U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 Leesburg Pike. Suite 2000 Fa/Js Clmrc/1, Virginia 2204 J

PETER REED HILL, ESQUIRE 2250 N. Druid Hills Rd., Suite 290 Atlanta, GA 30329-0000

OHS/ICE Office of Chief Counsel - ATL 180 Spring Street, Suite 332 Atlanta, GA 30303

Immigrant & Refugee Appellate Center | www.irac.net

Name: WILSON, SHELDON ODINGA

A042-163-324

Date of this notice: 1/17/2012

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Miller, Neil P.

Cite as: Sheldon Odinga Wilson, A042 163 324 (BIA Jan. 17, 2012)

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 leesburg Pike. S11i1e 2000 Falls Church, Virginia 12041

WILSON, SHELDON ODINGA 132 COTTON DRIVE A#042-163-324 OCILLA, GA 31774

OHS/ICE Office of Chief Counsel - ATL 180 Spring Street, Suite 332 Atlanta, GA 30303

Immigrant & Refugee Appellate Center | www.irac.net

Name: WILSON, SHELDON ODINGA

A042-163-324

Date of this notice: 1/17/2012

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 attorney 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 from the United States or affirms an Immigration Judge's decision ordering that you be removed, any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of the decision. Sincerelv.

DorutL ctVt.AJ
Donna Carr Chief Clerk

Enclosure

Panel Members: Miller, Neil P.

Cite as: Sheldon Odinga Wilson, A042 163 324 (BIA Jan. 17, 2012)

U.S. Department of Justice

Executive Office for Inunigration Review Falls Church, Virginia 22041

Decision ofthe Board oflnunigration Appeals

File:

A042 163 324 -

Atlanta, GA

Date:

JAN 17 2012

In re: SHELDON ODINGA WILSON a.k.a. Shel Wilson IN REMOVAL PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

MOTION ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Peter Reed Hill, Esquire

Nichole Lillibridge Assistant Chief Counsel

APPLICATION:

Reconsideration

The respondent has filed a timely motion to reconsider the Board November denied.

22, 2011, decision

dismissing his appeal. The Department of Homeland Security opposes the motion, which will be

The respondent initially alleges that the Board erred in finding that he had been convicted of possession with intent to distribute marijuana (Motion at

2).

However, the respondent did not raise Moreover, we observe for the

this argument on appeal, and it is not now properly before us.

respondent's benefit that in both his Notice of Appeal and appellate brief, the respondent cited his conviction for "possession with intent to distribute marijuana" in arguing that it was not an aggravated f elony. Furthermore, during the proceedings below the respondent, through counsel, admitted that he had been convicted of this offense {Tr. at Dec.

10-11). Matter of Velasquez, 19 I&N

Therefore, we find

377 {BIA 1986) (absent

egregious circumstances, a distinct and formal admission made by

counsel binds his client as a judicial admission); see no error in this regard.

also 8 C.F.R. 1240.lO(c).

We find no support for the respondent's allegations of error regarding the Immigration Judge's decision. Rather, this case is readily distinguishable from that presented in Matter ofA-P-, Dec.

22 I&N

468

(BIA

1999),

cited by the respondent.

Here, the Immigration Judge linked the noted He did not issue a summary order, unlike the

conviction to the charge of removability (I.J. at hnmigration Judge in

2).

Matter of A-P-,

but rather summarized the relevant facts, reflected

consideration of the applicable statute, and set forth his legal conclusions.

C.F.R.

1003.37,

1240.12;.see also Matter of S-H-, 23 l&N Dec. 462, 463-63 (BIA 2002) (stating that Immigration
Judge decisions should include clear and complete findings of fact that are supported by the record and are in compliance with controlling law). As such, reconsideration on this basis is not warranted. Further, we continue to agree that the respondent is removable as charged. We recognize that convictions for possession of a controlled substance with intent to distribute are ordinarily considered felonies under the Controlled Substances Act. remuneration.

21U.S C. 841.
.

Misdemeanor treatment

is, as the respondent has contended, available for distribution of small amounts ofmarijuana without

21U.S.C.84l{b)(4).

However, the Board has held that section

84l(b)(4) does not

Cite as: Sheldon Odinga Wilson, A042 163 324 (BIA Jan. 17, 2012)

'

A042 163 324

define a discrete offense; instead, it is a sentencing provision that describes a "mitigating exception" to the otheiwise-applicable statutory maximum of five years called for pursuant to 21 U.S.C. 841(b)(l )(D).

Matter ofAruna,

24 I&N Dec. 452, 456-57 (BIA 2008). Accordingly, the burden

is on the respondent to prove the additional facts (i.e., the amount of marijuana involved and the absence of remuneration) that trigger this exception.

Matter ofAruna, supra at 456-57.

While the

respondent contends that the amount involved was "42 grams" of marijuana (Motion at 3), he has not offered any proofof the amount of marijuana involved in this offense. As such, the Immigration Judge correctly found that he is removable under section 237(a)(2)(A)(iii) of the Act.

Immigrant & Refugee Appellate Center | www.irac.net

In sum, we find that the Immigration Judge and this Board committed no legal or factual errors in finding the respondent removable as charged. As such, reconsideration is not warranted.

Matter

of 0-S-G-,

24 I&N Dec. 56 (BIA 2006); 8 C.F.R. 1003.2(b). Accordingly, the following order

shall be entered. ORDER: The motion is denied.

-P L---FOR THE BOARD

Cite as: Sheldon Odinga Wilson, A042 163 324 (BIA Jan. 17, 2012)