FERNANDA N. HOTLE, ESQ.

THE HOTTLE LAW FIRM, LLC
P.O. BOX 829
FAYETEVILLE, GA 30214
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5 I 07 Leebur Pike, Suite 2000
Fals Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - SOC
146 CCA Road
Lumpkin, GA 31815
Name: BAUTISTA-SANTOS, JORGE IVAN A 043-996-234
Date of this notice:
10/7/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Miller, Neil P.
Sincerely,
Don c aA
Donna Carr
Chief Clerk
Trane
Userteam: Docket
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Jorge Ivan Bautista-Santos, A043 996 234 (BIA Oct. 7, 2013)
BAUTISTA-SANTOS, JORGE IVAN
A043-996-234
OIC WILLIAM MCMINN
STEWART DETENTION FACILITY 146 CCA
ROAD
LUMPKIN, GA 31815
Name: BAUTISTA-SANTOS, JORGE IVAN
U.S. Department of Justice
Executive Ofce fr Immigation Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leeburg Pike, Suite 2000
Fall Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - SOC
146 CCA Road
Lumpkin, GA 31815
A 043-996-234
Date of this notice:
1
0/7/2013
Enclosed is a copy of the Board's decision in the above-refrenced case. This copy is being
provided to you as a courtesy. Your attorey or reresentative has been sered wit tis
decision pursuat to 8 C.F.R. § 1292.S(a). If the atached decision orders that you be
removed fom the United States or afrs an Immigration Judge's decision ordering that you
be removed, ay petition fr review of the attached decision must be fed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Miller, Neil P.
Sincerely,
DO CW
Dona Car
Chief Clerk
Trane
Userteam: Docket
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Jorge Ivan Bautista-Santos, A043 996 234 (BIA Oct. 7, 2013)

¿« .. r
l.S. Department of Justice
Executive Ofce fr Imigation Review
Decision of the Boad of Immigation Appeals
Fans Church, Virginia 20530
File: A043 996 234- Lumpkin, Georgia
In re: JORGE I AN BAUTISTA-SANTOS
IN RMOVAL PROCEEDINGS
APPEAL AND MOTION
Date:
ON BEHALF OF RSPONDENT: Ferada H. Hotle, Esquire
ON BEHALF OF DHS: Biaca H. Brow
Assistat Chief Counsel
CHARGE:
OCT 7 2013
Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] -
Convicted of aggavated flony under section 10l(a)(43)(G) of the Act
APPLICATION: Continuace, remad
The respondent, a native and citizen of Honduras, and a lawfl peranent resident of the
United States since Mach 13, 1993, fled a timely appeal of a Immigration Judge's decision
dated Jue 12, 2013. Subsequent to te Imigation Judge's decision, and while the respondent's
appeal was pending befre te Boad, bot te respondent, as well as the Depament of Homelad
Security ("DHS"), fled motions to remad this case to te Immigration Cou. The respondent
has submitted evidence that the 2012 Georgia conviction fr the misdemeanor ofense of Thef by
Taing underlying te aggravated flony charge of removal, ad which frs the basis fr te
Immigration Judge's fndings of removability, has been claifed by te Georgia sentencing cou.
Specifcally, in a order dated July 2, 2013, the Georgia sentencing court judge claifed his
original order, noting that in accepting the respondent's guilty plea on April 25, 2012, fr te
misdemeanor ofense of Thef by Taking, he sentenced the respondent to a period of "telve (12)
months, entirely on probation, with no period of confnement whatsover, plus a $400.00 fne ... "
The respondent contends that as a result of the Georgia sentencing cou's order claifing his
conviction ad sentence, it no longer qualifes as a conviction fr an aggavated flony ''thef
ofense" as defned in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C.
§ 110l(a)(43)(G), a originally charged in the Notice to Appear ("NTA") (Form 1-862) (Exh. 1).
See Mater of Cota-Varga, 23 I&N Dec. 849 (2005); Matter of Song, 23 l&N Dec. 173
(BIA 2001).
Thus, as uged by the DHS in its motion, we fnd it appropriate to gant the motions and
remand te record to the Immigation Judge to consider in the frst instance the new evidence
ofered by te respondent relating to his removabilit a having been convicted of a aggravated
flony, and to deterine wheter the respondent's removability, as chaged in the NTA, can ay
_longer be sustained, or whether these removal proceedings should be terinated.
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Jorge Ivan Bautista-Santos, A043 996 234 (BIA Oct. 7, 2013)
1^*ª *
A043 996 234
Accordingly, the fllowing order will be entered.
ORER: Te record is remaded to te Imigation Judge fr fher proceedings
consistent with the fregoing opinion, ad te entr of a new decision.
FOR TH BOA
2
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Jorge Ivan Bautista-Santos, A043 996 234 (BIA Oct. 7, 2013)

� c

UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LUMPKIN, GEORGIA
File: A043-996-234
In the Matter of
June 12, 2013
JORGE IVAN BAUTISTA-SANTOS
RESPONDENT
)
)
)
)
IN REMOVAL PROCEEDINGS
CHARGES:
APPLICATION: Motion for a continuance fr a collateral attack on the underlying
conviction.
ON BEHALF OF RESPONDENT: FERNANDA N. HUDDLE, Esquire
ON BEHALF OF DHS: BIANCA BROWN, Assistant Chief Counsel
Deparment of Homeland Security
ORAL DECISION OF THE IMMIGRATION JUDGE
Respondent is a male native and citizen of Honduras. Respondent was placed
into removal proceedings by the Department of Homeland Security (Deparment) by the
issuance of a Notice to Appear (NTA) on May 13, 2013.
The Deparment charged respondent with removability under Section
237(a)(2)(A)(3) of the Immigration and Nationality Act (Act), as amended, in that at any
time afer admission, you have been convicted of an aggravated felony as defined in
1
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
�­

� ·
Section 101 (a)(43)(G) of the Act, a law relating to a thef ofense (including receipt of
stolen proper) or a burglar ofense for which a term of imprisonment of at least one
year was imposed.
The respondent is currently detained by the Deparment of Homeland Security.
Respondent first appeared before the Cour May 30, 2013. He was given his
statutor advisals at that time. Respondent infrmed the Cour he wanted to speak to
his family. He was given a list of legal serices providers and infrmation on Catholic
Charities and his case was reset for him to speak to his family or use the time as he
wished.
Respondent appeared with counsel before the Cour today June 12, 2013.
At that time, the Cour asked the counsel for respondent if she was prepared to
enter pleadings on his behalf.
Counsel for respondent infrmed the Court that she wanted a continuance in
order to collaterally attack respondent's conviction.
The Court notified respondent's counsel that the Cour does not continue cases
for collateral attacks on convictions.
The respondent's attorney thereafter admited that she was prepared to enter
pleadings on behalf of her client.
Per respondent's attorney, the respondent is not a citizen or national of the
United States. The respondent is a native of Honduras and a citizen of Honduras and
was born in Honduras. Respondent became a legal permanent resident on March 13,
1993, under Section 245 of the Act. The respondent was on April 25, 2012, convicted in
the State Cour of Cherokee County, Georgia, for the ofense of thef by taking in
violation of Section 16-8-2 of the Georgia Code.
Counsel denied respondent was sentenced to 12 months confinement for the
A043-996-234 2 June 12, 2013
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
above ofense.
At that time, the Notice to Appear was entered as Exhibit Number 1.
Government Counsel, thereafer, submited the conviction documents for the
respondent's case, which has been marked as Exhibit Number 2.
Third page of that document is clear that the respondent was convicted of thef
by taking after entering a plea of guilty and he was sentenced to 12 months in the
Cherokee County Jail or such other place as Cherokee County may provide for the
county inmates, including the Department of Corrections, at the election of the sherif to
be computed as provided by law.
The document went on to say that, however, it is furher ordered that the service
of days, months and the remainder of said sentence may be served on probation.
The section for how many days or months might be sered on probation was lef
blank.
Therefore, from the face of the documents, the respondent was sentenced to 12
months in the Deparment of Corrections fr Cherokee County, Georgia.
On the next page it appears that the document reflects that afer six months, the
respondent's sentence might be terminated, however, the respondent was definitely
sentenced to a confinement of 12 months. Therefore, based on Exhibit Number 2, the
Cour sustained allegation number 5 and the charge puruant to Section 237(a)(2)(A)(3)
of the Act.
The Cour thereafer asked the respondent's counsel what relief was available to
the respondent and she replied there was no other relief available to him besides a
collateral atack on his conviction.
The Cour, thereafer, asked the Government Counsel what relief was available
to the respondent and she answered none that she could see.
A043-996-234 3 June 12, 2013
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
c

There being no relief available to the respondent except for a collateral attack on
his conviction to which he pied guilty, the Cour will deny a furher continuance of this
case.
The legal standard fr continuances is contained in 8 C.F.R. Section 1003.29.
That section provides as follows: the Immigration Judge may grant a continuance for
good cause shown. Matter of Sibrun, 18 l&N Dec. 354 (BIA 1983).
The Cour in this case has considered the guidelines of Matter of Sibrun, also
Matter of Hashmi, 24 l&N Dec. 785 (BIA 2009), and also Matter of Cezareo Sanchez­
Sosa, 25 l&N Dec. 807 Int. Dec. 375, (BIA 2012), Westlaw 2068680, BIA.
The Cour has considered that the Deparment of Homeland Security objects to
any furher continuance of this case.
Whether or not the collateral attack would have any efect on the respondent's
conviction is unknown to the Court and has not even been filed yet.
The respondent's statutory eligibility for any form of relief under the INA has not
been identified by respondent's counsel to this Cour. Therefore, his ability to have
relief from removal is unknown to the Cour at this time.
Whether the respondent's application when it is filed with a State Cour merits a
favorable exercise of discretion is totally unknown to this Cour and outside of this
Cour's jurisdiction.
And, finally, the reason for the continuance is as stated by respondent's counsel
to collaterally attack his conviction.
As that is the sole reason for the continuance, the Cour will deny the motion to
continue this case in order for respondent's counsel to at some point collaterally attack
his underlying conviction. The respondent is held in the custody of the Deparment of
Homeland Securit at the Stewar Detention facility.
A043-996-234 4 June 12, 2013
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t


ORDER OF THE COURT

� ·
IT IS HEREIN ORDERED that the respondent's request for a continuance is
denied.
signature
A043-996-234
Please see the next page for electronic
SAUNDRA D. ARRINGTON
Immigration Judge
5 June 12, 2013
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
" . , . ,
/Is//
Imigration Judge SAUNDRA D. ARRINGTON
arringts on August 9, 2013 at 12:10 PM GMT
A043-996-234 6 June 12, 2013
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t

Sign up to vote on this title
UsefulNot useful