Olsi Vrapi, Esquire

Noble & Vrapi, P.A.

4253 Montgomery Blvd. NE
Suite 240
Albuquerque, NM 87109
Name: MEZA, CARLOS DAVID
U.S. Department of Justice
Executive Ofce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leeburg Pike, Suite 2000
Falls Clurcl, Vrginia 20530
OHS/ICE Ofice of Chief Counsel ELP
1545 Hawkins Blvd.
El Paso, TX 79925
A 092-70-765
Date of this notice: 6/9/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Holmes, David B.
Sincerely,
DO c W
Donna Carr
Chief Clerk
lucasd
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Carlos David Meza, A092 470 765 (BIA June 9, 2014)
U.S. Department of Justice
Executive Ofce fr Imigration Review
Falls Church, Virginia 20530
File: A092 470 765 - Chaparral, NM
In re: CARLOS DAVID MEZA
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Olsi Vrapi, Esquire
ON BEHALF OF DHS:
ORDER:
Dixie Lee Pritchard
Assistant Chief Counsel
Decision of the Board of Imigation Appeals
Date:
JUN 0 9 2014
This Board has been advised that the Department of Homeland Security's {11DHS") appeal has
been withdrawn. See 8 C.F.R. 1003.4. Since there is nothing now pending befre the Boad,
the record is reted to the Immigration Court without fther action.
FOR THE BOAR
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Cite as: Carlos David Meza, A092 470 765 (BIA June 9, 2014)
UNITED ST A TES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
8915 MONT ANA A VENUE, SUITE 100
EL PASO, TX 79925
IN THE MATTER OF:
MEZA, Carlos David
Respondent
IN REMANDED REMOVAL
PROCEEDINGS
FILE NO.: A092 470 765
DATE: JANUARY 27, 2014
CHARGES: INA 237(a)(2)(A)(iii) (aggravated flony/INA 10l(a)(43)(U))
INA 23 7(a)(2)(A)(iii) (aggravated flony/INA 101(a)(43 )(F))
INA 237(a)(2)(A)(ii) (two or more CIMTs)
APPLICATION: Motion to Terminate Proceedings
On Behalf of the Respondent:
Noble & Vrapi, P.A.
Olsi Vrapi, Esq.
4253 Montogomery Blvd. NE, Suite 240
Albuquerque, NM 87109
On Behalf of the Government:
Assistant Chief Counsel
Department of Homeland Security
1545 Hawkins Boulevard, Room 275
El Paso, T 79925
WRITTEN DECISION AND ORDER OF THE IMMIGRATION COURT
On November 20, 2013, the Board of Immigration Appeals remanded this case to the
Immigration Court fr frher fct-fnding on the issue of whether the respondent is currently
removable as charged afer his sentence fr his 2010 Califria conviction burglary of a motor
vehicle was reduced fom 365 days to 364 days. The Cour fnds that the Department of
Homeland Security ("OHS") has not met its burden of proving that the respondent is still
currently removable by clear and convincing evidence in regard to any of the three charges
lodged. Woodby v. INS, 385 U.S. 276 (1966). Accordingly, the Cour will not sustain any
removal charges and will grant the respondent's motion to terminate proceedings.
On or about June 6, 2010, the respondent was convicted in the Califria Superior Court
of Los Angeles Count fr the flony crime of burglary of a motor vehicle in violation of
Califria Penal Code ("CPC") 459 and sentenced to 365 days of imprisonment. The DHS
charged the respondent with removability on the basis of this conviction, aguing that the
conviction constituted an aggravated flony crime of violence and/or an attempt or conspiracy to
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commit an aggravated flony crime of violence. See fA 23 7(a)(2)(A)(iii), 101 (a)(43)(F),
1 0 I (a)( 43)(U). However, on January 15, 2013, the Califria Superior Cour issued an order
reducing the respondent's sentence fom 365 to 364 days.
In light of the order fom the Califria Superior Cour, this Court fnds that the
respondent is no longer removable under section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act ("Act" or "fNA"). The crime of violence provision in section 10l(a)(43)(F) of
the Act requires a sentence of at least one year of imprisonment. Because the respondent was
sentenced to only 364 days of imprisonment, the Court fnds that this conviction no longer
qualifes as an aggravated flony and thus the respondent is no longer removable under section
237(a)(2)(A)(iii) of the Act. See Matter of Cota, 23 I&N Dec. 849 (BIA 2005) (holding that a
trial cour's decision to modif or reduce an alien's criminal sentence nunc pro tune is entitled to
fll fith and credit by Immigration Judges and the Board, and such a modifed or reduced
sentence is recognized as valid fr purposes of the immigration law without regard to the trial
court's reasons fr efecting the modifcation or reduction). For these reasons, the Court does not
sustain either charge under section 237(a)(2)(A)(iii) of the Act (alleging aggravated felony
convictions under section 10l(a)(43)(F) and (U) of the Act).
Finally, the Court fnds that the DHS has not met its burden to establish that the
respondent is removable pursuant to section 237(a)(2)(A)(ii) of the Act (conviction fr two
CIMTs). The DHS had previously lodged this charge and argued that the respondent's
convictions fr petty thef, vandalism, and burglary of a motor vehicle constituted crimes
involving moral turpitude CCIMTs"). In its decision on July 26, 201 1 , the Cour fund that the
respondent's conviction fr petty theft categorically constituted a CIMT. However, the Cour did
not sustain the charge, fnding that the DHS did not present any judicially noticeable documents
establishing that the respondent's convictions fr vandalism or burglary of a motor vehicle
amounted to the second CIMT necessary to establish removability. See Decision of the
Immigration Judge, pp. 15-16.
The OHS now alleges that the respondent's 2010 burglary of a motor vehicle conviction
and a previous 2009 burglary of a motor vehicle conviction (see Exhibits R and R3) constitute
CIMTs rendering the respondent removable pursuant to section 237(a)(2)(A)(ii) of the Act. To
support this charge, the OHS submitted conviction documents fom the respondent's 2009 and
201 0 convictions (Exhibits R-2, R-3) and a transcript of the respondent's prior immigration
hearing, arguing that the respondent's admissions during the hearing establish removability
(Exhibit R-5). This argument is devoid of merit. The Court is at a total loss to comprehend the
relevance of the respondent's testimony during his prior immigration hearing to the curent
chages at issue. The respondent is charged under section 237(a)(2)(A)(ii) of the Act which
requires a conviction fr a CIMT to establish removability, not under section 212(a)(2)(A)(i)(I)
of the Act which in some circumstances (which the Cour would not fnd present here) could
lead to a respondent's removal based on his admissions to the essential elements of a CIMT.I As
such, in this case, the Court fnds the respondent's testimony at his prior immigration hearing to
1 However, the Court notes that in order to sustain such a fnding of inadmissibility under section 212(a)(2}(A}(i)(I}
of the Act, the respondent must have admitted all of the elements of the crime involved and must have been frished
with a defnition of such crime in understandable terms. Matter of G-M-, 7 I& N Dec. 40 (BIA 1955).
2
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1
P

"
be totally irrelevant to the issue of removability. Moreover, in its decision on July 26, 2011, the
Court explicitly fund that the respondent's conviction documents and testimony were
insufcient to establish that a burglary of a motor vehicle conviction under CPC 459 amounted
to a CIMT. See also Matter of M-, 2 I&N Dec. 721 (BIA 1946) (holding that a breaing and
entering ofense may be deemed to involve moral turpitude only if accompanied by the intent to
commit a morally turitudinous act afer entr). The Court stated:
The Court fnds that the OHS has not proven that the respondent's June 10, 2010
burglary conviction involves moral turpitude, as no judicialy noticeable
documents were presented that establish what specifc crime the respondent was
convicted of intending to commit once he illegally entered the motor vehicle.
Under CPC 459, a defendant can be convicted of this crime fr breaking into the
motor vehicle with intent commit any flony (not necessarily larceny despite the
wording of the criminal complaint), some of which do not involve moral
turpitude. Although the respondent's testimony during the relief phase of his
removal hearing establishes that he intended to commit thef once he illegally
entered the vehicle (which is a CIMT), the respondent, through counsel, denied
this conviction ad the charges of removability and the DHS provided no
judicially noticeable documents that prove that his actual criminal conviction
involved intent to commit thef (again, despite the language of the criminal
complaint, since the respondent could have been convicted of illegal entry into the
motor vehicle with intent to commit any flony and not necessarily larceny).
See Decision of the Immigration Judge, pp. 15-16. As was previously the case, the conviction
record fr the respondent's 2010 conviction does not contain evidence of what specifc intended
flony the burglary involved. Likewise, the conviction record fr the respondent's 2009
conviction does not contain evidence of what specifc intended felony the burglary involved.
Thus, in accordance with its prior ruling and fr the reasons contained in the Respondent's
Motion to Terminate Removal Proceedings (Exhibit R4), the Cour does not sustain the charge
of removability under section 23 7(a)(2)(A)(ii) of the Act.
The fllowing order shall be entered:
IT IS ORDERED THAT the Respondent's Motion to Terminate
Removal Proceedings be GRANTED.
IT IS FURTHER ORDERED THAT the removal proceedings in this
case be and are hereby TERINATED without prejudice.

!
M
U.S. Immigration Judge
3
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