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Victor Rosel, A098 194 325 (BIA Dec. 9, 2013)

Victor Rosel, A098 194 325 (BIA Dec. 9, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) upheld a finding that New York criminal possession of controlled substance with intent to sell is a drug trafficking aggravated felony under Pascual v. Holder, 723 F.3d 156 (2d Cir. 2013). The Board also found good cause did not exist for a continuance because the respondent did not present evidence that his motion for post-conviction relief "would be adjudicated in the foreseeable future." The decision was written by Member Edward Grant.
In this unpublished decision, the Board of Immigration Appeals (BIA) upheld a finding that New York criminal possession of controlled substance with intent to sell is a drug trafficking aggravated felony under Pascual v. Holder, 723 F.3d 156 (2d Cir. 2013). The Board also found good cause did not exist for a continuance because the respondent did not present evidence that his motion for post-conviction relief "would be adjudicated in the foreseeable future." The decision was written by Member Edward Grant.

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U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk
5107 Lee�burg Pike, Suile 2000 Falls Church, Virginia 20530

Simpson, Benjamin Lyle Cohen & Forman, LLP. 40 Fulton Street, 7th Floor New York, NY 10038

OHS/ICE Office of Chief Counsel 201 Varick, Rm. 1130 New York, NY 10014

NYD

Immigrant & Refugee Appellate Center | www.irac.net

Name: ROSEL, VICTOR

A 098-194-325

Date of this notice: 12/9/2013

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

borutL {!t1IVt)
Donna Carr Chief Clerk

Enclosure Panel Members: Grant, Edward R.

yungc Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Victor Rosel, A098 194 325 (BIA Dec. 9, 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

ROSEL, VICTOR A098-194-325 ETOWAH COUNTY DETENTION CENTER 827 FORREST AVENUE GADSDEN, AL 35901

OHS/ICE Office of Chief Counsel - NYD 201 Varick, Rm. 1130 New York, NY 10014

Immigrant & Refugee Appellate Center | www.irac.net

Name: ROSEL, VICTOR

A 098-194-325

Date of this notice: 12/9/2013

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 If the attached decision orders that you be

decision pursuant to 8 C.F.R. § 1292.S(a).

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,

DcnrtL t!tVvV
Donna Carr Chief Clerk

Enclosure Panel Members: Grant, Edward R.

yungc Userteam: Docket

Cite as: Victor Rosel, A098 194 325 (BIA Dec. 9, 2013)

. U.S. Department of Justice Exec_utive Of!ice for Immigration Review
Falls Church, Virginia 20530

Decision of the Board of Immigration Appeals

File: A098 194 325 - New York, NY
In

Date:

OEC

-

9 Z0\3

re: VICTOR ROSEL a.k.a. Victor Rosel Santos

IN REMOVAL PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL ON BEHALF OF RESPONDENT: CHARGE: Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] Convicted of aggravated felony 237(a)(2)(B)(i), I&N Act [8 U.S.C. § 1227(a)(2)(B)(i)] Convicted of controlled substance violation Benjamin L. Simpson, Esquire

Sec.

APPLICATION: Continuance

The respondent, a native and citizen of the Dominican Republic who was admitted to the United States as a lawful permanent resident in 2009, appeals the decision of the Immigration Judge, dated July 17, 2013, ordering his removal from the United States. We will dismiss the respondent's appeal. We review Immigration Judges' findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. § 1003 .1 (d)(3). We affirm the Immigration Judge's decision to order the respondent's removal from the United States. The Immigration Judge properly concluded that the respondent is subject to removal from the United States under the provisions of sections 237(a)(2)(A)(iii), (B)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1227(a)(2)(A)(ii), (B) (i), as a result of his August 2012 New York state conviction for Criminal Possession of a Controlled Substance (Cocaine) with Intent to Sell (I.J. at 1-3; Exh. 1; Tr. at 13). As recognized by the Immigration Judge, the respondent's argument that his conviction does not constitute a conviction for a drug trafficking aggravated felony because New York's definition of "sell" includes offering to give a controlled substance has recently been rejected by the United States Court of Appeals for the Second Circuit (I.J. at 3). Pascual v. Holder, 723 F.3d 156 (2d Cir. 2013). Moreover, despite the respondent's claims that his· criminal defense counsel provided him with ineffective assistance of counsel, it is well-established that an alien may not collaterally attack a conviction in removal proceedings. See, e.g., Higgins v. Holder, 677 F.3d 97, 106-07 (2d Cir. 2012); Varughese v. Holder, 629 F.3d 272, 275 n. 3 (2d Cir. 2010); Lanferman v. BIA, 576 F.3d 84, 88 (2d Cir. 2009); Matter of Cuellar, 25 I&N Dec. 850, 855 (BIA 2012); Matter of Madrigal, 21 I&N Dec. 323, 327 (BIA 1996). As such, in the absence of evidence that his conviction has been vacated or modified, his conviction remains a valid predicate upon which he can be removed from this country.
Cite as: Victor Rosel, A098 194 325 (BIA Dec. 9, 2013)

'

A098 194 325 , As the respondent is subject to removal from the United States, it is his burden to establish eligibility for relief from removal. Section 240(c)(4)(A) of the Act, 8 U.S.C. § 1229a(c)(4)(A); 8 C.F.R. § 1240.S(d). However, the respondent has not filed an application for any form of relief from removal which can be granted by an Immigration Judge or this Board. See 8 C.F.R. § 1240.l(a)(l} (enumerating many of the forms of relief from removal which can be granted by an Immigration Judge). The respondent's desire to seek post-conviction relief with the New York courts did not amount to "good cause" for a continuance. See 8 C.F.R. §§ 1003.29 1240.6. The respondent's request for a continuance was explicitly opposed by the Department of Homeland Security (I.J. at 3; Tr. at 40). Moreover, even though the respondent had presented evidence that he had filed a motion with the New York courts to vacate his conviction, he did not present any evidence that such motion would be adjudicated in the foreseeable future (I.J. at 3). See Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980) (holding that the statements of counsel are not evidence). Additionally, the respondent was granted continuances on May 17, 2013 (Tr. at 7), May 31, 2013 (Tr. at 18), and June 19, 2013 (Tr. at 26).1 Overall, considering these factors, as . well as the speculative nature of the outcome of the nature of post-conviction proceedings, we agree with the Immigration Judge's decision to deny the respondent's request for a continuance. The respondent has also not established that he was prejudiced by the Immigration Judge's decision to deny his request for a continuance. Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983). Now, more than 4 months after the Immigration Judge entered a removal order on July 17, 2013, the respondent has yet to present ·evidence that his motion for post-conviction relief has been adjudicated in his favor or that said motion has been scheduled to be adjudicated in the near future. See Matter of Cerna, 20 I&N Dec. 399, 403 (BIA 1991) (noting that we are not favorably disposed to the practice of waiting until the conclusion of the administrative appeal process to file a motion that seeks to offer additional evidence regarding the matter previously in issue). Accordingly, we will not disturb the Immigration Judge's decision to order the respondent's removal from the United States to the Dominican Republic on the basis of the charges set forth in the Notice to Appear. The following order is entered. ORDER: The respondent's appeal is dismissed.

Immigrant & Refugee Appellate Center | www.irac.net

1 On July 9, 2013, the Immigration Judge continued these proceedings upon her own motion (Tr. at 29-30).

2

Cite as: Victor Rosel, A098 194 325 (BIA Dec. 9, 2013)

I

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT NEW YORK, NEW YORK

File: A098-194-325 In the Matter of

July 17, 2013

Immigrant & Refugee Appellate Center | www.irac.net

VICTOR ROSEL RESPONDENT

) ) ) )

IN REMOVAL PROCEEDINGS

CHARGES:

Immigration and Nationality Act Section 237(a)(2)(B)(i). Immigration and Nationality Act Section 237(a)(2)(A)(iii).

APPLICATION:

Termination of proceedings.

ON BEHALF OF RESPONDENT: CORY FORMAN Cohen and Forman, LLP 40 Fulton Street New York, New York 10038 ON BEHALF OF OHS: SUSAN M. BESCHTA Assistant Chief Counsel New York District

ORAL DECISION OF THE IMMIGRATION JUDGE The respondent is a native and citizen of the Dominican Republic who was admitted to permanent residence in the United States on November 9, 2009. The respondent was placed in removal proceedings by issuance of the Notice to Appear

1

dated February 27, 2013, served April 29, 2013, charging the respondent with removability under Section 237(a)(2)(B)(i) of the Act, and under 237(a)(2)(A)(iii), based on 101(a)(43)(8) of the Act. Exhibit 1. In proceedings before the Court the respondent admitted the first three factual

Immigrant & Refugee Appellate Center | www.irac.net

allegations, denied allegation 4, which was found by the Court based upon Exhibit 2, the respondent's visa face, and denied allegation 5, which was found by the Court based on Exhibit 3, a conviction from the New York State Supreme Court, State of New York, New York County, on August 27, 2012, when the respondent, pursuant to a plea, was found guilty of criminal possession of a controlled substance in the third degree under Section 220.16(01). Sub 01, of 220.16, specifically requires that it is possession with intent to sell, and the respondent has challenged that the sufficiency of this based upon what he claims were Constitutional defects with regard to his plea, and as to advisals given to him with regard to the consequences of his plea on his Immigration status in the United States, or more specifically that he was not fully advised of the potential consequences. The Court has considered briefing from both sides on this issue, and the Court has made a ruling today denying the motion to terminate. Briefly stated, it is denied for two reasons. First, because this Court does not sit Qn sit on Constitutional issues jurisdictionally, I do not believe I have the authority to consider the Constitutional argument as to the defects of the actions in State Court, that the conviction remains final until such time as it may be vacated by a court of adequate jurisdiction, and therefore, I rule that Exhibit 3 was admissible, and then went onto the issue of what it proves. There is, I believe, no significant contest to the fact that if it is not Constitutionally defective the certificate of disposition would unquestionably render the respondent removable for a violation of the controlled substances laws under

A098-194-325

2

July 17, 2013

237(a)(2)(B)(i). Under law of the Circuit, most specifically Pascual v. Holder, which has two recent decisions, both to the same effect, 707 F.3d 403 at 405 (2d. Cir. 2013) and also a second decision issued by the Court on July 8, 2013, to the same effect, namely that a possession with intent to sell is in fact a distribution crime. It is, therefore, a

Immigrant & Refugee Appellate Center | www.irac.net

trafficking crime and therefore renders the respondent amenable to the aggravated felony under 237(a)(2)(A)(iii) as defined in 10 1(a)(43)(B) of the Act. The Court having denied the motion to terminate as further stated in my decision, the respondent makes no other applications other than a request for a continuance. Although counsel has represented to the Court that there is a pending 440 motion in the State Criminal Court, it has not been scheduled as of this date, despite the fact it has been pending for at least a month. The request is to adjourn this case for adjudicate that motion. For all the reasons stated by the Board with regard to collateral attacks and the fact that it is not presently scheduled, along with the opposition of the Department of Homeland Security, the Court declines to exercise its jurisdiction in granting that adjournment because there is no certainty that it will not be of an unlimited nature. This case therefore, unfortunately, goes forward with no relief being filed to the credit of the respondent not filing a frivolous application merely to gain time in the Court. But the respondent, of course, is reserving his right to appeal so that he may pursue the collateral relief, to which he is certainly entitled to do. Therefore, the Court today enters the following order.

A098-194-325

3

July 17, 2013

ORDER IT IS HEREBY ORDERED the respondent is ordered removed from the United States to the Dominican Republic.

Immigrant & Refugee Appellate Center | www.irac.net

Please see the next page for electronic signature
NOEL A. FERRIS Immigration Judge

A098-194-325

4

July 17, 2013

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Immigration Judge NOEL A. ferrisn on October 1, FERRIS 12:15 PM GMT

2013 at

Immigrant & Refugee Appellate Center | www.irac.net

A098-194-325

5

July 17, 2013

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