U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Qffice ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 220./ I

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Sachs, Wayne OHS LIT.Nork Co. Prison/VCR
Sachs Law Group 3400 Concord Road
1518 Walnut St York, PA 17402
Suite 702
Philadelphia, PA 19102

Name: RUDOI, ROBERT A 013-998-118

Date of this notice: 5/2/2017

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

Sincerely,

'"'-

Cynthia L. Crosby
Acting Chief Clerk

Enclosure
Panel Members:
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Robert Rudoi, A013 998 118 (BIA May 2, 2017)
 ,.
., U.S. Dep.artment of Justice Decision of the Board of Immigration Appeals
Excutive Ofpce for Immigration Review

Falls Church, Virginia 22041

File: A013 998 118 - York, PA Date:

In re: ROBERT RUDOI MAY - 2 2017

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Wayne Sachs, Esquire

ON BEHALF OF DHS: Richard S. O'Brien

Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(A)(ii), l&N Act [8 U.S.C. 1227(a)(2)(A)(ii)] -

Convicted of two or more crimes involving moral turpitude

Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -

Convicted of aggravated felony

APPLICATION: Termination

This case was last before the Board on July 7, 2016, when we remanded the record to the
Immigration Judge pursuant to the June 15, 2016, decision of the United States Court of Appeals
for the Third Circuit. On remand, the Immigration Judge issued a decision dated September 12,
2016, terminating the removal proceedings against the respondent, a native and citizen of Brazil
and a lawful permanent resident of the United States (Exh. 1). The Department of Homeland
Security ("DHS") now appeals. The DHS's appeal will be dismissed.

We review findings of fact, including credibility findings, for clear error. See 8 C.F.R.
1003.l(d)(3)(i); see also Matter of J-Y-C-, 24 l&N Dec. 260 (BIA 2007); Matter of S-H-,
23 I&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all
other issues de novo. See 8 C.F.R. 1003.l(d)(3)(ii).

The procedural history of this case is as follows. The respondent was admitted to the United
States as a lawful permanent resident on November 14, 1964 (Exh. 1). In May 1998, the
respondent was convicted of theft by receiving stolen property under 18 Pa. Cons. Stat. 325
and theft by unlawful taking or disposition under 18 Pa. Cons. Stat. 3921 (Exh. 1). In January
2014, the respondent was convicted of aggravated assault under 18 Pa. Con. Stat. 2702 and
recklessly endangering another person under 18 Pa. Cons. Stat. 2705 (Exh. 1). Based on these
convictions, the respondent was subsequently charged with being removable for having been
convicted of two or more crimes involving moral turpitude not arising out of a single scheme of
criminal misconduct, and for having been convicted of an aggravated felony (Exh. 1). See
sections 237(a)(2)(A)(ii), (iii) of the Act, 8 U.S.C. 1227(a)(2)(A)(ii), (iii). On June 3, 2015,
Cite as: Robert Rudoi, A013 998 118 (BIA May 2, 2017)
A013 998 118

the Immigration Judge issued a decision finding the respondent removable as charged, which the
Board affirmed. The respondent appealed to the Third Circuit, and his case was remanded for
further proceedings pursuant to the respondent's direct appeal of his 2014 aggravated assault
conviction (I.J. at 1).

On remand, the Immigration Judge terminated proceedings, finding that the DHS did not

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carry its burden of establishing that the respondent is removable for having been convicted of
either (a) two or more crimes involving moral turpitude not arising out of a single scheme of
criminal misconduct, or (b) a crime of violence aggravated felony (I.J. at 2). See sections
237(a)(2)(A)(ii), (iii) of the Act. In reaching this determination, the Immigration Judge found
that the respondent's 2014 aggravated assault conviction did not form the basis for a charge of
removability, as the DHS withdrew allegation number 5 on the Notice to Appear alleging this
conviction (I.J. at 1; Exh. 1; I-261). The Immigration Judge also found that the DHS did not
submit sufficient evidence to prove the existence of the respondent's November 2011 conviction
for retail theft under 18 Pa. Cons. Stat. 3929(a)(l), which the DHS added as a new factual
allegation on remand (I.J. at 1-2; I-261). See section 240(c)(3)(A) of the Immigration and
Nationality Act, 8 U.S.C. 1229a(c)(3)(A); 8 C.F.R. 1003.4l(a)(3).

On appeal, the DHS argues that the Immigration Judge erred in terminating proceedings,
because the Docket Transcript detailing the respondent's 2011 retail theft conviction is both
admissible and reliable (DHS's Brief at 8; Exh. 2, Tab F). Specifically, the DHS argues that the
Docket Transcript was "directly certified by the issuing court," which is an authentication
method that is approved under section 240(c)(3)(B) of the Act (DHS's Brief at 9). Furthermore,
the DHS contends that the disclaimer at the bottom of the Docket Transcript disavowing
responsibility for inaccurate information contained in the document does not "create a
presumption that the record contains inaccurate information" (DHS's Brief at 10-11).

Generally, the test for admission of evidence in immigration proceedings is simply

"whether the evidence is probative and its admission is fundamentally fair." Matter of D-R-,
25 l&N Dec. 445, 458 (BIA 2011). The relevant question in terms of the admission of
criminal records is "whether the criminal records correctly reflect the facts." Matter ofGutnick,
13 l&N Dec. 412, 416 (BIA 1969); see also Matter ofJ. R. Velasquez, 25 l&N Dec. 680, 683
(BIA 2012). Although some form of authentication is required for conviction records, the
precise methods of authentication described in section 240(c)(3) of the Act and 8 C.F.R.
1003.41 are not mandatory or exclusive, but are instead safe harbors indicating when
conviction documents and records must be admitted. Matter ofJ. R. Velasquez, supra, at 684.

The safe harbor provisions for the admission of conviction documents and records apply,
among other instances, to documents that are "prepared by, or under the direction of, the court in
which the conviction was entered that indicates the existence of a conviction." Section
240(c)(3)(B)(vi) of the Act. In this case, the Docket Transcript of the respondent's 2011 retail
theft conviction includes the signature of a Magisterial District Judge, dated August 25, 2016,
followed by a seal (I.J. at 2; Exh. 2, Tab F). Thus, as a threshold determination the Docket
Transcript is admissible as proof of the respondent's conviction, in that it was prepared by the
court in which the conviction was entered and indicates the existence of a conviction. See
section 240(c)(3)(B)(vi) of the Act.

2
Cite as: Robert Rudoi, A013 998 118 (BIA May 2, 2017)
0 I

A013 998 118

However, the safe harbor provisions of section 240(c)(3)(B) of the Act and 8 C.F.R.
1003.41 deal only with the authentication of documentary evidence as it relates to
admissibility, and not whether the documentary evidence is sufficiently substantial and probative
to satisfy the DHS's burden of proof. Matter ofJ. R. Velasquez, supra, at 683 n.5. Upon our de
novo review, we agree with the Immigration Judge that the Docket Transcript submitted by the
DHS does not establish by clear and convincing evidence the fact of the respondent's 2011 retail

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theft conviction (I.J. at 2; Exh. 2, Tab F). See section 240(c)(3)(A) of the Act.

Notably, as highlighted by the Immigration Judge, the Magisterial District Judge's signature
on the Docket Transcript does not appear to certify it as an official record, but instead certifies
that the document was merely kept on file at the court (I.J. at 2; Exh. 2, Tab F). See 234 Pa.
Code 550 (stating that guilty pleas before Magisterial District Judges are signed by the
defendant and the Magisterial District Judge, who shall certify the judgment thirty days after
acceptance of the guilty plea and the imposition of sentence). Moreover, the Docket Transcript
disclaims liability for inaccurate data, errors, or omissions, and states that "[d]ocket sheet
information should not be used in place of a criminal history background check." (Exh. 2,
Tab F). In addition, despite being transmitted via U.S. Mail, the Docket Transcript bears a
certification by the DHS on a form for the receipt of documents received by electronic means
(I.J. at 1: Exh. 2, Tab F).

Although we agree with the DRS that these indicia of unreliability do not "create a
presumption that the record contains inaccurate information," (DHS's Brief at 10-11), they
nevertheless significantly lessen the probative weight of the document as evidence. For this
reason, we agree with the Immigration Judge that the Docket Transcript alone does not establish
by clear and convincing evidence proof of the respondent's 2011 retail theft conviction (I.J. at 2;
Exh. 2, Tab F). See section 240(c)(3)(A) of the Act.

Thus, we affirm the Immigration Judge's conclusion that the DHS did not carry its burden of
establishing that the respondent is removable for having been convicted of either (a) two or more
crimes involving moral turpitude, or (b) an aggravated felony (I.J. at 1-2). See section 240(c)(3)
of the Act. Accordingly, the following order will be entered.

ORDER: The appeal is dismissed.

3
Cite as: Robert Rudoi, A013 998 118 (BIA May 2, 2017)
 C
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE.FOR IMMIGRATION REVIEW
IMMIGRATION COURT
YORK, PENNSYLVANIA

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IN THE MATTER OF ) IN REMOVAL PROCEEDINGS
RUDOI, Robert ) A#: 01.3-998-118
Respondent )

ON BEHALF OF RESPONDENT: ON BEHALF OF DUS:

Wayne Sachs, Esq. Brian McDonnell, Esq.

On Remand from the Board of Immigration Appeals

Decision and Order

On July 7, 2016, the Board remanded this record based on a remand from the Third
Circuit Court of Appeals.

Since the remand, two master calendar hearings have been held where respondent,
through counsel, argues that the evidence submitted by the government to prove a November 2,
2011, Pennsylvania conviction for retail theft, exhibit 1-A, is inadmissible for lacking any indicia
of being an official conviction record. This conviction, if proven, would constitute a second
CIMT and thereby render respondent removable pursuant to INA 237(a)(2)(A)(ii). 1

To meet its burden of proof at INA 240(c)(3)(A), the government submitted into
evidence exhibit 2-F, a copy of the Bucks County Magisterial District Judge Non-Traffic Docket,
which indicates a guilty plea on November 2, 2011, to retail theft. This is the same document the
government submitted to the Board in its "DHS Motion to Remand." Submitted at exhibit 2-G is
a copy of the Board's decision in Matter of Velasquez, 25 I&N Dec. 680 (BIA 2012). 2 The
government has not submitted a brief arguing exactly how this Board decision applies here.

Notwithstanding, Velasquez is helpful to this matter. The document was transmitted by

the U.S. Mail as informed on the government's Certification qf Electronic Receipt of Convictions
Record. This in itself is quizzical. That is, the document was received by the DHS through the
U.S. mail, but the "certification" is on a form dedicated to receipt of documents received by
electronic means.

The federal regulations at 8 C.F.R. 1003.41(a)(3), permit evidence of a conviction

through a "a docket entry from court records that indicates the existence of a conviction."
Respondent cites to various provisions of Pennsylvania's Rules of Criminal Procedure.
Respondent's brief: p.1. However, these statutory passages merely set forth the duties of the
1
The conviction for aggravated assault at allegation 5 on the Notice to Appear is currently on. direct appeal and
therefore cannot form the basis for a charge ofremovability. Government counsel does not contest this.
2
This court does not encourage a party to submit copies of Board or court decisions as part of their evidentiary
filings. This document is submitted under "DHS Evidence" received on September 6, 2016. Rarely is a published
Court or Board decision considered as evidence."
 0
Magistrate Judge to properly accept and record valid guilty pleas. There is nothing in INA
240(c}(3)(C) or 8 C_.F.R. 1003.41(c) that requires evidence that a state court judge complied
with the recording requirements of the particular jurisdiction.

However, asthe Board stressed in Velasquez, the INA provisions and the regulations
implementing these regulations deal only with the question of admissibility of evidence relating
to a conviction; they do not deal with the sufficiency of such evidence. Id. at 683, fn. 6. As

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respondent aptly points out, at the bottom of the docket sheet is the precaution that "(n]either the
courts of the Unified Judicial System of the Commonwealth of Pennsylvania nor the
Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed
data, errors or omissions on these docket sheets. Docket Sheet information should not be used in
place of a criminal history background check...."

Government counsel argued in court that the Magistrate Judge's signature on the docket
sheet, followed by a seal, sufficiently certifies the document as accurate as to the information
contained therein. The Magistrate Judge's signature, post remand, has not been shown to
"certify" the accuracy of the information. The court agrees with respondent that the Magistrate
Judge's signature only "certifies" that the document was kept on file at the Magistrate Judge's
court. This is borne out by the precaution on the bottom of the document. There is no
"exception" mentioned in the precaution that a judge's signature on the docket sheet certifies the
accuracy of the document's informatiqn.

The government bears the burden of proof of a ground of removability by clear and
convincing evidence. INA 240(c)(3)(A). Respondent's argument that this singular document
fails to establish his alleged c_gniction referenced therein, is persuasive. As such, the remaining

L
ground of removabili_y,-,INA 2'3\(a)(2)(A)(ii), is dismissed. These proceedings are hereby
terminated pending (e outcom of r o dent's appe .)
_
. 1
_alf,(}'(nur1, 1...-g
rmmigration Jqdge
September 12, 2016 I\
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