U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5/07 leesburg Pike, Suite 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - MIA

333 South Miami Ave., Suite 200
Miami, FL 33130

Name: FLEITAS CARRAZANA, CARLOS

A 076-460-879
Date of this notice: 4/22/2016

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

DOWtL CaAAJ
Donna Carr
Chief Clerk
Enclosure
Panel Members:

O'Leary, Brian M.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Carlos Fleitas Carrazana, A076 460 879 (BIA April 22, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Giosmas, George, Esq.

Law Office of George Giosmas
2131 Hollywood Boulevard
Suite 205
Hollywood, FL 33020

p.s. Department of Justice

Execut,ive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A076 460 879 - Miami, FL

Date:

.. .

A. pp, 2 2 _?1C,
......

,.;

In re: CARLOS FLEITAS CARRAZANA

APPEAL
ON BEHALF OF RESPONDENT: George Giosmas, Esquire
ON BEHALF OF DHS: Paulette R. Taylor
Assistant Chief Counsel
The respondent has appealed from the Immigration Judge's decision dated December 9, 2014.
The Department of Homeland Security (DHS) has filed an opposition to the appeal. The record
will be remanded.
While the ultimate judgment by an Immigration Judge is subject to a de novo standard of
review, the factual determinations made by an Immigration Judge in the course of reaching his
ultimate finding are given more deference. Compare 8 C.F.R. 1003.l(d)(3)(ii) with 8 C.F.R.
1003.l (d)(3)(i).
An Immigration Judge's decision that lacks sufficient analysis does not provide an adequate
opportunity to the alien to contest the Immigration Judge's determinations on appeal and leaves
the Board without adequate means of reviewing the bases for the Immigration Judge's decision
in light of the respondent's arguments on appeal. See Matter ofA- P-, 22 I&N Dec. 468 {BIA
1999); Matter of M-P-, 20 l&N Dec. 786 (BIA 1994) (finding that an Immigration Judge must
fully explain the reasons for denying a motion in order to allow the respondent a fair opportunity
to contest the decision and the Board an opportunity for meaningful appellate review).
We agree with the respondent's appellate contention that the Immigration Judge's decision
does not explicitly find that the DHS met its burden to show removability is established by clear
and convincing evidence. See section 240(c)(3)(A) of the Immigration and Nationality
Act; 8 U.S.C. 1229a(c)(3)(A); 8 C.F.R. 1240.8(a). The Immigration Judge found that the
DHS's evidence was "scanter" and referred to the conviction document as "seemingly provided
by the government of Canada" but then sustained the charge without stating whether and how the
DHS had met its burden (I.J. at 2-3; Exh. 4).
Accordingly, the record will be remanded to the Immigration Judge for further fact-finding
and analysis, and the issuance of a new decision. 1 The Immigration Judge should determine
1

The record contains the respondent's Form N-400, which was referred to by the parties
throughout proceedings (Tr. at 15, 27-28), and in which the respondent reveals that he sustained
the Canadian convictions, but the document was not relied upon by the Immigration Judge; nor
was it marked and received into evidence. Upon remand, the Immigration Judge should consider
(continued... )
Cite as: Carlos Fleitas Carrazana, A076 460 879 (BIA April 22, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

A076 460 879

whether the conviction record, 2 or any other evidence including any new evidence submitted on
remand, satisfies the statutory and regulatory requirements. In addition, the Immigration Judge
should make specific findings whether the DHS has established removability by clear and
convincing evidence. We intimate no preference, based upon the incomplete decision, as to the
eventual outcome.

(... continued)
this document and determine what relevance, if any, it has in finding the respondent removable
as charged.
2

For instance, the Immigration Judge should consider whether the record satisfies section
240(c)(3)(B)(v) of the Act, or another provision of the Act.

2
Cite as: Carlos Fleitas Carrazana, A076 460 879 (BIA April 22, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

ORDER: The record is remanded to the Immigration Court for further proceedings consistent
with the foregoing opinion and for the entry of a new decision.

File: A076-460-879

December 9, 2014

In the Matter of

CARLOS FLEITAS CARRAZANA

RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGES:
APPLICATIONS:
ON BEHALF OF RESPONDENT: GEORGE GIOSMAS
ON BEHALF OF OHS: ANA MARIA CANDELA

ORAL DECISION OF THE IMMIGRATION JUDGE

This case came on to the record in removal proceedings based upon the
Notice to Appear dated February 16, 2011 (Exhibit 1). On that Notice the respondent
was designated as having been admitted to the United States but becoming removable
as he is not a citizen or national of the United States, he is a native and citizen of Cuba,
that he entered the United States at Brownsville, Texas on August 2, 1991 without
inspection, and that he subsequently had his status adjusted on February 19, 2002
under Section 202 of the Cuban Adjustment Act. The notice continues to set out three
criminal convictions: one in Canada in 1988, another in Canada dated 1992, and finally

Immigrant & Refugee Appellate Center, LLC | www.irac.net

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
MIAMI, FLORIDA

one in Canada dated 2000. The court made findings on all these charges, after the
respondent denied the charges, and the respondent also denied the three charges of

Apparently the Service may have had some problems in providing

appropriate documentation to prove up these convictions, but the Service nevertheless
submitted Form 1-261 (Exhibit 2) that charged the respondent obtained his status by
means of fraud or willful misrepresentation of material fact, specifically that he failed to
disclose convictions set out on the Notice to Appear for which he did not make such
acknowledgement on his 1-485 application that he signed on September 21, 1998.
The Service has provided documentation in the nature of Form 1-485
(Exhibit 3) which confirms that the respondent answered Question 1-B in Part 3 of that
application negatively. The Service also submitted a document seemingly provided by
the government of Canada (apparently under seal and certified) confirming that there
were arrests that occurred in Canada in April 1998, March 1989, April 1992, as well as
March of 2000. This document provides dispositions, and while not in and of
themselves providing a base providing the details upon which the respondent could be
charged or removed under those criminal offenses on their own, the issue in this case is
not that, but it is instead on whether it is not the respondent simply failed to disclose the
material affect by fraud or misrepresentation.
The Service has not provided any scanter evidence or proofs along those
lines, while the respondent has failed to account for his failure to disclose. In reviewing
those Canadian document, which the Court has now marked as Exhibit 4, the Court
notes that the personal details are consistent as far as the respondent's name, his date
and place of birth, and finds that the case factually supports the Service's arguments
herein. Again, the Service invoked the precedent of Ali v. U.S. Att'y Gen., 443 F.3d 804

A076-460-879

December 9, 2014

Immigrant & Refugee Appellate Center, LLC | www.irac.net

inadmissibility that were placed on the original Notice to Appear.

(11th Cir. 2006) regarding inadmissibility under Section 212{a){6) where an alien falsely
answered the question on Form 1-485 about arrests. The Court does not find any

the Court will sustain the charge, and sustain the Service's arguments regarding the
respondent's inadmissibility and that he should be removed from the United States
based upon the charge set out in the Notice to Appear and 1-261.

Please see the next page for electronic

signature

A076-460-879

STEPHEN E. MANDER
Immigration Judge

December 9, 2014

Immigrant & Refugee Appellate Center, LLC | www.irac.net

meaningful distinction between respondent's case and such precedents, and as such

/Isl/
Immigration Judge STEPHEN E. MANDER

A076-460-879

Immigrant & Refugee Appellate Center, LLC | www.irac.net

manders on Feb_ruary 24, 2015 at 5: 28 PM GMT

December 9, 2014