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Jose Luis Ugas Gil, A078 903 173 (BIA Aug. 14, 2013)

Jose Luis Ugas Gil, A078 903 173 (BIA Aug. 14, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) rejected the respondent's argument that a theft offense to which he pled nolo contendere was not a "conviction" under Section 101(a)(48) of the INA because it was processed as an "infraction" and he was not provided with the right to a jury trial or appointed counsel. The Board found the argument was foreclosed under its decision in Matter of Cuellar-Gomez, 25 l&N Dec. 850 (BIA 2012). The decision was written by Member Roger Pauley.
In this unpublished decision, the Board of Immigration Appeals (BIA) rejected the respondent's argument that a theft offense to which he pled nolo contendere was not a "conviction" under Section 101(a)(48) of the INA because it was processed as an "infraction" and he was not provided with the right to a jury trial or appointed counsel. The Board found the argument was foreclosed under its decision in Matter of Cuellar-Gomez, 25 l&N Dec. 850 (BIA 2012). The decision was written by Member Roger Pauley.

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U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk
5107 Leesburg Pike, Suite 2000 Falls Church, l'irgmia 220.//

UGAS GIL, JOSE LUIS PO BOX 65215 SALT LAKE CITY, UT 84165

OHS/ICE Office of Chief Counsel - SLC 2975 Decker Lake Dr. Stop C West Valley City, UT 84119

Immigrant & Refugee Appellate Center | www.irac.net

Name: UGAS GIL, JOSE LUIS

A 078-903-173

Date of this notice: 8/14/2013

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

DoYUtL cCt/LA)
Donna Carr Chief Clerk

Enclosure Panel Members: Pauley, Roger

schuckec Userteam: Docket

Cite as: Jose Luis Ugas Gil, A078 903 173 (BIA Aug. 14, 2013)

U.S. Department of Justice
Executive Offi ce for Immigration Review Falls Church, Virginia 22041

Decision of the Board oflmmigration Appeals

File: A078 903 173 - Salt Lake City, UT In re: JOSE LUIS UGAS GIL IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Pro se

Date: AUG 14 2013

Immigrant & Refugee Appellate Center | www.irac.net

Kalin Ivany Assistant Chief Counsel

CHARGE: Notice: Sec. 212(a)(2)(A)(i)(I), I&N Act [8 U.S.C. § l182(a)(2)(A)(i)(I)] Crime involving moral turpitude 212(a)(6)(A)(i), l&N Act [8 U.S.C. § l182(a)(6)(A)(i)] Present without being admitted or paroled

Sec.

APPLICATION: Adjustment of status

The respondent appeals the Immigration Judge's August 24, 2012, decision denying,his application for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a). The appeal will be dismissed. The only issue in this appeal is whether the Immigration Judge erred in finding the respondent ineligible for adjustment of status under section 245(a) of the Act based on his inadmissibility due to his two convictions for crimes involving moral turpitude (1.J. at 13-14). On appeal, the respondent contends that his 1993 theft conviction in violation of California Penal Code section 484(a), to which he pied nolo contendere, is not a "conviction" as defined by section 101(a)(48) of the Act, 8 U.S.C. § ll0l(a)(48), because it was processed as an "infraction" and, as a result, he was not provided with the right to a jury trial or appointed counsel. 1 According to the respondent, the lack of these due process protections removes his offense from the purview of section 10 I (a)(48) of the Act. Notwithstanding the respondent's contentions on appeal, we find no reason to disturb the Immigration Judge's conclusion that his 1993 conviction is a "conviction" for immigration purposes (I.J. at 11-12). See 8 C.F.R. § 1003.l(d)(3)(ii) (2013) (de novo review). As found by the Immigration Judge, the respondent's case is governed by the Board's recent decision in Matter of Cuellar-Gomez, 25 l&N Dec. 850 (BIA 2012) (1.J. at 11). In Matter o/Cuel/ar-Gomez, we concluded that a formal judgment of guilt of an alien entered by a municipal court is a
1 We rely on the arguments raised in the respondent's Notice of Appeal and 1-page statement. The respondent did not file a full brief in support of his appeal.

Cite as: Jose Luis Ugas Gil, A078 903 173 (BIA Aug. 14, 2013)

A078 903 173 ''convfotion" under section 101(a)(48)(A) of the Act if the proceedings in which the judgment was entered were genuine criminal proceedings. See id.; see also Matter of Rivera-Valencia, 24 l&N Dec. 484 (BIA 2008); Matter ofEs/amizar, 23 I&N Dec. 684 (BIA 2004). ,, As found by the Immigration Judge, the respondent's 1993 plea to an "infraction is a conviction under section 101(a)(48) of the Act inasmuch as it requires a finding of guilt beyond a reasonable doubt and affords the respondent greater rights upon appeal (1.J. at 9-14). See California Penal Code section 19.7; People v. Prince, 55 Cal.App.3d Supp. 19, 32-33 (1976); Matter of Cuellar-Gomez, supra at 854. Likewise, in Matter of Cuellar-Gomez, we considered the same arguments raised by the respondent regarding his contention that his proceedings were not genuine criminal proceedings because he was not afforded appointed counsel and a jury. See id. Under these circumstances, the Immigration Judge's decision finding the respondent ineligible for adjustment of status due to his inadmissibility is supported by the record (I.J. at I 4). The respondent did not apply for a waiver of his inadmissibility under section 2 I 2(h) of the Act, 8 U.S.C. § 1l82(h) (1.J. at 7). Finally, the respondent has submitted evidence that he filed the required voluntary departure bond but did not file within the 5-day time limit set by the Immigration Judge (I.J. at 15). See Matter of Gamero, 24 I&N Dec. 42 (BIA 2010). The Department of Homeland Security ("DHS") asserts that the voluntary departure period cannot be reinstated. See id. However, the DHS accepted the respondent's bond. Therefore, we will reinstate the voluntary departure period. Accordingly, the appeal will be dismissed. ORDER: The appeal is dismissed. FURTHER ORDER: Pursuant to the Immigration Judge's order and conditioned upon compliance with conditions set forth by the Immigration Judge and the statute, the respondent is permitted to voluntarily depart the United States, without expense to the Government, within 60 days from the date of this order or any extension beyond that time as may be granted by the Department of Homeland Security ("DHS"). See section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b); see also 8 C.F.R. § § 1240.26(c), (f). In the event the respondent fails to voluntarily depart the United States, the respondent shall be removed as provided in the Immigration Judge's order. NOTICE: If the respondent fails to voluntarily depart the United States within the time period specified, or any extensions granted by the DHS, the respondent shall be subject to a civil penalty as provided by the regulations and the statute and shall be ineligible for a period of 10 years for any further relief under section 2408 and sections 240A, 245, 248, and 249 of the Act. See section 240B(d) of the Act. WARNING: If the respondent files a motion to reopen or reconsider prior to the expiration of the voluntary departure period set forth above, the grant of voluntary departure is automatically terminated; the period allowed for voluntary departure is not stayed, tolled, or extended. If the grant of voluntary departure is automatically terminated upon the filing of a motion, the penalties for failure to depart under section 240B(d) of the Act shall not apply. See 8 C.F.R. § 1240.26(e)(l ). 2
Cite as: Jose Luis Ugas Gil, A078 903 173 (BIA Aug. 14, 2013)

Immigrant & Refugee Appellate Center | www.irac.net

J

A078 903 173 WARNING: If, prior to departing the United States, the respondent files any judicial challenge to this administratively final order, such as a petition for review pursuant to section 242 of the Act, 8 U.S.C. § 1252, the grant of voluntary departure is automatically terminated, and the alternate order of removal shall immediately take effect. However, if the respondent files a petition for review and then departs the United States within 30 days of such filing, the respondent will not be deemed to have departed under an order of removal if the alien provides to the DHS such evidence of his or her departure that the Immigration and Customs Enforcement Field Office Director of the DHS may require and provides evidence DHS deems sufficient that he or she has remained outside of the United States. The penalties for failure to depart under section 240B(d) of the Act shall not apply to an alien who files a petition for review, notwithstanding any period of time that he or she remains in the United States while the petition for review is pending. See 8 C.F.R. § 1240.26(i).

Immigrant & Refugee Appellate Center | www.irac.net

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Cite as: Jose Luis Ugas Gil, A078 903 173 (BIA Aug. 14, 2013)

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UNITED STATES DEPARTMENT O F JUST ICE EXECUT IVE O F FICE FOR IMMIGRATION REVIEW UN ITED STATES IMM IGRAT ION COURT SALT LAKE C ITY, UTAH

File:

A078-903-173

August 24,

2012

Immigrant & Refugee Appellate Center | www.irac.net

In the Matter of

JOSE LU IS UGAS GIL RES PONDENT

IN REMOVAL PROCEED INGS

CHARGES:

Section 212(a) (6) (A) (i) of the Immigration and Nationality Act - in that the respondent is an alien present in the United States who is here without being admitted or paroled, or who arrived in the United States at a time or place other than as designated by the Attorney General of the United States. Section 212(a) (2) (A) (i) ( I) of the Immigration and Nationality Act - in that the alien is an individual who has been convicted or who admits having committed or who admits committing acts that constitute the simple elements of a crime involving moral turpitude (other than a purely political offense) , or any attempt or conspiracy to commit such a crime.

A P PL ICAT IONS:

Adjustment of status pursuant to Section 245(i) of the Immigration and Nationality Act; or, in the alternative, voluntary departure pursuant to Section 240B(b) of the Act. LEONOR PERRETTA 3831 s. Redwood Road, Suite A West Jordan, Utah 84088
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ORAL DECIS ION O F THE IMMIGRAT ION JUDGE I. INTRODUCTION The respondent is a 42-year-old unmarried male, native and citizen of Peru. who is a

He arrived in the United States

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pursuant to the allegations in the Notice to Appear and the I-213 (see Exhibit Nos. 1 and 2 in the Record of Proceeding), or about January 10, 1990, at or near San Diego, California. on

The respondent was served properly with a Notice to Appear. That Notice to Appear was served on the respondent on or about February 23, 2007, by certified mail. However, there is no

issue that the respondent has had appropriate notice of the Notice to Appear, as the service of the Notice to Appear has

been stipulated to. At a previous hearing held before this Court, respondent has admitted allegation nos. Notice to Appear, 1, 2, the

3 and 4 in the

and the respondent has denied allegation no. 5 In other words, the respondent has

in the Notice to Appear.

admitted that he is not a citizen or a national of the United States, that he is a citizen and native of Peru, that he arrived on or

in the United States at or near San Diego, about January 10, 1990,

California,

and that he was not admitted or paroled

after inspection by an Immigration Officer. However, 27, 1993, the respondent has denied that he was on August

convicted in the Municipal Court of Los Angeles, of Glendale, California, for the offense of theft of

California,

A078-903-173

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August 24,

2012

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property in violation of the California Penal Code Section 484(a} , a Class B misdemeanor, 2000, and respondent has denied that he

was on January 9,

convicted in South Salt Lake City Court Utah, for the offense of retail theft a Class B

of South Salt Lake City,

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in violation of the Utah Code Section 76-6-602, misdemeanor.

The respondent thereafter admitted and conceded

that he was removable from the United States pursuant to Section 212(a} (6) (A) (i} of the Immigration and Nationality Act, in that

he is an alien that is in the United States without being admitted or paroled, or who arrived in the United States at a

time and place other than that designated by the Attorney General. However, he denied the charge that he is removable of the Immigration and

pursuant to Section 212(a} (2) (A) (i) (I) Nationality Act,

as amended, in that he has denied that he has or who admits

been convicted of or admits having committed,

committing acts which constitute the essential elements of a crime involving moral turpitude (other than a purely political offense) , or an attempt or conspiracy to do so.

The Department of Homeland Security served upon this Court Exhibit No. 2, which is a document entitled a motion to submit 2007, and

evidence filed with the Court on or about June 26, served upon the respondent. A, B, C and D.

That filing contained attachments Attachments B, C and

Attachment A is an I-213.

D are exchanged documents, respondent's convictions.

as well as rap sheets which go to the Attachment D specificall y addresses

A078-903-173

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2012

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the conviction of the respondent with reflect to the 1993 crime as alleged in the Notice to Appear. The Court notes here that the respondent and

while the Court addresses this as a crime,

respondent's counsel argue that this is not a conviction of a crime, and that issue will be addressed herein. 2, This document, is a

Immigrant & Refugee Appellate Center | www.irac.net

which is contained as Exhibit No.

attachment C,

certified copy of a conviction out of the Superior Court of Los Angeles, California.

The Department of Homeland Security also filed an exhibit in the Record of Proceeding, Exhibit No. 9, which is entitled This 2012. In

Department submission of evidence, removal proceedings. matter was filed with the Court on or about August 24, this document, there are Tabs A and B. sheet,

Tab A is an FB I rap

and Tab B contains exchanged documents with respect to The Court notes that these and are filed with this

respondent's criminal charges.

documents are not certified in total,

Court to show that the respondent has been involved in traffic and other violations of the law. Further, Exhibit No. 2, the Court finds in the Record of Proceeding that Tab B, a certified conviction document of the

South Salt Lake Court which shows that the respondent has been convicted on
a

plea of guilty of retail theft, 2000.

that this plea of This conviction,

guilty took place sometime on July 19,

while the Court found that the respondent was removable by clear and convincing evidence based upon the charge that he entered

A078-903-173

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2012

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the United States illegally and therefore was removable,

the 5 or

Court did not make a ruling with respect to allegation no. the 212(a) (2) (A) (i) ( I) Thereafter, charge.

the respondent filed with this Court an application of adjustment of status,

Immigrant & Refugee Appellate Center | www.irac.net

application for an I-485,

which is based upon an I-130 that was issued to the respondent and approved by the Immigration and Naturalization Service with an approval effective date of August 1, thereafter, 1991. The I-485 was, 3 with the 2001,

filed as set forth in Exhibit No.

Immigration and Naturalization Service on or about May 11, and was appropriately feed in. Also in the Record of Proceeding we have Exhibit No. which is a biometric notice. Now,

4,

the Court at the time this

biometric notice was served upon the respondent issued the respondent a warning informing the respondent that if he had not complied with the biometric requirements including, limited to, but not

getting his fingerprints current within 15 months of

his individual hearing and no later than 90 days before his individual hearing, the Court would dismiss his applications for

failure to comply and find the respondent was removable from the United States as abandoned rel ief under the Act, order him

removed, unless he could show to the Court that it was through no fault of his own that he failed to comply with that order of the Court. Thereafter, the respondent filed with the Court a pre-trial

A078-903-173

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statement which the Court marked and entered in the record as Exhibit No. 5; Exhibit No. 6; an I-864 which was marked in the record as an updated pre-trial statement which was marked 7; an updated evidence

and entered in the record as Exhibit No.

Immigrant & Refugee Appellate Center | www.irac.net

packet which the Court entered and marked in the record as Exhibit No. 8; the Department submission of evidence in removal

proceeding which has heretofore been referred to as Exhibit No. 9; additional evidence filed by the respondent which has been marked and entered in the record as Exhibit No. 10.

Today the respondent filed with the Court a new affidavit of support which the Court marked in the record as Exhibit No. 11; a letter from respondent's brother, Edwin Ugas, which the 12; and

Court marked and entered into the record as Exhibit No. finally, Exhibit No. 13,

which is a document the respondent's

counsel furnished to the Court out of the California Judge's Bench Book. All of these exhibits have been considered in

detail in the dictating of this oral decision whether or not the Court refers to them. I I. ISSUE The issue in this case is whether the respondent is admissible into the United States and, therefore, entitled to

adjustment of status pursuant to the Act.

There appear to be no

other issues with respect to the respondent's eligibility for adjustment of status. The ad justment of status application and The

the I-130 have been appropriately approved and filed.

A078-903-173

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August 24,

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application for adjustment of status,

of course,

was denied by

the Immigration and Naturalization Service, Department of Homeland Security. However,

presently the it appears that

pursuant to the documents and the Record of Proceeding to this Court, that the respondent has the issue of whether or not he i. e.

Immigrant & Refugee Appellate Center | www.irac.net

has been convicted of two crimes involving moral turpitude,

the 1993 theft conviction out of California and the 2000 theft conviction out of South Salt Lake. While the Court acknowledges

that ground of admissibility may be waived pursuant to Section 212(h) of the Immigration and Nationality Act, the Court has no and, therefore,

such waiver presented to the Court in this case, that issue is not before the Court. I I I. RES PONDENT'S ARGUMENT ON EL IGIB IL ITY

The respondent has argued and urged the Court that the respondent has not been convicted of two crimes involving moral turpitude as defined in Section lOl(a) (48) and Nationality Act. of the Immigration

Respondent's counsel has asserted that a

conviction suffered in 1993 for the theft offense in California should not be recognized or held by this Court to be a criminal conviction pursuant to the Act and the Regulations. The

reasoning and argument are that the conviction of the respondent was for a theft infraction. Further, respondent points out that

these convictions did not allow the respondent to fully execute and exercise all of his due process rights as are required by the Constitution of the United States pursuant to criminal

A078-903-173

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convictions. In this case, the respondent argues that while the burden

of proof for the theft conviction of the 1993 act was beyond a reasonable doubt, nevertheless the respondent, pursuant to the 13, which is a

Immigrant & Refugee Appellate Center | www.irac.net

law of California and as confirmed in Exhibit No. page out of the California Bench Book 82-14,

did not allow the nor was there an

respondent to be tried at that level by a jury, appointment of counsel. And, further,

that the California but was a mere

conviction was not considered a misdemeanor, infraction. The Court understands that argument,

and the respondent has 23 I&N Dec.

referred the Court to the B IA case In re Eslamizar, 684 (BIA 2004) . In that case,

the Board of Immigration appeals

found that the alien guilty of a "violation" under Oregon Law in a proceeding conducted pursuant to Section 153. 076 of the Oregon Revised Statute does not have a "conviction" for Immigration purposes under Section lOl(a) (48) (A) Nationality Act, (2003) . Hence, and cites 8 U. S. C. of the Immigration and Section llOl(a) (48) (A)

respondent's counsel urges that the only

conviction which this Court has and should consider in whether or not the respondent is admissible into the United States is the 2000 theft offense out of South Salt Lake Court. IV. POS ITION OF THE DE PARTMENT OF HOMELAND SECUR ITY On the other hand and on the other side of the coin with respect to whether or not the respondent has suffered two

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convictions involving moral turpitude,

the Department of

Homeland Security has taken the position that the respondent has been convicted as defined in Section lOl(a) (48) (A) Immigration and Nationality Act of two C IMTs. of the

The position of

Immigrant & Refugee Appellate Center | www.irac.net

the Department of Homeland Security is initially found that the respondent bears the burden of proving to the Court today and in this removal proceeding, that the California conviction was not and, further,

a conviction pursuant to Section lOl(a) (48) (A) ,

that the respondent ' s conviction pursuant to his 1993 infraction conviction out of California is a conviction as defined under the Act. Cited as authority on that issue is a recent case out Matter of Cuellar-Gomez, 25

of the Board of Immigration Appeals, I&N Dec. V. 850 (B IA 2012) .

ANALYS IS AND F IND INGS O F THE IMMIGRAT ION JUDGE The Court finds after analyzing all of the facts and

circumstances in this case that the respondent's 1993 theft offense is likely a crime involving moral turpitude because even though the respondent was not allowed the appointment of counsel or a trial by jury, that respondent's constitutional rights were

protected by appeal rights to the California District Court; and, further, that conviction of that infraction or crime required the State of California to prove by beyond a reasonable doubt that the respondent had committed the acts alleged. On or about August 27, 1993, the respondent did plead nolo

contendere to an " infraction'' in violation of the California

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Penal Code Section 484(a) (See Exhibit No.

for theft,

and paid a fine of $135.

2 at pages 2-3. )

The California Statute

provides as follows: take, carry,

" Every person who shall feloniously steal,

leave or drive away with person or property of

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another,

or who shall fraudulently appropriate property which or who shall knowingly and

has been entrusted to him, designedly, pretense, property,

by any false or fraudulent representation or labor or real or personal

defraud any person of money,

or who causes or procures others to report falsely of

his wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, services of another, or property or obtains the labor or is guilty of theft. " The California Code

further requires that a respondent who is convicted of a violation of the California Penal Code Section 484(a) ( 1993)

must be proven guilty of that offense by beyond a reasonable doubt. While the Court understands respondent's counsel's argument that the respondent was not entitled to counsel appointed by the State of California or a jury trial in the infraction proceedings before the California Court because there was no threat of the respondent being incarcerated, and, further, that

because the respondent was being tried for an infraction, this does not constitute a conviction. Nevertheless,

the Court has considered and understands the

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principles of which this Court is required to comply with respect to the precedent decision Matter of Cuellar cited herein above. In that case, specifically, the Board of Immigration

Appeals held that " despite the respondent's assertion to the contrary, there is no absolute right to the appointment of

Immigrant & Refugee Appellate Center | www.irac.net

counsel in the prosecution whether in the Kansas District Court or the Wichita Municipal District Court. " Further, the Board of

Irmnigration Appeals points to whether or not the respondent's argument that the Wichita or Kansas violation or proceedings will not continue on criminal proceedings because they did not afford him an absolute right to be represented by counsel as provided in the Sixth and Fourteenth Amendments to the Constitution of the United States, Wichita, Kansas, and cites the appropriate

Code of Ordinances and Kansas State Statutes. and in spite of that argument by counsel in

Nevertheless,

the Cuellar case that the Board of Immigration Appeals found that since the burden of proof in the conviction of the Kansas City violation requires that the State meet the burden of proof beyond a reasonable doubt, and provided an appellate process to

a higher court that the Board of Immigration Appeals disagrees with the respondent's position in the Cuellar case and found that the Kansas Statute, as well as numerous other states that can be

have two- tier trials for municipal ordinance violations, convictions of crimes as defined in Section lOl(a) {48)

provided

that there are certain and more constitutional guaranties such

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as an appellate process and a burden of proof that the respondent corrunitted the act by beyond a reasonable doubt, would cause him to be guilty. In the case before the Court today, case, or, in other words, that appears to be the which

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the respondent has not met his burden

of proof that his constitutional rights in California pursuant to his plea of guilty to the 1993 crime were not adequately protected pursuant to the holdings and principles in the Cuellar-Gomez case. Here, the State's burden of proof in this

respondent's conviction was beyond a reasonable doubt. California law allows an appeal of such a conviction to the appropriate appellate district court. This is exactly the same

proceedings which the B IA found did protect the due process rights of the respondent and did constitute a criminal conviction as defined under the Act. The Court specifically points to the California Penal Code Section 16 {1993) , which defines crimes and public offenses to misdemeanors, and infractions, and further

include felonies,

recognizes that infractions are separated from every other crime or public defense. That is, a misdemeanor. In sum, the

California Statute does,

as argued by respondent's counsel,

treat infractions different than misdemeanors or felonies. However, the Court cites to the California Penal Code Section 1096 {1993) in which it provides that a defendant in a criminal and

action is presumed to be innocent until contrary is proved,

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in cases of reasonable doubt whether the respondent is satisfactorily found he is entitled to acquittal. In other

words, the California Code provides that even in infractions the State must prove the elements of the statutory offense or infraction by evidence that equals the standard of beyond a reasonable doubt. In this connection, the Court cites to People v. Durkin, supra (1988) . In that case, the the

Immigrant & Refugee Appellate Center | www.irac.net

205 Cal. App. 3d Supp. 9 Cal. ,

matter is that in order to establish vehicular manslaughter, prosecution must prove beyond a reasonable doubt that the accused has either conunitted a misdemeanor or an infraction. Again, the burden is beyond a reasonable doubt. In fact,

the

Court finds that all defendants charged with infractions have all their constitutional rights except those specifically denied by California Penal Code Section 19(c) . Cal. App. 3d Supp. 9 (1977) . See People v. Miner, only 68

The Penal Code Section 19(c)

denies those individuals charged with infractions the right to jury trial and a public defender, infractions by imprisonment. is not affected. Accordingly, the Court finds that the respondent has failed to meet his burden of proof that his 1993 theft offense is not a CIMT as provided in the Act and is not a criminal conviction as defined pursuant to the Act. Having so found, the Court finds and does not punish the burden of proof

Nevertheless,

that the respondent has been convicted of two crimes involving

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moral turpitude,

to wit:

the 1993 theft offense,

as well as the and

2000 theft offense as set forth hereinabove. based upon that finding,

Accordingly,

the Court finds that the respondent is

inadmissible to the United States as set forth in the present Record of Proceeding, the United States, and, therefore, being inadmissible into

Immigrant & Refugee Appellate Center | www.irac.net

is not entitled to a grant of his application of the Immigration and Nationality

pursuant to Section 245(i) Act. Accordingly,

the Court grants the Government1s motion to

pretermit this case. The Court next finds and determines whether or not the respondent is entitled to a post-conclusion voluntary departure as provided in Section 240B(b) Nationality Act. of the Immigration and

In this connection, the Court has asked

Government counsel if they had any objection to post-conclusion voluntary departure and Government Counsel has stated no. Further, the Court finds that the respondent meets all of the of the

requirements of the Act pursuant to Section 240B(b) Immigration and Nationality Act, more than a year,

in that he has been here for

the respondent has not been convicted of any and the respondent has been of good moral And further, that pursuant

disqualifying crimes,

character for at least five years. to the Record of Proceeding, therein,

the financial matter set forth 12, the respondent does have the

including Exhibit No.

necessary funds to depart the United States without expense to the United States Government, and has the necessary funds to

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post the minimum voluntary departure bond of $500.

Accordingly,

the Court will grant respondent's application for post­ conclusion voluntary departure. VI. CONCLUSION In conclusion, the Court finds respondent is not entitled

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to pursue his application for adjustment of status as set forth herein above. However, the Court will grant the respondent's

motion and application for post-conclusion voluntary departure. Accordingly, and based upon the above and foregoing, the Court

enters the following orders. ORDERS IT IS HEREBY ORDERED respondent's application for adjustment of status is pretermitted pursuant to the reasoning set forth in this decision. IT IS FURTHER ORDERED that in lieu of an order of removal, the respondent be granted voluntary departure pursuant to Section 240B(b) Accordingly, of the Immigration and Nationality Act. In lieu of an

the following order is entered:

order of removal, the respondent shall be granted the right to voluntarily depart the United States without expense to the United States Government on or before October 23, 2012, or any

extension thereof that may be granted by the Department of Homeland Security, and under such conditions as the Department

of Homeland Security may impose. IT IS FURTHER ORDERED that the respondent post a voluntary

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departure bond with the Department of Homeland Security in the amount of $500 within five business days of today, or the Court

orders respondent's bond be filed with the Department of Homeland Security on or before August 31, 2012.

Immigrant & Refugee Appellate Center | www.irac.net

IT IS FURTHER ORDERED that if respondent fails to post a voluntary departure bond or fails to depart as required, the

privilege of voluntary departure shall be withdrawn without further notice or proceedings and the follow order should become effective immediately: The respondent shall be removed from the

United States to Peru on the charges contained in the Notice to Appear. Warnings to the respondent. Sir, the Court has granted you

the right to voluntarily depart the United States without expense to the United States Government. United States on or before October 23, You have to depart the or any extension of

2012,

that day that may be provided by the Act or by the Department of Homeland Security. You further have to post a bond of $500 with

the Department of Homeland Security on or before August 31, 2012. If you fail to comply with any of the conditions that I the order allowing you to voluntarily

have just set forth,

depart the United States would no longer apply to you or be applicable to you, and an order of removal would then become

effective immediately and without further notice or proceeding: You will be removed from the United States to Peru on the grounds set forth in the Notice to Appear.

A078-903-173

16

August 24,

2012

The Court further informs you,

sir,

that if you fail to

depart as ordered by this Court and are removed by an order of removal, there are certain penalties which will incur to you of the Immigration and Nationality

pursuant to Section 240B(b) Act.

Immigrant & Refugee Appellate Center | www.irac.net

You would be subject to a civil penalty of not less than which the Court is Further, you would not

$1, 000 and not more than $5, 000,

presumptively setting today at $3, 000.

be entitled to pursue certain relief and changes in nonimmigrant status under the Act for a period of ten years such as adjustment of status, registry, cancellation of removal, or future voluntary departure. Sir, you are further warned that if you file a motion to the

reopen or reconsider during the voluntary departure period, voluntary departure period will not be extended, stayed. tolled, or

The voluntary departure on that date would end

immediately upon the Court receiving a motion to reconsider or reopen, and the alternate order of removal would then become

effective immediately without further notice or proceedings to you. However, sir, the penalties that I have outlined for

failure to depart voluntarily on time pursuant to Section 240B(b) of the Act would not be applicable to you. Sir, you are further warned that if you file an appeal of

my decision rather than to depart the United States as provided by this Court, that you must, within 30 days of filing your

appeal, provide to the Board of Immigration Appeals that you

A078-903-173

17

August 24,

2012

(

properly posted your voluntary departure bond or the Board of Immigration Appeals will not reinstate the voluntary departure grant.

Immigrant & Refugee Appellate Center | www.irac.net

WILLIAM L. NIXON Immigration Judge

Appeal date:

September 24,

2012

A078-903-173

18

August 24,

2012

(

CERTI FICATE PAGE

I hereby certify that the attached proceeding before JUDGE WILLIAM L. NIXON, in the matter of:

Immigrant & Refugee Appellate Center | www.irac.net

JOSE LUIS UGAS GIL

A078-903-173

SALT LAKE CITY,

UTAH

is an accurate,

verbatim transcript of the recording as provided

by the Executive Office for Immigration Review and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.

BEVERLY STOCKDALE (Transcriber} FREE STATE RE PORTING, OCTOBER 24, 2012 Inc.

(Completion Date}

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