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Luis Alberto Rivas-Camader, A040 111 602 (BIA Feb. 7, 2014)

Luis Alberto Rivas-Camader, A040 111 602 (BIA Feb. 7, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) held that "trafficking" of illegal drugs under Fla. Stat. 893.135(1)(c)(1)(c) is not an aggravated felony under INA 101(a)(43)(B) because state law defines the term to encompasses simple possession, and because the statute does not proscribe conduct that is a felony under the federal drug laws. The decision was written by Member Roger Pauley and joined by Member Anne Greer and by Member John Guendelsberger.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) held that "trafficking" of illegal drugs under Fla. Stat. 893.135(1)(c)(1)(c) is not an aggravated felony under INA 101(a)(43)(B) because state law defines the term to encompasses simple possession, and because the statute does not proscribe conduct that is a felony under the federal drug laws. The decision was written by Member Roger Pauley and joined by Member Anne Greer and by Member John Guendelsberger.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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Published by: Immigrant & Refugee Appellate Center, LLC on Feb 20, 2014
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RIVAS-CAMADER, LUIS ALBERTO

534737/A040-111-602
GULF CORRECTIONAL INST. ANNEX
699 IKE STEELE ROAD
WEWAHITEHKA, FL 32465
Name: RIVAS·CAMADER, LUIS ALBER ...
U.S. Department of Justice
Executive Ofce fr Immigration Review
8ooráo/ I¬¬|grot|o»4ppeols
u¡ceo//heclerk
5107 Leeburg Pike, Suite 2000
Fals Cl11rch, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - RG1
333 South Miami Avenue, Suite 200
Miami, FL 33130
A 040-111-602
Date of this notice:
2/7/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Greer, Anne J.
Pauley, Roger
Guendelsberger, John
Sincerely,
D6 c tV
Donna Carr
Chief Clerk
williame
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Luis Alberto Rivas-Camader, A040 111 602 (BIA Feb. 7, 2014)

...
U.S. Department of Justice
Executive Ofce fr Immigation Review
Falls Church, Virginia 20530
File: A040·111 602 - Mai, FL
In re: LUIS ALBERTO RIV AS-CAMADER
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Pro se
ON BEHALF OF DHS:
CHARGE:
Christina Maryak
Assistant Chief Counsel
Decision of the Board of Immigration Appeals
Date:
FEB - 7
2014
Notice: Sec. 237(a)(2)(A)(ii), I&N Act
[8 U.S.C. § 1227(a)(2)(A)(ii)] -
Convicted of two or more crimes involving moral turpitude
Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] -
Convicted of aggravated flony
APPLICATION: Terination
The respondent, a native and citizen of Ecuador, appeals fom the Immigration Judge's
decision dated August 15, 2013, sustaining both charges of removability and ordering the
respondent removed fom the United States. The Department of Homeland Security (DHS)
opposes the appeal. The appeal will be sustained.
We review fr clear eror the fndings of fct, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues,
including whether the paries have met the relevant burden of proof, and issues of discretion.
8 C.F.R. § 1003.l{d)(3)(ii).
As a initial mater, we agree wit te Immigration Judge that the respondent's conviction
fr trafcking in illegal drugs pursuant to section 893 .135(1 )( c ){ 1 )( c) of the Florida Statutes is a
conviction fr immigration purposes. The term "conviction" is defned to include a frmal
judgment of guilt of the alien entered by a cour. See section 10l(a)(48)(A)(ii) of the
Immigration ad Nationality Act, 8 U.S.C. § 110l(a)(48)(A). The record includes a judgment
which indicates that the respondent was fund guilt by the Circuit Court, 13th Judicial Circuit
in and fr Hillsborough County, Florida, of traffcking in illegal drugs fllowing a plea of guilty
(I.J. at 2; Exh. 2). Accordingly, the respondent was convicted of that ofense within the meaing
of the Act.
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Cite as: Luis Alberto Rivas-Camader, A040 111 602 (BIA Feb. 7, 2014)
A040 111 602
The Immigration Judge concluded that the respondent's conviction fr traffcking in illegal
drugs was an aggravated felony within the meaning of section 10l(a)(43)(B) of the Act
and sustained the charge of removability pursuant to section 237(a)(2)(A)(iii) of the Act,
8 U.S.C. § 1227(a)(2)(A)(iii) (l.J. at 3). Although the respondent's ofense was denominated a
"traffcking" in illegal drugs, Florida law defnes that ter to include simple possession ofenses:
Any person who knowingly sells, purchases, manufctures, delivers, or brings
into this state, or who is kowingly in actual or constructive possession of 4
grams or more of any morhine, opium, oxycodone, hydrocodone,
hydromorhone, or any salt, derivative, isomer, or salt of an isomer thereof,
including heroin . .. or 4 grams or more of any mixture containing any such
substance, but less than 30 kilograms of such substance or mixture, commits a
flony of the frst degree ... kown as "traffcking in illegal drgs," ...
Florida Statutes § 893.135(l)(c) (emphasis added). And indeed the criminal infrmation
indicates that the respondent was charged with simple possession, not "trafcking" as that ter
is ordinaily understood (Exh. 2). Accordingly, the respondent's ofense is not a aggravated
flony under the "illicit trafcking" clause of section 10l(a)(43)(B) of the Act. Matter of Davis,
20 I&N Dec. 536, 541 (BIA 1992) (defning "illicit trafcking" is a controlled substance as
"unlawfl trading or dealing"). Moreover, the respondent's simple possession ofense does not
qualif as an aggravated flony under the "drug traffcking crime" clause of section 101 (a)(43)(B)
because it does not proscribe conduct punishable as a flony under the Federal drug laws. See
Lopez v. Gonzales, 549 U.S. 47 (2006). Thus, the DHS did not meet its burden of demonstrating
the respondent's removability under section 237(a)(2)(A)(iii) of the Act. See section
240(c)(3)(A) of the Act, 8 U.S.C. § 1229a(c)(3)(A).
In light of fregoing, we fnd it necessary to remand the record fr the Immigration Judge
to frther consider the remaining chage of removability and, if necessary, to consider any relief
fr which the respondent may be eligible. In determining whether the DHS met its burden
of demonstrating that respondent's removability under section 237(a)(2)(A)(ii) of the Act, the
Immigration Judge should specifcally identify any evidence relied on and explain the reasons
fr her conclusions in her oral or written decision. See Matter of S-H-, 23 l&N Dec. 462
(BIA 2002); Matter of A-P-, 22 l&N Dec. 468, 474 (BIA 1999). On remand, both paries should
be aforded the opporunity to update the evidentiary record and present additional legal
aguments.
In remanding, we express no opinion on the ultimate outcome of these proceedings. See
Matter of L-0-G-, 21 I&N Dec. 413 (BIA 1996). The fllowing order shall be entered.
ORDER: The respondent's appeal is sustained, te Immigration Judge's decision is vacated
in pa, the aggravated flony charge of removability is dismissed, and the record is remanded fr
frther proceedings consistent with the fregoing opinion.
2
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Cite as: Luis Alberto Rivas-Camader, A040 111 602 (BIA Feb. 7, 2014)
O
_    _ _
"
In the Matter of
IMMIGRATION COURT
,�
I
333 SOUTH MIAMI AV., STE.700
MIAI, FL 33130
Case No.: A040-111-602
RIVAS-CAER, LUIS ALBERTO
Respondent IN REMOVAL PROCEEDINGS
ORDER OF THE
This is a summary of the oral decision entered on
� 
This memorandum is solely for the convenience of the If the
proceedings should be appealed or reopened, the oral cision will become
t official opinion in the case. �  iA�
[
� 
The respondent was ordered removed from the United States to ��
or in the alternative to �
Respondent's application for voluntary departure was denied and
respondent was ordered removed to or in the
alternative to .
Respondent's application for voluntary departure was granted until
upon posting a bond in the amount of $
with an alternate order of removal to .
Respondent's application for:
[
] Asylum was ( )granted )denied( )withdraw.
[ ] Withholding of removal was )granted ( )denied )withdrawn.
[ ] A Waiver under Section was ( ) granted ( ) denied ) withdrawn.
[ ] Cancellation of removal under section 240A(a} was ( }granted )denied
( )withdrawn.
Respondent's application for:
Cancellation under section 240A(b) (1) was ( ) granted ) denied
( ) withdrawn. If granted, it is ordered that the respondent be issued
all appropriate documents necessary to give effect to this order.
Cancellation under section 240A(b) (2) was ( }granted ( )denied
( )withdrawn. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this order.
Adjustment of Status under Section was ( )granted ( }denied
{ )withdrawn. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this order.
Respondent's application of ( ) withholding of removal ( ) deferral of
removal under Article III of the Convention Against Torture was
( } granted ( } denied { ) withdrawn.
Respondent's status was rescinded under section 246.
Respondent is admitted to the United States as a �until
As a condition of admission, respondent is to post a $ bond.
Respondent knowingly filed a frivolous asylum application after proper
notice.
Respon .ent
f ailur
Proceed
Other:
Date:
Appeal: Waive Appeal
on discretionary relief for
ration Judge's oral decision.
J
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
MIAMI, FLORIDA
File: A040-111-602
In the Mater of
August 15, 2013
LUIS ALBERTO RIVAS-CAMADER
)
)
)
)
IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES: Section 237(a)(2)(A)(ii) of the Immigration and Nationality Act;
Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act.
APPLICATIONS: None.
ON BEHALF OF RESPONDENT: PRO SE
ON BEHALF OF OHS: THOMAS A YZE, Assistant Chief Counsel
Deparment of Homeland Security
333 South Miami, 2nd Floor
Miami, Florida 33130
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a male native and citizen of Ecuador. The respondent was
issued a Notice to Appear on January 8, 2013, by regular mail. See Exhibit No. 1. In
that document, the Government alleged that the respondent is not a citizen or national
of the United States and was admited to the United States at Miami, Florida, on or
about May 31, 1986, as an immigrant. The document furher alleges that the
1
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respondent, on March 6, 2012, was convicted in the 13th Judicial Circuit in and fr
Hillsboro County, the State of Florida, for the ofenses of traficking in illegal drugs in
violation of Florida State Statute 893.135(1 )(c)(1 )(C); possession of cocaine in violation
of Florida State Statute 893.136(a); possession of a controlled substance, two counts, in
violation of Florida State Statute 893.13; possession of drug parapheralia in violation of
893.14 7; and providing a false name to a law enforcement ofcer in violation of Florida
State Statute Section 901. 36; and sentenced to 60 months, or 5 years, of confinement.
The Government, in suppor of their allegations, filed cerified Criminal Cour documents
in this case. Said documents were marked into the record as Exhibit No. 2.
At a Master Calendar hearing befre this Cour on June 12, 2013, the respondent
asked fr an opporunity to obtain counsel and the Cour allowed the respondent that
chance. The respondent reappeared befre this Court by telephone on August 15,
2013, today's hearing. date. The respondent was asked what steps he had taken to
obtain counsel. The respondent stated that he wrote leters to attorneys and they did
not reply back. The respondent indicated to the Cour that he has family in the United
States. He has a United States citizen wife and daughter. The Cour asked the
respondent if his wife or daughter had tried to get him an attorey. He said that he had
done some research in the librar and had apparently not contacted them fr that.
Furhermore, the Cour asked why the family had not contacted the Cour fr any
paricular reason. We have had absolutely no communication in this case by the family
and the respondent was unable to answer the question.
The respondent initially indicated that he was challenging his conviction because
he believed that his attorey had not properly represented him. However, there was no
direct appeal filed by the respondent of the conviction and, as a result, the March 6,
2012, convictions are considered to be final convictions before the Immigration Court.
A040-111-602
v . . êê. .
2
....... � . .. �· . . f .�...i. �º  P . @� g
m . .. . . . . W
August 15, 2013
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The Court addressed the charges of removability and the allegations in this case.
Upon review of the cerified Criminal Cour documents, answers provided by the
respondent, as well as the statute under which the respondent was convicted, in
paricular the traficking ofense, this Cour concluded that the respondent was
convicted of a drug-trafcking ofense and, as such, the Cour sustained all the charges
of removability in the respondent's case.
Since the respondent has been convicted of a drug-traficking crime in addition to
other crimes, the respondent is statutorily ineligible to file any waivers befre this Cour.
The respondent is also statutorily ineligible to seek political asylum under Section 208
because he has been convicted of a crime that is considered to be a paricularly serious
one. He is also ineligible fr withholding of removal under Section 241 of the Act.
Please See In re Y-L-. A-G-. R-S-R-. 23 f&N Dec. 270 (A.G. 2000). The respondent
was asked if he would be tortured if he were to go back to Ecuador. The respondent
stated that he thinks that something would happen to him because there is a criminal
that the respondent reported to the authorities who was involved in some kind of drg
transaction or business. The respondent was asked if the government of Ecuador
would harm him in any way. The respondent answered that the goverment of Ecuador
is very crooked. There was nothing to indicate that the goverment of Ecuador would
want to torure him.
The respondent does have his mother who lives in Ecuador. She is 80 years old.
He states that she could not help him because, on the contrary, he helps her.
The respondent has lived in the United States since 1986. The Court is aware of
the fact that separating the respondent frm his family is a great hardship. He has lived
in this countr almost half of his life. However, the respondent is not eligible for
protection under Article 3 of the Convention against Torure and the crimes that he has
A040-111-602 3 August 15, 2013
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been convicted of make him ineligible fr any frm of relief. Therefore, this Cour must
enter the fllowing order:
ORDER
This respondent, having no relief available and who has been deemed to be
removable as charged, is hereby ordered removed from the United States to his native
country of Ecuador.
This order is dated today, the 15th of August, 2013, at Miami, Florida.
A040-111-602
.WÆ . ê ª% ..... (........ e. . . .,~ � ¶ ¶º. . . . . P
LOURDES RODRIGUEZ DE JONGH
United States Immigration Judge
4 August 15, 2013
%. . . . ·. . .
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CERTJFICATE PAGE
I hereby cerif that the attached proceeding befre JUDGE LOURDES
RODRIGUEZ DE JONGH, in the mater of:
LUIS ALBERTO RJVAS-CAMADER
A040-111.-602
MJAMI, FLORIDA
was held as herein appears, and that this is the original transcript thereof fr the file of
the Executive Office fr Immigration Review.
FREE STATE REPORTING, lnc.-2
DECEMBER 16, 2013
(Completion Date)
..W:
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