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Juan Rafael Santos, A074 191 655 (BIA Nov. 13, 2013)

Juan Rafael Santos, A074 191 655 (BIA Nov. 13, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) upheld a finding that maintaining a vehicle/dwelling/place for marijuana under North Carolina General Statute 90-108(a)(7) is an offense relating to a controlled substance under Section 237(a)(2)(B)(i) of the INA. The Board further found that the immigration judge was permitted to consult the conviction documents under Matter of Davey, 26 I&N Dec. 37 (BIA 2012), in determining that the respondent did not qualify for the exception for a single offense involving possession of 30 grams or less of marijuana for personal use. The decision was written by Member John Guendelsberger.
In this unpublished decision, the Board of Immigration Appeals (BIA) upheld a finding that maintaining a vehicle/dwelling/place for marijuana under North Carolina General Statute 90-108(a)(7) is an offense relating to a controlled substance under Section 237(a)(2)(B)(i) of the INA. The Board further found that the immigration judge was permitted to consult the conviction documents under Matter of Davey, 26 I&N Dec. 37 (BIA 2012), in determining that the respondent did not qualify for the exception for a single offense involving possession of 30 grams or less of marijuana for personal use. The decision was written by Member John Guendelsberger.

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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, Virgi11ia 20530

RODRIGO VILAR, ESQ. 66 West Flagler Street, Suite 500 Miami, FL 33130

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

Immigrant & Refugee Appellate Center | www.irac.net

Name: SANTOS, JUAN RAFAEL

A 074-191-655

Date of this notice: 11/13/2013

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

DOWtL ct1/v'L)
Donna Carr Chief Clerk

Enclosure
Panel Members: Guendelsberger, John

williame Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Juan Rafael Santos, A074 191 655 (BIA Nov. 13, 2013)

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

SANTOS, JUAN RAFAEL A074-191-655 STEWART DETENTION CENTER 146 CCA RD LUMPKIN, GA 31815

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

Immigrant & Refugee Appellate Center | www.irac.net

Name: SANTOS, JUAN RAFAEL

A 074-191-655

Date of this notice: 11/13/2013

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,

DOWtL ct1.JVU
Donna Carr Chief Clerk

Enclosure Panel Members: Guendelsberger, John

williame Userteam: Docket

Cite as: Juan Rafael Santos, A074 191 655 (BIA Nov. 13, 2013)

U.S. Department of Justice
Executive Office for Immigration Review Falls Church, Virginia 20530

Decision of the Board of Immigration Appeals

File:

A074 191 655 - Lumpkin, GA

Date:

NOV 13 2013

In re: JUAN RAFAEL SANTOS a.k.a. Juan Roman a.k.a. Juan R. Santos IN REMOVAL PROCEEDINGS APPEAL AND MOTION ON BEHALF OF RESPONDENT: CHARGE: Notice: Sec. 237(a)(2)(B)(i), I&N Act [8 U.S.C. § 1227(a)(2)(B)(i)] Convicted of controlled substance violation Rodrigo Vilar, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

APPLICATION:

Termination

denying his motion to terminate, and ordering his removal from this country. The respondent's request for oral argument is denied. See 8 C.F.R. § 1003.l{e)(?). The appeal will be dismissed.

resident of the United States, appeals from the Immigration Judge's July 31, 2013, decision,

The respondent, a native and citizen of the Dominican Republic, and lawful permanent

8 C.F.R. § 1003.l(d)(3)(ii).

the parties have met the relevant burden of proof, and issues of discretion, we review de nova.

We review the Immigration Judge's findings of fact, including adverse credibility determinations, for clear error. 8 C.F.R. § 1003. l (d)(3)(i). All other issues, including whether

conviction for the offense of Maintain Vehicle/Dwelling/Place for a Controlled Substance, Marijuana, in violation of North Carolina General Statute § 90-108(a)(7), is a violation of a State law relating to a controlled substance, and renders him removable from the United States (l.J. at 6 Exh. 4). See section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C.

We affirm the decision of the Immigration Judge.

The respondent's January 8, 2008,

that "relating to" concept has a broad ordinary meaning, namely, "to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.")

§ 1227(a)(2)(B)(i); see also Matter of Espinoza, 25 I&N Dec. 118, 120 (BIA 2009) (explaining

to prove his removability under section 237(a)(2)(B)(i) of the Act, as the North Carolina statute under which he was convicted is no� comparable to the federal statute, 21 U.S.C. § 856. The respondent's argument is not relevant to the issues presented in this case. The respondent is not charged with removability under section 237(a)(2)(A)(iii) of the Act, such that a comparison between the North Carolina and federal statutes is necessary to determine whether the respondent's offense qualifies as an aggravated felony under section 101(a)(43)(B), 8 U.S.C. § l101(a)(43)(B). See Lopez v. Gonzales, 549 U.S. 47, 127 S. Ct. 625 (2006).

On appeal, the respondent argues that the Department of Homeland Security ("OHS") failed

We find no merit to the respondent's argument that the Department of Homeland Security failed to prove that his crime was not covered by the statutory exception to deportability for a

Cite as: Juan Rafael Santos, A074 191 655 (BIA Nov. 13, 2013)

A074 191 655

"single offense involving possession for one's own use of 30 grams or less of marijuana." Contrary to the respondent's argument, the Immigration Judge properly consulted the documents in the record of conviction to determine that his offense involved the selling of marijuana (l.J. at 9; Exh. 4, Information). See Matter of Davey, 26 I&N Dec. 37 (BIA 2012) (holding that for purposes of section 237(a)(2)(B)(i) Qf the Act, the phrase "a single offense involving possession

into the elements of a single statutory crime); see also Matter ofRodriguez-Cortes, 20 I & N Dec. 587, 588 (BIA 1992) (including an information in "record of conviction"). Thus, as respondent is removable as charged, and has not identified any form of relief from removal which can be granted in the course of the removal proceedings, his appeal will be dismissed, and we find no basis to remand for further proceedings Accordingly, the following orders will be entered. ORDER: The respondent's appeal is dismissed.

into the character of the alien's unlawful conduct on a single occasion, not a categorical inquiry

for one's own use of thirty grams or less of marijuana" calls for a circumstance-specific inquiry

Immigrant & Refugee Appellate Center | www.irac.net

FURTHER ORDER: The respondent's request for termination is denied.

-

Cite as: Juan Rafael Santos, A074 191 655 (BIA Nov. 13, 2013)

2

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

Immigrant & Refugee Appellate Center | www.irac.net

File: A074-191-655 In the Matter of

July 31, 2013

JUAN R. SANTOS RESPONDENT

) ) ) )

IN REMOVAL PROCEEDINGS

CHARGES:

Section 237(a)(2)(B)(i) of the Immigration and Nationality Act, as amended, in that, at any time after admission, you have been convicted of (or a conspiracy or attempt to violate) any law or regulation of a state, the United States, or a foreign country relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. 802), other than a single offense involving possession for one's own use of 30 grams or less of marijuana.

A PPLICATIONS:

ON BEHALF OF RESPONDENT: SANDRA PATRIC IA JAIMES Vilar and Solano, P.A. 66 West Flagler Street, Suite 500 Miami, Florida 33130 ON BEHALF OF DHS: BIANCA BROWN Department of Homeland Security 146 CCA Road Lumpkin, Georgia 31815

ORAL DECISION OF THE IMMIGRATION JU DGE Introduction and jurisdictional statement

On January 31, 2013 the Department of Homeland Security filed a Notice to Appear against the respondent. The filing of this charging document commenced proceedings and vested jurisdiction with this Court. 8 C. F. R. 1003.14(a). The Notice to Appear has been admitted into evidence as Exhibit 1.

Immigrant & Refugee Appellate Center | www.irac.net

The respondent is a 40-year-old single male, native and citizen of the Dominican Republic, who entered the United States some time ago. The respondent's status was adjusted to that of a lawful permanent resident on July 9, 2001 at New York, New York under Section 245 of the Act. The respondent through his counsel admitted allegation.§ 1, 2, and 3 of the five allegations in the Notice to Appear, and denied allegations 4 and 5. Respondent's counsel also denied the charge, which is Section 237(a)(2)(B)(i). The Court sustained allegation 4 and did not sustain allegation 5. The Court sustained the charge, Section 237(a)(2)(8)(i). The Court found the respondent removable as charged by clear and convincing evidence. The respondent is applying for no form of relief as the respondent is ineligible for any form of relief before this Court. Respondent's counsel refutes the charge and believes that the respondent should be eligible to apply for cancellation of removal for lawful permanent residents. Service of the Notice to Appear The respondent through his counsel has conceded proper service of the Notice to Appear. Based upon the respondent's admissions and the certificate of service contained in the Notice to Appear, the Court finds that the Notice to Appear has been properly served and that the respondent has been afforded 10 days following service of it prior to appearing before an Immigration Judge. Pleading

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July 31,

2013

As stated previously, the respondent through counsel has admitted allegations 1, 2, and 3, denying allegations 4 and 5, and the respondent through his counsel has denied the one and only charge, Section 237(a)(2)(B)(i). The Court has sustained allegation 4 and has not sustained allegation 5.

Immigrant & Refugee Appellate Center | www.irac.net

The Court has sustained the charge. The Court finds that the respondent is removable as charged by clear and convincing evidence. Designation of country of removal The respondent through his counsel has declined to designate a country of removal. The Court has designated the Dominican Republic. Respondent through his counsel has advised the Court that he has no fear of returning to the Dominican Republic. Summary of evidentiary record on removability Exhibits: Exhibit 1, Notice to Appear. Exhibit 2, judgment suspending sentence misdemeanors, imposing of community punishment, for the offense of maintain vehicle dwelling place CS(M), (offense date March 13, 2007). Exhibit 3, judgment and commitment punishment misdemeanor maintain vehicle/dwelling/place CS(M) (offense date January 13, 2012). Exhibit 4, judgment suspending sentence misdemeanor imposing of community punishment, maintain vehicle/dwell/place CS(M), offense date March 13, 2007. Exhibit 5, motion for telephonic hearing. Exhibit 6, respondent's motion to terminate together with attachments of June 18, 2013.

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2013

Exhibit 7, Department of Homeland Security memorandum in support of the allegations and charges in the Notice to Appear. Exhibit 8, respondent's motion to terminate of July 8, 2013. Exhibit 9, notice of filing, notice of appearance for co-counsel.

Immigrant & Refugee Appellate Center | www.irac.net

All admitted evidence identified above has been considered in its entirety regardless of whether specifically mentioned in the text of this decision. Procedural history The respondent first appeared before this Court on May 14, 2013 nearly three months ago. At that time respondent's counsel Mr. Vilar who appeared telephonically admitted factual allegations 1 through 3, denied factual allegations 4 and 5.a.-:--Agnd when Mr. Vilar declined to designate a country of removal the Court designated the Dominican Republic. Mr. Vilar told the Court that he was not sure about whether or not the respondent had a fear of returning to the Dominican Republic. Mr. Vilar advised the Court at that time that he believed his client was eligible for 42A relief, meaning cancellation of removal for lawful permanent residents. Mr. Vilar advised that if the Court sustained the charge that he believed his client was ineligible for 42A relief due to the stop time rule and both he and the Government Attorney at the time, Mr. McKee, agreed to that. The Court withheld findings as to allegations 4 and 5 until hearing arguments from both counsel.a. which the Court agreed to do at a future date. The case was rescheduled for arguments by both counsel and the case was reset to June 4 for a contested master hearing. On June 4, 2013 Mr. Vilar again appeared by phone and Ms. Brown, the Assistant Chief Counsel who is present today on July 31, 2013 appeared. On June 4 the Court sustained allegation 4 and the Court made no finding

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2013

as to allegation 5, since there was no showing of what the controlled substance was. Ms. Brown advised the Court that she had requested documents showing what the controlled substance was. Mr. Vilar advised that he was not sent conviction documents from office of chief counsel but that he was sent only a Notice to Appear. The Court

Immigrant & Refugee Appellate Center | www.irac.net

reset the case to June 17 at 10 o'clock for completion of the contested master hearing and for the relief phase of the hearing in the event relief was being sought. On June 17, 2013 Ms. Brown again appeared for the Department of Homeland Security and Mr. Vilar again appeared by phone on behalf of the respondent. Ms. Brown requested that the Court make no finding as to allegation 5 and the Court set filing deadlines for briefs from both counsel. The case was rescheduled again this time to July 11, 2013 for the Court's ruling on the allegations, the charge, and any motions. On July 11, 2013 Assistant Chief Counsel Johnson appeared in person and Mr. Vilar appeared again by phone. The Court again sustained allegation 4 and the Court did not sustain allegation 5. The Court did sustain the charge and found the respondent removable as charged by clear and convincing evidence. The first motion to terminate was denied by the Court, and the case was reset to today for an oral decision. Today on July 31, 2013 the most recent motion to terminate, Exhibit 9, was denied. There was a discussion about whether or not respondent was eligible to apply for 42A relief, and the Court concluded that the stop time rule did in fact apply and that th� respondent was not eligible to apply for any relief before the Court. Respondent's counsel requested an oral decision and advised the Court that she would reserve her client's right to appeal. The Court will note that the respondent has been represented by the same law (1erm since the respondent has been appearing before this Court, and that law firm is the law firm of Vilar and Solano. The Court notes that today.a.

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for the first time.1. the respondent is being represented by one of the attorneys from that firm whose name is Sandra Jaimes. Statement of the law The respondent is ineligible to apply for any relief before this Court. The

Immigrant & Refugee Appellate Center | www.irac.net

question that was before the Court was whether the respondent was removable under Section 237(a)(2)(B)(i) of the Act for having been convicted of a violation of a state law relating to a controlled substance, as defined in the Controlled Substances Act. This Court finds that the respondent's 2008 conviction for maintain vehicle/dwelling/place for a controlled substance, to wit marijuana, renders him removable under Section 237(a)(2)(B)(i) of the Act and no exception exists. Procedural history As stated previously, respondent is a male, native and citizen of the Dominican Republic. On July 9, 2001, respondent's status was adjusted to that of a lawful permanent resident under Section 245 of the Immigration and Nationality Act (Act or INA). See Exhibit 1. On January 8, 2008, respondent was convicted in the Cumberland County Superior Court at Fayetteville, North Carolina, for the offense of maintain vehicle/dwelling/place for a controlled substance, to wit: controlled substance, in violation of Section 90-108(a)(7) of the North Carolina general statutes (N.C. Gen. Stat.). For that offense, a 45-day term of imprisonment was imposed, to be served in the Cumberland County Jail, along with 12 months of unsupervised probation. On January 9, 2013, respondent was convicted in the Cumberland County Superior Court at Fayetteville, North Carolina, for the offense of maintain vehicle/dwelling/place for a controlled substance, to wit: controlled substance, in violation of Section 90-108(a)(7). For that offense, a 45-day term of imprisonment was imposed, to be served in the North Carolina department of corrections.

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2013

On July 8, 2013 respondent submitted a motion to terminate proceedings alleging proceedings must be terminated because: (1) allegation 4 is not sustainable, as respondent "did not plead to any quantity of a controlled substance, or trafficking in a controlled substance" and the Department cannot rely on the information contained in

Immigrant & Refugee Appellate Center | www.irac.net

the criminal information to sustain the charge; (2) allegation 5 is not sustainable, as there is no evidence of the drug involved, and the Department cannot prove the offense relates to a controlled substance as a result. See motion to terminate, Exhibit 8. However, the Court will deny respondent's motion to terminate for the reasons set forth below. Discussion To sustain the charge of removability under Section 237(a)(2)(B)(i) of the Act, the Department must prove by clear and convincing evidence that: (1) respondent has been convicted of a violation of or a conspiracy or attempt to violate any law or regulation of a state, the United States, or a foreign country relating to a controlled substance; and (2) the pertinent controlled substance is defined in Section 102 of the Controlled Substances Act. In the instant matter, on January 8, 2008, respondent pleaded guilty for the offense of maintain vehicle/dwelling/place for controlled substance, in violation of N.C. Gen. Stat. Section 90-108(a)(7). Section 90-108 (a)(7) of the N.C. Gen. Stat. renders it unlawful for any person to "knowingly keep or maintain any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever, which is resorted to by persons using controlled substances in violation of this article for the purpose of using such substances, or which is used for the keeping or selling of the same in violation of this article." See Exhibit 4. The phrase "relating to a controlled substance" is not defined in the Act.

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2013

/�

However, the Board of Immigration Appeals (Board or BIA} has construed the phrase liberally, finding that the "relating to" concept has a broad ordinary meaning, "mainly, to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with." See Matter of Espinoza, 25 l&N Dec. 118, 120

Immigrant & Refugee Appellate Center | www.irac.net

(BIA 2009} (citing Morales v. Trans World Airlines Inc. , 504 U. S. 374, 383 (1992}}. Thus, insofar as it punishes the maintaining of a place resorted to by persons using a controlled substance, N.C. Gen. Stat. Section 90-108(a}(7} necessarily relates to a controlled substance. However, N.C. Gen. Stat. Section 90-108(a}(7} does not specify the particular controlled substance for which respondent was convicted, and it is possible that the particular drugs classified as controlled substances by the state of North Carolina may be more expansive than those identified as such by the federal Controlled Substances Act. Therefore, the remaining inquiry is whether the controlled substance in the case at bar falls within the confines of the federal Controlled Substances Act, and an examination of the record is requisite for such a determination. See Matter of Paulus, 11 l&N Dec. 274 (BIA 1965} (looking to the record of conviction to determine if a conviction for a particular substance is a violation within the meaning of the Act}. Turning to the permissible documents and conviction record, respondent's 2008 plea agreement indicates that he pleaded guilty to count 4 of the indictment, which reads: "defendant ... unlawfully, willfully, and feloniously did knowingly and intentionally keep and maintain a vehicle ... that was used for keeping and selling a controlled substance, marijuana ..." See Exhibit 4; see also Shepherd v. U.S., 544 U.S. 13 (2005} ("a later court ... is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial Judge to which the defendant assented.")

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2013

The record of conviction clearly indicates marijuana was the substance involved, which is a controlled substance within the meaning of the federal Controlled Substances Act, and thus the Act. See 21 U.S.C. Section 802, et seq. As such, respondent's 2008 conviction for maintaining vehicle/dwelling/place for a controlled

Immigrant & Refugee Appellate Center | www.irac.net

substance, to wit: marijuana, is a conviction for a violation of (or a conspiracy or attempt to violate) a state law relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. Section 802), and respondent is removable under Section 237(a)(2){8)(i) of the Act. While Section 237(a)(2)(B)(i) of the Act contains an exception for a "single offense involving possession for one's own use of 30 grams or less of marijuana, " respondent does not qualify for such. According to the Board, "the phrase "a single offense involving possession for one's own use of 30 grams or less of marijuana" calls for a circumstance-specific inquiry into the character of the unlawful conduct." See Matter of Davey, 26 l&N Dec. 37 (BIA 2012). In the instant matter it is clear from the record that respondent's conviction did not involve simple marijuana possession, rather his conviction was associated with the distribution of marijuana, insofar as it pertained to keeping and maintaining a vehicle to keep and sell marijuana. See Id. At 41; see also Exhibit 4. And, it cannot be said that an offense associated with the distribution of marijuana in line with Congress's intent in "ameliorating the potentially harsh Immigration consequences of the least serious drug violation. " See Matter of Moncada­ Servellon, 24 l&N Dec. 62, 65 (BIA 2007) ("the personal use exception is not intended or understood by Congress to apply to offenses that are significantly more serious than simple possession by virtue of other statutory elements that greatly increase their severity."). Thus, respondent is removable as charged under Section 237(a}(2)(B}(i} of the Act, and no exception exists.

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2013

With regard to respondent's 2013 conviction, the record indicates that respondent potentially pleaded guilty to possession of drug paraphernalia, in violation of N.C. Gen. Stat. Section 90-113.22(a), as well as maintain vehicle/dwelling/place for controlled substance, in violation of N.C. Gen. Stat. Section 90-108(a)(7). However, the

Immigrant & Refugee Appellate Center | www.irac.net

record of conviction does not tether those offenses to a particular count in the indictment, and the Court will not presume what criminal conduct formed the basis of respondent's plea. As such, allegation 5 in the NTA has not been sustained by clear and convincing evidence. Nevertheless, respondent's 2008 conviction is sufficient to find him removable under Section 237(a){2)(B){i) of the Act. Conclusion Respondent's 2008 conviction for maintain vehicle/dwelling/place for a controlled substance, to wit: marijuana, in violation of N. C. Gen. Stat. Section 90108{a)(7), renders him removable under Section 237{a)(2)(B)(i) of the Act, and no exception exists. For the reasons set forth above, and since the respondent is ineligible to apply for any other form of relief as conceded to by respondent's own counsel at the master hearing, wherein respondent's counsel said if the Court sustained the charge of removability the respondent would be ineligible for 42A relief, the Court finds the respondent removable, and the following orders shall issue: ORDER IT IS HEREBY ORDERED that the respondent be removed from the United States to the Dominican Republic based on the charge contained in the Notice to Appear.

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2013

I�

Any appeal either side wishes to file shall be due in the office of the Board of Immigration Appeals not later than August 30, 2013.

Immigrant & Refugee Appellate Center | www.irac.net

Please see the next page for electronic signature

BARRY S. CHAIT Immigration Judge

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£.

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//s//
Immigration Judge BARRY S. CHAIT

chaitb on September 5,

2013 at 12:01 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A074-191-655

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