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534737/A040-111-602
GULF CORRECTIONAL INST. ANNEX
699 IKE STEELE ROAD
WEWAHITEHKA, FL 32465
Name: RIVASCAMADER, LUIS ALBER ...
U.S. Department of Justice
Executive Ofce fr Immigration Review
8ooro/ I|grot|o4ppeols
uceo//heclerk
5107 Leeburg Pike, Suite 2000
Fals Cl11rch, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - RG1
333 South Miami Avenue, Suite 200
Miami, FL 33130
A 040-111-602
Date of this notice:
2/7/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Greer, Anne J.
Pauley, Roger
Guendelsberger, John
Sincerely,
D6 c tV
Donna Carr
Chief Clerk
williame
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Luis Alberto Rivas-Camader, A040 111 602 (BIA Feb. 7, 2014)
...
U.S. Department of Justice
Executive Ofce fr Immigation Review
Falls Church, Virginia 20530
File: A040111 602 - Mai, FL
In re: LUIS ALBERTO RIV AS-CAMADER
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Pro se
ON BEHALF OF DHS:
CHARGE:
Christina Maryak
Assistant Chief Counsel
Decision of the Board of Immigration Appeals
Date:
FEB - 7
2014
Notice: Sec. 237(a)(2)(A)(ii), I&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 flony
APPLICATION: Terination
The respondent, a native and citizen of Ecuador, appeals fom the Immigration Judge's
decision dated August 15, 2013, sustaining both charges of removability and ordering the
respondent removed fom the United States. The Department of Homeland Security (DHS)
opposes the appeal. The appeal will be sustained.
We review fr clear eror the fndings of fct, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues,
including whether the paries have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003.l{d)(3)(ii).
As a initial mater, we agree wit te Immigration Judge that the respondent's conviction
fr trafcking in illegal drugs pursuant to section 893 .135(1 )( c ){ 1 )( c) of the Florida Statutes is a
conviction fr immigration purposes. The term "conviction" is defned to include a frmal
judgment of guilt of the alien entered by a cour. See section 10l(a)(48)(A)(ii) of the
Immigration ad Nationality Act, 8 U.S.C. 110l(a)(48)(A). The record includes a judgment
which indicates that the respondent was fund guilt by the Circuit Court, 13th Judicial Circuit
in and fr Hillsborough County, Florida, of traffcking in illegal drugs fllowing a plea of guilty
(I.J. at 2; Exh. 2). Accordingly, the respondent was convicted of that ofense within the meaing
of the Act.
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Cite as: Luis Alberto Rivas-Camader, A040 111 602 (BIA Feb. 7, 2014)
A040 111 602
The Immigration Judge concluded that the respondent's conviction fr traffcking in illegal
drugs was an aggravated felony within the meaning of section 10l(a)(43)(B) of the Act
and sustained the charge of removability pursuant to section 237(a)(2)(A)(iii) of the Act,
8 U.S.C. 1227(a)(2)(A)(iii) (l.J. at 3). Although the respondent's ofense was denominated a
"traffcking" in illegal drugs, Florida law defnes that ter to include simple possession ofenses:
Any person who knowingly sells, purchases, manufctures, delivers, or brings
into this state, or who is kowingly in actual or constructive possession of 4
grams or more of any morhine, opium, oxycodone, hydrocodone,
hydromorhone, or any salt, derivative, isomer, or salt of an isomer thereof,
including heroin . .. or 4 grams or more of any mixture containing any such
substance, but less than 30 kilograms of such substance or mixture, commits a
flony of the frst degree ... kown as "traffcking in illegal drgs," ...
Florida Statutes 893.135(l)(c) (emphasis added). And indeed the criminal infrmation
indicates that the respondent was charged with simple possession, not "trafcking" as that ter
is ordinaily understood (Exh. 2). Accordingly, the respondent's ofense is not a aggravated
flony under the "illicit trafcking" clause of section 10l(a)(43)(B) of the Act. Matter of Davis,
20 I&N Dec. 536, 541 (BIA 1992) (defning "illicit trafcking" is a controlled substance as
"unlawfl trading or dealing"). Moreover, the respondent's simple possession ofense does not
qualif as an aggravated flony under the "drug traffcking crime" clause of section 101 (a)(43)(B)
because it does not proscribe conduct punishable as a flony under the Federal drug laws. See
Lopez v. Gonzales, 549 U.S. 47 (2006). Thus, the DHS did not meet its burden of demonstrating
the respondent's removability under section 237(a)(2)(A)(iii) of the Act. See section
240(c)(3)(A) of the Act, 8 U.S.C. 1229a(c)(3)(A).
In light of fregoing, we fnd it necessary to remand the record fr the Immigration Judge
to frther consider the remaining chage of removability and, if necessary, to consider any relief
fr which the respondent may be eligible. In determining whether the DHS met its burden
of demonstrating that respondent's removability under section 237(a)(2)(A)(ii) of the Act, the
Immigration Judge should specifcally identify any evidence relied on and explain the reasons
fr her conclusions in her oral or written decision. See Matter of S-H-, 23 l&N Dec. 462
(BIA 2002); Matter of A-P-, 22 l&N Dec. 468, 474 (BIA 1999). On remand, both paries should
be aforded the opporunity to update the evidentiary record and present additional legal
aguments.
In remanding, we express no opinion on the ultimate outcome of these proceedings. See
Matter of L-0-G-, 21 I&N Dec. 413 (BIA 1996). The fllowing order shall be entered.
ORDER: The respondent's appeal is sustained, te Immigration Judge's decision is vacated
in pa, the aggravated flony charge of removability is dismissed, and the record is remanded fr
frther proceedings consistent with the fregoing opinion.
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Cite as: Luis Alberto Rivas-Camader, A040 111 602 (BIA Feb. 7, 2014)
O
_ _ _
"
In the Matter of
IMMIGRATION COURT
,
I
333 SOUTH MIAMI AV., STE.700
MIAI, FL 33130
Case No.: A040-111-602
RIVAS-CAER, LUIS ALBERTO
Respondent IN REMOVAL PROCEEDINGS
ORDER OF THE
This is a summary of the oral decision entered on