Christian Cortes Duran, A096 587 962 (BIA Jan. 31, 2012)

U.S.
Department of Justice
.
Executive Office for Immigration Review
Board ofImmigration Appeals Office ofthe Clerk

5107 Leesburg Pike. Suite 2000 Falls Church. Virginia 12041
Guerra, Raul F., Esq. Monzon Law, P.C., L.L.O. 650

"
OHS/ICE Office of Chief Counsel - OMA 1717 Avenue H Omaha, NE 6811O
Immigrant & Refugee Appellate Center | www.irac.net
"
STREET, SUITE 401
Lincoln, NE 68508
Name: CORTES DURAN, CHRISTIAN
A096-587-962
Date of this notice: 1/31/2012
Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,
Donna Carr Chief Clerk
Enclosure
Panel Members: Guendelsberger, John Malphrus, Garry D. Pauley, Roger
For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Christian Cortes Duran, A096 587 962 (BIA Jan. 31, 2012)
U.S. Department of Justice

Falls Church, Virginia 22041
Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
File: In re:
A096 587 962 - Omaha, NE CHRISTIAN CORTES DURAN
Date:
JAN 812012
IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF OHS: Raul F. Guerra, Esquire Clete P. Samson Assistant Chief Counsel
CHARGE: Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony Termination
APPLICATION:
The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's September 27, 2011, decision, which incorporates his September 14, 2011, decision sustaining the charge of removability under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii), and denying the respondent's motion to terminate the removal proceedings. The appeal will be dismissed. We review the findings of fact, including the determination of credibility, made by the Immigration Judge under a "clearly erroneous" standard. 8 C.F.R. 1003.1 (d)(3)(i). We review all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion, under a de novo standard. 8 C.F.R. l 003.l (d)(3)(ii); Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008). We conclude that the Department of Homeland Security ("OHS") met its burden by clear and convincing evidence to prove that the respondent has been convicted of an aggravated felony as defined in section 10l (a)(43)(T) of the Act, 8 U.S.C. 11 Ol(a)(43)(T), i.e., "failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed." Thus, the Immigration Judge committed no error by sustaining the sole charge of removability. In 2010, the respondent was convicted of violating section 29-908 of the Nebraska Revised Statutes, which states that "[w]hoever is charged with a felony and is released from custody under bail, recognizance, or a conditioned release and willfully fails to appear before the court granting such release when legally required or to surrender himself within three days thereafter, shall be guilty
A096 587 962

,.
of a Class IV felony . . . ." We agree with the Immigration Judge's determination that a conviction under section 29-908 does not qualify categorically as an aggravated felony, as the required elements to be convicted under the statute are broader than those required under section 10l(a)(43)(T) of the Act (I.J. at 3). Turning to the modified categorical approach, however, we conclude that the respondent's conviction under section 29-908 qualifies as an aggravated felony. The respondent does not dispute that his conviction under section 29-908 was a conviction for "failure to appear before a court," and that his appearance.was required in order "to answer to or dispose of a felony for which a sentence of 2 years' imprisonment or more may be imposed." The respondent's sole dispute is that his violation of section 29-908 does not constitute an aggravated felony because his obligation to appear was not "pursuant to a court order." We disagree. The documents titled "Journal Entry And Order," which were signed by a judge, indicate that a bail bond was set in the respondent's case, he posted and was released on bond, and he then subsequently forfeited his bond by failing to appear at a hearing. It was this failure to appear that served the basis for the respondent's conviction under section 29-908 of the Nebraska Revised Statutes. As noted by the Immigration Judge, section 29-506 of the Nebraska Revised Statutes states that if an offense is bailable, "the accused may be released pursuant to Chapter 29, article 9, such release to be conditioned on his appearance before the district court as ordered." (Emphasis added); see als o NEB. REV. STAT. 29-901.02 (requiring a judge authorizing a defendant's release under section 29-901 to issue a written order containing a statement of the condition or conditions imposed); NEB. REV. STAT. 29-901 (a judge ordering a bailable defendant's release shall impose conditions to reasonably assure the defendant's appearance). Thus, in Nebraska, implicit in a release on bond is an order conditioning the accused's appearance before the court. As such, it follows that one who fails to appear after having been released on bail has necessarily failed to appear in violation of a court order releasing him on bail. We are neither persuaded nor bound by the respondent's reliance on decisions by the United States Court of Appeals for the Ninth Circuit and the United States District Court for the District of Connecticut.1 The respondent cites Renteria-M orales v. Mukasey, 551F.3d 1076 (9th Cir. 2008), in which the court, turning to the modified categorical approach, concluded that the alien's conviction for failure to appear, i.e., bail jumping, under 18 U.S.C. 3146 did not constitute an aggravated felony under section 1101(a)(43)(T) of the Act. Among other reasons to reach its conclusion, the court stated that the judicially noticeable documents presented by the government did not establish that the alien was under a "court order," as the charging document only alleged that the alien failed to appear "as directed," without any mention of a court order. Id. at 1085.
1 Nor are we persuaded by the respondent's reliance on an unpublished Board decision, Matter of Gu o Hua Zha o, A046 470 906, 2008 WL 4146697 (BIA Aug. 26, 2008) (unpublished), which arose in the jurisdiction of the Ninth Circuit. In that decision, the Board concluded that the alien's judgment of conviction did not establish that he pleaded guilty to all, or any, of the factual allegations in the indictment charging him with failing to appear, as would qualify as an aggravated felony under section 1101(a)(43)(T) of the Act, because the judgment did not contain the critical phrase "as charged in the Indictment," and thus the indictment could not be looked at under the modified categorical approach pursuant to Ninth Circuit precedent. 2
A096 587 962

..
The respondent also cites Barnaby v. Ren o, 142 F. Supp. 2d 277 (E.D. Conn. 2001), in which the federal district court, also turning to the modified categorical approach, concluded that the alien's failure to appear conviction, CONN. GEN. STAT. 53a-172, for wilfully failing to appear "when legally called" did not qualify as the legal equivalent of failure to appear "pursuant to a court order" under section 10l (a)(43)(T) of the Act. The court reasoned that there was no language in the "appearance bond" form that could be construed as a court order, and that a bond appearance form in Connecticut, if signed, constitutes "merely a promise to appear at various times and recognizes certain consequences in the failure to do so." Id. at 279-280.
Unlike in Renteria-M ora/es and Barnaby, where the courts stated that there was no indication that the aliens were under a "court order" to appear, the Nebraska Revised Statutes, as explained above, make clear that anyone released on bond is released pursuant to a written order by a judge containing the conditions of such release. Thus, unlike in the cases cited by the respondent, the evidence in this matter does indicate that the respondent was under a court order conditioning his release on his appearance at a hearing. That the DHS did not present this order as evidence is of no consequence, as the order was implicit in the respondent's release on bail. 2 Accordingly, we affirm the Immigration Judge's denial of the respondent's motion to terminate the removal proceedings, as the DHS met its burden by clear and convincing evidence to prove that the respondent is removable an aggravated felon under section 237(a)(2)(A)(iii) of the Act. As the respondent does not appeal the Immigration Judge's finding that he did not seek any form of relief from removal, we deem the issue as waived on appeal, and the following order will be entered. ORDER: The appeal is dismissed.
FOR THE BOARD
'
the Ninth Circuit stated that it "may be reasonable" to infer from the alien's conviction that he was under a "court order" to appear because, as asserted by the government, only a judicial officer has the authority to direct an accused released on bail to appear, and that such a directive to appear would be a court order. Renteria-M ora/es v. Mukasey, supra, at 1085. The court, however, did not reach this issue, reasoning that, on its face, the evidence established neither that the alien was under a "court order" nor that he was ordered to appear "to answer or dispose" of a charge. Id.
2
In Renteria-M orales,
3
U.S. DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT Omaha, Nebraska
File A 96 587 962
Date:
September 27,
2011
In the Matter of
CHRISTIAN CORTES DURAN Respondent
IN REMOVAL PROCEEDINGS
CHARGE:
Section 237{a) (2) (A) {iii) of the Immigration and Nationality Act - any alien who is convicted of an aggravated felony, as defined in Section lOl (a) (43) {P) of the Act, a law relating to a failure to appear before a Court pursuant to a court order to answer or dispute a charge of a felony for which a sentence of two years imprisonment may be imposed, at any time after admission
APPLICATION:
None
APPEARANCES: ON BEHALF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT OF HOME LAND SECURITY: Debra Robinson, Esquire Assistant Chief Counsel U.S. Department of Homeland Security Immigration and customs Enforcement 1717 Avenue H, Ste 174 Omaha, NE 68110
Raul F. Guerra, Esquire 650 J Street, Ste 401 The Mill Town Building Lincoln, NE 68508
ORAL DECISION OF THE IMMIGRATION JUDGE The Respondent is a 19-year-old native and citizen of Mexico who entered the United States on January 5, B-2 visitor visa. See Exhibit 2, at page one. 2001, with a
The Respondent's
status was adjusted to that a lawful permanent resident on May 5, 2006. on July 12, 2011, the Department of Homeland Security
commenced removal proceedings against the Respondent by personally serving him with a Notice to Appear and charging him with removability as indicated above. See Exhibit 1. and
The Respondent denied the charge of removability, filed a Motion to Terminate these proceedings.
See Exhibit 3.
The Court received evidence on the issue of removability and issued an order denying the Respondent's Motion to terminate. Exhibit 9. The Court finds that the Respondent is removable as charged for the reasons stated in the Court's order dated September 14, 2011. See Exhibit 9. The Court designates Mexico See
as the country of removal should that be necessary, At a hearing in this court, the Respondent was informed and was
that he could apply for any available forms of relief, given a deadline to file for such relief.
The Respondent appeared
in Court today and stated that he has not filed for any form of relief and that he is not seeking any relief in this Court. Accordingly, the following order will be entered:
A 96 587 962
September 27,
2011
(
ORDER
)
'
IT IS HEREBY ORDERED that the Respondent be removed to Mexico on the charge contained in the Notice to Appear.
DANIEL A. MORRIS Immigration Judge
A 96 587 962
September 27,
2011
CERTIFICATE PAGE I hereby certify that the attached proceeding before DANIEL A. MORRIS, in the matter of: CHRISTIAN CORTES DURAN
A 96 587 962 Omaha, was held as herein appears, Nebraska
and that this is the original
transcript thereof for the file of the Executive Office for Immigration Review.
Stephanie L.
Fink,
Transcriber
YORK STENOGRAPHIC SERVICES,
INC.
34 North George Street York, Pennsylvania 17401-1266 (717) 854-0077
November 18,
2011
Completion Date slf / bjn

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U.S.

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

Guerra, Raul F., Esq. Monzon Law, P.C., L.L.O. 650

OHS/ICE Office of Chief Counsel - OMA 1717 Avenue H Omaha, NE 6811O

Immigrant & Refugee Appellate Center | www.irac.net

STREET, SUITE 401

Name: CORTES DURAN, CHRISTIAN

Date of this notice: 1/31/2012

Donna Carr Chief Clerk

Panel Members: Guendelsberger, John Malphrus, Garry D. Pauley, Roger

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

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

A096 587 962 - Omaha, NE CHRISTIAN CORTES DURAN

Immigrant & Refugee Appellate Center | www.irac.net

A096 587 962

Immigrant & Refugee Appellate Center | www.irac.net

A096 587 962

Immigrant & Refugee Appellate Center | www.irac.net

FOR THE BOARD

File A 96 587 962

Immigrant & Refugee Appellate Center | www.irac.net

CHRISTIAN CORTES DURAN Respondent

Immigrant & Refugee Appellate Center | www.irac.net

The Respondent appeared

Immigrant & Refugee Appellate Center | www.irac.net

DANIEL A. MORRIS Immigration Judge

Immigrant & Refugee Appellate Center | www.irac.net

A 96 587 962 Omaha, was held as herein appears, Nebraska

and that this is the original

YORK STENOGRAPHIC SERVICES,

34 North George Street York, Pennsylvania 17401-1266 (717) 854-0077

Completion Date slf / bjn

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