U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5/07 /.el.'Sb11rg Pike. S11ite 2000 Falls Cl111rcl1. Virginia 12041

ARROYO-VALVERDE, GIOVANNI A205-753-076 C/O ICE DELANEY HALL 451 DOREMUS AVENUE NEWARK, NJ 07105

OHS/ICE Office of Chief Counsel - ELZ 625 Evans Street, Room 135 Elizabeth, NJ 07201

Immigrant & Refugee Appellate Center | www.irac.net

Name: ARROYO-VALVERDE, GIOVANNI

A 205-753-076

Date of this notice: 8/28/2013

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

DOrlftL ct1tVt.)
Donna Carr Chief Clerk

Enclosure
Panel Members: Adkins-Blanch, Charles K.

williame
Userteam: Docket

Cite as: Giovanni Arroyo-Valverde, A205 753 076 (BIA Aug. 28, 2013)

U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041
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Decision of the Board oflmmigration Appeals

File: A205 753 076 - Elizabeth, NJ

Date:

AUG 2 8 2013

In re: GIOVANNI ARROYO-VALVERDE a.k.a. Giovanni Arroyo a.k.a. Giovanni Valverde IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Pro se

Immigrant & Refugee Appellate Center | www.irac.net

APPLICATION: Relief from removal

The respondent, a native and citizen of the Costa Rica, has appealed from the Immigration Judge's decision dated June 6, 2013. The Immigration Judge found the respondent removable and found him ineligible for relief from removal. The appeal will be dismissed. This Board reviews an Immigration Judge's findings of fact, including findings as to the credibility of testimony, under the "clearly erroneous" standard. See 8 C.F.R. 1003.l (d)(3)(i); Matter of R-S-H-, 23 l&N Dec. 629 (BIA 2003); Matter ofS-H-, 23 l&N Dec. 462 (BIA 2002). This Board reviews questions of law, discretion, and judgment, and all other issues raised in an Immigration Judge's decision de novo. See 8 C.F.R. 1003. l (d)(3)(ii). The respondent was placed in removal proceedings on December 19, 2012. The Notice to Appear alleges that the respondent is not a citizen or national of the United States. It alleges that he is a native and citizen of Costa Rica. It also alleges that he entered the United States without authorization (Exh. I). The respondent admitted these allegations (Tr. at 7-8). Based on these admissions, the Immigration Judge found the allegations in the Notice to Appear proved and found the respondent removable as charged for having entered the United States without authorization (I.J. at 2). We find clear and convincing evidence of removability. See 8 C.F.R. 1240.8(c); Woodby v. INS, 385 U.S. 276, 286 (1966). Cf 8 C.F.R. 1003.15, 1240.10. At the hearing below, the Immigration Judge asked the respondent if his parents, spouse, or children were United States citizens or lawful permanent residents of the United States. The respondent said "no" (Tr. at 8, 11; 1.J. at 2-3). Consequently, we agree that the respondent is not statutorily eligible for cancellation of removal or adjustment of status. The Immigration Judge also asked the respondent if he feared return to Costa Rica. The respondent said "no" (Tr. at 8, 11; l.J. at 2-3). Consequently, we agree that the respondent is not statutorily eligible for asylum, withholding of removal, or protection under the Convention Against Torture. The Immigration Judge denied voluntary departure due to the respondent's conviction for possession of cocaine (Tr. at 11; I.J. at 2-3). On appeal, the respondent says he would like to adjust his status to lawful permanent resident, but does not indicate that someone has filed an employment petition on his behalf or otherwise indicated how he is prima facie eligible for that relief.

Cite as: Giovanni Arroyo-Valverde, A205 753 076 (BIA Aug. 28, 2013)

A205 753 076

The respondent also says that he was wrongfully convicted of the drug charge, which serves as a basis for denial of voluntary departure. However, an alien may not collaterally attack the legitimacy of his otherwise valid state or federal criminal conviction in immigration proceedings. See Matter of Ponce De Leon-Ruiz, 21 I&N Dec. 154 (BIA 1996, 1997; AG 1997); Matter of Gabrye/sky, 20 I&N Dec. 750 (BIA 1993); Matter of Fortis, 14 l&N Dec. 576, 577 (BIA 1974). See also Urbina-Mauricio v. INS, 989 F 2d 1085, 1089 (9th Cir. 1993). Neither the Immigration Judge nor this Board has the authority to look beyond the record of conviction to determine the guilt or innocence of an alien in immigration proceedings. See Matter of Reyes, 20 I&N Dec. 789 (BIA 1994); Matter of Fortis, supra. Rather, such collateral attacks must be addressed to the appropriate criminal court.
.

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Finally, we note with concern that the record does not reflect that the Immigration Judge advised the pro se respondent of his rights and confirmed that he had received the list of qualified organizations and attorneys that provide free legal services. The procedures to be followed by an Immigration Judge during a removal hearing are outlined in the regulations at 8 C.F.R. 1240.10. The record does not reflect that the Immigration Judge followed these procedures. Despite that, we find no prejudice because the respondent was in touch with Hebrew Immigrant Services (Tr. at 3, 5-6), he was granted from January 31, 2013, to March 7, 2013, to find an attorney, and he ultimately chose to represent himself (Tr. at 10). Moreover, there is no issue concerning removability. Nor is the respondent statutorily eligible for any relief from removal. Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.

-=

Cite as: Giovanni Arroyo-Valverde, A205 753 076 (BIA Aug. 28, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT ELIZABETH, NEW JERSEY

File No.: A 205-753-076 In the Matter of Giovanni ARROYO-VALVERDE, Respondent In Removal Proceedings

Immigrant & Refugee Appellate Center | www.irac.net

CHARGES: APPLICATIONS:

INA 212(a)(6)(A)(i) NIA

Not Admitted or Paroled

ON BEHALF OF RESPONDENT Pro Se

ON BEHALF OF DHS

C/O ICE Delaney Hall 451 Doremus Avenue Newark, New Jersey 07102

Thomas Callahan, Jr., Esq. Assistant Chief Counsel 125 Evans Street, Room 135 Elizabeth, New Jersey 07201

POST-REMAND DECISION AND ORDER OF THE IMMIGRATION JUDGE

This is a post remand full decision and order as directed by the Board of Immigration Appeals. Giovanni Arroyo-Valverde, A205 753 076 (BIA May 20, 2013). Respondent is ordered REMOVED to Costa Rica.
I. Facts & Procedural History

Giovanni Arroyo-Valverde ("Respondent") is a forty-five-year-old native and citizen of Costa Rica. Exh. 1. On December 19, 2012, the Department of Homeland Security ("DHS") issued Respondent a Notice to Appear ("NTA") (Exh. 1) alleging: 1) 2) 3) 4) Respondent is not a citizen or national of the United States ("U.S."); Respondent is a native and citizen of Costa Rica; Respondent arrived in the U.S. on an unknown date at an unknown place; Respondent was not then admitted or paroled after inspection by an Immigration officer.

A 205-753-076

The NTA also charged Respondent as removable pursuant to INA 212(a)(6)(A)(i) 1 Exh. 1.
.

On January 24, 2013 Respondent appeared via televideo2 without counsel for an initial master calendar hearing. Respondent requested a bond redetermination hearing orally in Court. The Court conducted this hearing separately.3 The Court granted Respondent's request for a short adjournment and reset the matter. On January 31, 2013 Respondent appeared via televideo without counsel for a master calendar hearing. Respondent requested an additional adjournment, which the Court granted. Respondent appeared via televideo without counsel on February 14, 2013 for a master calendar hearing. A pro bono organization had submitted a handwritten request to the Court on Respondent's behalf, asking for additional time to find him representation in the instant matter. The Court granted an additional adjournm ent, until February 26, to give this pro bono organization-Hebrew Immigrant Services-an opportunity to help Respondent secure counsel. Respondent told the Court that he had secured counsel, and the Court directed Respondent to inform any counsel representing him to appear in Court in February 26, 2013. On February 26, 2013, Respondent appeared via televideo without counsel. The Court asked Respondent if he had been successful in his search for legal representation. He stated that he had not secured an attorney, but he was in contact with someone who was going to represent him. The Court informed Respondent that he had already been granted multiple adjournm ents in order to seek counsel, and that all parties had to move forward with the pleadings that day. The Court stated that after pleadings, Respondent would be granted one additional adjournm ent in order to get the attorney he believed was representing him to appear on his behalf in court. Respondent admitted all factual allegations, one through four. The Court sustained the charge of removability in the NTA. During the same hearing, the Court asked Respondent if he had any parents, spouse or children who had U.S. citizenship or lawful permanent residence in the U.S. Respondent said that he did not. The Court asked Respondent if he had any fear of returning to Costa Rica; he said that he did not. The Court asked Respondent if he needed more time to consult with an attorney, to which he said yes. The Court granted an additional adjournm ent of a week and a half. The Court informed Respondent that this was the last adjournment the undersigned could grant, and that he would have to proceed with his case at the next court date regardless of whether or not an attorney was present. On March 7, 2013, Respondent appeared via televideo without counsel. Respondent stated that he had no attorney representing him that day. The Court confirmed that Respondent had no fear of returning to Costa Rica, no family in the U.S.. and that he had previously pleaded guilty to possession of cocaine in criminal court; he affirmed. The Court noted that, due to his
1 INA 2 l 2(a}(6)(A)(i) states, "Any alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than designated by the Attorney General, is inadmissible." 2 Respondent was in the custody oflmmigration and Customs Enforcement at Delaney Hall, 451 Doremus Avenue, Newark. NJ 07105 for this hearing and all subsequent hearings for which he appeared telephonically. 3 During the bond redetermination Respondent, under oath, stated that he was arrested for and convicted of possession of cocaine.

Immigrant & Refugee Appellate Center | www.irac.net

A 205-753-076

\..

conviction for possession of cocaine, she was not granting him voluntary departure. INA 240B{b); 8 C.F.R. 1240.26(c) (requiring good moral character as a prerequisite to a grant of voluntary departure). Respondent is precluded from establishing good moral character, a prerequisite for voluntary departure, because of his conviction. See INA 240B{b)(l)(B); see also INA 10 l (t)(3), 8 U.S.C. 1101(t)(3) (prohibiting a finding of good moral character for individuals found to be describable by section 212(a)(2)(A) of the Act, unless the applicable offense pertains to simple possession of 30 grams or less of marijuana). The Court also noted that he did not appear to be eligible for cancellation of removal or asylum, withholding of removal, or Convention Against Torture protection because he had no fear of returning to Costa Rica. The Court informed Respondent that it would enter an order for his removal to Costa Rica, and asked if he understood. Respondent affirmed that he understood. The Court apprised him of his right to appeal the decision, and he reserved that right. The Court informed Respondent that an order for his removal to Costa Rica was being entered by the Court. On March 7, 2013, the Court issued an Order of the Immigration Judge, ordering Respondent removed to Costa Rica. Respondent timely appealed the Order of the Immigration Judge. Pursuant to the Board of Immigration Appeals' decision of May 20, 2013, the Court issues the instant written decision and order.
II. CONCLUSION

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For all the foregoing factors, Respondent is ordered REMOVED to Costa Rica. The following orders shall be entered:
ORDER IT IS ORDERED that Respondent be REMOVED, from the United States to Costa Rica based

on the charge of removability contained in the Notice to Appear4 and sustained by the Court;

Date

Dorothy k Immigration Judge

Qt&

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l._

Both parties reserve their right to appeal the Court's decision. The Notice of Appeal is due at the BIA within thirty (30) days of the mailing of this decision.

INA 212(a)(6)(A)(i)

A 205-753-076