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Noe Cuevas-Beltran, A205 153 916 (BIA Aug. 15, 2013)

Noe Cuevas-Beltran, A205 153 916 (BIA Aug. 15, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the case for further consideration of the respondent's eligibility for voluntary departure after his sentence for theft was reduced to six months, thereby rendering him eligible for the petty offense exception in INA 212(a)(2)(A)(ii)(ll). The decision was written by Member John Guendelsberger.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the case for further consideration of the respondent's eligibility for voluntary departure after his sentence for theft was reduced to six months, thereby rendering him eligible for the petty offense exception in INA 212(a)(2)(A)(ii)(ll). The decision was written by Member John Guendelsberger.

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Published by: Immigrant & Refugee Appellate Center, LLC on Aug 26, 2013
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Boyle, Kevin P.

, Esquire
Kevin P. Boyle Law Ofces, LLC
525 Junction Road, Ste. 8550N
Madison, WI 53717
Name: CUEVAS-BELTRAN, NOE
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigrtion Appeals
Ofce of the Clerk
5107 Leebur Pike, Suite 2000
Falls Cl111rd1. Virgi11ia 2204/
OHS/ICE Ofice of Chief Counsel - CHI
525 West Van Buren Street
Chicago, IL 60607
A 205-153-916
Date of this notice: 8/15/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Guendelsberger, John
Sincerely,
DO c t
Donna Carr
Chief Clerk
williare
Userteam: Docket
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Cite as: Noe Cuevas-Beltran, A205 153 916 (BIA Aug. 15, 2013)
CUEVAS-BELTRAN, NOE
A205-153-916
DODGE COUNTY JAIL, JUNEAU
141 NORTH MAIN STREET
JUNEAU, WI 53039
Name: CUEVAS-BELTRAN, NOE
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofice of the Clerk
5107 Leeburg Pike, Suite 1000
Fall C111rcl1, Vrgi11ia 21041
OHS/ICE Ofice of Chief Counsel • CHI
525 West Van Buren Street
Chicago, IL 60607
A 205-153-916
Date of this notice: 8/15/2013
Enclosed is a copy of the Board's decision in the above-refrenced case. This copy is being
provided to you as a courtesy. Your attorey 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 fom the United States or afrms an Immigration Judge's decision ordering that you
be removed, any petition fr review of the attached decision must be fled with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Guendelsberger, John
Sincerely,
Do c t
Donna Carr
Chief Clerk
williame
Userteam: Docket
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Cite as: Noe Cuevas-Beltran, A205 153 916 (BIA Aug. 15, 2013)
U.S. Department of Justice
Executive Ofce fr Immigration Review
Decision of the Board of Immigration Appeals
Falls Church, Virginia 2204 I
File: A205 153 916- Chicago, IL
In re: NOE CUEVAS-BELTRAN
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Kevin P. Boyle, Esquire
ON BEHALF OF DHS: Sarah E. Zeld
Assistant Chief Counsel
AUG 1 5 2013
In an oral decision dated March 27, 2013, an Immigration Judge denied the respondent's
request fr a continuance; fund him removable; denied his application fr voluntary departure
under the Immigration and Nationality Act; determined that he did not demonstrate eligibility fr
any other relief fom removal; and ordered him removed fom the United States to Mexico.
1
The
respondent appealed fom that decision. The record will be remanded.
The respondent was fund removable as charged, as inadmissible as convicted of a crime
involving moral turpitude under section 212(a)(2)(A(i)(I) of the Act, 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), and as present without being admitted or paroled under section
212(a)(6)(A)(i) of the Act. As substantiated by conviction documents, in April 2012 he was
convicted upon a guilty plea fr ''thefmovable property less than or equal to $2500" under
Wisconsin law, fr which crime he was sentenced originally to imprisonment of 9 months. See
Ex. 2. He arrived in the United States in 2006. See I.J. at 2; Tr. at 6. At his fnal removal
hearing on March 27, 2013, he sought the additional continuance to await the outcome of a
motion fr post-conviction relief that
w
as pending with the criminal court, and the Immigration
Judge denied the continuance request.
On appeal, the respondent has provided a copy of a recent order fom the Wisconsin criminal
court showing that, in May 2013, his prison sentence fr the 2012 thef ofense was reduced to
6 months. In Matter of Cota, 23 I&N Dec. 849 (BIA 2005), this Board held that a trial court's
decision to modif or reduce an alien's criminal sentence nunc pro tune is entitled to fll fith
and credit by the 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.
In the present case, the respondent now argues that he is no longer removable under section
212(a)(2)(A)(i)(I) of the Act because he qualifes fr the "petty ofense exception," in light of the
sentence reduction. The petty ofense exception, which is distinguishable fr a conviction fr
petty thef, is set frth at section 2 l 2(a)(2)(A)(ii) of the Act, and section 212(a)(2)(A)(ii)(ll)
1 The proceedings befre the Immigration Judge in this matter were completed in Chicago,
Illinois through video conference pursuant to section 240(b)(2)(A)(iii) of the Act, 8 U.S.C.
§ 1229a(b )(2)(A)(iii).
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Cite as: Noe Cuevas-Beltran, A205 153 916 (BIA Aug. 15, 2013)
,, ¶ ,
.
A205 153 916
prevides that a respondent will not be fund removable as convicted of a crime involving moral
trpitude under section 212(a)(2)(A)(i)(I) of the Act if the alien committed only one such crime,
the maximum penalty possible fr the crime of which the alien was convicted did not exceed
imprisonment fr one year, and the alien was not sentenced to a ter of imprisonent in
excess of 6 months.
2
Further, the respondent indicates that the reduced sentence should bolster
his contention that he should have been granted voluntary departure under section 240B of the
Act, 8 U.S.C. § 1229c, which relief was denied by the Immigration Judge in the exercise
of discretion.
We fnd it appropriate to remand the record, so that the Immigration Judge may consider the
efect of the criminal court's order on the respondent's removability and his discretionary
eligibility fr voluntary deparure, in light of Matter of Cota, supra. The Department
of Homeland Security ("DHS") does not oppose remand. On remand, both the respondent and
the DHS will have the opporunity to provide the Immigration Judge with additional
documentation. The respondent may apply fr any frm of relief fr which he can establish
eligibility.
Accordingly, we enter the fllowing order.
ORDER: The record is remanded to te Immigration Court fr frther proceedings and fr
the issuance of a new decision, consistent with this opinion.
2 The 2012 conviction is fr a Class A misdemeanor carrying a maximum prison sentence of
9 months. See Wis. Stat.§§ 943.20(1)(a) and 939.5 l(J)(a).
2
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Cite as: Noe Cuevas-Beltran, A205 153 916 (BIA Aug. 15, 2013)
W ¸ ¸ ¶
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
CHICAGO, ILLINOIS
File: A205-153-916
In the Matter of
March 27, 2013
NOE CUEVAS-BEL TRAN
)
)
)
)
IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES: Section 212( a)(6)(A)(i) of the Immigration and Nationality Act.
Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act.
APPLICATIONS: Voluntary deparure.
ON BEHALF OF RESPONDENT: KEVIN P. BOYLE, Esquire
ON BEHALF OF DHS:
525 Junction Road, Suite 8550N
Madison, Wisconsin 53717
SARAH ZELD, Esquire
ORAL DECISION
The respondent is a 23-year-old male, native and citizen of Mexico who was
issued a Notice to Appear on January 11, 2013. The respondent appeared at a Master
Calendar setting, the charges were read to him. The respondent indicated that he
understood them and his matter was continued to February 27. On that date, the
respondent's counsel requested another continuance so that the respondent might
pursue some post-conviction relief, and the Cour granted that request continuing the
1
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case to March 27, 2013. On March 27, 2013, the respondent again appeared in Cour
with counsel. Pleadings were taken on March 27. The respondent admitted that is not
a citizen of the United States, and that he is a citizen of Mexico. The respondent
admitted that he entered the United States without inspection in the year 2006. The
respondent neither admitted nor denied allegation 5. The Notice to Appear was marked
as Exhibit 1. Conviction documents from Wisconsin were marked as Exhibit 2. Afer
reviewing Exhibit 2, the Court found that statements in allegation 5 were funded and
the Court, therefore, sustained both of the charges contained in the Notice to Appear.
The Cour was informed that the post-conviction relief had not yet been granted,
that the prosecutor had agreed to a reduction in the sentence but that would require the
concurrence of the probation officer and, of course, the judge. Respondent's counsel
presented the Court with a copy of the motion to modif sentence, and informed the
Court that no hearing date had yet been set, and sought another continuance to obtain
that relief.
The Court inquired as to whether such relief, if obtained, would render the
respondent eligible for Immigration relief, and was infored that it would not. It would,
however, efect the respondent's eligibility fr bond. Since the relief sought, even if
granted, would not render the respondent eligible for any form of Immigration relief, and
would only perain to bond, the Cour in the exercise of its discretion denied the request
for yet another continuance. The Cour notes that there is no assurance that the motion
will be granted since it does not yet have the concurrence of the probation ofcer, and
the judge has obviously not yet considered it. Moreover, even if granted it would not
render the respondent eligible for any kind of relief. The Cour noted that it had
continued the case twice in the past, and in the exercise of its discretion concluded that
another continuance was not merited. The respondent then requested voluntar
A205-153-916 2 March 27, 2013
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deparure.
VOLUNTARY DEPARTURE
The respondent is not statutorily barred from voluntary deparure. It therefore
becomes a matter of the Court's discretion. In exercising this discretion the Cour must
take into account the respondent's ties to the United States, including his length of
residence, and also his family ties. The Cour must also take into account negative
factors such as criminal conduct. The respondent, according to a profer from his
attorney, entered the United States in 2006. The only relatives in the United States who
have legal status are a sister-in-law and a niece. On the negative side, the respondent
stands convicted of the ofense of thef of movable property, for which he was
sentenced to nine months incarceration. The conviction entered on April 11, 2012.
The Government submitted a Form 1-213, which the Cour marked as Exhibit 3.
Exhibit 1 being the Notice to Appear and Exhibit 2 being conviction documents from the
respondent's conviction. The Form 1-213, which is a reliable document, indicates that
the respondent was working under a name not his own, but rather his older brother's
name, and that he was using a Social Security number that was not his own. These are
negative factors.
In addition, the Cour has reviewed the conviction documents which reveal the
respondent stole a motor vehicle. The circumstances according to an afidavit set frh
as a par of Exhibit 2, signed and sworn to by a detective, Mary Salmans, indicates in
perinent par that the respondent went to the area of a rail yard where an employee
there, who was working the night shift, had stared his vehicle to let the vehicle warm up
in the cold. The respondent without authority entered the vehicle and started to drive it
away. His crime was noticed, and a detective for the railroad company, in uniform and
marked vehicle, pursued the respondent. The respondent continued to fee the scene
A205-153-916 3 March 27, 2013
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for about 300 yards until the vehicle's tires became stuck on the railroad tracks. When
the oficer for the railroad approached, according to the afidavit, the defendant,
meaning the respondent, began to duck down in the driver's seat and hide his hands
under the steering wheel. He was detained. This is a blatant act of dishonesty and
thef, and to make matters worse, the respondent attempted to flee from the uniformed
railroad security ofcer.
Considering this, along with the fact that the respondent was working under a
name not his own, and using a Social Security number not his own, and also taking into
account the recency of his theft conviction, in weighing all of this against the
respondent's rather thin ties to the United States, I conclude that in the exercise of my
discretion I ought not grant the respondent's request fr voluntary deparure.
ORDER
IT IS HEREBY ORDERED that the respondent's request for a continuance is
denied.
IT IS FURTHER ORDERED that the respondent's request for voluntary
deparure is denied.
IT IS FURTHER ORDERED that the respondent be removed from the United
States to Mexico on the charge contained in his Notice to Appear.
signature
A205-153-916
Please see the next page for electronic
PHILIP L. DiMARZIO
Immigration Judge
4 March 27, 2013
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·-
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A205-153-916 5 March 27, 2013
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. . .
/Isl/
Immigration Judge PHILIP L. DIMARZIO
dimarzip on May 28, 2013 at 5:10 PM GMT
A205-153-916 6 March 271 2013
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