U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

<;Jffice ofthe Clerk

5107 Leesburg Pike, Suzie 2000

Falls Church, Virgmza 22041

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Vondra, Daniel OHS/ICE Office of Chief Counsel - OMA
Vondra & Malott, PLC 1717 Avenue H, Room 174
209 E. Washington St. Omaha, NE 6811O
Suite 305
iowa city, IA 52240

Name: MORENO-GALLEGOS, JAIME A 078-334-242

Date of this notice: 12/29/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Malphrus, Garry D.

_.:::.I.·. !;_,p I',

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Jaime Moreno-Gallegos, A078 334 242 (BIA Dec. 29, 2017)
, U.S� Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A078 334 242 - Omaha, NE Date:

DEC l 9 2811
In re: Jaime MORENO-GALLEGOS a.k.a. Raymond Solorzano

IN REMOVAL PROCEEDINGS

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APPEAL

ON BEHALF OF RESPONDENT: Daniel Vondra, Esquire

ON BEHALF OF DHS: Debra Robinson

Assistant Chief Counsel

APPLICATION: Termination

The Department of Homeland Security (DHS) appeals from the Immigration Judge's decision
dated July 10, 2017, terminating the removal proceedings. The respondent, a native and citizen of
Mexico, opposes the appeal. The appeal will be dismissed in part and the record will be remanded.

We review findings of fact determined by an Immigration Judge, including credibility findings,

under a "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). We review 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).

On April 11, 2003, the respondent's status was adjusted to that of a lawful permanent resident.
On September 16, 1998, he was convicted of two counts of possession of a controlled substance,
in violation of section 124.401(5) of the Iowa Code. On August 26, 2016, the respondent was
again convicted of possession of a controlled substance in violation of section 124.401(5) of the
Iowa Code. The DHS argues that the respondent is removable under section 237(a)(2)(B)(i) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i), as an alien convicted of violating a
law relating to a controlled substance, as a result of his 2016 conviction for possession of a
controlled substance. The DHS further argues that the respondent is removable under section
237(a)(l)(A) of the Act, as an alien who was inadmissible at the time of adjustment of status, as a
result of his 1998 convictions for possession of a controlled substance and as a result of his failure
to disclose those convictions on his adjustment of status application.

At all relevant times, section 124.401(5) of the Iowa Code has provided that it is unlawful for
any person to knowingly or intentionally possess a controlled substance. The term "controlled
substance" is not defined within section 124.401(5), but within a series of schedules in separate
sections of the Iowa Code. See IOWA CODE §§ 124.204, .206, .208, .210.

According to the Supreme Court, the requirements of the Act's controlled substance
removability grounds are "satisfied when the elements that make up the state crime of conviction
relate to a federally controlled substance." Mellouli v. Lynch, 135 S. Ct. 1980, 1990 (2015). Thus,
a conviction for possession of controlled supports a finding of removability under

Cite as: Jaime Moreno-Gallegos, A078 334 242 (BIA Dec. 29, 2017)
 . A018 334 242
•

section 237(a)(2)(B)(i) if (and only if) an "element" of the drug possession statute is connected to
a substance listed in the Federal controlled substance schedules. Id. at 1991.

Section 124.401(5) of the Iowa Code is broader than section 237(a)(2)(B)(i) of the Act because
Iowa's definitions of "controlled substance" are categorically broader than the federal definition.
Thus, the respondent's conviction cannot render him removable under section 237(a)(2)(B)(i) of

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the Act unless the DHS demonstrates that the statute is divisible and that consideration of the
respondent's conviction record would indicate that the controlled substance that he possessed is a
federally-controlled substance. In removal proceedings, we evaluate the divisibility of criminal
statutes by employing the standards set forth in Mathis v. United States, 136 S. Ct. 2243 (2016),
and Descamps v. United States, 133 S. Ct. 2276 (2013). See Matter of Chairez, 27 l&N Dec. 21
(BIA 2017).

By its terms, section 124.401(5) of the Iowa Code requires proof beyond a reasonable doubt
that the accused knowingly or intentionally possessed a controlled substance. Under Mathis and
Descamps, the divisibility of section 124.401(5) thus depends upon whether the identity of the
particular controlled substance is an "element" of the offense--i.e., a fact that must be proven to
the jury, unanimously and beyond a reasonable doubt, in order to convict--or merely a "brute fact"
about which the jury can disagree while still rendering a guilty verdict. If the former--if, that is,
all members of an Iowa jury would need to agree that the accused possessed one specific drug to
the exclusion of all others before rendering a guilty verdict--then section 124.401(5) is divisible
and the factfinder can undertake a modified categorical inquiry. But if the latter--if, that is, the
jurors could render a guilty verdict without agreeing about the identity of the controlled substance
possessed by the accused--then section 124.401(5) is indivisible and a modified categorical inquiry
is impermissible.

On its face, the language of section 124.401(5) does not specify whether the identity of the
controlled substance is an "element" of the offense (Respondent's Br. at 12; DHS Br. at 9-11).1
As discussed by the Immigration Judge, the jury instructions for section 124.401(5) make clear
that a jury need only find that the accused possessed "a controlled substance," without requiring
unanimous agreement as to the specific controlled substance (IJ at 5). Accordingly, we agree that
the identity of the controlled substance is not an element of section 124.401(5) of the Iowa Code.

For the foregoing reasons, we affirm the Immigration Judge's conclusion that section
124.401(5) of the Iowa Code is overbroad and indivisible relative to the definition of a controlled
substance offense and that the DHS has therefore not met its burden to demonstrate that the
respondent's 2016 conviction under that section renders him removable under section
237(a)(2)(B)(i) of the Act (IJ at 4-6). For the same reasons, we agree with the Immigration Judge
that the DHS has not met its burden to demonstrate that the respondent was inadmissible at the

1 We agree with the respondent that the holding in United States v. Maldonado, 864 F.3d 893
(8th Cir. 2017), sheds little light on the elements issue in this case as it dealt with a conviction
under section 124.401(1) of the Iowa code and because the identity of the controlled substance
was not at issue in that case.

Cite as: Jaime Moreno-Gallegos, A078 334 242 (BIA Dec. 29, 2017)
. A07.8 334 242

time of his 2003 adjustment of status as a result of his 1998 convictions under section 124.401(5)
of the Iowa Code (IJ at 6).

Although we will dismiss the DHS's appeal with respect to the charge of removability under
section 237(a)(2)(B)(i) of the Act, the record will be remanded for the Immigration Judge to further
address the charge of removability under section 237(a)(l)(A) of the Act. Specifically, the
Immigration Judge should further address whether the OHS met its burden to demonstrate that the

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respondent is removable based on a failure to disclose his 1998 convictions under section
124.401(5) of the Iowa Code at the time he adjusted his status. On remand, the parties shall be
permitted to update the evidentiary record and to present additional legal arguments. In
remanding, we express no opinion on the ultimate outcome of these proceedings. See Matter of
L-0-G-, 21 I&N Dec. 413, 422 (BIA 1996). The following orders will be entered.

ORDER: The DHS's appeal is dismissed with respect to the charge of removability under
section 237(a)(2)(B)(i) of the Act.

FURTHER ORDER: The record is remanded for further proceedings and the entry of a new
decision.

FOR THE BOARD

Cite as: Jaime Moreno-Gallegos, A078 334 242 (BIA Dec. 29, 2017)
 (

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

10,G;:lt9)7
IMMIGRATION COURT
OMAHA, NEBRASKA

File #: A 078-334-242 Date: )vv\j�

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JN THE MATIER OF: )
)
Jaime MORENO GALLEGOS, ) IN REMOVAL PROCEEDINGS
)
Respondent. )

CHARGES: Section 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA" or

"the Act")-Admitted alien convicted of violating a law related to a

controlled substance (as defined in 21 U.S.C. 802);

Section 237(a)(l)(A) of the Act-Admitted alien who was inadmissible at

the time of admission.

APPLICATION: Removability; Termination.

ON BEHALF OF RESPONDENT: ON BEHALF OF THE GOVERNMENT:

Dan Vondra, Esq. Debra Robinson, Assistant Chief Counsel
209 E. Washington St., Ste. 305 U.S. Department of Homeland Security
Iowa City, IA 52240 Immigration and Customs Enforcement
1717 Avenue H, Suite 174
Omaha, NE 68110

DECISION OF THE IMMIGRATION JUDGE

I. BACKGROUND AND PROCEDURAL IDSTORY

The Department of Homeland Security ("OHS") initiated removal proceedings again�t

Respondent by filing a Notice to Appear ("NTA'') with the Court on 24 October 2016. See Exl=:a.
1. The NTA alleges that Respondent: is a native and citizen of Mexico; whose status w.2a-S

adjusted to that of a Lawful Permanent Resident ("LPR") on 11 April 2003; was convicted c:-f
possession of a controlled substance, to wit: cocaine, under IOWA CODE § 124.401(5) on Z �
August 2016; was convicted of that same offense on 16 September 1998; and, was convicted �f
possession of marijuana under that same statute on the same date in 1998. Id. Based upon the�e
allegations, OHS charged Respondent with removability pursuant to the first of the abov�­
captioned sections of the INA. See id. Respondent admitted all save the convictions and deni e::==- d
the charge. Id. He designated Mexico as his Country of removal. Id.

l I A078-334-242
The Court initially found the 2016 allegation and sustained the NTA charge. See id. Later, the
Court withdrew its finding and requested briefs on removability, which the parties provided. See
Exhs. 8, 9. Upon consideration, the Court indicated its intention to terminate proceedings
pending the issuance of a written decision. On 1 May 2017, DHS filed a Form 1-261, Additional
Charges of Inadmissibility/Deportability ("l-261"), charging Respondent with the second of the
above-captioned grounds of removability. See Exh. IA. At a subsequent hearing, the Court

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indicated it would resolve the issues of removability and termination based on the record and any
briefs the parties filed.

At , this point, the issues pending before the Court are (1) whether certain documents are in
evidence; (2) whether DHS had authority to file the 1-261; (3) Respondent's removability on one
or both charges; and (4) whether termination is appropriate.

For the following reasons, the Court will terminate proceedings.

II. STATEMENT OF LAW

A. Violation of a Law Related to a Controlled Substance

A respondent who has been convicted of a violation of a law relating to a controlled substance is
inadmissible. See INA § 237(a)(2)(B)(i). DHS must "connect an element" of the alien's
conviction to a drug defined in 21 U.S.C. § 802 to establish removability by way of a controlled
substance violation. See Me/louli v. Lynch, 135 S. Ct. 1980, 1991 (2015). In Mellouli, the
Supreme Court instructed lower courts to use the categorical approach but did not reach the issue
of whether the modified categorical approach was also applicable. See 135 S. Ct. at 1986, n.4.
However, the Supreme Court did not disturb its own prior case law regarding divisibility, and it
has previously concluded that if the state offense is not a categorical match because it is broader
than the federal offense, the analysis must proceed to divisibility and, if the statute is divisible, to
the modified categorical approach. Descamps v. United States, 133 S. Ct. 2276, 2284 (2013).
Therefore, the Court will review whether the conviction statute is a categorical match-that is to
say, whether there is an element in the respondent's statute of conviction connecting it to a
defined federal drug in 21 U.S.C. § 802. See Me/louli, 135 S. Ct. at 1984.

1. Categorical Analysis

Solely relevant to the categorical analysis is whether the statute under which the respondent was
convicted "categorically fits within the generic federal definition." Id. (quoting Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 185-87 (2007)) (internal quotation marks omitted). The state
offense is thus "viewed in the abstract," in its elemental form, and the respondent's actual
conduct "is quite irrelevant." Moncreiffe, 133 S. Ct. at 1684 (quoting United States ex rel
Guarino v. Uhl, 107 F.2d 399, 400 (9th Cir. 1939)).

A conviction is a categorical match when "the least of the acts criminalized" in the statute of
conviction are "encompassed by the generic federal offense." Id. (citing Johnson v. United
States, 559 U.S. 133, 137 (2010)). This "minimum conduct" test is a practical one: there must be
a "realistic probability, not a theoretical possibility, that the State would apply its statute to

2 I A078-334-242 Order
 ( (

conduct that falls outside the generic definition" of the INA section at issue in order for the state
offense to not be a categorical match to its generic INA counterpart. Id. (quoting Duenas­
Alvarez, 549 U.S. at 193). In other words, a state offense must "'necessarily' proscribe conduct"
that is an offense under the INA. Id. at 1685 (quoting Lopez v. Gonzales, 549 U.S. 47, 60
(2006)). Any realistic probability of a state statute applying to conduct outside a generic INA
definition exists when the "risk of over-inclusiveness . . . is real." See Bobadilla v. Holder, 679

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F.3d 1052, 1058 (8th Cir. 2012). If the generic elements do not "necessarily inhereO in a
conviction," or where there exists a realistic probability of overinchision within the state offense,
there can be no categorical match. Id.; see also Matter of Ferreira, 26 I&N Dec. 415, 420-21
(BIA 2014) (holding there must be some evidence a state court would enforce the rule in a
manner inconsistent with the generic crime). A categorical match between the elements of the
state offense to those of the generic offense ends the inquiry. See Moncreijfe, 133 S. Ct. at 1685.

2. Divisibility

If the answer is neither a categorical match nor a categorical mismatch between the generic
crime and the statute(s) of conviction, the analysis moves on to a modified categorical approach,
-but only if the statute at issue is "divisible" because it contains "several different crimes, each
described separately," at least one, but not all, of which matches the generic definition of the
ground of removability. See Moncrieffe, 133 S. Ct at 1684; see also U.S.. v. Tucker, 740 F.3d
1177, 1182 (8th Cir. 2014) (after Descamps, courts cannot examine the record of conviction for
evidence related to "textually indivisible," "nonstatutory categories"). A statute is divisible
when it contains crimes as defined by distinct elements; but it is not divisible when it contains a
single crime which can be completed by different statutory means. See Mathis v. U.S., 136 S. Ct.
2243 (Jun. 23, 2016), overruling U.S. v. Mathis, 786 F.3d 1068 (8th Cir. 2015) (analyzing an
overbroad Iowa burglary statute) (emphasis added).

3. Modified Categorical Approach

Where that condition is met, a court "may determine which particular offense the noncitizen was
convicted of by examining the charging document and jury instructions, or in the case of a guilty
plea, the plea agreement, plea colloquy, or 'some comparable judicial record' of the factual basis
for the plea." Moncrieffe, 133 S. Ct at 1684-85 (internal citations omitted). However, no
additional sources of evidence outside the record can be consulted for this purpose. See id.
Moreover, the overriding concern is the "demand for certainty" inherent to the categorical
analysis; even if a respondent "could have" been convicted of the federal generic, there is no
match if he or she was not "necessarily" convicted thereof. See U.S. v. Horse Looking, 828 F.3d
744 (8th Cir. 2016) (emphasis in original).

III. FINDINGS AND ANALYSIS

Respondent is an admitted alien. See Exhs. I, IA. Therefore, DHS has the burden of
demonstrating Respondent is removable as charged. See INA§ 240(c)(3).

3 I A078-334-242 Order
A. The State of the Record, the Allegations and Charges

At a master calendar hearing on 29 November 20I6, Respondent objected to pages IO-I4

(relevance and the presence of non-Shepherd documents), I8-2I (a lack of Shepherd
documents), and 3I-44 (for a lack of Shepherd documents as well as an allegation of
unreliability) of Exhibit 2. OHS asserted that it needed only pages I5-I7 to establish allegation

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4 and thus establish the charge of removability in the NTA. The Court held that Exhibit 2 would
be admitted without the objected-to documents, but that OHS could use the excluded evidence
later as needed, provided it re-introduced the documents and stated their purpose. Thus, Exhibit
2 is in evidence only in piecemeal and incomplete fashion.

At that same November hearing, the Court found allegation 4 (the 20I6 controlled substance
conviction) and sustained the NTA charge. See Exh. I. Upon reflection, at a hearing on II April
20I7, the Court withdrew those actions and requested briefs on removability, which the parties
provided. See Exhs. 8, 9. At the next hearing, on I May 20I7, the Court indicated that it would
terminate proceedings and issue a written decision. That never happened, though, because about
an hour after the conclusion of the hearing, OHS filed its I-261 and brief in support. See Exh.
IA. The case was then transferred to another IJ. OHS has asked for the text of that decision; it
is included below. See OHS Brief in Support of Removability (I-26I) and Request to Reconsider
NTA Charge (Jun. 2I, 2017) ("OHS Brief'); Section III.B, infra.

Respondent argues that the IJ's oral indication that proceedings would be terminated should
estop OHS from filing new charges. See Respondent's Position Paper on I-26I (Jun. 2I, 20I7)
("Respondent's Position"). OHS may add or substitute charges "[a]t any time" during removal
proceedings. 8 C.F.R. § 1003.30. Proceedings are final following an IJ's decision when the time
for appeal has run or when appeal has been waived. Id. § 1003.39. In this case, OHS filed an I-
26I before a decision had ever issued; only a warning that a decision was coming so that the
appeal clock could begin. See Exh. IA. Proceedings were still pendant and OHS was thus
within its right to file new charges. Respondent's asserted case in support is inapt, as it relies on
non-binding precedent in which OHS filed additional charges in a case that had been properly
terminated by the Board after remand by the Ninth Circuit. See Respondent's Position; Bravo­
Pedroza v. Gonzales, 475 F.3d I358 (9th Cir. 2007). As discussed, that is not the situation here.

To avoid confusion and summarize: Pages I-9, 15-I7, and 22-30 of Exhibit 2 are in evidence;
the reasoning behind the decision of the Court to reverse itself on the NT A charge is included
immediately infra; and, proceedings were never concluded so the I-26I is valid. In compliance
with the Court's earlier terms regarding evidence, OHS re-offered pages 3I-44 of Exhibit 2 in
support of the I-261 on the document itself. See Exh. IA. Respondent did not object, and so
those pages are admitted as well. See Exh. 2 at 31-44.

B. The Section 237(a)(2)(B)(i) Charge

OHS relies on an alleged 2016 conviction for cocaine to support this charge (it is the only
alleged conviction to have occurred after Respondent's admission as an LPR). See Exh. l; OHS
Brief. Certified conviction documents in the record indicate Respondent has a 26 August 2016
conviction for possession of a controlled substance under IOWA CODE§ I24.401(5). See Exh. 2

4 I A078-334-242 Order
at 6. As with Kansas in Mellouli, the Iowa state controlled substance schedule is broader than its
federal counterpart. See 135 S. Ct. at 1991. Thus, a conviction under Section 124.401(5) could
include numerous substances not included in 21 U.S.C. § 812. Compare id. with, e.g., IOWA
CODE§§ 124.204(4)(ai), (9)(1), (9)(m). The Court holds that the fact of the conviction by itself
does not resolve the controlled substance charge for the purposes of categorical matching. The
Court must determine the specific elements of the offense.

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Iowa case law and jury instructions reveal the elements of a violation of Section 124.401(5) are
as follows: (1) knowingly or intentionally possessing; (2) a controlled substance. See Iowa
Criminal Jury Instruction§ 2300.3; State v. Reeves, 209 N.W.2d 18 (Iowa 1973). Ordinarily, an
overbroad controlled substances statute structured in such a way is not divisible, and the inquiry
ends. See, e.g., NEB. REv. STAT. §§ 28-405, 416(3). This matters because the substance of
which Respondent pleaded guilty to possessing was cocaine, a federally controlled substance.
See Exh. 2. With that in mind, the Court will conduct a divisibility analysis.

When determining divisibility, courts must determine elements, and elements alone. See Mathis,
136 S. Ct. at 2248. Means of violating elements are not enough; they are "mere real-world
things," utterly irrelevant to the analysis of categorical match. Id. Elements are those things to
which the defendant "necessarily admits when he pleads guilty." Id. (citing McCarthy v. U.S.,
394 U.S. 459, 466 (1969)) (emphasis added). the Eighth Circuit offers some moderately helpful
guidance for determining elements: does the statute of conviction contain a system of differential
punishment?; is it structured disjunctively?; does it incorporate by reference a separate
definitional statute? See id.; U.S. v. McFee, 842 F.3d 572 (8th Cir. 2016). Regarding Section
124.401(5), as noted above, Iowa courts have determined that "controlled substance" is itself an
element. Also, Section 124.401(5) incorporates by reference a definitional statute-the Iowa
controlled substance schedules. Neither Section 124.401(5) nor the Iowa controlled substance
schedules are disjunctive (it is simply a list). See IOWA CODE§§ 124.204, .206, .208, .210, and
.212. All of these things indicate that "controlled substance," the element, may be violated by
means of any of the enumerated substances that meet that definition. 1

As such, this scenario is exactly like that in Mathis, where a jury need only find that a
defendant's means of conduct matched to an element the prosecutor needed to prove to show an
Iowa burglary. See 136 S. Ct. at 2243-49. Likewise, an Iowa prosecutor need only prove up
that a defendant possessed some controlled substance or narcotic, but not which one, and the list
of means is overbroad. See Reeves, 209 N.W.2d at 23; In re C.T., 521 N.W.2d 754 (Iowa 1994).
So, although the sentencing document clearly lists a specific controlled substance, that piece is
mere conduct. See Exh. 2. Cocaine is a "brute fact" outside the record of conviction for
purposes of the categorical analysis, and that is true "even if the defendant's actual conduct . . .
fits within the generic offense's boundaries." See Mathis, 136 S. Ct. at 2248.

Thus, while c.ocaine is listed in the Iowa drug schedules, so are hundreds of others, and given the
state of the law in Iowa and Mathis's directive, the Court holds that cocaine is a means of

1 Section 124.401(5) is arguably divisible as it pertains to marijuana and methamphetamine, however. Both of those
substances are singled out by name and each is punished to a distinct degree. That is not relevant to Respondent's
conviction for cocaine, though.

s I A078-334-242 Order
violating the "controlled substance" element of Section 124.401(5), and not itself an element to
2
be proven. See id. Allegation 4 is found, but the charge in the NTA will not be sustained.

C. The Section 237(a)l)(A) Charge

Admitted aliens who were inadmissible at the time of admission are removable. INA

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§ 237(a)( l )(A). In this case, DHS alleges that Respondent has a 1998 cocaine conviction that
would have made him inadmissible at the time of his 2003 adjustment. See DHS Brief at 6
("DHS respectfully requests the immigration court find the respondent removable as charged
under INA § 237(a)(l)(A) in that he was inadmissible at entry in 2004 (sic) for his 1998
conviction for cocaine"). In that scenario, Respondent would have been inadmissible for having
violated a law relating to a controlled substance under INA§ 212(a)(2)(A)(i)(II).

Section 212(a)(2)(A)(i)(II) violations are analyzed in the same manner as 237(a)(2)(B)(i)

violations, described supra. Respondent's 1998 conviction, though allegedly for the same
controlled substance as his 2016 conviction, came under the 1997 version of Iowa law. See Exh.
1; Exh. 2 at 31-44.3 That version read:

It is unlawful for any person knowingly or intentionally to possess a controlled

substance unless such substance was obtained directly from, or pursuant to, a
valid prescription or order of a practitioner while acting in the course of the
practitioner's professional practice, or except as otherwise authorized by this
chapter. Any person who violates this subsection is guilty of a serious
misdemeanor. If the controlled substance is marijuana, the punishment shall be by
imprisonment in the county jail for not more than six months or by a fine of not
more than one thousand dollars, or by both such fine and imprisonment. All or
any part of a sentence imposed pursuant to this section may be suspended and the
person placed upon probation upon such terms and conditions as the court may
impose including the active participation by such person in a drug treatment,
rehabilitation or education program approved by the court.

IOWA CODE ANN.§ 124.401(5) (West 1997). The Court does not discern any meaningful
difference between the 1997 statute and the current version. Thus, the analysis ends in the same
place it did for the 2016 conviction-with no basis to sustain the immigration charge. The Court
will fmd allegation 5 based on the record, but the charge will not be sustained.

Finally, the Court notes that DHS discussed Respondent's alleged misrepresentations to USCIS
about his name and criminal history on the application for his initial adjustment. See Exh. IA;
DHS Brief. The Court declines to address the issue because it does not appear to be relevant to
any pending charge. See Exhs. 1 and 1 A.

2 OHS requested the Court reconsider its decision to not sustain the charge, but the decision had never issued until
now.
3 The conviction records pertain to a man named Raymond Solorzano. OHS alleges that name is Respondent's alias,
presumably based on a fingerprint check. See Exh. 2 at I. The Court finds no irregularity, and Respondent does not
assert that he never used that name.

6 I A078-334-242 Order
There being no remaining pending charges, the Court will order proceedings against Respondent
terminated.

Accordingly, the following orders will be entered:

ORDERS OF THE IMMIGRATION JUDGE

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IT IS HEREBY ORDERED that, as to the Section 237(a)(2)(B)(i) charge, Respondent is
NOT REMOVABLE;

IT IS FURTHER ORDERED that, as to the Section 237(a)(l)(A) charge, Respondent is

NOT REMOVABLE;

IT IS FURTHER ORDERED that proceedings against Respondent be TERMINATED.

MATTHEW E MORRISSEY
Immigration Judge

7 I A078-334-242 Order