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Jean Daniel Ahlijah, A205 829 470 (BIA Sept. 26, 2013)

Jean Daniel Ahlijah, A205 829 470 (BIA Sept. 26, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record in light of evidence indicating that the respondent's sentence for receiving stolen property was reduced from 12 to 6 months, thereby making him no longer removable as an aggravated felon and eligible for certain forms of relief. The decision was written by Member John Guendelsberger.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record in light of evidence indicating that the respondent's sentence for receiving stolen property was reduced from 12 to 6 months, thereby making him no longer removable as an aggravated felon and eligible for certain forms of relief. The decision was written by Member John Guendelsberger.

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Published by: Immigrant & Refugee Appellate Center, LLC on Oct 18, 2013
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10/23/2013

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Rick Hogan, Esq.

Hogan & Vandenberg LLC
4 East 8th Street, Suite 400
Wilmington, DE 19801
Name: AHLIJAH, JEAN DANIEL
U.S. Department of Justice
Executive Offce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Vrginia 22041
OHS LIT.Nork Co. PrisonNOR
3400 Concord Road
York, PA 17402
A 205-829-470
Date of this notice: 9/26/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Guendelsberger, John
Sincerely,
Do c aA
Dona Carr
Chief Clerk
Lulseges
Userteam: Docket
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For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Jean Daniel Ahlijah, A205 829 470 (BIA Sept. 26, 2013)
AHLIJAH, JEAN DANIEL
A205-829-470
PIKE COUNTY
175 PIKE COUNTY BLVD
LORDS VALLEY, PA 18428
Name: AHLIJAH, JEAN DANIEL
U.S. Department of Justice
Executive Offce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Vrginia 22041
OHS LIT./York Co. Prison/YOR
3400 Concord Road
York, PA 17402
A 205-829-470
Date of this notice: 9/26/2013
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 atorey 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 aA
Donna Carr
Chief Clerk
Lulseges
Useream: Docket
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Cite as: Jean Daniel Ahlijah, A205 829 470 (BIA Sept. 26, 2013)
j
¯ U.S. Department of Justice
Executive Ofce fr Immigation Review
Decision of the Board of Immigation Appeals
Falls Chuch, Virginia 22041
File: A205 829 470- York, PA
In re: JEA DANIEL AHLIJAH
IN REMOVAL PROCEEDINGS
APPEAL AD MOTION
Date:
ON BEHALF OF RSPONDENT: Rick Hogan, Esquire
ON BEHALF OF DHS:
CHARGE:
Richard S. O'Brien
Assistat Chief Counsel
Notice: Sec. 237(a)(l)(B), I&N Act [8 U.S.C. § 1227(a)(l)(B)] -
In the United States in violation of law
SEP
2 6 2013
Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] -
Convicted of aggravated flony (section 101(a)(43)(0), thef)
APPLICATION: Remand; adjustment of status
The respondent, a native and citizen of Caeroon, appeals the decision of the Immigation
Judge, dated May 16, 2013, fnding him removable as chaged, pretermiting his applications fr
relief (based on a conviction fr an aggavated flony ad a crime involving moral turpitude) ad
fr a continuace, and ordering him removed to Caeroon. The Deparment of Homeland
Security ("DHS") has fled a brief in opposition to the appeal. During the pendency of the appeal,
the respondent fled a motion to remand, to which the DHS has not replied. The motion to
remand will be gated.
This Boad reviews fndings of fct fr clea eror. 8 C.F.R. § 1003.l(d)(3)(i). This Board
reviews questions of law, discretion, ad judgment de novo. 8 C.F.R. § 1003.l(d)(3)(ii).
The respondent does not contest removability under section 237(a)(l)(B) of the Immigation
and Nationality Act, 8 U.S.C. § 1227(a)(2)(B).
The Immigration Judge fund the respondent to be removable as charged as an aggravated
flon, based on a convction fr receiving stolen property. I.J. at 2. The respondent's ofense
was also fund, fr purposes of deterining te respondent's eligibility fr discretionary relief,
to constitte a crime involving moral trpitude ("CIMT"). I.J. at 5.
The respondent's motion to remad states that, in consequence of a June, 2013 mar iage and
a July, 2013 naturalization ceremony, he is now maried to a United States citzen. The motion
to remad also contains a copy of what appeas to be a modifed sentence order fom a Delawae
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Cite as: Jean Daniel Ahlijah, A205 829 470 (BIA Sept. 26, 2013)
+ ¯
¢ f�
. A205 829 470
criminal court. The order appeas to state, in essence, that the respondent remains guilty of the
ofense charged. That ofense, which was alleged on te Notice to Appea, is "receiving stolen
propert under $1,500.00 in violation of Title 11, section 851 of the Delaware Code. The
modifed sentencing order aso appears to reduce te respondent's sentence to 6 months "level
fve" suspended fom 12 months fr probation only, fom an original sentence which required 12
monts "level 5".
A thef ofense resulting in a sentence of probation only, with no term of imprsonment
ordered or suspended, is not a aggavated felony under te plain language of section
101(a)(43)(G) of the Act. If the respondent shows that he has not been convicted of a
aggravated felony, he may now be eligible fr cerain frms of relief which ae bared to
aggravated flons.
The respondent's modifed sentence may have a efect on the respondent's ability to apply
fr cancellation of removal, if he ca meet his burden of proof to establish, inter alia, that he was
not in fct sentenced to a ter of imprisonent in excess of six months, that he has no other
CIMT in his crminal record, and that the ofense was classifed as a class A misdemeanor
(which, under Delawae law, does not lead to a sentence of more tha a year's imprisonment.)
See section 240A(b) of the Act, 8 U.S.C. § 1229b(b) (requirements fr cancellation of removal);
section 212(a)(2)(A)(ii)(II) of the Act, 8 US.C. § l 182(a)(2)(A)(ii)(II) (discussing the petty
ofense exception). We note tat the deterination of whether a CIMT qualifes as a petty
ofense is a question of fct, and thus we take no position on whether the respondent has
successfly shown that his ofense so qualifes. Matter of Min Song, 23 I&N Dec. I 73 (BIA
2001). We also tae no position on whether the respondent, who has had multiple contacts with
the crminal justice system, can show that he has been a person of good moral chaacter fr the
required period of time. See For I-213.
The record will be remanded fr fher proceedings fr the purose of determining if the
asserted modifcation of the respondent's sentence af ects his statutory eligibility fr relief and, if
so, whether he otherwise stattorily qualifes fr relief ad merits such relief in te exercise of
discretion.
ORDER: The respondent's motion to remad is granted.
FURTHER ORDER: Te record is remanded fr frther proceedings and enty of a new
order.
2
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Cite as: Jean Daniel Ahlijah, A205 829 470 (BIA Sept. 26, 2013)
U_NITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
YORK, PENNSYLVANIA
File: A205-829-470
In the Matter of
May 6, 2013
JEAN DANIEL AHLIJAH
)
)
)
)
IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES:
APPLICATIONS:
ON BEHALF OF RESPONDENT: RICK HOGAN
ON BEHALF OF OHS: RICHARD O'BRIEN
ORAL DECISION OF THE IMMIGRATION JUDGE
Based on the respondent's admissions ato the allegations contained in
the Notice to Appear. and the Court's review of Exhibit 2, the Cour finds that allegations
1 through 6 are established by clear and convincing evidence.
Based on the respondent's concession to the second ground of
removability. the Cour finds that the respondent is removable based on that charged.
-Based on the Cour's review of Exhibit 2, tab C and of 11 Delaware code
Section 851, the Cour finds that the respondent is removable based on the first ground
of removability. Here the Government charges that the respondent has been convicted
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I of an :aggravated felony as that term is defined in Section 101 (a)( 43)( G) of the INA.
That provision defines the term aggravated felony as "a law relating to a thef ofense
(including receipt of stolen propery) or burglary ofense for which a term of
imprisonment of at least one year was imposed." Here the Cour would find that the
respondent received a sentence of at least one year. See Exhibit 2, tab C. Accordingly,
the issue fr the Cour is whether or not the respondent's conviction satisfies the
generic definition of the term :receipt of stolen propery: as that term has been applied
in Section 101{a)(43)(G) of the INA. In making this determination the Court applies as a
preliminari matter of the categorical approach. The Cour notes that under the
categorical approach the Cour is to look to the statute itself and determine whether the
statute on its face satisfes the generic defnition of the specific ofense.+ here, receipt of
stolen proper in Section 101 (a){43)(G) of the INA.
The Cour would find that the statute itself is divisible. In situations where

a statute is divisible. it is appropriate for the Cours to apply the modified categorical
approach to determine under which part of a divisible statute the respondent was
convicted. In this instance. the indictment restates the statutor defnition. The cour
would fr wi I fnd. therefre ..that it is unable to determine under which of the
divisible pars of the statute the respondent was convicted. Here the Cour would take
the least culpable one. athat is. that the respondent did intentionally receive, retaine
or dispose& of property consisting of a 2009 Cadillac Escalade with the intention to
deprive the owner of or to appropriate that, believing that the property had been
acquired under circumstances amounting to thef. The Cour would fnd in accordance
with Matter of Cardiel, 25 l&N Dec. 12, 26 (BIA 2009) that the statute in question falls
I within the generic definition of :receiving of stolen propery as that term has been
applied to thef under Section 101 (a)(43)(G) of the INA. Accordingly, the Court finds
A205-829-470 2 May 6, 2013
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that the respondent is· removable based on the first charge.
The respondent has requested a continuance in this case in order to
marry his lawful permanent resident fiancee and in order to give her the opportunity to
file a petition for the respondent. In Matter of Hashmi, 24 l&N Dec. 75 (BIA 2009), the
Board held that "in determining whether good cause exists to continue [removal]
proceedings a variety of factors may be considered, including but not limited to: 1, the
Department of Homeland Security's response to the motion to continue; 2, whether the
underlying visa petition is prima facie approvable; 3, the respondent's statutory eligibility
fr adjustment of status; 4, whether the respondent's application for adjustment merits a
favorable exercise of discretion; and 5, the reason for the continuance and any other
relevant procedural factors. Here, the Cour would find that the respondent is not
currently married to the petitioner. Accordingly, at this juncture the Cour would find.
that the underlying visa petition is not prima facie approvable. Even if the Court were to
determine however that the respondent is soon to marr the petitioner, the Court would
nonetheless deny the application.
The Court notes that the respondent has been convicted of an aggravated
felony. Accordingly, the Court would find that while the respondent may be putatively
statutorily eligible for adjustment of status, that the conviction itself is a significant
adverse factor for the Cour to consider in connection with the application.
Considering all of the discretionary factors in the totality the Cour notes
that the respondent is the father of a United States citizen. The Cour will accept the
respondent's contention that his fiancee is currently pregnant with his child. Inasmuch
as the respondent has been convicted of an aggravated felony however, the Court must
find that the respondent has failed to establish that he would be eligible fr the relief that
I he seeks, adjustment of status, with a waiver under Section 212(h) of the IN�.
A205-829-470 3 May 6, 2013
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Accordingly the Court must find that good cause does not exist for the continuance.
Furher, the Cour would note that at this juncture the respondent's
eligibility for a visa is speculative. The respondent is in fact not married to the petitioner
and the petitioner at this juncture is a lawful permanent resident. The petitioner has
stated that she is in the process of applying for naturalization and in fact that she has
been fingerprinted; however the Court would note that the immediate availabilit of a
visa elibi at this juncture is speculativeEeRiE. Accordingly the Cour will find that
the reason for the continuance, that is so that the respondent can get married and so
that the respondent's fiancee can petition; tYs, so that the respondent would be eligible
for the relief is itself a factor militating iRtR fr against a continuance in this matter.
The respondent has also indicated that he seeks to collaterally attack his aggravated
felony conviction. The Cour notes that, in accordance with Matter of Ponce de Leon­
Ruiz, a facially valid conviction remains valid for Immigration purposes even during the
pendency of the collateral attack. No collateral attack has been filed at this juncture;
however, the Cour would find that it is not good cause to continue the matter in order to
allow the respondent to collaterally attack at this point.
Having considered the factors set frth in Hashmi the Cour finds that the
respondent has failed to establish that his application for adjustment of status would
merit a favorable exercise of discretion and the Cour would find that the respondent's
eligibilit for a visa is at this juncture is speculative. Accordingly the Cour must find that
good cause does not exist for a continuance and the Cour must deny that continuance
under the factors set forh in Matter of Hashmi.
The respondent has further indicated that he seeks to continue the matter
in order to apply for cancellation of removal under Section 240A(b) of the INA. The
Cour wou\d fnd \ha\ \n order to be eligible for cancellation of removal that the
A205-829-470
4
May 6, 2013
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respondent must show that he has been a person of good moral character for the 10
years immediately preceding the application. The Court would find that the
respondent's conviction for receiving stolen propery under 11 Delaware code Section
851 is a crime involving moral turpitude and that the respondent is not eligible to show
good moral character during the statutory period under Section 101 (f)(3) of the INA. It
does not appear that the respondent is eligible for any other relief from removal.
Accordingly, the fllowing is the order of the Court:
ORDER
The respondent's request fr a continuance is denied. The respondent is
ordered removed from the United States to Cameroon based on the charge that was set
forh in the Notice to Appear.
Date: May 6, 2013.
signature
A205-829-470
Please see the next page for electronic
ANDREW R. ARTHUR
Immigration Judge
5
May 6, 2013
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