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Anthony Olivo Cosme, A042 271 032 (BIA Feb. 27, 2013)

Anthony Olivo Cosme, A042 271 032 (BIA Feb. 27, 2013)

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In this unpublished decision, the Board of Immigration Appeals upheld the respondent's order of removal upon finding he admitted to being convicted of two aggravated felonies and did not demonstrate why his proceedings violated due process. The decision was written by Vice Chairman Charles Adkins-Blanch.
In this unpublished decision, the Board of Immigration Appeals upheld the respondent's order of removal upon finding he admitted to being convicted of two aggravated felonies and did not demonstrate why his proceedings violated due process. The decision was written by Vice Chairman Charles Adkins-Blanch.

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Published by: Immigrant & Refugee Appellate Center, LLC on Mar 08, 2013
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10/12/2013

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COSME, ANTHONY OLIVOJE-7619/A042-271-0321111 ALTAMONT BLVDFRACKVILLE,
PA
17931Name: COSME, ANTHONY OLIVO
U.S.
Department
of
Justice
Executive Office forImmigrationReview
Board
of
mmigration AppealsOffice
ofthe
Clerk
5107 Leesburg Pike, Suite 2000Falls Church, Virginia 22041
DHS LIT./York Co. Prison/YOR3400 ConcordRoadYork, PA 17402A 042-271-032Date
of
this notice: 2/27/2013
Enclosedisacopy
of
the Board's decision and order
in
theabove-referencedcase. Enclosure
Panel Members:Adkins-Blanch, Charles
K.
Sincerely,
DcrutLCtVLAJ
Donna Carr
Chief
Clerk
LulsegeS
Userteam: Docket
Cite as: Anthony Olivo Cosme, A042 271 032 (BIA Feb. 27, 2013)
 
U.S.
Department
of
Justice
..
Executht.e Office forImmigration ReviewFallsChurch, Virginia 22041
File: A042
271
032-
York, Pennsylvania
In
re:
ANTHONY OLIVO COSME
IN
REMOVAL PROCEEDINGSAPPEALON BEHALF OF RESPONDENT: ProseON BEHALF
OF
bHS:
Jon
D.
StaplesAssistantChiefCounselCHARGE:
Decision
ofthe
Board
of
ImmigrationAppeals
Date:
FEB
2 7
2013
Notice: Sec.237(a)(2)(A)(iii), I&NAct
[8
U
.S.C
.§ 1227(a)(2)(A)(iii)]-Convicted
of
aggravated felony undersection101(a)(43)(F)
ofthe
ActSec. 237(a)(2)(A)(iii), I&N Act
[8
U.S.C. §1227(a)(2)(A)(iii)]-Convicted
of
aggravated felony under section 101(a)(43)(G)
ofthe
ActAPPLICATION: ReliefThe respondent,anative and citizen
of
the Dominican Republic, andalawful permanentresident
of
he UnitedStatessincehis admissionasan immigrantonDecember29, 1989, hasfiled an appeal froman Immigration Judge'sNovember 7, 2012,decision.In that decision,the ImmigrationJudge foundtherespondent removable,as charged,based on hisadmissions (Tr. at 2) asto his2009 Pennsylvaniaconvictions
1
forRobberyandBurglary,whichtheImmigration Judge foundto constituteaggravatedfelony offenses,as definedunder sections 101(a)(43)(F)and (G)
of
the Immigrationand NationalityAct, 8U.S.C.
§§
110l(a)(43)(F)and (G),respectively.The respondent's appealwillbe dismissed.The respondent's requestto proceed on appeal
informapauperis
is grantedunder 8
C.P.R.§
1003.8(a)(3).
See MatterofChicas,
19
I&N Dec. 114(BIA1984).The Board reviews an Immigration Judge's findings
of
fact, including findings as to thecredibilityoftestimony,under the"clearly erroneous" standard.
See
8 C.P.R.§ 1003.1(d)(3)(i);
Matter
of
R-S-H-,
23
I&NDec.629(BIA 2003);
Matter
of
S-H-,
23
I&NDec. 462(BIA2002). Therecordreflectsthe respondentwas convicted on August
31
,2009,uponaplea
of
guilty,inthe Court
of
CommonPleasofLehigh County, CommonwealthofPennsylvania,
ofthe
offense
of
Robbery, inviolation
of
PA
.
STAT
.
ANN.
TIT
.
18
§
370l(A)(1)(iv), and sentenced toaterm
of
imprisonment
of
not lessthan12 monthsandnot morethan 59months.The record also reflectsthe respondent was convicted onAugust31, 2009,upona plea
of
guilty,intheCourt
of
Co
mmonPleas
of
LehighCounty,Commonwealth
of
Pennsylvania,
of
the offense
of
Burglary,
in
violationofPA.S
TAT.
ANN.
TIT
.
18
§
3502(a),and sentenced
to
aterm
of
imprisonment
ofnot
less than24monthsand notmore than 59 months, tobe served concurrently with hisRobberyconviction.
Cite as: Anthony Olivo Cosme, A042 271 032 (BIA Feb. 27, 2013)
 
A042 271 032The Board reviews questions
of
law, discretion, and judgment and all other issues in an appeal
of
an
immigration Judge's decision de novo.
See
8 C.F.R.
§
1003.1(d)(3)(ii).The respondent does not dispute that he freely admitted that he was convicted
of
a "crime
of
violence" and a "theft" aggravated felony, on account
of
the 2009 Pennsylvania convictionsalleged
in
the Notice to Appear (form I-862) ("NTA"), and that his admissions support theImmigration Judge's findings as
to
his removability (Tr.at 2-3).
See
8 C.F.
R.
§ 1240.1
O(c).
Theonly issue raised on appealis a due process challenge to the Immigration Judge's conduct
of
theseproceedings.However, contrary to the respondent's appellate contentions, we find that the ImmigrationJudge's actions were consistent with a fair hearing, and find no support for the respondent's claimsas to a denial
of
due process.In the context
of
an
immigration hearing,due process requires thataliens threatened with removal are provided the right to a full and fair hearing that allows them areasonable opportunity to present evidence on their behalf.
Castro v.Attorney General
of
US.,
671 F.3d 356 (3d Cir. 2006);
see also Cabrera-Perez v.Gonzales,
456 F.3d 109,
115
(3d Cir.2006) (citing
Abdulrahman
v.
Ashcroft,
330 F.3d 587, 596 (3d Cir. 2003))."The fundamentalrequirement
of
due process is the opportunity to
be
heard at a meaningful time and in a meaningfulmanner."
Abdulai
v.
Ashcroft,
239 F.3d 542, 549 (3d Cir. 2001) (quoting
Mathews
v.
Eldridge,
424 U.S. 319, 333 (1976)).In order to prevail
on
a denial
of
due process claim, the respondentmust establish that defects in the deportation proceeding violated his due-process rights and that hesuffered prejudice as a result
of
those defects.
See,
e.g., Chhay
v.
Mukasey,
540 F.3d
1,
9
(1
51
Cir.2008);
see also Wilson
v.
Ashcroft,
350 F.3d 377,
381
(3d Cir.2003) (finding "no dueprocess violation in the absence
of
prejudice."). Although the respondent need not conclusivelydemonstrate that he would have received relief to show prejudice, he must show that there were"plausible grounds for relief."
See, e.g
.,
UnitedStatesv. Moriel-Luna,
585 F.3d 1191, 1196(9
1h
Cir. 2009). The respondent has not met that burden.Under the regulations,the Immigration Judge has a duty to inform an alien
of
the availability
of
relief in removal proceedings only where the circumstances
of
the case reasonably reflect thealien's "apparent eligibility" for the particular form
of
relief at issue, 8 C.F.R. § 1240.11(a)(2), orwhere the alien expresses a fear
of
persecution or harm upon return to any
of
the countries to whichthe alien may be removed, 8 C.F.R.
§
1240.1l(c)(1). However, in the matter before us, therespondent has not shown the Immigration Judge failed to comply with his duty
to
inform, asrequired
by
the regulations, where the respondent not only failed to express a fear
of
persecution orharm upon return to the Dominican Republic, but also having been convicted
of
two aggravatedfelony offenses, failed
to
establish his eligibility for any relief or protection from removal.The respondent bears the exclusive burden
of
proving all requisite facts pertinent
to
hiseligibility for relief from removal. 8 C.F.R.
§
1240.8(d).Furthermore, where the evidenceindicates that a ground for mandatory denial
of
an application for relief
may
apply, the alien has theburden
of
demonstrating by a preponderance
of
the evidence that such grounds do not apply(emphasis added).
!d.
The respondent cannot show the "substantial prejudice" required for asuccessful due process challenge.
See Jarbough
v.
Att'y
Gen.
of
the US.,
483 F.3d 184, 192(3d Cir.2007) (citing
Singh v.Gonzales,
432 F.3d 533,
541
(3d Cir.2006)).To this day, the respondent has yet
to
offer any argument or evidence sufficient to establish his eligibility for anyrelief or protection from removal.
2
Cite as: Anthony Olivo Cosme, A042 271 032 (BIA Feb. 27, 2013)

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