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Ramon Garcia-Fonseca, A075 535 094 (BIA June 5, 2014)

Ramon Garcia-Fonseca, A075 535 094 (BIA June 5, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) was not inadmissible for having “admitted” violating a law related to a controlled substance based on a guilty plea to methamphetamine possession that resulted in his placement in a California drug diversion program. The Board noted that respondent was not convicted for immigration purposes under Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), and that a guilty plea which results in something less than a "conviction" is not tantamount to an "admission" of the crime. The decision was written by Member Roger Pauley and joined by Member Linda Wendtland and Member Patricia Cole.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) was not inadmissible for having “admitted” violating a law related to a controlled substance based on a guilty plea to methamphetamine possession that resulted in his placement in a California drug diversion program. The Board noted that respondent was not convicted for immigration purposes under Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), and that a guilty plea which results in something less than a "conviction" is not tantamount to an "admission" of the crime. The decision was written by Member Roger Pauley and joined by Member Linda Wendtland and Member Patricia Cole.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index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 28, 2014
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Lemus, Richard F.

Law ofice of Richard Lemus
201 N. Euclid St.
Fulleron, CA 92832
Name: GARCIA-FONSECA, RAMON
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigation Appeals
Ofce of the Clerk
5107 Leeburg Pike, Suite 2000
Fals Church, Vrginia 20530
OHS/ICE
606 S. Olive Street, 8th Floor
LOS ANGELES, CA 90014
A 075-535-094
Date of this notice: 6/5/2014
Enclosed is a copy of the Board's decision ad order in the above-referenced case.
Enclosure
Panel Members:
Pauley, Roger
Wendtland, Linda S.
Cole, Patricia A.
Sincerely,
DC c w
Donna Carr
Chief Clerk
Trane
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Ramon Garcia-Fonseca, A075 535 094 (BIA June 5, 2014)
U.S. Deparment of Justice
Executive Ofce fr Immigration Review
Decision of the Board of Immigration Appeals
Falls Church, Virginia 20530
File: A075 535 094 - Los Angeles, CA
In re: RMON GARCIA-FONSECA
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Rchard F. Lemus, Esquire
CHARGE:
JUN - 5 2014
Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § 1 182(a)(6)(A)(i)] -
Present without being admitted or paroled
APPLICATION: Adjustment of status
The respondent appeals fom a Imigration Judge's November 1 5, 2013, decision denying
his application fr adjustment of status under section 245(i) of the Immigration and Nationality
Act, 8 U.S.C. § 1255(i), and ordering him removed fom the United States. The appeal will be
sustained ad the record will be remanded fr fher proceedings.
The respondent, a natve ad citizen of Mexico, concedes that he is removable fom the
United States by virue of his unlawfl presence (Tr. at 5), and thus the only issue on appeal is
whether he qualifes fr adjustment of stats under section 245(i) of the Act.
A applicant fr section 245(i) adjustment must prove that he is "admissible to the
United States fr permanent residence." Section 245(i)(2)(A) of the Act. The Immigration Judge
fund that the respondent could not satisf that admissibility requirement because in 2006 he
entered a guilty plea to a chage of methaphetamine possession in violation of section 11377(a)
of the Califra Health & Safty Code. According to the Immigation Judge, the respondent's
plea constituted an "admission" that he had violated a Califra law relating to a contolled
substance, thereby rendering him inadmissible under section· 212(a)(2)(A)(i)(II) of the Act,
8 U.S.C. § 1 182(a)(2)(A)(i)(II), which provides in relevant pa that "any alien convicted of,
or who admits having commited, or who admits committing acts which constitute the essential
elements of . . . a violation of (or a conspiracy or attempt to violate) ay law or regulation of
a State . . . relating to a controlled substance (as defned in section 802 of Title 21), is
inadmissible." (Emphasis added).
On appeal, the respondent argues that his Califria plea to methamphetamine possession
does not render him inadmissible because it did not result in a "conviction" fr immigration
purposes. In support of that argument, the respondent points out that the criminal proceedings in
conection with that plea were dismissed in 2007 pursuat to Califria's drug diversion statte,
Cal. Penal Code § I 000 et seq. (Exh. 3). In the respondent's view, that dismissal had the efect of
vitiating the conviction under Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), in which
the Ninth Circuit held that an alien's frst-time conviction fr simple possession of a controlled
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Cite as: Ramon Garcia-Fonseca, A075 535 094 (BIA June 5, 2014)
A075 535 094
substance could not give rise to adverse immigration consequences if the conviction was
dismissed, vacated, or expunged by means of state procedures akin to those prescribed by te
Federal First Ofender Act ("FFOA"),.1 � U.S.C. § 3607.
1
The Immigration Judge apparently sought to avoid application of the Lujan-Armendariz rule
by fnding the respondent inadmissible not as an alien who was "convicted" of a controlled
substce violation, but rather as a alien whose guilty plea establishes that he "admits having
committed" such a violation (Tr. at 57-59). That mode of analysis is freclosed, however,
because the Ninth Circuit and this Boad have long held that a guilty plea which results in
someting less than a "conviction" is not tantamount to an "admission" of the crime fr
immigration puoses. See Romero v. Holder, 568 F.3d 1054, 1062 (9th Cir. 2009); Matter of
Seda, 1 7 l&N Dec. 550, 554 (BIA 1980), overruled on other gound by Matter of Ozkok,
1 9 I&N Dec. 546 (BIA 1 988); Matter of Winter, 12 I&N Dec. 638, 642 (IA 1967, 1968);
Matter of E-V-, 5 I&N Dec. 1 94, 1 96 (BIA 1953); Matter of C-Y-C-, 3 l&N Dec. 623, 629
(BIA 1950). If the respondent's plea did not result in a "conviction" within the meaing of
Lujan-Armendariz, then it also did not constitute an "admission" upon which a fnding of
inadmissibility can be based.
Te Immigation Judge did not decide whether the respondent has a "conviction" within te
meaing of Lujan-Armendariz, nor did he address whether the respondent is oterwise eligible
fr-and deserving of-adjustent of status. Accordingly, the record will be remaded fr
fher consideration of those questions and �or the entry of a new decision.
ORDER: The record is remanded fr frther proceedings consistent with the fregoing
opinion and fr enty of a new decision.
1 Lujan-Armendariz was overruled by the Nint Circuit in Nunez-Reyes v. Holder, 646 F.3d 684
(9th Cir. 2011) (en bane); however, because many defendants had ostensibly relied on the
Lujan-Armendariz rule when deciding whether to plead guilty to simple possession crimes witin
the Ninth Circuit, the Nunez-Reyes cour decided that it would continue to apply te
Luan-Armendariz rule with respect to aliens convicted of simple possession ofenses befre
July 14, 201 1, when Nunez-Reyes was decided. See Nunez Reyes v. Holder, supra, at 690-94. As
the respondent pied guilty to methaphetamine possession in 2006, Nunez-Reyes dictates that
the Lujan-Armendariz famework continues to apply to him.
2
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Cite as: Ramon Garcia-Fonseca, A075 535 094 (BIA June 5, 2014)
UNITED STATES DEPARTMENT OF JUSTI CE
EXECUTIVE OFFI CE FOR I MMIGRATI ON REVIEW
UNI TED STATES I MMIGRATI ON COURT
LOS ANGELES, CALI FORNIA
File: A075-535-094 November 15, 2013
In the Matter of
RAMON GARCIA-FONSECA
)
)
)
)
IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act as
amended: alien present in the United States without being
admitted or paroled.
APPLI CATI ONS: Adjustment of status.
ON BEHALF OF RESPONDENT: RI CHARD LEMUS, Esquire
Law Ofices of Richard Lemus
201 Norh Euclid Street
Fulleron, California 92832
ON BEHALF OF DHS: SANDRA SHIN, Assistant Chief Counsel
Department of Homeland Security
606 South Olive Street, 8th Floor
Los Angeles, California 90014
DECI SI ON AND ORDER OF THE I MMIGRATI ON JUDGE
The respondent is a male, native and citizen of Mexico. The Deparment
of Homeland Security ( DHS) commenced these removal proceedings against the
respondent pursuant to its authority under Section 240 of the Immigration and
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Nationality Act ( INA). DHS commenced these proceedings by issuing the respondent a
Notice to Appear (NTA) and filing it with the Immigration Court on August 28, 2013. See
Exhibit 1. In the NTA, DHS charged the respondent with being removable from the
United States pursuant to INA Section 212(a)(6)(A)(i), as an alien present in the United
States without being admitted or paroled.
The respondent conceded proper service of the NT A. The respondent
admited factual allegations 1, 2 and 4. The respondent denied factual allegation 3, as
he alleged he knew the location and date. The respondent, through counsel, conceded
removability as charged. Based upon the respondent's admission and concession, the
Court does find that respondent's removability has been established by clear and
convincing evidence.
The respondent declined to designate a country of removal in the event
removal become necessary. The Cour directed Mexico as the country of removal.
APPLI CATI ON FOR RELIEF
The respondent applied for relief in the frm of adjustment of status under
INA Section 245(i). The respondent initially indicated he may alternatively seek
voluntary deparure, however, later declined to pursue that application.
EVI DENTIARY RECORD
The evidentiary record consists of the testimony presented in this case, as
well as the following documentar exhibits that were admitted into the record:
Exhibit 1: the Notice to Appear;
Exhibit 2: the respondent's application for adjustment of status and
supporing documents;
Exhibit 3: respondent's submission of crimes table and supporting
documents;
A075-535-094 2 November 15, 2013
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Exhibit 4: respondent's supplemental exhibits to the application fr
adjustment of status;
Exhibit 5: the U.S. Deparment of Justice FBI Criminal History Report;
Exhibit 6: documents from the Superior Court of California, County of
Orange, including the felony complaint and written plea form;
Exhibit 7: respondent's brief in support of adjustment of status, as well as
case summaries and excerpts from the California Penal Code.
The respondent testified in support of his application. Additionally, the
respondent's wife, Tomasa Sandoval testifed in suppor his application. Additionally,
Rosa Salas testified in support of the application. Whether specifically mentioned in this
decision or not, the Cour has considered all of the evidence in reaching its decision.
STATEMENT OF THE LAW
The respondent bears the burden of proof and persuasion on his
applications fr relief. 8 C. F.R. Section 1240.B(d); Young v. Holder, 697 F.3d 976 (9th
Cir. 2012). The provisions of the REAL ID Act of 2005 apply to the respondent's
application as it was filed with the Cour afer May 11, 2005. See Matter of S-B-, 24 l&N
Dec. 42 (BIA 2006).
ADJUSTMENT OF STATUS
The status of an alien who was inspected and admited or paroled into the
United States may be adjusted to that of an alien lawfully admitted for permanent
residence if he: (1) applies fr adjustment of status; (2) is eligible to receive an
immigrant visa and is admissible to the United States for permanent residence; and (3)
an immigrant visa is immediately available to him at the time of his application. See INA
Section 245(a). If eligibility is established, adjustment of status may be granted in the
exercise of discretion. Matter of Arai, 13 l&N Dec. 494 (BIA 1970). The status of an
A075-535-094 3 �November 15, 2013
£.Z A
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alien who was not admited or paroled may be adjusted under cerain circumstances
under frmer Section 245(i). If the respondent is grandfathered under Section 245(i), he
may pursue adjustment of status, even absent a prior admission or parole. The alien
bears the burden of establishing eligibility fr adjustment of status and demonstrating
that relief is merited in the exercise of discretion. See Matter of Ibrahim, 18 l&N Dec. 55
(BIA 1981).
The respondent has filed his application for adjustment of status. The
respondent has also demonstrated that a visa is available. The issue in this case is
whether or not the respondent is admissible to the United States.
Pursuant to INA Section 212(a)(2)(A)(i)(ll), an alien is inadmissible to the
United States if they have been convicted of or admit having committed or who admits
committing acts which constitute the essential elements of a violation of any law or
regulation of a state, the United States or a foreign countr relating to a contrlled
substance as defined in Section 102 of the Controlled Substances Act. In this particular
case, the respondent was arrested and charged with a violation of Califrnia Health and
Safety Code Section 11377{a), possession of a controlled substance, a felony. See
Exhibit 6. The substance the respondent was alleged to have possessed is
methamphetamine. The respondent ultimately received a deferred entry attachment on
that case. Thus, the respondent does not have a conviction fr that case. However,
under 212(a){2)(A)(i), a conviction is not necessary. In order to be inadmissible, an
alien who admits having committed or who admitting acts which constitute the essential
elements of a violation of controlled substance offense is inadmissible. In this particular
case, the Cour does find that the respondent has admitted committing acts which
constitute the essential elements of a controlled substance violation.
The Court notes that the Ninth Circuit has found that a conviction is not
A075-535-094 4 November 15, 2013
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necessary to render an alien inadmissible if, in fact, they have admitted committing the
acts which constitute the essential elements of a controlled substance ofense. See
Esquivel-Garcia v. Holder, 593 F.3d 1025 (9th Cir. 2010). The Ninth Circuit fund this
grant of inadmissibility applied in adjustment of status context and were to the
respondent, where there were admissions made by the alien to the Immigration Judge.
Id. In order to be in violation of Health and Safety Code Section 11377, an individual
needs to possess a controlled substance identifed in cerain schedules of the California
Controlled Substances Act. See California Health and Safety Code Section 11377(a).
In this case, Exhibit 6 does contain the written plea frm in paragraph 21, the
respondent initialed the written factual basis for his plea that he knowingly possessed or
used full amount of methamphetamine. This admission is suficient to demonstrate the
elements of Health and Safety Code Section 11377(a) violation. Thus, the Cour does
find that the respondent is inadmissible under 212(a}(2)(A)(i)(ll). The respondent is not
eligible to waive that ground of inadmissibility. As the respondent cannot demonstrate
that he is admissible to the United States because of that ground of inadmissibility, he
cannot establish statutor eligibility fr adjustment of status. Therefre, the Cour
denies the application for adjustment of status.
As the respondent has not made any other applications for relief fr
protection, the Cour will enter the following order.
ORDER
IT I S HEREBY ORDERED that the respondent's application fr
adjustment of status is denied.
A075-535-094 5 November 15, 2013
h d.J.J.
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IT IS FURTHER ORDERED that the respondent be removed to Mexico on
the charge contained in the Notice to Appear.
Date: November 15, 2013.
signature
A075-535-094
Please see the next page for electronic
KEVIN W. RILEY
Immigration Judge
6 November 15, 2013
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/Isl/
Imigration Judge KEVIN W. RILEY
rileyk on Decemer 19, 2013 at 6:48 PM GMT
A075-535-094 7 November 15, 2013
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