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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk


510 7 l.eesb11rg Pike. S11ite 2000 Falls Ch11rch. Virginia 22041

ROSALES-LAZO, WILLIAN JOSUE At# 095-021-153 1115 N. IMPERIAL AVE. EL CENTRO, CA 92243

OHS/ICE Office of Chief Counsel - ELC 1115 N. Imperial Ave. El Centro, CA 92243

Immigrant & Refugee Appellate Center | www.irac.net

Name: ROSALES-LAZO, WILLIAN JOSUE

A095021153

Date of this notice: 4/21/2011

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Adkins-Blanch, Charles K. Guendelsberger, John Malphrus, Garry D.

Cite as: Willian Josue Rosales-Lazo, A095 021 153 (BIA April 21, 2011)

U.S Department of Justice


Executive Office for Inunigration Review

Decision of the Board of Inunigration Appeals

Falls Church, Virginia 22041

File:
In re:

A095 021 153 - El Centro, CA


WILLIAN JOSUE ROSALES-LAZO

Date:

APR 1120\t

IN BOND PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Pro se David P. Finn Assistant Chief Counsel APPLICATION: Change in custody status ORDER: The respondent, a native and citizen of El Salvador, has appealed the Immigration Judge's January 3, 2011, bond order. The Immigration Judge, in his January 27, 2011, bond memorandum, stated that the respondent is subject to the mandatory detention provisions of section 236(c) of the Immigration and Nationality Act, 8 U.S.C. 1226(c). In the bond memorandum, the Immigration Judge noted the respondent's criminal conviction, stated that he is not assuming that the Department of Homeland Security (DHS) will not submit additional evidence regarding the conviction at a later date, and concluded that the DHS is thus not "substantially unlikely" to establish that the respondent's criminal offense involved moral turpitude. We do not find that the Immigration Judge's bond memorandum adequately analyzes whether the respondent is subject to mandatory detention. Without adequate explanation of the reasons for the Imm igration Judge's decision, the Board is not able meaningfully to review the appeal. 1994);

see also Matter ofA-P-,

See Matter ofM-P-, 20 l&N Dec.

786 (BIA

22 I&N Dec. 468 (BIA 1999). We note that the criminal offense at
19 &N Dec. 669 (BIA 1988) (aggravated assault

issue, battery of a peace officer pursuant to section 243(b) of the California Penal Code, is not an aggravated battery offense.

Cf Alfatter ofDanesh,

against a peace officer, which results in bodily harm to the victim and which involves knowledge by the offender that his force is directed to an officer who is performing an official duty, constitutes a crime involving moral turpitude). Accordingly, the record is remanded to the Immigration Judge for the provision of a memorandum explaining the specific reasons for the finding of mandatory detention, including an analysis of whether a criminal offense pursuant to section 243(b) of the California Penal Code involves moral turpitude. The Immigration Judge shall subsequently serve the memorandum on the parties, and the record shall be certified to the Board.

Cite as: Willian Josue Rosales-Lazo, A095 021 153 (BIA April 21, 2011)

.JP

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT 1115 North Imperial Avenue El Centro, CA 92243 FILE NO: A95-021-153

IN THE MATTER OF Willian Josue ROSALES-LAZO Respondent

) ) ) ) ) ) ) )

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

CHARGE:

Section 2 l 2(a)(6)(A)(i) of the Immigration and Nationality Act (''INA"), as an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General.

On Behalf of the Respondent

On Behalf of OHS

Pro Se

David P. Finn, Esq. Assistant Chief Counsel 1115 North Imperial Avenue El Centro, CA 92243
MEMORANDUM OF BOND DECISION

I.

PROCEDURAL HISTORY

On December 15, 2010, the Department of Homeland Security ("OHS") issued Willian Josue Rosales-Lazo ("respondent") a Notice to Appear ("NTA").

See Bond Exhibit

1. In the

NTA, OHS alleged that the respondent: (1) is not a citizen or national of the United States; (2) is a native and citizen of El Salvador; (3) arrived in the United States at or near San Ysidro, California on or about November 11, 2002; and (4) was not then admitted or paroled after inspection by an Immigration Officer.

See id.

Based on the allegations, OHS charged the

respondent as removable pursuant to INA 212(a)(6)(A)(i).

See id.

On December 20, 2010,

DHS filed the NTA with the El Centro, California Immigration Court. thereby vesting this Court with jurisdiction over these proceedings. A95-021-153

See id.: 8 C.F.R.

I 003. I 4(a).

On December 15, 2010, the respondent requested a redetermination of his custody status by an Immigration Judge.

See id.

A bond hearing was scheduled for January 3, 20 1 1, at which

the respondent declined to seek representation.


II. ANALYSIS

Under INA 236(c)( l ), an alien who is removable by reason of having committed an offense under INA 237(a)(2)(A)(i) or 2 12(a)(2)(A)(i)(I) (crime involving moral turpitude) is subject to mandatory detention. An alien need not be charged with the ground of removability that forms the basis for mandatory detention under INA 236(c)( I ).

Immigrant & Refugee Appellate Center | www.irac.net

See Maller of Kotliar, 24

I&N Dec. 124 (BIA 2007). Furthermore, there only needs to be a "reason to believe" that the alien "falls within a category barred from release." (BIA 1999); but

Maller ofJoseph, 22 I&N Dec. 660, 668

see Maller ofJoseph, 22

l&N Dec. 799, 806 (BIA 1999) (finding a lawful

permanent resident is not "properly included" in a mandatory detention classification when it is "substantially unlikely" that DHS will "establish, at the merits hearing, the charge or charges [of removability] that subject the alien to mandatory detention"). The bond record indicates that in 2009, the respondent was charged with a violation of California Penal Code 243(b), or when "battery is committed against the person of a peace officer, custodial officer, firefighter, emergency medical technical, lifeguard, process server, traffic officer, code enforcement officer, or animal control officer engaged in the performance of his or her duties ... " The Court need not assume that the record of conviction at issue in the bond proceeding is the only evidence DHS will be able to present at the removal hearing.

See Matter

ofJoseph, 22

l&N Dec. at 807. Therefore, this Court finds DHS is not "substantially unlikely"

to establish at the merits hearing that the respondent's 2009 battery offense was a crime involving moral turpitude that would subject him to removal.

See Maller ofJoseph, 22

l&N

Dec. at 806. As a result, the respondent is subject to mandatory detention pursuant to INA 236(c)(I). Because the Court finds that the respondent is subject to mandatory detention, it does not need to reach the issue of whether he is a flight risk or a danger to the community.

See

Matter of Guerra, 24

l&N Dec. 37, 40 (BIA 2006).

A95-021-153

ORDER IT IS ORDERED that respondent's request for a custody redetermination be DENIED.

Dated: January

.;J. 7

2011

Immigrant & Refugee Appellate Center | www.irac.net

JE F FREY ROMIG Immigration Judge

A95-021-153

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