Professional Documents
Culture Documents
Department of Justice
A 060-814-718
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
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Donna Carr
Chief Clerk
Enclosure
Panel Members:
Greer. Anne J.
Userteam: Docket
DeLuca,Crescenzo
Law Offices Crescenzo Deluca
81 Wolcott Hill Road
Wethersfield,CT 06109
Date:
AUG 1 7 2016
APPEAL
ON BEHALF OF RESPONDENT: Crescenzo DeLuca, Esquire
ON BEHALF OF DHS: Courtney Gates-Graceson
Assistant Chief Counsel
CHARGE:
Notice: Sec.
APPLICATION: Termination
The respondent, a native and citizen of Peru, appeals the Immigration Judge's June 3, 2015,
decision finding the respondent removable as charged, denying his motion to terminate
proceedings, and ordering him removed from the United States. The record will be remanded.
The Board reviews an Immigration Judge's findings of fact, including credibility
determinations and the likelihood of future events, under a "clearly erroneous" standard.
8 C.F.R. 1003. l(d)(3)(i); Matter ofZ-Z-0-, 26 l&N Dec. 586 (BIA 2015). We review all other
issues, including questions of law, judgment, or discretion, under a de novo standard. 8 C.F.R.
I 003.l(d)(3)(ii).
We find that the record before us is inadequate for appellate review, and we will remand the
matter to the Immigration Judge to permit the parties to further develop the record. In his written
decision denying the respondent's motion to terminate proceedings, the Immigration Judge found
that the Department of Homeland Security ("DHS") had met its burden to demonstrate "reason to
believe" that the respondent engaged in or knowingly aided and abetted controlled substance
trafficking (I.J. at 2). According to a Form I-213 ("Record of Deportable/Inadmissible Alien")
filed by the DHS, the respondent was apprehended at JFK Airport while allegedly transporting
luggage containing a large amount of cocaine and counterfeit cash. The respondent was paroled
into the United States for prosecution, indicted, and acquitted in federal district court of three
charges, while the fourth charge was dropped.
We acknowledge that the "reason to believe" standard is less stringent than the "beyond a
reasonable doubt" standard required for a criminal conviction, and that inadmissibility under
section 212(a)(2)(C) of the Act need not be premised on a conviction (I.J. at 2). We also
acknowledge that, absent evidence that a Form 1-213 contains information that is inaccurate or
was obtained by coercion or duress, that document is inherently trustworthy and admissible as
Cite as: Dario Enrique Espinoza Leon, A060 814 718 (BIA Aug. 17, 2016)
IN REMOVAL PROCEEDINGS
ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with this order and for the entry of a new decision.
',
FOR THEBO
2
Cite as: Dario Enrique Espinoza Leon, A060 814 718 (BIA Aug. 17, 2016)
evidence to prove alienage or deportability (I.J. at 3). However, in the circumstances of this
case, we find that the respondent's acquittal on federal criminal charges is relevant to the
accuracy of the information in the Form 1-213 that the Immigration Judge and the parties should
endeavor to resolve. We note that, prior to the final hearing, the government attorney indicated
that she intended to submit into evidence all the documents from the respondent's criminal trial
and documents related to the events at the airport, but then at the respondent's final hearing she
declined to do so, instead resting solely on the Form 1-213 (Tr. at 14-16, 18-19). Therefore, we
will remand the matter to the Immigration Judge for further development of the record and the
entry of a new decision.
) IN REMOVAL PROCEEDINGS
)
)
_RE_SP
_ _ O_ND
_ E
_ N
_ T
_ ________ )
ESPINOZA LEON, Dario Enrique
A060-814-718
CHARGES:
APPLICATIONS:
Motion to Terminate
ON BEHALF OF DBS
Courtney Gates-Graceson, Esq.
Office of the Chief Counsel
450 Main Street, Room 483
Hartford, Connecticut 06103
ON BEHALF OF RESPONDENT
Crescenzo DeLuca, Esq.
Law Offices of Crescenzo DeLuca
81 Wolcott Hill Road
Wethersfield, Connecticut 06109
Dario Enrique Espinoza Leon (Respondent) is a native and citizen of Peru and a lawful
permanent resident of the United States who last sought admission to the United States in lawful
permanent resident status on or about September 7, 2012, at John F. Kennedy International
Airp ort in Jamaica, New York. Respondent was arrested at the airport and paroled for
prosecution after an enforcement examination revealed he was carrying $299,300 in counterfeit
$100 bills and 12.3 pounds of cocaine, concealed inside various articles and packed in two duffle
bags. Respondent was indicted on federal charges, and on March 14, 2013, in the United States
District Court for the Eastern District of New York, he was found not guilty on three of the four
charges lodged against him; the fourth charge was dismissed.
On May 15, 2013, the Department of Homeland Security (DHS) personally served
Respondent with a Notice to Appear (NTA) charging him as removable pursuant to INA
212(a)(2)(C)(i). On April 29, 2014, Respondent, by and through counsel, entered written
pleadings in which he conceded proper service of the NTA; admitted he is a native and citizen of
Peru and a lawful permanent resident of the United States who on or about September 7, 2012
applied for admission into the United States at New York's John F. Kennedy International
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Airport; denied that during an airport enforcement examination on that date, authorities seized
$299,300 in counterfeit $100 bills and 12.3 pounds of cocaine from two duffel bags he presented
for inspection; denied he informed authorities he was not carrying more than $10,000 in United
States currency; denied the charge of removability; and named Peru as the country to which his
removal should be directed if so ordered. Respondent requested relief in the form of termination
of proceedings.He declined to testify.
of Immigration Appeals (BIA) holds that the quantum of evidence necessary to support a
"reasonable ground to believe" is "akin" to that required to support probable cause. See Matter of
A-H-, 23 I&N Dec. 774 (A.G. 2005) (analyzing "reasonable ground for regarding" standard
found at INA 208(b)(2)(A)(iv) and concluding "[t]he statutory reference to 'reasonable'
grounds implies the use of a reasonable person standard" consistent with "probable cause");
Matter of U-H-, 23 I&N Dec. 355, 356 (BIA 2002) (relying on Adams v. Baker, 909 F.2d 643,
649 ( 1st Cir. 1990), in which court determined a reasonable belief may be formed if evidence "is
sufficient to justify a reasonable person in the belief that the alien falls within the proscribed
category.") (internal quotations omitted.)
In conclusion, the evidence presented in this matter set forth sufficient facts on which to
find that Respondent was a knowing participant in illicit trafficking when he last attempted to
enter the United States. Accordingly, Respondent is properly charged as an arriving alien and is
inadmissible under INA 2 l 2(a)(2)(C)(i).
III.
ORDERS
The I-2 1 3 thus provides substantial evidence, satisfying the "reason t o believe" standard,
that Respondent was knowingly involved in trafficking. To establish that Respondent's
participation in trafficking was knowing, DHS need only prove Respondent knew or had reason
to know he was carrying a controlled substance. See Nguyen v. Holder, 336 Fed. App'x at 46
(government need not prove specific intent to traffick). Respondent was apprehended with 1 2.3
pounds of cocaine, an amount consistent with trafficking; the cocaine was found in two duffle
bags Respondent presented to authorities as his own; the duffle bags were evidently within
Respondent's possession and control; and the cocaine was carefully concealed within cosmetic
containers. These facts support the conclusion Respondent knew or should have known he was
carrying a large quantity of controlled substance, and thus that he was knowingly involved in
illicit trafficking. Cf Alarcon-Serrano, 220 F.3d I 1 1 6, 1 1 1 9 (9th Cir. 2000) (concluding it was
reasonable to believe alien knew he was participating in drug trafficking when he attempted to
cross the border in a car - with eighty-six pounds of marijuana in a concealed compartment given to him by a man he knew to be a drug smuggler); . Further, during ''routine questioning"
performed before the cocaine and counterfeit bills were discovered in Respondent's possessions,
Respondent behaved in a manner that suggests he was aware he was engaged in unlawful
activity: he "began to avoid eye contact and seemed visibly nervous."