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Jose de Jesus Alcantar-Miramontes, A077 361 213 (BIA Oct. 17, 2013)

Jose de Jesus Alcantar-Miramontes, A077 361 213 (BIA Oct. 17, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for entry of a new decision where the immigration judge did not explicitly balance the positive and negative equities in denying the respondent's request for voluntary departure. The decision was written by Member Edward Grant.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for entry of a new decision where the immigration judge did not explicitly balance the positive and negative equities in denying the respondent's request for voluntary departure. The decision was written by Member Edward Grant.

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Published by: Immigrant & Refugee Appellate Center, LLC on Oct 31, 2013
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11/22/2013

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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk
5107 Leesburg Pike. Suite 2000 Falls Church, Virginia 20530

Ali, Zulu, Esq. Law Office of Zulu Ali 2900 Adams Street, Suite C130 Riverside, CA 92504

OHS/ICE Office of Chief Counsel - LOS 606 S. Olive Street, 8th Floor Los Angeles, CA 90014

Immigrant & Refugee Appellate Center | www.irac.net

Name: ALCANTAR-MIRAMONTES, JOS ...

A 077-361-213

Date of this notice: 10/17/2013

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

DOYl.ltL cl1.tVt-)
Donna Carr Chief Clerk

Enclosure
Panel Members: Grant, Edward R.

Trane Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Jose de Jesus Alcantar-Miramontes, A077 361 213 (BIA Oct. 17, 2013)

,•

. �S.Departm.entofJustice
· I"'· '

Executive Office for Immigration Review

Decision ofthe Board o�lmmigration Appeals

Falls Church, Virginia 22041

File: A077 361 213 - Los Angeles, CA

Date:

·

ocr 11 zo13
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In re: JOSE DE JESUS ALCANTAR-MIRAMONTES a.k.a. Jose Jesus Alcantar IN REMOVAL PROCEEDINGS APPEAL

Immigrant & Refugee Appellate Center | www.irac.net

ON BEHALF OF RESPONDENT: Zulu Ali, Esquire , CHARGE: Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C.§ l 182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Adjustment of status; voluntary departure

The respondent has appealed from the Immigration Judge's decision dated May 7, 20 12. The Immigration Judge found the respondent removable as charged and denied the respondent's applications for adjustment of status and voluntary departure under sections 245 and 240B(b) of the Immigration and Nationality Act, 8 U.S.C. §§ 1255 and 1229c(b). On appeal, the respondent argues that his controlled substance conviction does not render him ineligible for adjustment of status, inasmuch as the record of conviction is ambiguous with regard to the controlled substance involved. The respondent further argues that the Immigration Judge did not consider the respondent's equities in denying his application for voluntary departure. The respondent's appeal will be dismissed in part, sustained in part, and remanded to the Immigration Judge for further proceedings. The Board reviews an Immigration Judge's findings of fact, including findings as to the credibility of testimony, under the "clearly erroneous': standard. 8 C.F.R. § 1003. l (d)(3)(i). The Board reviews questions of law, discretion, and judgment and all other issues in appeals from decisions oflmmigration Judges de novo. 8 C.F.R. § 1003. l (d)(3)(ii). We will first consider the respondent's argument that his controlled substance conviction does not render him ineligible for adjustment of status. On December 28, 2012, the respondent pled nolo contendere in California Superior Court to possession of a controlled substance, in violation of California Health and Safety Code § 11377(a) (Exh. 2). Convictions under California Health and Safety Code§ 11377(a) do not categorically qualify as removable offenses under section 237(a)(2)(B)(i) because "California law regulates the possession and sale of numerous substances that are not similarly regulated by the federal Controlled Substances Act." See Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2007); see also Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. 2009) (requiring proof that the record of conviction show not only that the alien's .conviction involved a substance that is listed under California law, but also one that is contained in the federal schedules).
Cite as: Jose de Jesus Alcantar-Miramontes, A077 361 213 (BIA Oct. 17, 2013)

A077 361 213

The respondent's record of conviction includes the complaint, which includes one charge for ·possession of a controlled substance in violation of section l 1377(a) of the California Health and Safety Code, and states that the substance was methamphetamine (Exh. 3). The record also contains the Clerk's Docket and Minutes which shows that the respondent pleaded nolo contendere to Count 1 to the charge of 11377(a) (Exh. 2). As such, the record adequately establishes that the respondent admitted to the factual allegations set forth in his complaint. See Mielewczyk v. Holder, supra (concluding that the alien was removable because the charging document and the plea agreement in his case demonstrated that his crime involved a drug found in the CSA's federal schedules); United States v. Vidal, 504 F.3d 1072, 1088 (9th Cir. 2007) (en bane). Inasmuch as the respondent is inadmissible to the United States for commission of a controlled substance violation under section 212(a)(2)(A){II) of the Act, 8 U.S.C. § l 182(a)(2)(A)(II), the respondent is ineligible for adjustment of status. We will next consider the respondent's argument that the Immigration Judge erred in denying his application for voluntary departure, where he did not consider the respondent's positive equities in the United States. The Immigration Judge denied the respondent's application for voluntary departure in the exercise of discretion after considering the respondent's criminal history and other adverse factors of record. The respondent's criminal history is certainly a negative factor weighing against a favorable exercise of discretion. However, the Immigration Judge must demonstrate that he has also considered and assigned appropriate weight to the positive equities that have been presented on the respondent's behalf. See Matter ofArguelles�Campos, 22 I &N Dec. 811, 817 (BIA 1999). Under the circumstances, we will return the record to the Immigration Judge to enter a new decision which sets out a more complete analysis of the positive and negative factors considered in determining whether the respondent merits a grant of voluntary departure in the exercise of discretion. We express no opinion as to the ultimate outcome this matter on remand. Accordingly, the following order will be entered. ORDER: The respondent's appeal of the denial of his application for adjustment of status is dismissed. FURTHER ORDER: The respondent's appeal of the denial of his application for voluntary departure is sustained and the record is remanded to the Immigration Judge for further proceedings consistent with the foregoing decision.

Immigrant & Refugee Appellate Center | www.irac.net

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Cite as: Jose de Jesus Alcantar-Miramontes, A077 361 213 (BIA Oct. 17, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT LOS ANGELES, CALIFORNIA

Immigrant & Refugee Appellate Center | www.irac.net

File: A077-361-213 In the Matter of

May 7, 2013

) JOSE DE JESUS ALCANTAR-MIRAMONTES ) ) RESPONDENT )

IN REMOVAL PROCEEDINGS

CHARGES:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act, present without being admitted or paroled.

APPLICATIONS:

Voluntary departure.

ON BEHALF OF RESPONDENT: IVAN VARGAS ON BEHALF OF DHS: MARGORZATA A. GASIOR

ORAL DECISION OF THE IMMIGRATION JUDGE The respondent is a married male, native and citizen of Mexico, was placed in proceedings with service of the Notice to Appear with the Immigration Court on January 24, 2013. Exhibit 1. Respondent at a previous master calendar hearing admitted through counsel the allegations contained in the Notice to Appear, adding only the entry date of 1991, and as added, the allegations were admitted. The charge was conceded to. There was a discussion as to possible eligibility for future relief. It appears

the Government offered, and is contained in the record marked as Exhibit 21 conviction record in 2012 dealing with California Health and Safety Inspection 11-377A. The record was supplemented with documents contained in Exhibit 3, consisting of the plea agreement and the misdemeanor complaint. The relief that counsel or respondent is seeking is an adjustment. It appears respondent is married to a U.S. citizen and in fact has three U.S. citizen children. But the question that it became! first, is he bendable, and secondly, whether or not he is eligible for any form of relief, i.e. adjustment. A review of Exhibits 2 and 3 convince the Court that he has been convicted of a drug offense. The 11-377A is a divisible offense to the extent that it contains drugs that may not be on the Federal register. However, when we have the addition of Exhibit 3, we now have the plea agreement indicating the section was involved. We have the complaint indicating that there are no other counts. As a factual matter, the respondent pied to the only count of 11-377A that he was charged with under case number 3007 and in that count, the drug is specified, methamphetamine, which we know is on the Federal register. So it appears that respondent is ineligible for an adjustment within the United States and further delay with regard to that application is not appropriate. The issue therefore arose as to whether voluntary departure would be appropriate in this case with one simple drug possession. l would certainly consider that. The case was continued and we now have further evidence that this is not respondent's only conviction. It appears respondent first was convicted in 2000 for the offense of burglary under Section 459 of the California Penal Code and received 20 days in jail. In 2005, he was convicted of receiving stolen property and received two days in jail. In 2012 December, he was convicted of driving on a suspended license and then finally, in December of 20121 he was convicted of possession of a controlled

Immigrant & Refugee Appellate Center | www.irac.net

A077-361-213

2

May 7,

2013

substance, the one mentioned above. In this Court's opinion, with the multitude of minor convictions, respondent is undeserving of voluntary departure. It appears in his time in the United States, he has been unable to conform his conduct to the requirements of law. Accordingly, his application for voluntary departure is denied. ORDERS IT IS HEREBY ORDERED respondent be removed and deported to Mexico on the charges contained in the Notice to Appear.

Immigrant & Refugee Appellate Center | www.irac.net

JOHN F. WALSH Immigration Judge

A077-361-213

3

May 7,

2013

( I.

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE JOHN F. WALSH, in

the matter of:

Immigrant & Refugee Appellate Center | www.irac.net

JOSE DE JESUS ALCANTAR-MIRAMONTES

A077-361-213

LOS ANGELES, CALIFORNIA

was held as herein appears, and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.

JESSICA L. PINEDA (Transcriber) DEPOSITION SERVICES, lnc.-2 JUNE 21, 2013

(Completion Date)

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