U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 Leesburg Pike, Suite 1000 Falls Church, Virginia 21041

Williams, Dean A., Esq. Dean A. Williams, P.C. P.O. Box446 Tucker, GA 30085

OHS/ICE Office of Chief Counsel - SOC 146 CCA Road Lumpkin, GA 31815

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Name: LOPEZ-ROMERO, LUIS ALBERTO

A 074-268-627

Date of this notice: 7/22/2013

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

DorutL ct1/lAJ
Donna Carr Chief Clerk

Enclosure
Panel Members: Pauley, Roger

yungc Userteam: Docket

Cite as: Luis Alberto Lopez-Romero, A074 268 627 (BIA July 22, 2013)

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 leesburg Pike, Suite 2000 Falls Church, Virginia 22041

LOPEZ-ROMERO, LUIS ALBERTO A074-268-627 STEWART DETENTION CENTER 146 CCA ROAD LUMPKIN, GA 31815

OHS/ICE Office of Chief Counsel - SOC 146 CCA Road Lumpkin, GA 31815

Immigrant & Refugee Appellate Center | www.irac.net

Name: LOPEZ-ROMERO, LUIS ALBERTO

A 074-268-627

Date of this notice: 7/22/2013

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a courtesy. Your attorney 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 from the United States or affirms an Immigration Judge's decision ordering that you be removed, any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of the decision. Sincerely,

Donn.L ct1/VL)
Donna Carr Chief Clerk

Enclosure
Panel Members: Pauley, Roger

yungc Userteam: Docket

Cite as: Luis Alberto Lopez-Romero, A074 268 627 (BIA July 22, 2013)

..

U.S. Department of Justice

Ex.ecutive Qffice for Immigration Review Falls Church, Virginia 22041

Decision of the Board oflmmigration Appeals

File:

A074 268 627 - Lumpkin, GA

Date:

JUL 2 2 2013

In re: LUIS ALBERTO LOPEZ-ROMERO

IN REMOVAL PROCEEDINGS

APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF OHS: Dean A. Williams, Esquire Diane Dodd Assistant Chief Counsel

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CHARGE: Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony

APPLICATION: Termination of proceedings

The respondent appeals the Immigration Judge's March 29, 2013, decision finding him removable as charged and denying his motion to terminate his proceedings. The appeal will be dismissed. The only issue in this appeal is whether the Immigration Judge erred in finding the respondent's August 1, 2011, conviction for burglary in violation of O.C.G.A. 16-7-l(b), is an aggravated felony as defined by section 10l(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. 110l(a)(43)(G) (l.J. at 5-6). See 8 C.F.R. 1003.l(d)(3)(ii) (2013) (de novo review). Specifically, the issue is whether the respondent was sentenced to at least 1 year confinement in light of the "Order" clarifying his sentence issued on January 10, 2013 (l.J. at 3-4). The respondent does not dispute that he was convicted for the burglary offense in 2011 (l.J. at 2; Exh. 3). In regard to sentencing, the original conviction documents state the respondent is "sentenced to confinement for a period of 10 year(s), 0 month(s), and 0 day(s) in the State Penal System" (l.J. at 3-4; Exh. 3) (emphasis added). The conviction documents further state "[h]owever, it is further ordered by the court that upon completion of 0 year(s), 0 month(s), and 0 day(s) of the above sentence, the remainder of the sentence may be served on probation" (I.J. at 3-4; Exh. 3). However, on January 10, 2013, the court entered an "Order" clarifying the respondent's sentence (I.J. at 3-4; Exh. 3). By order of the court, the sentence in the original conviction documents stating the respondent "is sentenced to confinement for a period of 10 year(s), 0 month(s), and 0 day(s) ... [h]owever, . . . upon completion of 0 year(s), 0 month(s), and 0 day(s) ... , the reminder [sic] of the sentence may be served on probation" was corrected to state the respondent "is sentenced to a period of 10 year(s), 0 month(s), and 0 day(s) on probation provided that [he] complies with the general and special conditions listed . . " (l.J. at 3-4; Exh. 3) (emphasis added).
.

Cite as: Luis Alberto Lopez-Romero, A074 268 627 (BIA July 22, 2013)

. ,

A074 268. 627

Section 101(a)(48)(B) of the Act defines a ''term of imprisonment" as including "the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence on whole or in part." See id. A sentence to a direct probationary period, however, is not a "term of imprisonment." United States v. Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001); cf. United States v. Banda-Zamora, 178 F.3d 728 (5th Cir. 1999) (when a defendant is directly sentenced to probation, with no mention of suspension of a term of imprisonment, there has been no suspension of a term of imprisonment); see also United States v. Guzman-Bera, 216 F.3d 1019 (I Ith Cir. 2000). Further, a sentence modification is entitled to full faith and credit by the Board, without regard to the reasons for the court's clarification. See Matter of Cota-Vargas, 23 l&N Dec. 849 (BIA 2005). The question is whether the court's order amending and clarifying the respondent's sentence eliminated or reduced the respondent's period of confinement nunc pro tune to the original date of conviction such that he is now sentenced to direct probation without a suspended sentence to confinement (l.J. at 4). 1 In this regard, we look to the language in the sentence modification stating that "[e]xcept as modified by the correction of the above stated clerical error, the Judgment and Sentence imposed on the [respondent] on August 1, 2011, . . . remains the sentence of the court in this case" (l.J. at 4; Exh. 3). As noted by the Immigration Judge, the court did not state that it was reducing or eliminating the original period of confinement nunc pro tune as to the original sentencing date or at all (l.J. at 4; Exh. 3). Further, the mandatory sentence for the respondent's conviction is no less than 1 year and no more than 20 years' incarceration (l.J. at 4). See O.C.G.A. 16-7- l (b). Thus, the language used in the "clarification" indicates to us, as it did to the Immigration Judge, that the respondent remains sentenced to 10 years' incarceration which he is permitted to serve on probation (l.J. at 4-5; Exh. 3). See United States v. Ayala-Gomez, supra, at 1319 (a term of imprisonment includes any part of a criminal sentence that was probated under Georgia law). The respondent does not otherwise dispute that his conviction falls within the purview of section 101(a)(43)(G) of the Act. Therefore, the respondent's conviction is an aggravated felony because he was sentenced to at least 1 year of confinement. Accordingly, the appeal will be dismissed. ORDER: The appeal is dismissed.

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1 The court also modified the "Amended Sentence of the Court" dated May 14, 2012, which "revoked" the respondent to 12 months in a detention center based on a probation violation to "revoke" the respondent for 6 months (l.J. at 3-4; Exh. 3).

Cite as: Luis Alberto Lopez-Romero, A074 268 627 (BIA July 22, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT LUMPKIN, GEORGIA

File: A074-268-627 In the Matter of

March 29, 2013

Immigrant & Refugee Appellate Center | www.irac.net

LUIS ALBERTO LOPEZ-ROMERO RESPONDENT

) ) ) )

IN R EMOVAL PROCEEDINGS

CHARGES:

Section 237(a)(2)(A)(iii) - aggravated felony burglary.

APPLICATIONS:

None.

ON BEHALF OF R ESPONDENT: DEAN A. WILLIAMS ON BEHALF OF OHS: DIANE DODD

ORAL DECISION OF THE IMMIGRATION JUDGE Exhibits: 1) Notice to Appear. 2) Form 1-261. 3) Respondent's response to the allegations in Exhibits 1 and 2, including an order to clarify sentence. 4) Respondent's request to terminate the case. 5) Department of Homeland Security response to Exhibit 4. Witnesses: None.

In arriving at my findings of fact and conclusions of law I considered all the documentary evidence in this case. My failure to comment on a specific Exhibit does not mean that I failed to consider it. FINDINGS OF FACT AND CONCLUSIONS OF LAW

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Respondent became a lawful permanent resident on 11th of August 2005. Exhibit 1 was served on respondent on 8th of November 2012, and Exhibit 2 was served on respondent on or after 4th of December 2012. Respondent admits allegations 1, 2, 4, and 5 in Exhibit 1, and allegations 3 and 3.5 in Exhibit 2. Respondent denies allegation 6 in Exhibit 2 and the charge in Exhibit 1. Respondent denies that he is removable as charged because he was not convicted of a crime for which the term of imprisonment of at least one year was imposed. Instead, respondent moves to terminate his removal proceedings. On 1st of August 2011, respondent was convicted of burglary in violation of OCGA Section 16-7-1!bl. Respondent's sentencing document shows that he was sentenced to confinement for 1O years but that all of his confinement was suspended in favor of probation. See page 5 in Exhibit 3. OCGA Section 16-7-1b provides that "(a) person who commits the offense of burglary in the first degree ... shall be punished by imprisonment for not less than one nor more than 20 years." In this case, respondent was "sentenced to confinement for a period of 10 year(s)" but "upon completion of _year(s) ... the remainder of the sentence may be served on probation provided that the defendant complies with the general and special conditions listed below as imposed by the court as part of this sentence." Georgia courts may suspend or probate all or any part of the entire sentence. OCGA Section 17-10-1!cl. It is clear that respondent's entire sentence to

A074-268-627

March 29,

2013

imprisonment was suspended in favor of probation. Exhibit 3 shows that the sentence imposed was ten (10) years to be served on probation with specified terms and conditions. Page 7 in Exhibit 3 shows that the Georgia court "may, at any time, revoke or modify any conditions of this probation

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and/or discharge the defendant from probation." Furthermore, "(i)f probation is revoked, the court may order the execution of the sentence which was originally imposed or any portion thereof.
n

Indeed, on 21st of May 2012, the court did revoke a portion of respondent's 1O year sentence to confinement (page 1O in Exhibit 3). After finding that respondent used cocaine on or before 14th of May 2012, the court revoked 12 months of respondent's sentence (later changed to only six months) and then returned respondent to the original terms of his probated sentence. On 17th of May 2012, leading up to his revocation hearing, respondent again acknowledged that a "violation of any special condition of probation authorizes the court to revoke the probation or supervision and require that the defendant serve up to the balance of the sentence and confinement." See page 10 in Exhibit 3. INA Section 101(a)(48) provides that a sentence includes the period of confinement ordered by a court regardless of any suspension of the imposition or execution of the sentence. Pages 12 through 14 in Exhibit 3 show that, on the 10th of February 2013, a Georgia court granted respondent's motion "for correction of certain clerical errors" in

I a-his sentence. The Georgia court then clarified respondent's sentence to show that he
was "sentenced to a period of 10 year(s) ... on probation provided that the defendant complies with the general and special conditions listed below as imposed by the court as part of this sentence." The Georgia court went on to state that "(e)xcept as modified

A074-268-627

March 29,

2013

by the correction of the above state clerical error, the judgment and sentence imposed on the defendant on August 1, 2011, including but not limited to (other provisions) remains the sentence of the court in this case." The Georgia court did not state that it was reducing or eliminating respondent's period of confinement nunc pro tune to 1st of

Immigrant & Refugee Appellate Center | www.irac.net

August 2011, the date of respondent's original sentencing. The effect of the language found at pages 12 through 14 in Exhibit 3 is identical to the effect of the language provided to respondent on the 1st of August 2011. That is: respondent's entire sentence was suspended in favor of probation as long as respondent complied with all conditions imposed by the court. Otherwise, respondenfs probated sentence could be again revoked and respondent could be made to serve the remaining portion of his 10 year sentence, or any part thereof, in confinement. Given the requirements in OCGA Section 16-7-1!bl, and given the conditions of respondent's probation, it is clear that respondent originally was and today remains under a sentence to confinement which is suspended in favor of probation. find that respondent is not now, nor was he ever, sentenced to a period of "straight probation" without confinement as he now claims. Immigration Judges must give full faith and credit to all State court documents, and I will afford such full faith and credit here; however, there is no requirement for Immigration Judges to construe court documents to be contrary to State law in cases where such documents also may be construed to comply with State law. In respondent's case, it is clear that the Judge imposing the sentence never intended for respondent to serve any portion of his mandatory sentence to imprisonment provided respondent complied with all conditions of his probation. Therefore, I find that respondent was sentenced to 1 O years of confinement as contemplated by OCGA Section 16-7-1!bl, but that all 10 years was suspended in favor of probation. Such

A074-268-627

March 29,

2013

finding is consistent both with what the Georgia Judge has said and what the Georgia law requires. I do not find that the Georgia Judge ignored OCGA Section 16-7-1{bl and merely sentenced respondent to direct probation; nor do I find that, by merely correcting clerical error, the Georgia Judge reduced or eliminated respondent's period of

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incarceration or probation (See OCGA Section 17-10-1{a}{6}{Al). The term of imprisonment imposed on respondent includes those portions of his sentence which were probated under Georgia law. See United States v. Ayala Gomez, 255 F.3d 1314 (11th Cir. 2001). Thus, respondent's sentence was 10 years. INA Section 101(a)(48)(8). Respondent did not receive a sentence of direct probation. The punishment respondent received included a term of imprisonment of at least one year. See in re: Cito Hayden Fermine, 2006 WL 901347, February 21, 2006; and in re: Julio Cesar Mendez Raymundo, 2011 WL 1792109, April 22, 2011 (both cases cited as persuasive rather than precedential authority). Because OCGA Section 16-7-1b provides that "(a) person commits the offense of burglary in the first degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or a vacant dwelling house of another," I find that respondenfs conviction categorically is a theft offense or burglary offense. Furthermore, respondent was sentenced to more than one year of imprisonment. Consequently, I find that respondent's conviction categorically is an aggravated felony in accordance with the provisions of INA Section 101(a)(43)). Assuming that I was unable to find that respondent's conviction categorically is an aggravated felony theft offense or burglary, I would find that it is an aggravated felony theft offense or burglary using the modified categorical approach because respondent entered a dwelling house of another without authority and with the

A074-268-627

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2013

intent to commit a theft therein (See page 2 in Exhibit 3). Based on the above analysis, I am sustaining all allegations in Exhibits 1 and 2, and I find by clear and convincing evidence that respondent is removable as charged in Exhibit 1. Mexico is designated as the country of removal.

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For the above reasons, respondent is ineligible for cancellation of removal and adjustment of status for certain permanent residents. INA Section 240A(a)(3). Because of his conviction, respondent also is ineligible for voluntal'Y departure. INA Section 101(f)(8) and INA Section 240B(b)(1)(B) and INA Section 240B(b)(1)(C). Respondent made no claim of fear of returning to Mexico. Respondent made no requests for relief. ORDERS Respondent will be removed from the United States to Mexico. A written order reflecting the above decision will be provided separately and made part of the record.

Please see the next page for electronic signature

DAN TRIMBLE Immigration Judge

A074-268-627

March 29,

2013

(
I

/Isl/
Immigration Judge DAN TRIMBLE trimbled on May 22, 2013 at 11:42 AM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A074-268-627

March 29,

2013