U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

51071.l'esburg Pike, Suitl.' JOO() Falls C/111rch, l'irgi11it1 :!2041

Hohenstein, Joseph C. Orlow, Kaplan & Hohenstein, LLP P.O. Box 40017, 620 Chestnut St., Suite 656 Philadelphia, PA 19106

OHS LIT.Nork Co. PrisonNOR 3400 Concord Road York, PA 17402

Immigrant & Refugee Appellate Center | www.irac.net

Name: NYAMWANGE, RICHARD MICHREKA

A029-043-107

Date of this notice: 3/14/2011

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

Donna Carr Chief Clerk

Enclosure

Panel Members: Grant, Edward R. Liebowitz, Ellen C Mullane, Hugh G.

Cite as: Richard Michreka Nyamwange, A029 043 107 (BIA March 17, 2011)

U.S.

;Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review Falls Church, Virginia 22041

File: In re:

A029 043 10 7 - York, PA RICHARD MICHREKA NYAM.WANGE

Date:

MAR 14 201!

IN REMOVAL PROCEEDINGS CERTIFICATION ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Joseph C. Hohenstein, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Alice Song Hartye Assistant Chief Counsel

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

The respondent, a native and citizen of Kenya, appealed from an order ofthe Immigration Judge, dated October 1, 2010, finding him removable as charged. On November 8, 2010, we returned the record to the Immigration Judge for issuance of an oral or written decision. The Immigration Judge issued an oral decision on November 18, 2010, and certified the case to the Board. The record will be remanded to a different Immigration Judge for a new hearing and for the entry of a new decision. We review the findings offact, including determinations ofcredibility, made by the Immigration Judge under a "clearly erroneous,, standard. 8 C.F.R. 1003.1( d)(3)(i). We review all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion, under a

de novo standard.

8 C.F.R. 1003.l(d)(3)(ii).

During the several hearings in this case, the respondent challenged his removability as an alien convicted of an aggravated felony. At the final hearing on August 11, 2010, the Immigration Judge informed the parties that he would find the respondent removable as charged and would explain his reasoning in a later oral decision; he further stated that he would entertain further challenges to removability during the next hearing (Tr. at 22-23, 26). The proceedings were reset until November 10, 2010, so that the respondent and his attorney could confer about possible relief from removal (Tr. at 29).

Cite as: Richard Michreka Nyamwange, A029 043 107 (BIA March 17, 2011)

A029 043 107

On September 30, 2010, the respondent, through a filing by his counsel, notified the Immigration Judge that he would reserve the right to file an appeal on the issue of removability, but would not be applying for relief from removal. The respondent requested that a final decision be issued before the scheduled hearing date. On October I, 2010, the Immigration Judge issued a summary order, which noted that the respondent reserved appeal. The respondent filed an appeal, and the Board remanded the record to the Immigration Judge for the issuance of a written or oral decision as his summary order provided no reasons for his decision. In his November 18, 2010, decision the Immigration Judge focused on the actions of the respondent's attorney, stating that he felt he was "broadsided" by the counsel, and that the appeal referenced his conduct in a completely unrelated case (Id. at 6-8). The Immigration Judge indicated that he found the respondent's request for a final order tantamount to a waiver of appeal. was "frivolous" (l.J. at 6-7). The Immigration Judge further criticized the respondent's counsel and

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In his subsequently filed appeal brief, the respondent, through counsel, asserts that his

removability is not adequately addressed by the Immigration Judge. Counsel also takes issue with the Immigration Judge's characterization of his actions. We agree that the Immigration Judge's November 18, 2010, decision fails to provide adequate legal analysis ofremovability, which he acknowledged was "a difficult legal issue" (Tr. at 28). This alone would warrant another remand. We also find that the Immigration Judge's decision contains undue criticism of the respondent's counsel. The respondent repeatedly indicated he was challenging his removability, and he twice stated he was reserving appeal in his September 30, 20 I 0, filing with the Immigration Court. The Immigration Judge also acknowledged that the respondent reserved appeal in the summary order he subsequently issued. It is therefore not apparent why the Immigration Judge found the September 30 filing to be tantamount to a waiver of appeal, or that he would be justified in issuing a decision without addressing the merits of the removal charges. It is also not appropriate for an Immigration Judge to deem an appeal as "frivolous" as it is the Board's task to evaluate appellate filings. Finally, we do not find the Immigration Judge's mention of the facts and identifying information of an unrelated case to be proper. Under the totality of circumstances presented, we deem it appropriate to remand the record to a different Immigration Judge for a new hearing and for the entry of a new decision. Accordingly, the following orders will be entered. ORDER: The Immigration Judge's order dated October I, 2010, and his decision dated

November 18, 2010, are vacated. FURTHER ORDER: The record is remanded to a different Immigration Judge for a new hearing and the entry of a new decision.

Cite as: Richard Michreka Nyamwange, A029 043 107 (BIA March 17, 2011)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT 3400 CONCORD ROAD, YORK, PA SUITE 2 17402

ORLOW PO

& ORLOW JOSEPH C. 620 CHESTNUT ST, PA 19106 FILE A 029-043-107 DATE: Nov 18, 2010 STE 656

HOHENSTEIN,

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BOX 40017;

PHILADELPHIA, IN

THE MATTER OF RICHARD MICHREKA

NYAMWANGE, HM-4575

UNABLE TO FORWARD - NO ADDRESS PROVIDED ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION

IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION. SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, OFFICE OF THE CLERK P.O. BOX 8530 VA 22041 FALLS CHURCH, AND FEE OR MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS PREPARING YOUR APPEAL. FEE WAIVER REQUEST

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND SECTION 8 u.s.c. SECTION 1229a(c)(6) IN REMOVAL FILED IN ACCORDANCE 8 U.S.C. 240(c)(6), NATIONALITY ACT,

l252B(c)(3) IN DEPORTATION PROCEEDINGS OR SECTION PROCEEDINGS. COURT: YOUR MOTION MUST BE FILED WITH THIS IMMIGRATION COURT 3400 CONCORD ROAD, YORK, PA 17402 Return/Certification SUITE 2

IF YOU FILE A MOTION

TO REOPEN,

OTHER:

Order of Administrative

to the Board

BLS

COURT CLERK IMMIGRATION COURT CC: Office of Chief Counsel 3400 Concord Road York, PA 17402 FF

(
i

U. S. DE PARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMM IGRATION REVIEW IMMIGRATION COURT York, Pennsylvania

File A029 043 107

Date: November 18,

20 10

Immigrant & Refugee Appellate Center | www.irac.net

In the Matter of

RICHARD MICHRE KA NYAMWANGE Respondent

IN REMOVAL PROCEE DINGS

CHARGE:

Under Section 237 (a) (2) (A) (i) of the Immigration and Nationality Act as amended in that anytime after admission the Respondent was convicted of an aggravated felony as defined in Section lOl (a) (43) (A) of the Act, a law relating to sexual assault. And under Section 237 {a) (2) {A) (iii) of the Immigration and National Act as amended in that anytime after admission the Respondent was convicted of an aggravated felony as defined in Section lOl (a) {43) {F) of the Act, a crime of violence {as defined in Section 16 of Title 18 United States Code, but not including a purely political offense) for which the term of imprisonment ordered is at least one year. Respondent seeks no applications. The Respondent re quested an Order of Removal. The Respondent sought an Order of Removal and specifically requested it on or about September the 30th, of 20 10, and per the Respondent's request in such letter the Court issued the Order of Removal in Respondent's case.

A P PLICATION:

A P PEARANCES: ON BEHAL F O F RES PON DENT: ON BEHALF OF THE DE PARTMENT OF HOMELAN D SECURITY: Alice Hardy, Esquire

Joseph C. Hornstein,

Esquire

(
I

ORAL DECISION OF THE IMMIGRATION JU DGE FIN DINGS REGAR DING REMOVABILITY The Respondent is a native and citizen of Kenya who was admitted to the United States at Queens, New York, on or about August the 8th, the 30th, 1988, 1975, as an F-1 student. On or about September

Immigrant & Refugee Appellate Center | www.irac.net

his status was adjusted to that of a lawful On February the

permanent resident under Section 240 of the Act.

1st, 2008, the Respondent was convicted in Pennsylvania in the Court of Common Pleas at Monroe County for the offense of sexual assault, in violation of Title 18 (3125-1) of the Pennsylvania 2008, Respondent

Criminal Statue.

On or about February the 1st,

was convicted in the Pennsylvania Court of Common Pleas at Monroe County for the offense of aggravated indecent assault without consent, in violation of Title 18 Criminal Statue. (3124.1) of the Pennsylvania

For these offenses the Respondent was convictedo

two and a half to five years in prison. The Respondent, through his counsel, acknowledged

receipt of the Notice to Appear and during a proceeding with a prior Immigration Judge, not the one sitting today, admitted

allegations one through four and denied allegations five and six which were the criminal convictions and denied the charges. When

this particular Judge received the Record of Proceedings in this particular case1this Judge reviewed the Respondent's case and the evidence submitted by the Department of Homeland Security contained in Exhibit #2. A 29 043 107 Via these documents and the Notice to 2 November 18, 2010

Appear, this Court concluded that Respondent was in fact convicted of these crimes. The Respondent's counsel did not object to the

submission of Exhibit #2 in this particular case and therefore it was proper for this Court to use and review such submissions from the Department. On or about June the 12th, 2008, the Department arrested See Exhibit #1 and

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this individual and placed him in proceedings. Exhibit #2.

Based upon the Respondent's admissions and the

evidence submitted by the Department of Homeland Security in Exhibit #2, this Court concluded that as a matter of fact the Department of Homeland Security proved by clear and convincing evidence that the Respondent was admitted to subject10f being removed. See Exhibit #1 and Exhibit #2. This Court also

0vr

concluded as a matter of law that the Department of Homeland Security proved by clear and convincing evidence the Respondent is removable from the United States. substantial and probative. Exhibits #1 and Exhibits #2. THE ISSUE REGARDING REMOVABILITY The issue regarding removability is that the Respondent believes he was not convicted and the Respondent also believes that his convictions were not aggravated felonies. As stated The evidence was reasonable, See

INA Section 240 (c) (3) (A) .

above, this Court concluded that the Respondent was convicted of aggravated felonies and that such aggravated felonies were particular serious crimes. A 29 043 107 This Court concluded that Respondent's 3 November 18, 2010

. (

conviction for sexual assault and for aggravated indecent assault without consent was a aggravated felony under Section lOl (a) (43) (A) of the Act. This Court also concluded that

Respondent's.convictions were also crimes of violence under Section lOl (a) (43) (F) of the Act. This Court also concluded that

Immigrant & Refugee Appellate Center | www.irac.net

Respondent's sentence to two and a half to five years in prison in the aggregate also rendered his aggravated felony convictions particularly serious crimes. And even if the Respondent was not

sentenced to two and a half to five years in prison in the aggregate, this Court would conclude that the Respondent's crimes are particularly serious crimes. Kaplun v. Attorney General, of N-A-M-, 24 I&N Dec. 336 See INA Section 24l (b) (3) . (3rd Cir. 2010) ; Matter

602 F. 3d 260

(BIA 2007) ; Bobb v. US, 458 F.3d 213 defines the crime of

(3rd Cir4 2006) f INA Section lOl (a) (43) (F)

violence as a crime defined in Section 16 of Title 18, United States Code, but not a purely political offense, with the term of

imprisonment is at least one yea r_, is a particularly serious crime. 18 U. S. C. A. Section 16 defines or describes the term crime of violence as (a) an offense that has an element the use, attempted

use or threatened use of physical force against a person or property of another, or (b) any other offense that is a felony and

that by its nature involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 162 (3rd Cir. 2001) ; US v. See Francis v. Reno, F. 3d 723 269 F. 3d 1996) . 2010

McQuilkin, 97 4

(3rd Cir.

A 29 043 107

November 18,

Not only did this Court conclude that Respondent was convicted of aggravated felonies but that his aggravated felony convictions were particularly serious crimes. There were no

issues in this Court's mind regarding removability or that the Respondent was not convicted of an aggravated felony or particularly serious crimes. PROCEE DURAL HISTORY This case before this Judge was on various Master Calendars. And on August the 11th, 2010, there was a Master

Immigrant & Refugee Appellate Center | www.irac.net

Calendar where the Respondent's counsel and the government counsel appeared. This Court specifically informed the Respondent's

counsel that the Court had made a decision and that that decision was that the Respondent was convicted of aggravated felonies and that such aggravated felonies were particularly serious crimes. The Respondent's counsel did not say anything at that point regarding this except wanted an in-depth or more explanation regarding the Court's findings. This Court informed the

Respondent and the government's counsel that it believed the Respondent being convicted of particularly serious crimes was eligible only for deferral of removal under the Convention Against Torture and that the Respondent should file an application for deferral. This Court also informed the Respondent's counsel that

the Court will issue an oral decision after the final hearing. That oral decision would have been rendered after the Respondent presented his case on deferral of removal. A 29 043 107 5 This Court reset the November 18, 2010

case for November the 10th, 2010,

in order for the Respondent to

file his I-589 application for deferral of removal. At no time during this Master Calendar did the Respondent's counsel ever indicate that he was going to appeal this decision before I rendered an oral decision. At no time

Immigrant & Refugee Appellate Center | www.irac.net

during that Master Calendar was this Court aware that the Respondent's counsel was going to file an appeal to the Board before this Court rendered an oral decision. Therefore, this

Court was essentially broadsided on this issue.

Not only that, on

or about September the 30th, 2010, this Court received a motion from the Respondent through his counsel asking for an Order of Removal. issued. And the Respondent sought an order and an order was Then on or about November the 10th, almost on the same

day that the Master Calendar reset was scheduled this Court received a notification from the Board of Immigration Appeals to issue an oral decision in this matter. This Court is then left guessing as to why the Respondent has filed an appeal without going through the process and waiting for this Court to issue a decision in the deferral of removal case before filing an appeal. ANALYS IS This Court believes that the Respondent's appeal is frivolous. See INA Section 240(b) (6) of the Act. This Court

states that because in an unrelated case in a bond matter under A file A 028 476 276 in the matter of Paul A. Tovatis, the

Respondent had waived appeal in a bond matter and then filed an A 29 043 107 6 November 18, 2010

appeal to the Board of Immigration Appeals after he had waived the bond matter. This is the same attorney in A 028 476 276 that is

representing this individual in the case now in hearing under A 029 043 107 . This seems to be a type of pattern with this The pattern that this Court sees is that

particular attorney.

Immigrant & Refugee Appellate Center | www.irac.net

this attorney will waive appeal or will ask for an order and then the case would be taken out the normal process and once that happens

ihis

attorney then files an appeal.

And that's why this

Court believes that the appeal in the instant case is actually frivolous. Another reason why this Court believes this appeal is frivolous is because 8 C. F. R. Section 1240. 12 decision of the Immigration Judge under Section B where it talks about a summary decision it says, not withstanding the provisions of paragraph A of this section, in any case where inadmissibility or

deportability is determined under pleadings pursuant to Section 1240. lO (b) and the Respondent does not make an application under

Section 1240. 11 the alien is statutorily ineligible for relief or the Respondent applies for voluntary departure only and the Immigration Judge grants the application, may enter a summary decision, the Immigration Judge

or if voluntary departure is

granted, a summary decision with an alternate Order of Removal. Well, this attorney asked for an order and did not file the I-589 application as the Court instructed him to do on or before November the 10th, of 2010. A 29 043 107 Therefore, it was proper for this 7 November 18, 2010

Court to issue a sununary decision.

The Respondent's counsel

should know that it was proper for this Court to issue a summary decision since he has been practicing in this local area for quite some time. Therefore, this Court seems to believe that this

attorney is using and abusing the appeal process for his own means. And I suspect in the case in hearing that this attorney is

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using the appeal process to gain some time for his client and is engaging in .

Jll(J..tory

tactics.

The attorney in his letter for an Therefore, this

order indicated something about a habeas corpus.

Court believes that this attorney is filing this appeal frivolously and is trying to gain time for his client in the habeas corpus matter. Also, this Court believes that the fact

that the Respondent sought1with no coercion or input from this Court an Order of Removal1is tantamount to waiving his right of 1 appeal. See 8 C. F. R. Section 1240.14

(fi

nality of

rde .

The

order of the Inunigration Judge shall become final in accordance with Section 1003.39 of this chapter. And 1003.39 of 8 C. F. R.

states that, l cept when certified to the Board the decision of the Inunigration Judge becomes final upon waiver of appeal or upon expiration of the time to appeal if no appeal is taken, occurs first. whichever

In this Court's estimation the fact that the

Respondent specifically asked for an Order of Removal is tantamount to waiving his right to appeal. The Respondent also abandoned his application for relief under the Convention Against Torture. A 29 043 107 8 On August the 11th, 20 10, 2010

November 18,

the Respondent was specifically told to file an application, the Respondent failed to so. an application. this Court.

yet

At no time did the Respondent file

The Respondent did not file an application with when the Respondent

On September the 30th, 2010,

requested a removal orde 7 he did ot submit an I-589 application for asylum, withholding or relief under the Convention Against Torture. Therefore, this Court concludes that the Respondent There are therefore The burden of

Immigrant & Refugee Appellate Center | www.irac.net

abandoned any form of relief he may have had. no applications in which this Court can review.

proof is on the applicant to establish withholding of removal under either Section 241 (b) (3) of the Act or the Convention Against Torture. See 8 C. F. R. Section 1208. lG (a) , (b) and (c) .

There being no applications to review this Court will once again issue a summary order removing the Respondent to his native country of Kenya. ORDER IT IS ORDERED that the Respondent be removed to his native country of Kenya.

Judge A 29 043 107 9 November 18, 2010

r--.

(
CERTIFICATE PAGE

I hereby certify that the attached proceeding before JESUS CLEMENTE, in the matter of: RICHARD MICHREKA NYAMWANGE A 29 043 107 York, was held as herein appears, Pennsylvania

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and that this is the original

transcript thereof for the file of te Executive Office for Immigration Review.

Rhonda E. Priest, Transcriber

YORK STENOGRA PHIC SERVI CES, INC. 34 North George Street York, Pennsylvania 17401-1266 (717) 854-0077

December 61 2010 Completion Date rep/seh

U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5 /07 Leesburg Pike. Suite 1000 Falls Church. Virginia 1204/

NYAMWANGE, RICHARD MICHREKA A# 029-043-107 (INMATE# HM-4575) 1120 PIKE STREET, P.O. BOX 999 HUNTINGDON, PA 16652

OHS LIT./York Co. Prison/YOR 3400 Concord Road York, PA 17402

Immigrant & Refugee Appellate Center | www.irac.net

Name: NYAMWANGE, RICHARD MICHREKA

A029-043-107

Date of this notice: 3/14/2011

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a courtesy. Your attorney or representative has been served with this decision pursuant to 8 C.F.R. 1292.5(a). If the attached decision orders that you be removed from the United States or affirms an Immigration Judge's decision ordering that you be removed, any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

Donna Carr Chief Clerk

Enclosure

Panel Members: Grant, Edward R. Liebowitz, Ellen C Mullane, Hugh G.