Department of Justice Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk
5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 20530

Masse, Ryan, Esq. 11020 W. Greenfield Ave., #104 West Allis, WI 53214

OHS/ICE Office of Chief Counsel - CHI 525 West Van Buren Street Chicago, IL 60607

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A 043-007-964

Date of this notice: 3/11/2014

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

DGnltL caJVt.)
Donna Carr Chief Clerk

Enclosure Panel Members: Manuel, Elise

Lulseges Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Hoai Ich Pham, A043 007 964 (BIA Mar. 11, 2014)




U.S. Department of Justice
Executive Office for Immigration Review Falls Church, Virginia 20530

Decision of the Board of Immigration Appeals

File: A043 007 964 - Chicago, IL
In re:


MAR 11 2014


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CHARGE: Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] Convicted of aggravated felony (as defined in section 101(a)(43)(B))

APPLICATION: Termination of proceedings The respondent, a native and citizen of Vietnam, has appealed from the decision of the Immigration Judge dated June 13, 2012. The record will be remanded. The Board reviews an Immigration Judge's :findings of fact, including findings as to the credibility of testimony, under the "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i); Matter of S-H-, 23 I&N Dec. 462, 464-65 (BIA 2002). The Board reviews questions of law, discretion, and judgment and all other issues in appeals from decisions of Immigration Judges de novo. 8 C.F.R. § 1003. l(d)(3)(ii); Matter ofA-S-B-, 24 I&N Dec. 493 (BIA 2008). The respondent, on appeal, argues that his conviction is not an aggravated felony. The respondent pied guilty in 1999 to the Wisconsin state offense of Delivery of a Controlled Substance, Tetrahydrocannabinols, as a Party to a Crime. Subsequent to the Immigration Judge's decision, the United States Supreme Court issued its decision in Moncrieffe v. Holder, 133 S.Ct. 1678 (2013). In Moncrieffe v. Holder, supra, at 1684, the Court stated that, "[w]hen the Government alleges that a state conviction qualifies as an 'aggravated felony' under the INA, we generally employ a 'categorical approach' to determine whether the state offense is comparable to an offense listed in the INA." The Court added that "we look 'not to the facts of the particular prior case,' but instead to whether 'the state statute defining the crime of conviction' categorically fits within the 'generic' federal definition of a corresponding aggravated felony." Id. (citation omitted). In addition, the Court stated that "[b]ecause we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction 'rested upon [nothing] more than the least of th[e]

Cite as: Hoai Ich Pham, A043 007 964 (BIA Mar. 11, 2014)

A043 007 964 acts."' Id. (citation omitted). The Court concluded that "[i]f a noncitizen's conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA." Id. at 1693-94. Thus, the actual language of the offense for which the respondent was convicted must indicate that the offense involved either remuneration or more than a small amount of marijuana. Under these circumstances, we find it appropriate to remand the record for the Immigration Judge to reconsider the respondent's removability in light of Moncrieffe v. Holder, supra, and to reconsider the respondent's eligibility for any relief. ORDER: The record is remanded for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

Immigrant & Refugee Appellate Center | www.irac.net



Cite as: Hoai Ich Pham, A043 007 964 (BIA Mar. 11, 2014)


Immigrant & Refugee Appellate Center | www.irac.net



June 13,


In the Matter of


) ) ) }



Section 237{a) (2) (A) (iii) - you have been convicted of aggravated felony as defined in 101 (a} (43) (B) , an offense relating to illicit trafficking in a controlled substance as described in Section 102 of the Controlled Substances Act including a drug trafficking crime as defined in Section 924 (c) of Title 18. Termination of Proceedings.


ON BEHALF OF RESPONDENT: RYAN MASSE ON BEHALF OF DHS: MICHELLE M. VENCI ORAL DECISION OF THE IMMIGRATION JUDGE The respondent in this case is a male who is a native and citizen of Vietnam. November 4, The Department of Homeland Security on

2009 served a Notice to Appear in this Court as an aggravated

charging him with violating 237 (a) (2) (A) (iii) felon.

At a hearing in April of 2010 the respondent pled to the allegations, admitting the allegations in the Notice to



1 through 5.

The respondent also appeared on June 23, At that time he pled to the

2011 with his attorney. allegations.

The respondent admits the allegations but denies

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the charge contending that the conviction under the Wisconsin Statute of manufacture and delivery of THC in 1999 does not constitute a conviction of an aggravated felony. The Court will apply the criteria in Silva-Trevino and look first whether the crime is categorically an aggravated felony. The Court first considers the State statute under which Wisconsin State Statute

the respondent was convicted.

961.41 (1) (h)l, under that provision "It is unlawful for any person to manufacture, distribute, or deliver a controlled Any person who

substance or controlled substance analog.

violates this subsection with respect to a controlled substance including schedule I or schedule II which is a narcotic drug, or

controlled substance analog of a controlled substance included in schedule I or II which is a narcotic drug, may be fined not more than $25, 000 or imprisoned for not more than 15 years, or both." The respondent was convicted under subsection (h) ,

that section relating to THC and the provision states that he is subject to the following penalties if the amount manufactured, distributed, or delivered is, subsection (1), 500 grams or less

or 10 or fewer plants containing Tetrahydrocannabinols, the person shall be fined not less than $500 no more than $25,000



June 13, 2012


and may be imprisoned for not more than three years." The conviction record included in Exhibit 2 reflects the respondent was charged with violating the aforementioned provision. Specifically, he pled guilty to violating Section

Immigrant & Refugee Appellate Center | www.irac.net

961.41(1) (h) l,

manufacture/delivery of THC l ess than 500 grams The Court

and he did that in Wisconsin Circuit Court in 1999. on November 5,

1999 imposed probation of 18 months for that

conviction, plus fines. The respondent has also included the guilty plea and sentencing appearance which took place on November 5, 1999 which

describes the circumstances of the crime and the plea that the respondent made in open Court. It is clear that the respondent

made this guilty plea of his own volition and he pled to the section which is listed in the allegations in the Notice to Appear. The question raised here is whether this State felony conviction would bring the respondent within the drug "trafficking" contained in Section 101{a) (43) (B) of the Act.

There is no question here that THC is a controlled substance which was specifically listed under the Controlled Substances Act. Moreover, the Board in Matter of Roberts, (BIA May 1, 1991) 20 I&N Dec. 294

has held that a sole conviction for felony

sale of a controlled substance is sufficient to support a determination that the respondent is a drug trafficker within the meaning of Section lOl(a) (43) . In this case, the respondent



June 13,


was convicted of delivering and manufacturing THC.

The Board

has interpreted the term trafficking to include a transaction, that is, moving drugs from one place to another. The respondent

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was convicted of more than "mere possession" but rather of delivery. That is, transferring the drug. Even if the State

did not have to show that he received money for the sale of the THC or marijuana, it was sufficient that he was involved in the transfer for him to fall within the term of drug trafficking. Under Wisconsin law, he was convicted of delivering the drug and thus this falls within what has been interpreted by the Board and also by the Seventh Circuit to mean "trafficking". The 395

Seventh Circuit has stated this position in Ali v. Ashcroft, F.3d 722 (7th Cir. January


In that case the Seventh

Circuit held that "even a state conviction for possession of a controlled substance with intent to deliver is both a drug trafficking crime and an aggravated felony. If it is punishable

under the Controlled Substances Act, it qualifies as a felony." See page 8. In this case, the respondent was convicted not but of

simply of possession with intent to deliver,

manufacturing and delivery, arguably a more serious crime and a felony offense under state law. punishable under Federal Statute, Certainly this was a crime the Controlled Substances Act,

because THC is listed as a proscribed substance under provision of the Controlled Substances Act. Therefore, I concluded that

the respondent's conviction of manufacturing and delivery of THC



June 13,



in 1999 constitutes a conviction of an aggravated felony under lOl (a) (43) (B) of the Ac t, namely illicit trafficking in a I've concluded tha t the

controlled substance.

As a resul t,

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conviction record establishes by clear and convincing evidence that the respondent is subject to removal under the charge listed in the Notice to Appear. The consequences of this decision is tha t the respondent is barred from cancellation of removal under Section 240A (a) which bars the relief to anyone convicted of an aggravated felony. Moreover, the responden t could not avail

himself of 2 12 (c) relief under the INS v. Sancerre decision, Supreme Court 2001, since he was convicted on November 5, 1999 He

and thus he is not covered by the terms of that decision. has designa ted Vietnam as the country of removal.

He is no t

eligible for volun tary departure since any alien who has been convicted of an aggravated felony at any time is barred from that relief. Therefore, the Cour t will deny voluntary departure

because the responden t is statu torily ineligible and will direct his removal to the country of his ci tizenship and nationality, namely Vietnam. Accordingly, the following orders are entered.

IT IS ORDERED tha t the responden t be removed to Vietnam on the charge lis ted on the Notice to Appear.

CRAIG M. ZERBE Immigration Judge



June 13,

20 12


I hereby certify that the attached CRAIG M. ZERBE, in the matter of:

proceeding before JUDGE

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is an accurate,

verbatim transcript of the recording as provided

by the Executive Office for Immigration Review and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.



(Transcriber) Inc.


(Completion Date)

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