U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 Lee1b11rg PIM, Sui1u ZOOO Frr/11 Clmrt'/1, J'irginia 21041

Burke, Marlin W. 217 East 7th Avenue Denver, CO 80203

OHS-ICE I Office of the Chief CounseUDEN 12445 East Caley Avenue Centennial, CO 80111-5663

Immigrant & Refugee Appellate Center | www.irac.net

Name: RIOS, JULIO CESAR

AOS0-318-119

Date of this notice: 3/31/201O

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Cole, Patricia A. Pauley. Roger Wendtland, Linda S.

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Julio Cesar Rios, A090 318 119 (BIA March 31, 2010)

...

U.S. Dpartment of Justice Executive Office"'for Inunigration Review

Falls Church,

Decision of the Board of Immigration Appeals

Virginia

2204 l

File:

A090 318 119- Denver, CO

Date:

UAR I l

20IO

In re: JULIO CE SAR IN REMOVAL PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL ON BEHALF O F RESPONDENT: ON BEHALF OF DHS: Marlin W. Burke, Esquire

Leila Cronfel 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

Lodged: Sec.

2 37(a)( 2)(B )(l), l&N Act {8 U.S.C. 1227(a)(2)(B)(I)] Convicted of controlled substance violation

APPLI CATION: Termination of proceedings

By an order dated June 16, 2008, an Immigration Judge sustained the respondent's charges of removability and found him to be ineligible for any relief. The respondent has filed a timely appeal of that opinion. The Department of Homeland Security ("OHS") urges that we affirm the Immigration Judge's decision. The appeal will be sustained and proceedings tenninated. This Board reviews the findings of fact made by the Immigration Judge, including the detennination of credibility, under a "clearly erroneous" standard. See 8 C.F.R. 1003.l(dX3)(1); Matter of A-S-B-, 24 J&N Dec. 493 (BIA 2008). We review all other issues under a de novo standard. See 8 C.F.R. 1003.l(d)(3}(ii); Mauer ofA-S-B-, supra, at 496 -97 ; see also Matter of
V-K-. 24 l&N De c.

500 (BIA 2008). It is within this context that we review the present matter.

The respondent has been charged with deportability under sections 237(a)(2)(A)(iii) and 237(aX2)(B)(I) of the Immigration and Nationa1ity Act ("the Act"). The factual basis for both of these charges is the respondent's aJJeged conviction for unlawful possession of a controlled substance, in violation of Colorado Revised Statutes section 18-18-405( 1)(a). See I.J. at 2; Exh. 1. The present appeal calls upon this Board to decide whether th ere is sufficient evidence of record to support this factual determination. Removal proceedings are administrative in nature. See, e.g., /NSv. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984). C(msequently, documentary evidence need not comport with the strict judicial

Cite as: Julio Cesar Rios, A090 318 119 (BIA March 31, 2010)

...

A090 318 119 .

rules of evidence.

See Matter ofGrijalva, J 9 J&N Dec. 713, 721-22 (BIA 1988).

Nevertheless, the

a co nviction. See section 240(c}(3)(B) ofthe Act; 8 C.F .R. 1003 .41; see also 8 C.F .R. 1287.6(a). They also state that while copies of these docwnents can be used, those cop ie s must be certified in a specific manner.

Act and its governing regulations do limit what documents may be subm itted by the OHS as proofof

On appeal, the respondent contends that the present record is insufficient because the OHS did not co mply with the aforementioned procedures. See Respondent's Brief; Tr. at 4-9; see also Conviction Records (Unmarked Exh.). But, the record is not comprised of the DHS's documents alone . Instead, the Immigration Judge also considered the respondent' s own testimony. See I.J.; see also DHS's Brief at 2. Thus, we must examine both fonns of evidence. Initially, we wiJl address the document.my record. The OHS does not contest

Immigrant & Refugee Appellate Center | www.irac.net

conviction. See DHS's Brief; see also Tr. at 4-9. It has likewise declined to contest the allegation that it did not certify those records in accordance with section 240(c)(3)(B) of the Act and 8 C.F.R. 1003.41 (b). See id. The DHS's decision not to address these issues constitutes a waiver of them. Furthennore, in vi ew ofits failure to comply with the governing regulations, the Immigration Judge did err in considering the DHS's docwnents. With regard to the testimonial record, the respondent has not shown that the use ofhis statements was fundamentall y unfair. See generally Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 505 (BIA 1980) (discussing the requirements for making such a showing). Therefore, the Immigratio n Judge was entitled to assess this evidence. Nevertheless, we conclude 1he respondent's testimony was not enough to support the Immigration Judge's factual finding. The Act mandates that ..[nJo decision on deportability shall be valid unless it is based on reasonable, substantial, and probative evidence.'' Section 240(c)(3)(B) of the Act. However, as the Immigration Judge noted in his decision , the respondent does not have a clear understanding ofhis own criminal history. See I.J. a t 2; Tr. at 13-16; see also Tr. at 1, 22 (denying the factual allegations in the respondent's Noti c e to Appear). Given this ambiguity, and in the absence of any other evid ence, the record do es not provide a suffi cient factual basis to sustain the respondent's charges of removability. Accordingly, the following order will be entered.
ORDER: The respondent's appeal is sustained and removal proceedings are tenninated.

that it provi ded copies to prove the existence of the respondent s

Board Member Roger A. Pauley respectfully dissents without opinion.

Cite as: Julio Cesar Rios, A090 318 119 (BIA March 31, 2010)

{ .

U.S. DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT Denver, Colorado

File A 90 318 119

June 16,

2008

Immigrant & Refugee Appellate Center | www.irac.net

In the Matter of

JULIO CESAR RIOS, Respondent

IN REMOVAL PROCEEDINGS

CHARGE:

APPLICATION:

ON BEHALF OF THE RESPONDENT:

ON BEHALF OF THE DEPARTMENT OP HOMELAND SECURITY:

Mr.

Burke,

Esquire

Leila Cronfel,

Esquire

ORAL DECISION OF THE IHMIGRATION JUDGE The respondent Form I-862,

is

before the

Court today as

a result of

the Notice to Appear in removal proceeding which was 2005, by the U.S. Immigration and In that

served on him on June 14th, Naturalization Service,

now known

as

Homeland Security.

particular Notice to Appear,

Homeland Security indicates

that

the of

respondent is removable pursuant to Section 237(a) (2) (A) (iii)

the Immigration and Nationality Act and that at any time after admision he defined

has

been convicted of an aggravated felony as of the Act. the respondent entered the

in

Section 10l(a) (43)

In this particular matter,

,.

r
KJB
United States legally,

{.
. .

he is a native and citizen of Mexico.

188.

He

became a legal permanent resident on December 2 0 th,

November 14th,

on

1997,

the respondent pled guilty to unlawful cocaine, Schedule II, a

possession of a controlled substance, class four felony,

Immigrant & Refugee Appellate Center | www.irac.net

in violation of C.R.S.

18- 18-405(1) (a).

His

application for naturalization was also denied.

Under Section

lOl(a)

(43)

of the Act,

possession of a controlled substance is,

in fact,

an

aggravated felony.

The Court would indicate that today,

from the respondent.

we heard testimony
that he was

He indicated he is from Mexico,

a legal permanent resident,

that he believes he was convicted of in fact, pled guilty to

distribution of cocaine but he had,

possession of a controlled substance. that the respondent,

The Court would i ndicate

through his attorney Mr.

Chuck Thoras,

who

is a very good criminal attorney, asked to re - l ook at this matter.

it.

I know who he is,

went in and

At that time,

the Court denied It was

It went back to the Colorado Court of Appeals.

remanded back for further discussion on this matter.

But right now the Court would indicate that he pled

gui lty to a controlled substance.
Immigration and Naturalization Act.

That is a violation of the This case as been pending

for three years.

The Court is going to order that at this

p a rticular time that removability has been shown by clear, convincing and unequivocal evidence,
removable f rom the United States.

that in fact,

he is

The Court is going to order June 16,

2008

A 90

318 119

(;
KJB

.. .

that he be removed from the United States.

The Court will not

grant voluntary departure because of the nature of the crime.

The

C ourt

will give Mr.

Burke 30 days in which to appear.

That

appeal

is due on July 16,

2008.

Immigrant & Refugee Appellate Center | www.irac.net

Immigration

90 318 119

June

16, 2008

..

CERTIFICATE PAGE

I hereby certify that the attached pr o ceeding

before DAVID J.

CORDOVA in the matt er of:

Immigrant & Refugee Appellate Center | www.irac.net

JULIO CESAR RIOS

A 90

318

119

Denver,

Colorado

was held as herein appears,

and that this is the original

transcript thereof for the file of the Executive Office for

Immigration Review.

Deposition S e rvices ,

Inc.

6245 Executive Boulevard Rockville, Maryland 20852

(301) 881-3344
August

2 . 2008

(Completion Date)