In this unpublished decision, the Board of Immigration Appeals (BIA) dismissed a DHS appeal of a grant of voluntary departure after finding the respondent’s conviction for maintaining a place for controlled substances in violation of N.C.G.S. 90-108(a)(7) was not a drug trafficking aggravated felony because a conviction can be obtained by showing a defendant acted knowingly but not intentionally. The decision was written by Member Hugh Mullane.
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Bryan Sanchez-Vazquez, A205 213 774 (BIA Aug. 30, 2013)
In this unpublished decision, the Board of Immigration Appeals (BIA) dismissed a DHS appeal of a grant of voluntary departure after finding the respondent’s conviction for maintaining a place for controlled substances in violation of N.C.G.S. 90-108(a)(7) was not a drug trafficking aggravated felony because a conviction can be obtained by showing a defendant acted knowingly but not intentionally. The decision was written by Member Hugh Mullane.
In this unpublished decision, the Board of Immigration Appeals (BIA) dismissed a DHS appeal of a grant of voluntary departure after finding the respondent’s conviction for maintaining a place for controlled substances in violation of N.C.G.S. 90-108(a)(7) was not a drug trafficking aggravated felony because a conviction can be obtained by showing a defendant acted knowingly but not intentionally. The decision was written by Member Hugh Mullane.
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Bryan Sanchez-Vazquez, A205 213 774 (BIA Aug. 30, 2013)
In this unpublished decision, the Board of Immigration Appeals (BIA) dismissed a DHS appeal of a grant of voluntary departure after finding the respondent’s conviction for maintaining a place for controlled substances in violation of N.C.G.S. 90-108(a)(7) was not a drug trafficking aggravated felony because a conviction can be obtained by showing a defendant acted knowingly but not intentionally. The decision was written by Member Hugh Mullane.
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Allison Lukanich
201 S. Brightleaf Blvd., Ste 4
Smithfield, NC 27577 U.S. Department of Justice Executive Ofce fr Immigration Review Board of Immigration Appeals Ojjice of the Clerk 5/07 lccsb1rg Pike, S1ite 2000 fll. Church. Virginia 2 :41 OHS/ICE Ofice of Chief Counsel - SOC 146 CCA Road Lumpkin, GA 31815 Name: SANCHEZ-VAZQUEZ, BRYAN A 205-213-774 Date of this notice: 8/30/2013 Enclosed is a copy of the Board's decision and order in the above-referenced case. Enclosure Panel Members: Mullane, Hugh G. Sincerely, Do CtV Donna Carr Chief Clerk Userteam: Docket I m m i g r a n t
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w w w . i r a c . n e t Cite as: Bryan Sanchez-Vazquez, A205 213 774 (BIA Aug. 30, 2013)
SANCHEZ-VAZQUEZ, BRYAN A205-213-77 4 146 CCA Road Lumpkin, GA 31815 U.S. Department of Justice Executive Ofce fr Immigration Review Board of Immigration Appeals Office of the Clerk 5107 leesb11rg Pike, S11ite 2000 Falls Clwrch. Virginia 22041 OHS/ICE Ofice of Chief Counsel SOC 146 CCA Road Lumpkin, GA 31815 Name: SANCHEZ-VAZQUEZ, BRYAN A 205-213-774 Date of this notice: 8/30/2013 Enclosed is a copy of the Board's decision in the above-refrenced case. This copy is being provided to you as a courtesy. Your attorey or representative has been served with this decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be removed fom the United States or afrms an Immigration Judge's decision ordering that you be removed, any petition fr review of the attached decision must be fled with and received by the appropriate court of appeals within 30 days of the date of the decision. Enclosure Panel Members: Mullane, Hugh G. . P W Sincerely, Dcn c t fff ff . Wf..... Donna Carr Chief Clerk :;ctiNzir:A Useream: Dot;kct . T. I m m i g r a n t
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w w w . i r a c . n e t Cite as: Bryan Sanchez-Vazquez, A205 213 774 (BIA Aug. 30, 2013) U.S. Department of Justice Executive Ofce fr Immigation Review Decision of the Board oflmmigation Appeals Falls Church, Virginia 22041 , File: A205 213 774 - Lumpkin, GA Date: In re: BRYAN SANCHEZ-VAZQUEZ I REMOVAL PROCEEDINGS APPEAL ONBEHALF OF RESPONDENT: Allison Lukanich, Esquire ON BEHALF OF DHS: Diane Dodd Assistant Chief Counsel CHARGE: AUG 3 0 2013 Notice: Sec. 212(a)(6)(A)(i), I&N Act [ 8 U.S.C. 1182(a)( 6)(A)(i)] - Present without being admitted or paroled APPLICATION: Voluntary departure The Deparment of Homeland Security ("DHS") appeals fom the Immigation Judge's March 29, 2013, decision granting the respondent's application fr voluntary departure. Section 240B(a)(l) of the Immigration and Nationality Act, 8 U.S.C. 1229c(a)(l). The respondent, a native and citizen of Mexico, opposes the appeal. 1 The appeal will be dismissed. We review fr clear eror the fndings of fct, including the determination of credibility, made by the Immigration Judge. 8 C.F .R. 1003 .1 ( d)(3 )(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion. 8 C.F.R. 1003.l(d)(3)(ii). We afr the Immigation Judge's grant of voluntary departure under safeguards to the respondent. We disagree with the DHS that the Immigration Judge imperissibly shifed the burden of proving that the respondent's conviction fr maintaining a place fr controlled substances in violation of section 90-108(a)(7) of the North Carolina General Statutes was fr an aggravated felony. There is no dispute that it is the respondent's burden to establish eligibility fr the relief that he seeks ad thus to show that he was not convicted of an aggavated flony (Respondent's Reply Brief at 4-5). See 240(c)(4) of the Act, 8 U.S.C. 1229a(c)(4); 8 C.F.R. l 240.26(b )(I )(i)(E). 1 The respondent contends that the DHS did not properly sere him its appeal brief and consequently requests summary dismissal of the DHS's appeal. We conclude that sumary dismissal is not warranted as a result of this procedural iregularity in this instance but gat the respondent's request to accept his late reply brief. I m m i g r a n t
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w w w . i r a c . n e t Cite as: Bryan Sanchez-Vazquez, A205 213 774 (BIA Aug. 30, 2013) A205 213 774 We afn the Immigation Judge's conclusion that te respondent met his burden i tis cae. Te record of conviction refects that the respondent was convicted of a misdemeaor (Exh. 2). The DHS asserts that the respondent's ofense is a drug taffcking aggavated felony because it is equivalent to a flony under the Federal Controlled Substances Act, specifcally 21 U.S.C. 856(a). See Lopez v. Gonales, 549 U.S. 47 (2006); see also section 101(a)(43)(B) of the Act, 8 U.S.C. 1101(a)(43)(B). Presuming that the conviction rested upon nothing more than the least of the acts criminalized, we conclude that the minimum conduct necessary to sustain a conviction under N.C. Gen. Stat. 90-108(a)(7) does not satisf the elements of the fderal sttute. See Moncriefe v. Holder, 133 S.Ct. 1678, 1684 (2013). To obtain a conviction under the respondent's statute of conviction, te State must prove a defendant: ( 1) knowingly or intentionally kept or maintained; (2) a building or other place; (3) being used fr the keeping or selling of a controlled substance. State v. Fuller, 196 N.C.App. 412, 424, 674 S.E. 2d 824, 832 (2009). Thus knowingly, but not intentionally, keeping a place being used by another person, but not oneself, fr merely "keeping" a controlled substance would meet the requirements of N.C. Gen. Stat. 90-108(a)(7). However, this conduct flls short of the conduct that would sustain a conviction under section 856(a)(l ) of Title 21, which requires that the individual personally intend to engage in prohibited drug manufcturing, distibution, or usage but does not prohibit mere keeping of a contolled substance and does not reach the conduct of others. Similarly, the minimum conduct under N.C. Gen. Stat. 90- 108(a)(7) falls short of that required to sustain a conviction under section 856(a)(2) of Title 21, which requires a "knowing[] and intentional[]" mens rea. Accordingly, violation of the respondent's statute of conviction is not categorically an drug trafcking aggavated flony ofense. See Moncrief v. Holder, supra, at 1685 n.4 (providing that the analysis required to detenine what a alien was convicted of is the same in both the removability and relief contexts). The record does not conclusively establish which of the ofenses encompassed by N.C. Gen. Stat. 90-108(a)(7) is the basis fr the respondent's conviction, and thus under the modifed categorical approach, it does not establish that the respondenfs conviction was fr an aggavated flony. See Descamps v. US., 133 S.Ct. 2276 (2013) (providing that the modifed categorical approach is approprate when a statute of conviction is divisible). However, because the record of conviction refects that the respondent's conviction was fr a misdemeanor, he has established that his ofense is not equivalent to 21 U.S.C. 856(a)(2), which includes the mens rea of "knowingly and intentionally." See N .C. Gen. Stat. 90-108(b) (providing that violation of this section is a Class I misdemeanor, except that a violation commited intentionally is a Class I felony). Moreover, the respondent presented a complete record of conviction, and the record does not support the conclusion that other judicially cogizble documents exist that would shed additional light on the respondent's conviction. We conclude that the rspondent has met his burden by showing by a preponderance of the evidence that he was not convicted of an aggravated flony and therefre that he is not precluded fom otherwise establishing eligibility fr volunt deparure. The OHS does not challenge the Immigration Judge's fvorable exercise of discretion in this case. Accordingly, the DHS's appeal will be dismissed and voluntary departure will be reinstated. 2 I m m i g r a n t
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w w w . i r a c . n e t Cite as: Bryan Sanchez-Vazquez, A205 213 774 (BIA Aug. 30, 2013) A205 213 774 ORDER: The appeal 'is dismissed. FURTHER ORDER: Pursuant to the Immigration Judge's order ad conditioned upon compliance with conditions set frth by the Immigration Judge and the statute, the respondent is permitted to voluntarily depart the United States, without expense to the Goverent, within 30 days fom the date of tis order or any extension beyond that time as may be granted by the OHS. See section 240B(a) of te Immigration and Nationality Act, 8 U.S.C. 1229c(a); see also 8 C.F.R. 1240.26(b), (f. In the event the respondent fils to voluntarily depart the United States, the respondent shall be removed as provided in the Immigation Judge's order. NOTICE: If the respondent fails to voluntaily depart the United States within the time period specifed, or any extensions ganted by the DHS, the respondent shall be subject to a civil penalty as provided by the regulations and the statute and shall be ineligible fr a period of 10 years fr ay fer relief under section 240B and sections 240A, 245, 248, and 249 of te Act. See section 240B(d) of the Act. WARIG: If the respondent fles a motion to reopen or reconsider prior to the expiration of te voluntary departure period set frth above, the gant of voluntary departure is automatically terminated; the period allowed fr voluntary departure is not stayed, tolled, or extended. If te grat of voluntay departure is automatically terinated upon the fling of a motion, the penalties fr failure to depart under section 240B(d) of the Act shall not apply. See 8 C.F.R. 1240.26(e)(l). WARING: If, prior to departing the United States, the respondent fles any judicial challenge to this administatively fnal order, such as a petition fr review pursuat to section 242 of the Act, 8 U.S.C. 1252, the grat of voluntary depae is automatically terinated, ad the alterate order of removal shall imediately take efect. However, if the respondent fles a petition fr review and ten departs the United States within 30 days of such fling, the respondent will not be deemed to have departed under an order of removal if the alien provides to the OHS such evidence of his or her deparure that the Immigation and Customs Enfrcement Field Ofce Director of the DHS may require and provides evidence DHS deems sufcient that he or she has remained outside of the United States. The penalties fr filure to depat under section 240B(d) of the Act shall not apply to an alien who fles a petition fr review, notwithstanding ay period of time that he or she remains in the United States while the petition fr review is pending. See 8 C.F.R. 1240.26(i). 3 I m m i g r a n t
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w w w . i r a c . n e t Cite as: Bryan Sanchez-Vazquez, A205 213 774 (BIA Aug. 30, 2013) ( ( UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT LUMPKIN, GEORGIA File: A205-213-774 In the Mater of March 29, 2013 BRYAN SANCHEZ-VAZQUEZ RESPONDENT ) ) ) ) IN REMOVAL PROCEEDINGS CHARGES: Section 212(a)(6)(A)(i) - present without being admitted or paroled. APPLICATIONS: Pre-conclusion voluntar deparure. ON BEHALF OF RESPONDENT: ALLISON LUKINICH ON BEHALF OF DHS: DIANE DODD ORAL DECISION OF THE IMMIGRATION JUDGE EXHIBITS Exhibit 1, Notice to Appear; Exhibit 2, record of respondent's conviction; Exhibit 3, For 1-213; Exhibit 4, respondent's memorandum of law in suppor of his request for voluntar deparure; Exhibit 5, respondent's prehearing brief; Exhibit 6, statement from Detective Mao. WITNESS Respondent: In arriving of my finding of facts and conclusions of law, I have considered all the 1 I m m i g r a n t
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w w w . i r a c . n e t documentar and testimonial evidence in this case. My failure to comment of a specific exhibit or paricular testimony does not mean that I failed to consider it. CREDIBILITY Based upon the totality of the circumstances, I find respondent to be credible. FINDINGS OF FACT AND CONCLUSIONS OF LW Exhibit 1 was sered on respondent on October 5, 2012. On December 27, 2012, in accordance with the respondent's pleas, the allegations in Exhibit 1 were sustained and respondent was fund by clear and convincing evidence to be removable as charged in Exhibit 1. Mexico was designated as the countr of removal. Respondent is not an arriving alien. Respondent's request for voluntar departure is timely. Respondent has made no additional requests fr relief. Respondent concedes removability and waived appeal of all issues. Respondent is not deportable under Section 237(a)(2)(A)(iii) as an aggravated felon or under Section 237(a)(4) for security or related grounds. Although the Deparment of Homeland Security argues that respondent is an aggravated felon, I am unable to conclude that respondent has been convicted of any ofense related to traficking in a controlled substance. I find that respondent does merit a favorable exercise of my discretion in granting voluntar deparure. Respondent has a criminal histor which demonstrates a troubled childhood. Respondent is now 19 years of age. Respondent admits that he has to convictions involving drugs, one for possessing marijuana and one for possessing cocaine. Indeed, respondent admits that he enjoys smoking marijuana. Exhibit 2 shows that respondent's arrest for possessing cocaine was disposed of by his conviction for A205-213-77 4 2 March 29, 2013 I m m i g r a n t
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w w w . i r a c . n e t ( ( maintaining a vehicle for purposes of a controlled substance. Respondent explained that he was found possessing cocaine while traveling as a passenger in a car occupied and driven by others. Respondent was brought to the United States in 1993 when he was only two months old. The United States is the only home that he has ever known. Respondent has two aunts who are lawful permanent residents, several U.S. citizen cousins and a 15-year-old U.S. citizen brother. Since the respondent has turned 18, he admits that he has been arrested twice. Respondent has been convicted since he turred 18 for possession of an alcoholic beverage, consuming alcoholic beverages and driving without a license. He has also been convicted as shown in Exhibit 2. Notithstanding respondent's criminal history, I conclude that as a matter of discretion, respondent still warrants a voluntary departure in this case. I am mindful that much of respondent's criminal encounters occurred while he was a juvenile and not as an adult. I am also mindful of the fact that essentially respondent's criminal matters are relatively minor in nature. Accordingly, I am going to enter the following order: ORDER IT IS HEREBY ORDERED respondent's request for voluntar deparure is granted. A writen order reflecting the above decision will be provided separately and made par of the record. signature A205-213-77 4 Please see the next page for electronic DAN TRIMBLE Immigration Judge 3 March 29, 2013 I m m i g r a n t
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w w w . i r a c . n e t C i
A20S-213.774 4 March 29, 2013 I m m i g r a n t
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w w w . i r a c . n e t //s// Imigration Judge DAN TRIMBLE trimled on May 2, 2013 at 11:28 A GMT A205-213-77 4 5 March 29, 2013 I m m i g r a n t