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Dale Anderson Telesford, A079 020 706 (BIA May 27, 2014)

Dale Anderson Telesford, A079 020 706 (BIA May 27, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) held that delivery of marijuana under Iowa Code 124.401(1)(d) is not a drug trafficking aggravated felony under the intervening decision in Moncrieffe v. Holder, 133 S.Ct. 1678 (2013). The decision was written by Member Linda Wendtland.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) held that delivery of marijuana under Iowa Code 124.401(1)(d) is not a drug trafficking aggravated felony under the intervening decision in Moncrieffe v. Holder, 133 S.Ct. 1678 (2013). The decision was written by Member Linda Wendtland.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index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 Jul 09, 2014
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R.

Joel Hatch
Smith, Gardner, Slusky, Lazer, Pohren
& Rogers LLP
8712 West Dodge Road, Suite 400
Omaha, NE 68114
Name: TELESFORD, DALE ANDERSON
U.S. Department of Justice
Executive Offce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
5 J 07 Leesburg Pike, Suite 2000
Fals Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - OMA
1717 Avenue H
Omaha, NE 6811 O
A 079-020-706
Date of this notice: 5/27/2014
Enclosed is a copy of the Board's decision ad order in the above-refrenced case.
Enclosure
Panel Members:
Wendtland, Linda S.
w  . . �
Sincerely,
Do Ct
Donna Car
Chief Clerk
schuckec
Usertea m: Docket
@ .
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Dale Anderson Telesford, A079 020 706 (BIA May 27, 2014)
• l
U.S. Department of Justice
Executive Ofce fr Immigration Review
Decision of the Board of Immigation Appeals
Falls Church, Virginia 20530
File: A079 020 706 - Omaha, NE
In re: DALE ANDERSON TELESFORD
I RMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RSPONDENT: R. Joel Hatch, Esquire
CHARGE:
Notice: Sec. 237(a)(l)(B), I&N Act [8 U.S.C. §
1227(a)(l)(B)] -
I te United States i violation of law
Date:
Sec. 237(a)(2)(B)(i), I&N Act [8 U.S.C.
§ 1227(a)(2)(B)(i)] -
Convicted of controlled substance violation
Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C.
§
1227(
a)(2)(A)(iii)] -
Convicted of aggravated flony as defned in section
10l(a)(43)(B) of the Act
APPLICATION: Termination
MAY
. 7 2014
The respondent, a native ad citien of Trinidad and Tobago, appeals the Immigration
Judge's February 3, 2012, decision fding that the respondent is removable as chaged ad
denying the respondent's request tat his removal proceedings be terminated. We review te
Immigration Judge's fctual fndings fr clea error and all other issues de novo. See 8 C.F.R.
§ 1003.1 (d)(3). The record of proceedings will be remanded.
On June 16, 2003, the respondent pled glty to Delivery of a Schedule I Contolled
Substance (marijuaa) in violation of Iowa Co��. § . 124.40 1 (1 )(d), a class D flony (Count III)
(I.J. at 2). The respondent was grated a def�reC judgment and was sentenced to 2 yeas of
probation (I.J. at 2). See Exh. 3 at 8. He was also ordered to pay the State of Iowa $620 fr his
cour-appointed atorey, a Hprobation enrollment fe" of $250, a law initiative surcharge of
$125.00, and a DARE fe of $10 (l.J. at 4). See Exh. 3 at 8. He was also assessed costs.
See Exh. 3 at 8. On Jue 1, 2004, the cou issued an Order of Dismissal fom Defred
Judgment Probation. See Exh. 3 at 11. On November 16, 2009, at the respondent's request, the
court issued a Order Clarifing Dismissal fom Defrred Judgment (l.J. at 2). See Exh. 2,
Tab A. On appeal, the respondent agues that the Immigration Judge ered by fnding that the
respondent's conviction was fnal fr immigration puroses.
In Mater of Marroquin-Garcia, 23 I&N Dec. 705, 715 (BIA 1997; A.G. 2005), the Atorey
General held that uder section 101(a)(48)(A) of the Immigation and Nationality Act, the term
'"conviction., includes a ofense to which the respondent pied guilty and the judge wt  eld
a fral adjudication of guilt but imposed penalties or restraints on te person's libery.
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Cite as: Dale Anderson Telesford, A079 020 706 (BIA May 27, 2014)
• I
A079 020 706
See also Mater of Cabrera, 24 l&N Dec. 459, 461-62 (BIA 2008) (holding that imposing costs
and surcharges in the criminal sentencing context constittes a frm of punishment or penalty fr
purposes of deterining· whether the respondent was "convicted" under section 10 I (a)( 48)(A) of
the Act); see, e.g., Vasquez-Velezmoro v. INS, 281 F.3d 693, 696 (8th Cir. 2002) (citing Matter
of Roldan-Santoyo, 22 l&N Dec. 512, 516 (BIA 1999), as holding that an alien remains
convicted fr immigration purposes despite ay subsequent state action that purports "to erase"
the deterination of guilt through a "rehabilitative policy").
In tis case, te respondent attempts to distinguish Matter of Marroquin, supra, ad argues
that his conviction is not fnal fr immigration purposes because no penalty or restraint on liberty
was ultimately imposed on him. See Respondent's Brief at 8. Te respondent agues that the
Iowa Distct Court fr Boone County did not impose restraints on the respondent's feedom and
only imposed a civil penalty. See Respondent's Brief at 5. 1 According to the respondent,
the cou placed the respondent ''under probation, but as a term of te defered judgment
which would monitor Defndat's Compliance wit his defred status." See Exh. 2, Tab A;
see also Respondent's Brief at 5.
Despite this agument, the state court's June 1, 2004, order of dismissal indicated that the
respondent "was placed on fral probation to the Second Judicial Distict Depaent of
Correctional Services fr a period of two (2) years." See Exh. 3 at 11.
2
Further, the respondent
was ordered to pay, not simply te alleged "civil penalty" that he now emphasizes, but
a "probation enrollment fee" of $250, $620 fr his court-appointed attorey, a law initiative
surchage of $125.00, ad a DARE fe of $10 (l.J. at 4). He was also assessed costs. See Exh. 3
at 8. Given the evidence presented, we agree with the Immigration Judge that the state court
imposed penalties or restraints on the respondent in this case. See Matter of Cabrera, supra.
While the respondent additionally agues that "voluntary" compliance with te ters of
probation does not constitute a restraint on liberty, we conclude tat this arguent relies lagely
on sematics, ad that probation constitutes a restaint on liberty irespective of whether the
defndat "chooses" to subject himself to it as a condition of receiving a defered adjudication.
For these reasons, we conclude that the respondent was "convicted" fr immigration purposes.
The respondent also agues on appeal that his conviction may not be fr an aggravated flony
pursuat to Matter of Castro Rodriguez, 25 l&N Dec. 698 (BIA 2012). See Respondent's Brief
at 11. In Matter of Casto Rodriguez, supra, this Board stated that, in determining whether a
1 Although the respondent attempts to distinguish Matter of Cabrera, supra, by aguing that the
cout in this case only imposed a civil penalty, the state court indicated in its 2009 order that it
"did not impose a civil liability." See Exh. 2, Tab A; see also Respondent's Brief at 5, 9.
Furher, to the extent tat the respondent seeks to have us apply te law of a fdera circuit other
tan the Eighth Circuit i which this case ases, we decline to do so. See Matter of Anselmo,
20 I&N Dec. 25, 31 (BIA 1989) (te Boad historcally fllows a court's precedent i cases
arising in that circuit); see also Respondent's Brief at 6-7, 9-10. Further still, as discussed in the
text ina, even if the respondent did receive a civil penalty, he also was assessed other costs and
chages that qualif as a penalty under ou precedent.
2 The cour fund that "the purposes of probation have been flflled and Defendant should be
dismissed fom probation without entry of judgment." See Exh. 3 at 11.
2
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Cite as: Dale Anderson Telesford, A079 020 706 (BIA May 27, 2014)

I
A079 020 706
aien convicted of possession of maiju with intent to distribute would have been eligible fr
fderal misdemeanor teatment under 21 U.S.C. § 84l(b)(4), tereby causing his ofense not to
constitute a aggravated flony "drug tafcking crime" uder section 101(a)(43)(B) of te Act,
the alien h te buden to show that he was convicted of possessing a "small" amount of
marijuaa ad tat no remuneration was intended. See Matter of Casto Rodriguez, supra, at
703-04. I this case, the respondent argues tat his conviction may have involved a small
aount of maijuaa. See Respondent's Brief at 14-15.
In Moncrief v. Holder, 133 S. Ct. 1678, 1690 (2013), however, the Supreme Cou
disageed with the Boad's approach in Matter of Casto Rodriguez, supra. Te Cou stated that,
to deterne i a state conviction quaifes as a aggravated flony under the Act, "we look 'not
to the facts of te paicula prior case,' but instead to wheter 'te state statute defning te
crime of conviction' categorically fts witin the 'generc' fderal defnition of a coresponding
aggavated flony." Moncriefe, supra, at 1684. Te Cour indicated tat "we must presume tat
te convicton 'rested upon [nothing] more than the least of th[e] acts' criminalized [in te
statute], and then deterne whether even those acts ae encompassed by the generic fderal
ofense." Id We must exaine the language of te statte under whch te respondent was
convicted ad "not what he did." Id at 1690.
I ts cae, the respondent was convicted under Iowa Code § 124.40l(l)(d). Tis statute
provides:
I. Except as authorzed by this chapter, it is unlawfl fr ay person to
manufactue, deliver, or possess with the intent to maufactue or deliver,
a contolled substance, a counterfeit substance, or a simulated contolled
substace, or to act with, enter into a common scheme or desig wit, or
conspire with one or more other persons to maufacture, deliver, or
possess wit the intent to maufacture or deliver a contolled substance,
a counterfit substance, or a simulated contolled substance .. . .
d. Violation of this subsection, wit respect to ay other contolled
substaces, counterfeit substances, or simulated contolled substaces
classifed in section 124.204, subsection 4, paagaph "a", or section
124.204, subsection 6, paagaph "i", or classifed i schedule IV or V is
an aggravated misdemeaor. However, violation of this subsection
involving ffy kilograms or less of maijuaa or involving fuitaepa
is a clas "D" felony.
Because this statute encompasses marijuaa deliver without ay exception relating to small
aounts or absence of remuneration, we canot conclude that te respondent's conviction under
te statute constitutes a aggavated flony under the Act. See Moncriefe, supra, at 1686; see
also 21 U.S.C. § 841(b)(4). Terefre, we canot a  r te Immigration Judge's deterination
tat te respondent's conviction constitutes an aggravated flony.
3
3
Both Matter of Castro-Rodriguez and Moncrief were decided afer the Imgation Judge's
decision was issued in this case. See 8 C.F.R. § 1003.l(e)(S).
3
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Cite as: Dale Anderson Telesford, A079 020 706 (BIA May 27, 2014)
A079 020 706
Noneteless, the respondent does not contest that he is removable under section 237(a)(l)(B)
of te Act. Furer, in view of our rejection of the respondent's agument that the disposition of
his criminal dg ofense chage did not aout to a "conviction," and in te absence of ay
oter agument by the respondent relatng to removability under secton 237(a)(2)(B)(i) of the
Act based on a contolled substace conviction, we will not distub the Im.igation Judge's
fnding of removability on tat goud. Because we deterine tat the respondent has not been
convicted of a aggravated flony under the Act, however, we will remand tis case to the
Immigration Judge to deterine if the respondent is eligible fr any relief fom removal. On
remand, the paries should be aforded a oppority to submit additonal evidence ador
aguments in tat regad.
Accordingly, the fllowing order will be entered.
ORDER: The record is remaded to the Imigation Judge fr fther proceedings
consistent wit this opinion ad te enty of a new decision.
4
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Cite as: Dale Anderson Telesford, A079 020 706 (BIA May 27, 2014)
·.�
UNITED STATES DEPARTMENT OF JSTICE
EXECUTIVE OFFICE FOR IMMGRTION REVIEW
IMMIGRTION COURT
OMAHA, NEBRASKA
File #: A079-020-706 Date: February 3, 2012
In the Mater of:
Dale Anderson TELESFORD,
)
)
)
)
)
IN REMOVAL
PROCEEDINGS
Respondent.
CHARGE: Section 237 (a)(l)(B) of the Immigration and Nationality Act ("INA" or
"the Act") - remaining longer than permitted
Section 237 (a)(2)(B)(i) of the Immigration and Nationalit Act ("INA" or
''the Act") - conviction of a controlled substace violation
Section 237 (a)(2)(A)(iii) of the Immigration and Nationality Act ("IA"
or "the Act") - conviction of an aggravated flony
APPLICATION: Motion to Terminate
ON BEHALF OF RSPONDENT:
R. Joel Hatch, Esq.
Smith, Gardner, Slusky,
Lazer, Pohen & Rogers, LLP
8712 West Dodge Road, Suite 400
Omaa, NE 68114
ON BEHALF OF THE GOVERNMENT:
Elizabeth A. Treacy, Assistant Chief Counsel
U.S. Depaent of Homeland Security
Immigration and Customs Enfrcement
fr Omaha, Nebraska
DECISION OF THE IMMIGRTION JUDGE
I. Background and Procedural Histor
The Respondent is a male native ad citizen of Trinidad and Tobago who was admitted to
the United States as a nonimmigrant student on August 17, 2004. The goverent commenced
removal proceedings against him through the issuance of a Notice to Appear ("NT A") on
December 11, 2009, chaging him with removability pursuant to the above-captioned sections of
the INA. See Exh. l.
·
1
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The Respondent has admitted fctual allegations 1-5 as contained in the NTA ad
conceded removability under INA§ 237 (a)(l)(B). Trnidad ad Tobago has been designated as
the country of removal should such action become necessary.
However, the respondent denies allegation 6 as well as removability under the remaining
grounds. Although he admits that he was charged with Delivery of a Schedule I Controlled
Substance in violation of Iowa Code section 124.40l(l)(d) on June 16, 2003, in the Iowa District
Court fr Boone County, he argues that because he was granted defrred judgment, he was not
actually "convicted" within the meaning of INA §(a)(48)(A). This section defnes the term
"conviction" as ''a frmal judgment of guilt of the alien entered by a court," but also specifes
that where an adjudication of guilt has been withheld, the conviction will stand fr immigration
purposes where "a judge or juy has fund the alien guilty or the alien has entered a plea of
guilty or nolo contendere or has admitted sufcient fcts to wa  ant a fnding of guilt, and the
judge has ordered some frm of punishment, penalty, or restraint on the alien's liberty to be
imposed."
In support of tis allegation and these grounds of removability, the goverent has
submitted the Trial Infrmation (containing fve counts, the frst fur of which accuse him of the
ofense of Delivery of Marijuana) dated March 12, 2003, the Court's Order of June 16, 2003,
which states "(b )y guilty plea, the Defndat stands convicted of Delivery of a Schedule I
Controlled Substance, to wit: Marijuana, in violation of Iowa Code Section 124.401(l)(d), a
class "D" flony", the State of Iowa's Motion to Dismiss Counts I, II, IV, and V, and an Order of
Dismissal fom Defered Judgment Probation granted under Chapter 907. See Exhibit 3.
The respondent has also submitted a Order Clarifing Dismissal fom Defrred
Judgment dated June 1, 2009. See Exhibit 2. This Order states:
On June 16, 2003 this court ganted Defendant defred judgment
pursuant to Iowa Code Section 907 . 1 ( 1 ). Iowa Code Section 907. I ( 1)
defines deferred judgment as:
A sentencing option whereby both the adjudication of
guilt and the imposition of a sentence are defered by the court
and whereby the court assesses a civil penalty as provided in
Section 907.14 upon the entry of the defred judgment." Id.
Pursuant to this section, the court did not fnd the defendant guilty of
Delivery of a schedule I contolled substance in violation of Iowa Code
Section 124.401(1)(d), a class "D" felony. Rather, the court withheld adjudication
of this fnding until the Defendant was given an oppornity to comply with
the voluntary conditions of his deferral.
Pursuant to this section, the cour did not place restrains (sic)
Defndanfs liberty. To wit: the court did not impose a jail sentence; the cour
did not impose a civil libery. The cour did place Defndant under probation,
but as a term of the defn·ed judgment which would monitor Defndant's
compliance with his defred status.
2
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The respondent cites a decision fom the Court of Appeals fr the Fourth Circuit
1
holding
that some criminal cour adjudications conducted pursuant to Virginia's frst ofender statute do
not constitute "convictions" under INA§ 10l(a)(48)(A). Crespo v. Holder,_ F.3d_, No.
09-2214 (4
th
Cir. 201 I).
The goverent agues that the decisions of the Attorey General in Matter of
Marroquin, 23 I & N Dec. 705 (A.G. 2005) and the Board of Immigration Appeals in Matter of
Cabrera, 24 I & N Dec. 459 (BIA 2008) control.
II. Analysis and Findings
In Matter of Marroquin, the Attorney General held that the fderal defnition of
"conviction" at section 10l(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(48)(A) (2000), encompassed convictions, other than those involving frst-time simple
possession of narcotics, that had been vacated or set aside pursuant to an expungement statute fr
reasons that did not go to the legal propriety of the original judgment, and that continued to
impose some restraints or penalties upon the defndant's liberty.
The respondent in Marroquin had been convicted in state court of unlawfl possession of
a frearm and was placed on 5 yeas' probation. The state court ordered, as conditions of
probation, that he spend 365 days i the county jail and pay $100 restitution and the costs of his
probation. The respondent was subsequently ordered deported but, while his appeal was
pending, requested that his conviction be expunged. The Califrnia Superior Cour granted his
motion fr relief under this expungement statute on December 18, 1994, and ordered Marroquin­
Garcia' s "felony charge reduced . .. to a misdemeanor," his plea of guilty set aside and vacated,
and the complaint against him dismissed. However, the Attorey General noted that during the
pendency of the proceedings, Congress had enacted a new fderal statutory defnition of the term
"conviction" and that when read in concer with Matter of Roldan, 22 I & N Dec. 512 (BIA
1999), the new fderal defnition of "conviction" meant that fr a conviction not involving frst­
time simple possession of narcotics, an alien remained convicted, and thus removable
notwithstanding a subsequent state action to vacate or set aside the conviction. The Attorey
General also noted that statutes such as the Califrnia expungement provision merely provided a
means by which cerain defndants who had been lawflly convicted and subjected to
punishment could be relieved of many, though not all, of the remaining legal consequences that
norally attended an adjudication of guilt.
In Matter of Cabrera, the Board held that the imposition of costs and surcharges in the
criminal sentencing context constituted a frm of "punishment" or "penalty" fr purposes of
establishing that an alien had sufered a "conviction" within the meaning of section
10l(a)(48)(A) of the Immigration ad Nationality Act, also noting that:
The clear majorit of Federal courts of appeals have held that the imposition of costs and other
assessments constitutes a fr of criminal punishment or penalt. See, e.g., United States v. Jungels,
910 F.2d I 501, 1504 (7th Cir. 1990) (fnding that the imposition of costs under certain Federal tax laws
1 The Omaha Immigation Cour lies within the jurisdiction of the Eighth Circuit Court of Appeals. It is also noted
that, unJike here, the defendant (respondent) in Crespo v. Ho
l
der did not plead guilty.
3
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was mandator upon criminal conviction); United States v. Maberr, 774 F.2d 1018, 1021
(I 0th Cir. 1985) (holding that the imposition of a special assessment under 18 U .S.C. § 3013
to ofset the costs of a victims' assistance fnd was a fr of punishment within the meaning
of the Assimilative Crimes Act); see also United States v. Ashburn, 884 F.2d 901 (6th Cir. 1989)
(same); United States v. King, 824 F.2d 313 (4thCir. 1987) (same); United States v. Smith,
818 F.2d 687 (9th Cir. 1987)(same)
III. Conclusion
Based upon a thorough consideration of the arguments and authorities cited by the
parties, the Court fnds that the respondent's conviction is fnal fr immigration purposes. The
respondent pleaded guilty to Count III of the Infrmation relating to Delivery of Marjuana
(Class D Felony) and, pursuant to the defrred judgment provisions, was placed on probation fr
two years, ordered to pay a $250 probation enrollment fe, a $125 law enfrcement initiative
surcharge, a $10 DAR fe, and was also ordered to pay reimbursement to the State of Iowa in
the amount of $620. Notwithstanding the entry of the "Order Clarifying Dismissal fom
Defred Judgment approximately six years later, the Order itself notes that in so doing, "the
court assesses a civil penalty" and that it would "monitor Defndant's compliance with his
defrred status".
The Court therefre fnds that the respondent is also removable under INA §§ 237
(a)(2)(B)(i) and 237 (a)(2)(A)(iii). He makes no application fr any frm of administrative
relief. Accordingly, the fllowing order will be entered:
ORDER OF THE IMMIGRATION JUDGE
IT IS HEREBY ORERED that the respondent shall be removed fom the United
States to Trinidad and Tobago on the charges contained in the Notice to Appear.
(
James R. Fujimoto
Immigration Judge
4
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