U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 Leesburg Pike, Suile 2000 Falls Church, Virginia 22041

Heather J. Friedman, Esq. PAIR Project 25 4 Friend Street, 5th Floor Boston, MA 02114

OHS / ICE Office of Chief Counsel - BOS P .0. Box 8728 Boston, MA 02114

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Name: VAL LA DARES BARDALES, PATRICIA ESME RALDAA094-098-339

Date of this notice: 1/20/2012

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Pauley, Roger

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Patricia Esmeralda Valladares Bardales, A094 098 339 (BIA Jan. 20, 2012)

US. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision ofthe Board oflmmigration Appeals

File:

A094 098 339 - Boston, MA

Date:

In re: PATRICIA ESMERALDA VALLADARES BARDALES

JAN .102012

IN REMOVAL PROCEEDINGS

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APPEAL ON BEHALF OF RESPONDENT: CHARGE: Notice: Sec. 212(a)(2)(A)(i)(II), I&N Act [8 U. S.C. l182(a)(2)(A)(i)01)] Controlled substance violation APPLICATION: Termination Heather J. Friedman, Esquire

The respondent, a native and citizen ofEl Salvador and a lawful permanent resident of the United States, appeals the Immigration Judge's August 5, 2010, decision denying her motion to terminate removal proceedings. We deny the request for a three-Board-Member review of this case. See 8 C.F.R. 1003. l (e)(6). The Department of Homeland Security (DHS) has not responded to the appeal. The appeal will be dismissed. The DHS charged the respondent as removable as an alien convicted of a controlled substance violation. The respondent does not dispute that she was charged with a controlled substance violation under Massachusetts General Law ch. 94C, 32(a) and 32A(a), but contends that the disposition of that case by a continuation without a finding (CWOF) and unsupervised probation before judgment does not constitute a conviction within the meaning of section I 0 I (a)(48)(A) of the Act. The only issue before us is whether the respondent's unsupervised probation constitutes a "punishment, penalty, or restraint on the alien's liberty." Section 10I(a)(48)(A)(ii) of the Act. Reviewing de novo, 8 C.F.R. 1003.l(d)(3)(ii), we conclude that it does. We agree with the Immigration Judge that the respondent is removable as an alien convicted of a controlled substance violation. 8 C.F .R. I 003 .1(d)(3)(ii); Matter ofH-L-H- & Z-Y-Z-, 25 I&N Dec. 209 (BIA 2010); Matter of A-S-B-, 24 l&N Dec. 493 (BIA 2008). Pursuant to Section 10l (a)(48)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. l 10l (a)(48)(A), the term "conviction" is defined to include a disposition where adjudication of guilt has been withheld if the alien has entered a plea of guilty of nolo contendere, or admitted sufficient facts to warrant a finding of guilt, and a judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. See generally Matter ofCabrera, 24 I&N Dec. 459 (BIA 2008).

Cite as: Patricia Esmeralda Valladares Bardales, A094 098 339 (BIA Jan. 20, 2012)

A.094 098 339

We are unpersuaded by the respondent's contention that unsupervised probation is not a restraint on liberty (Respondent's Br. at 9-11). Both Massachussetts and the United States Court of Appeals
for the First Circuit have held that unsupervised probation is a condition of CWOF, although it is

a less heightened fonn of supervision not usually associated with probation, and to hold otherwise would make it indistinguishable from "without probation." Commonwealth 2d 1199 (Mass. 2001); see United States
v. v.

Rotonda, 747 N.E.

Maldonado, 614 F.3d 14, 18-19 (1st Cir. 2010) (noting

that six months ofunsupervised probation is "actual punishment"); see also UnitedStates v. Morillo, 178 F.3d 18 (1st Cir. 1999). Therefore, the disposition for the respondent's controlled substance offense satisfies the definition of the tenn "conviction" set forth in the Act. following order will be entered. ORDER: The respondent's appeal is dismissed. Accordingly, the

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Patricia Esmeralda Valladares Bardales, A094 098 339 (BIA Jan. 20, 2012)

 : )
'

\\

U. S.

DEPARTMENT OF JUSTICE IMMIGRATION COURT

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

Boston,

Massachusetts

File A 94 098 339

Date:

August 5,

2010

Immigrant & Refugee Appellate Center | www.irac.net

In the Matter of

PATRICIA ESMERALDA VALLADARES BARDALES Respondent IN REMOVAL PROCEEDINGS

CHARGE:

Section 212 (a} (2} (A) (i) (I)

APPLICATION:

Motion to Terminate

APPEARANCES: ON BEHALF OF RESPONDENT: ON BEHALF OF THE DE PARTMENT OF HOMELAND SECURITY: Sarah Sherman-Stokes, Andrea Saenz, Esquire Esquire William C. Ramsey, Assistant

Chief Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE Respondent is an adult female, Salvador, native and citizen of El 2010. In

who was issued a Notice to Appear on June 8, 2010,

pleadings filed with the Court on July 8, admitted allegations one through three, through six and denied removeability.

Respondent

denied allegations four In response to the denial a Record of

of allegations four through six and removeability,

I 1

conviction was submitted to the Court.

The Record of Conviction

and establishes the truth of the allegations d paragraphs four five of the NTA and the Court finds them to be true. Government also submitted an I-213, allegation number six. The

I/\

which establishes the truth of

Sufficient proof having been offered on and the Respondent having admitted the Court finds that the Respondent

Immigrant & Refugee Appellate Center | www.irac.net

allegations four through six, allegations one through three, is removable as charged.

The Respondent named El Salvador as the The issue before the

country to which removal should be directed.

Court concerns the Respondent's Motion to Terminate the proceedings. She claims that she was not "convicted" for that admitting sufficient

Immigration purposes,

having claimed

facts when the case was continued without a finding until a date certain for probationary purposes is not a conviction. The case is now in order for a decision. The following documents were marked and entered into evidence: Exhibit 3, Terminate. Exhibit 1, Notice to Appear. Exhibit 2, pleadings.

Respondent's affidavit in support of Motion to Exhibit 4, Record of Conviction. Exhibit 5, I-213.

Respondent presented her own testimony via proffer of her affidavit in support of her Motion to Terminate. STATEMENT OF THE LAW The term "conviction" means, with respect to an alien, if a

formal judgment of guilt of the alien entered by a court or, adjudication of guilt has been withheld, A 94 098 339 2 where

(i) a judge or jury August 5, 2010

...

has

found the alien guilty or the alien has entered a plea of

guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilty, form of punishment, be imposed. and (ii) the judge has ordered some

penalty or restraint on the alien's liberty to 503 F.3d 45, 49 (1st Cir. 2007).

De Vega v. Gonzales,

Immigrant & Refugee Appellate Center | www.irac.net

Under Massachusetts Law,

a continuation,

based on an admission of

facts sufficient for a finding of guilt and conditioned on payment or restitution, is treated as the legal equivalent of a guilty Id.in De Vega, the First Circuit

plea and probationary sentence.

found that a restitution order was punitive and that the Respondent had, in fact, been convicted. Probation is a form of 22 I&N Dec.

punishment or restraint upon liberty. 224, 228 (BIA 1998). Moreover,

In re Punu,

the Supreme Court has consistently

recognized probation as a form of punishment or form of restraint. Id at 228. FINDINGS AND ANALYSIS In this case, the Respondent was convicted of possession

with intent to distribute a Class A substance and possession with intent to distribute a Class B substance. Both convictions

resulted from the Respondent's admission to sufficient facts, which were accepted after colloquy and warnings and both cases were continued without a finding from July 17, 2011, 2009 to January 16,

upon which the Respondent concedes was a period of Exhibit 3. For all these reasons, the Court finds that the 3 August 5, 2010

probation.

A 94

098 339

; \

Respondent is removable as an alien who admits having committed acts which constitute the essential elements of the violation of the Controlled Substances Act. Accordingly, denied. The Respondent originally asked for relief in the nature of a u-visa under INA Section hearing on August 5, relief, 2010, lOl(a) (15) (U), but at a reconvened INA Section 212(a) (2) (A) (i) (I) (I).

the Respondent's Motion to Terminate is

Immigrant & Refugee Appellate Center | www.irac.net

indicated that she was not pursuing any

other than termination. The charge of remov

bility

having been sustained,

El

Salvador having been designated by Respondent as the country of removal, the Court finds that it must order the Respondent removed

to El Salvador.

94

098

339

August 5,

2010

ORDERS The following order shall be entered. THE RESPONDENT IS ORDERED removed to El Salvador. Any appeal of any party shall be filed with the Board of Immigration Appeals on or before September 7,

2010.

Immigrant & Refugee Appellate Center | www.irac.net

ROBIN

FEDER,

Immigration Judge

A 94 098

339

August 5,

2010

( :

CERT IF ICATE PAGE I hereby certify that the attached proceeding before ROBIN FEDER, in the matter of: PATR IC IA ESMERALDA VALLADARES BARDALES A 94 098 339 Boston, was held as herein appears, Massachusetts

Immigrant & Refugee Appellate Center | www.irac.net

and that this is the original

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

Janetta L.

Nielsen,

Transcriber

YORK STENOGRAPHIC York, (717) Pennsylvania 8 54-0077

SERVICES,

INC.

34 North George Street 17401-1266

October 4,

2010

Completion Date JLN/BJN