
The. respondent, a native and citizen of the Dominican Republic, appeals from an
Immigration Judge's decision dated January 5, 2015, finding that the respondent abandoned his
application for adjustment of status and a section 212(h) waiver of his inadmissibility. See
8 U.S.C. § 1182(h). On appeal, the respondent has presented new evidence to show that a
computer malfunction contributed to his attorney missing the correct filing deadline. The
Department of Homeland Security (DHS) has not filed an opposition to the appeal or to the
respondent's request for a remand based on the additional evidence. The appeal will be
sustained and the record will be remanded.
Based on the totality of the circumstances, including the approved I-130 (Petition for Alien
Relative) and the respondent's new evidence, we find that further proceedings are appropriate to
allow the respondent to seek relief from removal. We express no opinion as to the ultimate
disposition ofthis case.
For all ofthe foregoing reasons, the record will be remanded.
ORDER: The record is remanded for further proceedings consistent with this order and for
the entry of a new decision.
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U.S. Department ofJnstice
Decision of the Board ofImmigration Appeals
APR 212015
In re:
IN ASYLUM AND/OR WITHHOLDING PROCEEDINGS
APPEAL AND MOTION
ON BEHALF OF APPLICANT: Anthony Matulewicz, Esquire
APPLICATION: Withholding ofremoval; Convention Against Torture; remand
The applicant, a native and citizen of El Salvador, appeals the decision of the Immigration
Judge, dated January 5, 2015, deeming his claims to withholding ofremoval under the provisions
of section 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3), and
protection under the Convention Against Torture ("CAT') to be abandoned. The applicant has
filed a motion to remand to the Immigration Judge on the basis of ineffective assistance of
counsel. See Matter ofLozada, 19 I&N Dec. 637 (BIA 1988).
Considering the totality ofthe circumstances, we will grant the applicant's motion to remand.
The applicant has presented sufficient evidence in support of his motion to establish that he
should be provided with a renewed opportunity to further pursue his claims to withholding of
removal and protection under the CAT. However, at the present time, we express no opinion
regarding the underlying merits ofthose claims. Accordingly, the following order is entered.
ORDER: The applicant's motion to remand is granted, the Immigration Judge's decision is
vacated, and the record is remanded to the Immigration Court for further proceedings consistent
with the foregoing opinion and the entry ofa new decision.
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JUN J62015
In re:
APPEAL
ON BEHALF OF RESPONDENT: Francisco Alvillar, Esquire
APPLICATION: Asylum; withholding ofremoval; Convention Against Torture
The respondent, a native and citizen of Mexico, appeals the decision of the Immigration
Judge, dated February 2, 2015, denying his Application for Asylum and for Withholding of
Removal (Form l-589) and ordering his removal from the United States.1
The Department of
Homeland Security has not replied to the respondent's appeal.
Considering the totality ofthe circumstances, we conclude that it is appropriate to remand the
record to the Immigration Judge in order to provide the respondent a renewed opportunity to
present the merits of his Form I-589. If, upon remand, the respondent remains pro se, the
Immigration Judge should provide him with an additional explanation of the need to file a
witness list and corroborating evidence in anticipation of his merits hearing. While an
Immigration Judge must not take on the role of an alien's advocate, it is appropriate for him to
aid in the development of the record and directly question witnesses where, as here, an alien
appears without legal assistance. See Matter ofJ-F-F-, 23 I&N Dec. 912, 922 (BIA 2006).
At the present time, we express no opinion regarding the ultimate outcome of this case.
Accordingly, the following order is entered.
ORDER: The recrird is remanded to for further proceedings
consistent with the foregoing opinion and the entry ofa ne
1
The respondent is subject to removal from the United States because he is an alien who is
present in this country without being admitted or paroled by an immigration officer or who
arrived at any time or place other than as designated by the Attorney General (I.J. at 1-3). See
section 212(a)(6)(A)(i) ofthe Immigration and Nationality Act, 8U.S.C.§l182(a)(6)(A)(i).
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U.S. Department ofJustice
File: - Dallas, TX
In re:
APPEAL
ON BEHALF OF RESPONDENT: Prose
Date:
APR 212015
The respondent, a native and citizen of El Salvador, appeals the decision of the Immigration
Judge, dated January 29, 2015, deeming his opportunity to file applications for relief to be
abandoned and ordering his removal from the United States. See 8 C.F.R. § 1003.3I(c); Matter
ofR-R-, 20 I&N Dec. 547 (BIA 1992).
The transcript does not support the Immigration Judge's finding that he set a filing deadline
in this case (I.J. at 1-2). The transcript for the removal hearing on January 7, 2015, ends with the
Immigration Judge going offthe record to review the Record of Deportable I Inadmissible Alien
(Form I-213) (Tr. at 12). The Immigration Judge also did not issue a written order setting filing
deadlines or otherwise provide the respondent with written notice of the filing deadlines. We
cannot affirm the bnmigration Judge's decision to order the respondent's removal from the
United States based upon his failure to comply with a filing deadline which was set "off the
record." See Matter ofLemus-Losa, 24 I&N Dec. 373, 380 (BIA 2007) (recognizing that we are
unable to speculate as to what conversations may have occurred off the record); Matter of
Garcia-Reyes, 19 I&N Dec. 830 (BIA 1998) (holding that, with some exceptions, immigration
proceedings should be recorded verbatim). Accordingly, we will remand the record to the
Immigration Judge to set new filings deadlines in this case.
At the present time, we express no opinion regarding the ultimate outcome ofthis case. The
following order is entered.
ORDER: The Immigration Judge's decision is vacated and the record is remanded to the
Immigration Court for further proceedings consistent with the foregoing opinion and the entry of
a new decision.
,
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..
U.S. Department ofJustice
Office for hnmigration Review
In re: OCT 13 2015
APPEAL
ON BEHALF OF RESPONDENT: Vinesh Patel, Esquire
ON BEHALF OF DHS: Judson Davis
Assistant ChiefCounsel
APPLICATION: Remand
ORDER:
The respondent and the Department of Homeland Security have filed a joint motion to
remand the record for further proceedings before the Immigration Judge. The motion is granted,
and the record is remanded for further proceedings.
FOR THE BOARD =
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U.S. ofJustice
Executive-Office for Immigration Review
'JUL -12015
In re:
IN ASYLUM AND/OR WITIIlIOLDING PROCEEDINGS
APPEAL
ON BEHALF OF APPLICANT: Giselle E. Reid, Esquire
The applicant, a native and citizen of Guatemala, appeals the decision of the Immigration
Judge, dated March 4, 2015, deeming her requests for withholding of removal under
section 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3), and protection
under the Convention Against Torture to be abandoned.1
The appeal will be sustained and the
record remanded.
Considering the totality of the circumstances presented in this case, including the applicant's
personal circumstances, her filing of her Application for Asylum and for Withholding of
Removal (Form 1-589) with United States Citizenship and Immigration Services, and the lack of
a response to this appeal from the Department of Homeland Security, we conclude that it is
appropriate to remand the record to the Immigration Judge in order to set new filing deadlines for
the submission of an application for relief and corroborating evidence. If the applicant timely
files her application, she should be provided an opportunity to have the merits ofher application
considered.
At the present time, we express no opinion regarding the underlying merits ofthe applicant's
claims to withholding of removal and protection under the CAT. Accordingly, the following
orders will be entered.
ORDER: The applicant's appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Court for further
proceedings consistent with the foregoing opinion and the entry ofa new decision.
-
1
An immigration officer has ordered the applicant removed from the United States under the
provisions of section 241 (a)(5) of the Act. An asylum officer has referred the applicant to the
Immigration Judge for these "withholding only" proceedings under the provisions of 8 C.F.R.
§ 208.3l(e).
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Office for Immigration Review
File: - Dallas, TX Date: JUL 17 ZOIS
In re:
APPEAL
ON BEHALF OF RESPONDENT: Monica Lira Bravo, Esquire
CHARGE:
Notice: Sec. 237(a)(2)(A)(i), l&N Act (8 U.S.C. § 1227(a)(2)(A)(i)] -
Convicted of crime involving moral turpitude
Sec. 237(a)(2)(A)(ii), I&N Act (8 U.S.C. § 1227(a)(2)(A)(ii)] -
Convicted oftwo or more crimes involving moral turpitude
APPLICATION: Termination
On March 23, 2015, an Immigration Judge found the respondent removable as charged and
ineligible for relief from removal. The respondent, a native and citizen of Nigeria, has appealed
from this decision. The Department of Homeland Security (DHS) has not responded to the
respondent's appeal. The respondent's appeal will be sustained, and the record will be remanded
to the Immigration Judge for further proceedings consistent with this order and for the entry of a
new decision. The respondent's fee waiver request is granted. See 8 C.F.R. § 1003.8(a)(3). The
respondent's request for oral argument is denied. See 8 C.F.R. § 1003.l(e)(7).
With his appeal, the respondent has submitted orders from a Texas court indicating that a
judge granted the Assistant District Attorney's motion to withdraw the motion to proceed with
adjudication of guilt in the respondent's criminal cases and discharged the respondent from
probation. This evidence is new and previously unavailable and material to the respondent's
case. Accordingly, we sustain the respondent's appeal and remand his case for further
proceedings to determine whether he remains removable in light of the recent actions in his
criminal proceedings.
ORDER: The respondent's appeal is sustained, and the record is remanded to the
Immigration Judge for further proceedings consistent with this order and for the entry of a new
decision.
FOR THE BOARD
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(b) (6)

U.S. Department of Justice Decision ofthe Board of lmm1grat1on Appeals
. Executive Office for lmnugration Review
In re:
DEC - 9 2015
IN ASYLUM AND/OR WITHHOLDING PROCEEDINGS
APPEAL
ON BEHALF OF APPLICANT: Norma Sepulveda, Esquire
The applicant, who claims to be an indigenous Guatemalan, appeals the decision of the
Immigration Judge dated July 13, 2015. denying her application for withholding of removal
under section 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 123 l(b)(3), and
protection under the Convention Against Torture. The appeal will be sustained in part, and the
record will be remanded.
We review the Immigration Judge's factual findings for clear error and all other issues
de novo. 8 C.F.R. §§ 1003.l(d)(3)(i), (ii); see also Matter of Z-Z-0-, 26 I&N Dec. 586
(BIA 2015). Because the asylwn application was filed after May 11, 2005, it is governed by the
provisions of the REAL ID Act of 2005. See Matter ofS-B-. 24 l&N Dec. 42 (BIA 2006).
The applicant is a -year-old native and citizen of Guatemala. She claims that she began
seeing in of 2010. and that she moved in with him 4 or 5 months later.
The applicant testified that they maintained a common-law relationship (Tr. at 49), and that in
of 2010, Mr. began to mistreat her (Tr. at 52, 53). The applicant left
Guatemala in of2012, but she was removed from the United States in of2013.
Upon return to Guatemala, the physical and sexual abuse by Mr. continued, and the
applicant returned to the United States in of2014 (Tr. at 65-73).
The Immigration Judge denied the applicant's application for withholding of removal,
finding that she lacked credibility (l.J. at 5-10). We conclude that the grounds relied upon by the
Immigration Judge for his adverse credibility determination were inadequate to support such
a finding. See 8 C.F.R. § I003. I(d)(3)(i). To support an adverse credibility determination,
inconsistencies must be considered in light of the totality of the circumstances, and all relevant
factors. Sections 208(b)(l)(B)(iii) and 24l(b)(3)(C) of the Act. 8 U.S.C. §§ l !58(b)(l)(B)(iii),
123l(b)(3)(C).
In finding the applicant lacked credibility, the Immigration Judge noted that the applicant had
two opportunities, on March 26. 2013. and January I, 2015. to express to border patrol officers
that she had a fear of returning to Guatemala because of abuse at the hands of her common-law
relationship, and she responded that she would not be harmed if she were returned to Guatemala
(l.J. at 5-9; Exhs. 2, 4). However, at the hearing, the applicant testified that she did not tell the
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border patrol officers what had happened to her in Guatemala because she had filed a report in
Guatemala and no actions were taken, and she thought the same thing would happen here
(Tr. at 152; Applicant's Brief at 9, 10). The applicant also testified that she did not tell the
border patrol what had happened to her because "I was afraid that they were going to harm me,
and that they would send me back, and that they would hand me over to So I didn't say
anything." (Tr. at 152). In his decision, the Immigration Judge did not address the applicant's
explanation for failing to speak about the alleged abuse at the hands of when she
was interviewed by border patrol officers.
The other inconsistencies cited by the Immigration Judge were minor or adequately
explained. The only arguably significant inconsistency-whether the applicant left her abusive
boyfriend in of 2014, as she testified, or in 2012, as she was found to have told the
asylum officer-is actually non-existent. The Reasonable Fear Interview summary shows that
after the applicant said she ended the relationship in 2012, she indicated that after her 2013
removal, Mr. told her father that everything would change but then he went back to hitting
her. At the interview, the applicant said that she ended the relationship at the "[b]eginning of
2014, completely"-which is consistent with her in-court testimony. See Reasonable Fear
Interview al 5. Because ofthis, we will reverse the adverse credibility determination.
We note that even credible testimony will not satisfy an applicant's burden of proof for
withholding of removal if the evidence does not otherwise establish past persecution, or a clear
probability of future persecution. The applicant's claim is based on membership in a proposed
particular social group composed of women who are unable to leave their relationship. In Matter
ofA-R-C-G-, 26 I&N Dec. 388 (BIA 2014), we held that married women who are unable to leave
a domestic relationship can constitute a cognizable particular social group that forms a basis of
a claim for asylum. We cannot now adjudicate the merits of the applicant's claim because the
Immigration Judge did not enter an alternative merits ruling that was independent of his adverse
credibility finding, and the Board's addressing of nexus as it relates to subjective motive in the
first instance is precluded by our own precedent (see, e.g, Matter ofN-M-, 25 l&N Dec. 526
(BIA 2011)).
Accordingly, we conclude that a remand for more fact-finding is necessary. On remand, the
Immigration Judge should assess whether the applicant's evidence, including her credible
testimony, has established that the cumulative past incidents rise to the level of past persecution,
or that she has a clear probability of future persecution, and whether any past or future
prosecution was or will be on account of an enumerated ground, and was or will be perpetrated
by the Guatemalan government or an entity that the government was or is unable or unwilling to
control. Similarly, while treating the applicant's testimony as credible, the Immigration Judge
should reassess her claim to protection under the Convention Against Torture. Upon remand, the
parties should also be given a new opportunity to submit evidence, including the evidence that
was previously submitted by the applicant but that the Immigration Judge apparently rejected as
untimely.
Further, it was error for the Immigration Judge to order the Department of Homeland
Security to take steps toward reinstatement of the applicant's previous order of removal to
Guatemala (I.J. at I0). The Immigration Judge's jurisdiction was confined to deciding the
2
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withholding of removal and Convention Against Torture applications; he had no jurisdiction over
removal We have also reviewed the record to assess the applicant's claim that the Immigration
Judge conducted an improper hearing and that the case consequently should be heard by
a different Immigration Judge on remand, but we do not find merit in this allegation. While the
applicant sought recusal of the Inunigration Judge at the hearing, we find insufficient support for
the applicant's claims of intimidation (see Tr. at 80-88).
ORDER: The appeal is sustained in part, and the record is remanded for further proceedings
in accordance with this decision.
-RTHEBOARD -
3
(b) (6)

U.S. Department ufJustice
Executive Office for lmn11gralion Review
Falls Church, Virginia 2204 I
File: - Dallas, Texas
Decision ofthe Board uflmmivarion Appeals
Date: 11118281
In re:
APPEAL
ON BEHALF OF RESPONDENT: Natalia Riveros-Jacobsen, Esquire
CHARGE:
Notice: Sec. 237(a)(2)(A)(iii), l&N Act (8 U.S.C. § l227(a)(2)(A)(iii)) •
Convicted ofaggravated felony
APPLICAT!ON: Termination
The respondent, a native and citizen of Mexico, and a lawful pennanent resident ofthe United
States since his admission as an immigrant on December 11, 1990, has filed a timely appeal from
an Immigration Judge's decision entered on December 9, 2015, ordering his removal from the
United States. The record will be remanded to the Immigration Coun for further proceedings in
accordance with this decision.
The Immigration Judge did not prepare a separate oral or written decision in this matter setting
out the reasons for the decision entered on Dccernber 9, 2015. Rather, the Immigration Judge
issued an ..Order of the Immigration Judge" ordering the respondent removed. To determine
whether a given conviction qualifies as an aggravated felony for removability purposes, we are
generally obliged to conduct a "categorical" inquiry in which we ask first whether the statutory
elements of the offense ofconviction correspond to the requirements ofthe particular aggravated
felony charged in the Notice to Appear. See Descamps v. United States, 133 S. Ct. 2276 (2013).
Without such analysis, there is little basis for this Board to exerciseappellate review.
Indeed, when issues of removability arc not susceptible to resolution on the pleadings, they
must be resolved in an oral or writtendecision which accurately summarizes the relevant facts, and
reflects the Immigration Judge's analysis of the applicable statutes, regulations, and legal
precedents, and clearly sets forth the Immigration Judge's legal conclusions. See Matter ofA·P·,
22 I&N Dec. 468, 476·77 (BIA 1999); see also Mauer ofM-P-, 20 l&N Dec. 786 (BIA 1994)
(noting that when an Immigration Judge fails to clearly identify and sufficiently explain the
reasons for the decision reached. the parties are deprived ofa fair opportunity on appeal to contest
the Immigration Judge's detenninations, and the Board is unable to meaningfully exercise its
responsibility of reviewing the decision in light ofthe appellate arguments being made). While
the Immigration Judge's decision may have reached the correct conclusion regarding the
respondent's removability and ineligibility for relief and protection from removal, the
Immigration Judge has not provided, in the first instance, the necessary legal analysis to support
his conclusions or identify, in any manner, the reasons for his decision. See e.g., 8 C.F.R.
§§ 1003.37 and 1240.12.
(b) (6)
(b) (6)

'·
Consequently, under these circumstances we find it appropriate to remand the record to the
Immigration Judge for preparation of a full and detailed decision, which includes the necessary
legal analysis ofthe applicable starutes, regulations, and legal precedents, in suppon of his legal
conclusions, as discussed herein. Upon preparation of the full decision. the Immigration Judge
shall issue an order administratively returning the record to the Board. The Immigration Judge
shall serve that order on the respondent and the OHS, and the Board will thereafter give the parties
an opportunity to submit appellate briefs in accordance with the regulations.
2
(b) (6)

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