U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk
5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 22041

VOSKANYAN, VANIK ARMEN A058-470-495 C/O CUSTODIAL OFFICER P.O. BOX 6005 ADELANTO, CA 92301

OHS/ICE Office of Chief Counsel - LOS 606 S. Olive Street, 8th Floor Los Angeles, CA 90014

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Name: VOSKANYAN, VANIKARMEN

A 058-470-495

Date of this notice: 3/19/2013

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

DoYUtL c11/VL)
Donna Carr Chief Clerk Enclosure Panel Members: Guendelsberger, John

lulseges Userteam: Docket

Cite as: Vanik Armen Voskanyan, A058 470 495 (BIA March 19, 2013)
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··Executive Office for Inunigration Review Falls Church, Virginia 22041

Decision ofthe Board oflnunigration Appeals

File: A058 470 495 -Los Angeles, CA
In

Date:

MAR l 9 2013

re: VANIK ARMEN VOSKANYAN a.k.a. Vanik Voskanyan

IN REMOVAL PROCEEDINGS APPEAL

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ON BEHALF OF RESPONDENT: Pro se In a decision dated October 19, 2012, an Immigration Judge found the respondent removable; denied his application for voluntary departure; determined that he did not demonstrate eligibility for any other relief from removal; and ordered him removed from the United States to Armenia. 1 The respondent appealed from that decision. The appeal will be dismissed. The now 26-year-old respondent was found removable as charged, as convicted of an aggravated felony under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii), in conjunction with section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F). As substantiated by conviction documents, he has a March 2011 conviction upon a plea of nolo contendere for burglary under Cal. Penal Code § 459, for which he was sentenced to imprisonment of 2 years. See Ex. 2. He was admitted to the United States as a lawful permanent resident on or about March 3, 2007. Upon our de novo review, we find correct the Immigration Judge's conclusions regarding the respondent's removability and ineligibility for removal relief. We agree with the denial of voluntary departure. Consistent with the Immigration Judge's determinations, the respondent is statutorily ineligible for voluntary departure due to his aggravated felony conviction. See section 240B(b)(l )(C) of the Act, 8 U.S.C. § 1229c(b)(l )(C). The respondent has not disputed that his 2011 burglary conviction is for an aggravated felony. On appeal, he mentions discretion. In view of his statutory ineligibility for voluntary departure, the Immigration Judge a�propriately did not reach discretionary consideration of his application for that relief, nor do we. The proceedings before the Immigration Judge in this matter were completed in Los Angeles, California through video conference pursuant to section 240(b)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C.§ 1229a(b)(2)(A)(iii). The respondent has not expressed any fear of returning to Armenia either before the Immigration Judge or on appeal. When the Immigration Judge inquired whether he was afraid of returning to Armenia, the respondent answered, "No," and he designated that country as the one to which he wished to be removed. See I.J. at 1; Tr. at 7. As an alien who has been convicted of an aggravated felony, the burglary crime for which he was sentenced to imprisonment of 2 years, he is statutorily ineligible for asylum. See sections 208(b)(2)(A)(ii) and 208(b)(2)(B)(i) of the Act, 8 U.S.C. §§ 1158(b)(2)(A)(ii) and 1158(b)(2)(B)(i). He has not established prima facie eligibility for withholding of removal under the Act or protection under the Convention Against Torture ("CAT"), particularly in view of the aforementioned testimony. See section 10l(a)(42)(A) of the Act; see also section 241(b)(3) of the Act, 8 U.S.C. § 1231(b)(3); 8 C.F.R. §§ 1208.16, 1208.16(c)(2), and 1208.18(a)(I). With regard to the respondent's reference to discretion, we note that withholding of removal and CAT protection are not discretionary forms of relief. Cite as: Vanik Armen Voskanyan, A058 470 495 (BIA March 19, 2013)
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A058 470 495 Next on appeal, the respondent refers to his United States citizen mother. Potentially, his mother could file a visa petition on his behalf, and he could seek to readjust his status in conjunction with a waiver under section 212(h) of the Act, 8 U.S.C. § 1182(h). He is inadmissible under section 212(a)(2)(A)(i)(n of the Act in view of his 2011 conviction and, consequently, is ineligible for adjustment of status in the absence of a waiver grant, even if a visa petition for him were approved. However, he is statutorily ineligible for a waiver under section 212(h) of the Act, as a lawful permanent resident who has been convicted of an aggravated felony. See Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010). 3 Moreover, his 2011 conviction is too late for him to qualify for a waiver under section 212(c) of the Act, pursuant to 4 the limited circumstances delineated in INS v. St. Cyr, 533 U.S. 289 (2001). Further, the respondent references the "constitutional rights" of his mother. He also alleges that the Immigration Judge did not weigh his testimony efficiently and did not properly acknowledge his claims. To the extent that the respondent maintains that certain provisions of the immigration laws are unconstitutional, we observe that this Board cannot rule on the constitutionality of laws enacted by Congress. See Matter of Fuentes-Campos, 21 I&N Dec. 905 (BIA 1997). To the extent that he maintains that his removal proceedings were unfair, we find that he has not demonstrated any error by the Immigration Judge with respect to the evaluation of the evidence, with respect to the application of legal standards, or with respect to the handling of the hearings, under the circumstances of this case. We also find that he has not demonstrated any resultant prejudice such as would constitute a due process violation. See Cruz Rendon v. Holder, 603 F.3d 1104 (9th Cir. 2010). Finally, the respondent indicates that his mother, who is 53 years old, has diabetes and high blood pressure. To the extent . that he seeks humanitarian relief to enable him to remain in the United States with his mother, this Board and the Immigration Judges have limited jurisdiction and can grant only those forms of relief from removal that are expressly authorized by Congress. See Matter of Medina, 19 l&N Dec. 734 (BIA 1988). We have no power to grant equitable remedies or to confer general humanitarian relief on aliens. If the respondent wishes to obtain relief on humanitarian grounds, he must pursue such relief with the Department of Homeland Security. With regard to section 212(h) eligibility issues, the respondent's case arises within the Ninth Circuit. The Board currently applies Hanifv. Attorney General of the U.S., 694 F.3d 479 (3d Cir. 2012), in the Third Circuit; Bracamontes v. Holder, 675 F.3d 380 (4th Cir. 2012), in the Fourth Circuit; Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008), in the Fifth Circuit; Lanier v. U.S. Attorney General, 631 F.3d 1363 (11th Cir. 2011), in the Eleventh Circuit; and Matter of Koljenovic, supra, in all other federal circuits.
In INS v. St. Cyr, supra, the United States Supreme Court held that section 212(c) relief remains available, despite its repeal, only for aliens who (1) have convictions that were secured through plea agreements prior to April 24, 1996, (2) have a "lawful unrelinquished domicile of 7 consecutive years," and (3) are not deemed ineligible for a waiver for having served more than 5 years of incarceration following a conviction for an aggravated felony. Even if the respondent had entered into his plea agreement before April 24, 1996, he does not have 7 years of lawful unrelinquished domicile based on his 2007 admission as a lawful permanent resident, as required by INS v. St. Cyr, supra.
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Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Vanik Armen Voskanyan, A058 470 495 (BIA March 19, 2013)

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I

A058 470 495 Accordingly, we will dismiss the appeal. ORDER: The appeal is dismissed.

Immigrant & Refugee Appellate Center | www.irac.net

3
Cite as: Vanik Armen Voskanyan, A058 470 495 (BIA March 19, 2013)

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION IMMIGRATION COURT 606 SOUTH OLIVE ST. LOS ANGELES, CA REVIEW

90014

VOSKANYAN, ADELANTO, IN

VANIK ARMEN

C / O CUSTODIAL OFFICER CA

10400

RANCHO ROAD

Immigrant & Refugee Appellate Center | www.irac.net

92301
FILE A

-\-HE

MATTER OF VANIK ARMEN -

058-470-495

DATE:

Oct 22, 2012

VOSKANYAN,

UNABLE TO FORWARD

NO ADDRESS PROVIDED THIS DECISION

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. WITHIN

IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS

30

CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION. ATTACHED DOCUMENTS, OFFICE OF THE CLERK P.O. BOX AND FEE OR FEE WAIVER REQUEST

SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL. YOUR NOTICE OF APPEAL, MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS

.�....

8530
VA

FALLS CHURCH,

22041

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE WITH SECTION SECTION

242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6), IF YOU FILE A MOTION 8 u.s.c. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS.
YOUR MOTION MUST BE FILED WITH THIS COURT: IMMIGRATION COURT 606 SOUTH OLIVE ST. LOS ANGELES, CA

TO REOPEN,

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OTHER:

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LOTHIAN, 606 S.

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90014

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CC: HEIDI, CA, OLIVE STREET, LOS ANGELES,

IMMIGRATION COURT

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT LOS ANGELES, CALIFORNIA File Number: A 058 470 495 ) ) In the Matter of: VOSKANYAN, Yanik Armen. Respondent CHARGES: ) ) ) ) ) ) Immigration and Nationality Act (INA)§ 237 (a)(2)(A)(iii) IN REMOVAL PROCEEDINGS

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- Convicted ofaggravated f elony as defined in Section JOJ(a)(43)(F) of the Act, a crime ofviolence
APPLICATION: Removable ON BEHALF OF THE GOVERNMENT: Heidi Lothian, Esq. Assistant Chief Counsel U.S. Department of Homeland Security Los Angeles, California 90014

ON BEHALF OF RESPONDENTS: Vanik Armen Voskanyan, Pro Se c/o Custodial Officer 19499 Rancho Road Adelanto, California 92301

DECISION AND ORDERS OF THE IMMIGRATION JUDGE I. Procedural History On August 29, 2012, the Government personally served Respondent with a Notice to Appear {NTA). The NTA was filed with the Court on September 5, 2012. In the NTA, the Government alleged that Respondent, a native and citizen of Armenia, was admitted to the United States at Los Angeles, California on or about March 3, 2007 as a Lawful Permanent Resident. On March 8, 2011, he was convicted in the Superior Court of California, County of Riverside, for the offense of Burglary, in violation of section 459 of the California Penal Code. For that offense, he was sentenced to a term of imprisonment of two (2) years. Accordingly, the Government charged Respondent with removability pursuant to INA§ 237(a)(2)(A)(iii). Respondent subsequently admitted all of the factual allegations in the NTAs and conceded the charge of removability contained therein. The Government submitted the conviction document. returned to Armenia. Respondent is ineligible for relief, because his conviction for a burglary offense under California Penal Code (CPC) section 459, an aggravated felony. The Court informed Respondent Respondent testified that he is not afraid of harm or torture if he is

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that he was ineligible for relief due to his conviction and his testimony that he is not afraid of harm or torture. Respondent requested relief in the form of voluntary departure. INA§ 240B(b) provides that the Attorney General may permit- a nonimmigrant to depart the United States at his own expense, in lieu of removal, if the following requirements are met: (1) the alien has been physically present in the United States for a period of one year immediately preceding the date the NTA was served; (2) the alien is, and has been, a person of good moral character for at least five years immediately preceding his application for voluntary departure; (3) the alien is not an aggravated felon; and (4) the alien has established by clear and convincing evidence that he has the means to depart the United States and intends to do so. Respondent is ineligible for voluntary departure due to his conviction for an aggravated felony. Respondent wished to reserve appeal stating, "Maybe something will come up." In light of the foregoing, the following orders will be entered:
ORDERS IT IS HEREBY ORDERED that Respondent Armenia based upon the charge in the NTA. DATE: D

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from the United States to

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Federal Immigration Judge

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