Misiti, Nicklaus, Esquire

40 Wall St., 28th Fl
New York, NY 10005
Name: SIMON, RAY LINDSAY
U.S. Department of Justice
Executive Offce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5/07 Leesb1rg Pike. Suite 2000
Falls Ch1rch, Vrginia 22041
OHS/ICE Ofice of Chief Counsel - ATL
180 Spring Street, Suite 332
Atlanta, GA 30303
A 044-269-366
Date of this notice: 6/11/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Grant, Edward R.
Sincerely,
DO c t
Donna Carr
Chief Clerk
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Userteam: Docket
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Cite as: Ray Lindsay Simon, A044 269 366 (BIA June 11, 2013)
SIMON, RAY LINDSAY
A044-269-366
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesburg Pike, Suite 2000
Fals Church. Vrginia 2 20. I
OHS/ICE Ofice of Chief Counsel - ATL
180 Spring Street, Suite 332
IRWIN COUNTY DETENTION CENTER
132 COTTON DRIVE
Atlanta, GA 30303
OCILLA, GA 31774
Name: SIMON, RAY LINDSAY A 044-269-366
Date of this notice: 6/11/2013
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 attorey or representative has been served with this
decision pursuant to 8 C.F.R. § 1292.5(a). If the attached decision orders that you be
removed fom the United States or afrms an Immigration Judge's decision ordering that you
be removed, any petition fr review of the attached decision must be fled with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Grant, Edward R.
Sincerely,
Da CtV
Donna Carr
Chief Clerk
schuckec
Useream: Docket
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Cite as: Ray Lindsay Simon, A044 269 366 (BIA June 11, 2013)
U.S. Department of Justice
Executive Ofce fr Immigration Review
Decision of the Board of Immigation Appeals
.
Falls Church, Virginia 22041
File: A044 269 366 - Atlanta, GA
In re: RAY LIDSAY SIMON
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Nicklaus Misiti, Esquire
ON BEHALF OF OHS: Randall Duncan
Assistant Chief Counsel
APPLICATION: Termination of proceedings
JUN I l 2013
The respondent, a native and citizen of Guyana, who was previously ganted lawfl
permanent resident status in the United States, has appealed fom the Immigration Judge's
decision dated February 25, 2013. The Immigration Judge fund the respondent removable and
fund him ineligible fr relief fom removal based on his criminal conviction. The record will
be remanded.
This Board reviews an Immigration Judge's fndings of fct, including fndings as to the
credibility of testimony, under the "clearly eroneous" standard. See 8 C.F.R. § 1003.l (d)(3)(i);
Matter of R-S-H-, 23 I&N Dec. 629 (BIA 2003); Matter of S-H-, 23 l&N Dec. 462 (BIA 2002).
This Board reviews questions of law, discretion, and judgment, and all other issues raised in an
Immigration Judge's decision de novo. See 8 C.F.R. § 1003. l (d)(3)(ii).
The Notice to Appear alleges that, on October 29, 2008, the respondent was convicted of
Possession with Intent to Distribute Marijuana, in violation of O.C.G.A section 16-13-30. A
record of this conviction was entered into the record of proceedings (Exh. 2). See section
240(c)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(3)(B); 8 C.F.R.
§ 1003.4l (a). Cf Fequiere v. Ashcroft, 279 F.3d 1325, 1327 (11th Cir. 2002). In addition, the
respondent admitted the conviction (Tr. at 14-15). See 8 C.F.R. §§ 1003.4l (d), 1240.IO(c). Cf
Fequiere v. Ashcrof, supra, at 1327. Based on this evidence, the Immigration Judge fund the
conviction proved (I.J. at 1-2).
The respondent was charged with being removable fr having been convicted of an
aggravated felony involving illicit trafcking in a controlled substance (Exh. 1 ). 1 The
Immigration Judge fund the respondent removable as charged (1.J. at 2).
The term "aggravated flony" includes illicit trafcking in a controlled substance (as defned in
section 102 of the Controlled Substances Act), including a drug trafcking crime (a defned in
section 924(c) of title 18, United States Code). See section 101(a)(43)(B) of the Act, 8 U.S.C.
§ 110l (a)(43)(B). The ter "drug trafcking crime" means any state felony punishable under
the Controlled Substances Act. See 18 U.S.C. § 924(c)(2). See Lopez v. Gonzales, 549 U.S. 47
(2006).
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Cite as: Ray Lindsay Simon, A044 269 366 (BIA June 11, 2013)
A044 269 366
On appeal, the respondent seeks remand and/or terination of proceedings in light of
Moncriefe v. Holder, _ U.S. g 133 S.Ct. 1678 (2013). In Moncriefe v. Holder, the United
States Supreme Court fund that violations of O.C.G.A section 16-13-30 do not constitute an
aggravated flony involving illicit trafcking in a controlled substance unless there is evidence
of remuneration or more than a small amount of the controlled substance. In light of this
intervening precedent, we fnd it appropriate to remand the record to the Immigration Judge fr
frther consideration of removability.
Accordingly, the fllowing order will be entered.
ORDER: The record is remanded to the Immigration Judge fr frther proceedings
consistent with the fregoing opinion and entry of a new decisio
FOR THE BOA
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Cite as: Ray Lindsay Simon, A044 269 366 (BIA June 11, 2013)
..,¸_@
9W Ë . Ï
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ATLANTA, GEORGIA
File: A044-269-366 February 25, 2013
In the Matter of
RAY LINDSAY SIMON IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES:
APPLICATIONS:
Section 237 (a) (2) (A) (iii);
Section 237(a) (2) (A) (iii); and the third charge
is for 237(a) (2) (E) (i) of the Imigration and
Nationality Act.
ON BEHALF OF RESPONDENT: JOYCE DALRYMPLE
2520 Northwinds Parkway, Suite 450
Alpharetta, Georgia 30009
ON BEHALF OF OHS: RANDALL DUNCAN
Assistant Chief Counsel
ORAL DECISION OF THE IMMIGRATION JUDGE
This case came before the Court as the result of a Notice
to Appear that was issued by the Department of Homeland
Security. The charging document, as amended, alleges that the
respondent is a native and citizen of Guyana and that he is
removable from the United States pursuant to Section 237 of the
Immigration and Nationality Act. The respondent admits that he
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is removable on the ground of having been convicted in state
court for an offense of possession with intent to distribute
marijuana in violation of OCGA 16-13-30(b). The respondent
disputes the allegation in the NTA that he is removable for
having been convicted for a simple assault family violence
charge. The record shows that that conviction was vacated. The
Government does not dispute this fact and the charges under
Section 237(a) (2) (A) (iii) for a crime of violence aggravated
felony and for the crime of domestic violence the charges are
not sustained.
The Court does sustain the charge of removal for a
conviction that constitutes an aggravated felony based on the
drug trafficking crime. The Court sustains the charge of
removal under Section 237(a) (2) (A) (iii) of the Immigration and
Nationality Act.
The respondent was granted previous continuances in this
case for the purposes of collaterally attacking his state court
conviction. The respondent's attack on the state court
conviction was successful insofar as one of these convictions is
concerned. The respondent has not been successful in vacating
his state court conviction for the offense of possession with
intent to distribute marijuana. He asked the Court for a
further continuance today in order to appeal the state court's
denial of his post-conviction relief. The Government opposes a
continuance and the Court finds that the respondent has not
A044-269-366 2 February 25, 2013
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shown good cause for a further continuance in this matter. The
Court notes that the respondent has no other form of relief.
The Court will enter an order of removal in this case.
ORDER
IT IS HEREBY ORDERED the respondent be removed from the
United States pursuant to Section 237(a) (2) (A) (iii) of the
Imigration and Nationality Act, and that he be deported to
Guyana.
A044-269-366
P1oase seo the net pago for o1ectronic siqaturo
EARLE B. WILSON
Immigration Judge
3 February 25, 2013
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/Isl/
Imigration Judge EARLE B WILSON
wilsone on April 8, 2013 at 11:46 A GMT
A044-269-366 4 February 25, 2013
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