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FALO,TUI PELE A035-046-579 UTAH COUNTY JAIL 3075 NORTH MAIN STREET SPANISH FORK, UT 84660

OHS/ICE Office of Chief Counsel - SLC 2975 Decker Lake Dr. Stop C West Valley City, UT 84119

Immigrant & Refugee Appellate Center | www.irac.net

Name:FALO,TUIPELE

A 035-046-579

Date of this notice: 11/1/2013

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

DOrutL caftA)
Donna Carr Chief Clerk

Enclosure Panel Members: Guendelsberger, John

Use rte am: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Tui Pele Falo, A035 046 579 (BIA Nov. 1, 2013)

U.S. Department of Justice

Excutive G_ffice for Immigration Review Falls Church, Virginia 20530

Decision of the Board of Immigration Appeals

File: A035 046 579 - West Valley, UT In re: TUI PELE FALO a.k.a. Tui P. Falo a.k.a. Tui Falo
IN

Date:

NOV -12013

REMOVAL PROCEEDINGS

APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Pro se Jeffrey D. Clark Assistant Chief Counsel

Immigrant & Refugee Appellate Center | www.irac.net

In an oral decision dated June 19, 2013, an Immigration Judge found the respondent removable; determined that he did not apply for, and did not demonstrate eligibility for, any relief from removal; and ordered him removed from the United States to Samoa. The respondent appealed from that decision. The appeal will be dismissed. The respondent was found removable as charged, as convicted of an aggravated felony under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii), in conjunction with section 10l(a)(43)(G) of the Act, 8 U.S.C. l 10l(a)(43)(G). As substantiated by conviction documents, he has a September 2012 Utah conviction upon a guilty plea for theft. For that crime, he was sentenced to an indeterminate term of imprisonment not to exceed 5 years. See Ex. 2. He was admitted to the United States as a lawful permanent resident on or about August 13, 1979. Upon our de novo review, we find correct the Immigration Judge's conclusions concerning the respondent's removability and ineligibility for removal relief. Consistent with the Immigration Judge's determinations, the respondent's 2012 conviction is for a theft offense that is both an aggravated felony and a particularly serious crime. As an alien who has at least one conviction for a particularly serious crime, the only form of r_elief for which the respondent is potentially eligible is deferral of removal under the Convention Against Torture ("CAT"). Since he has been convicted of at least one offense that is a particularly serious crime as well as an aggravated felony, he is statutorily ineligible for asylum and withholding of removal under the Act. See sections 208(b)(2)(A)(ii), 208(b)(2)(B)(i), and 241(b)(3)(B) of the Act, 8 U.S.C. 1 158(b)(2)(A)(ii), 1158(b)(2)(B)(i), and 123 1(b)(3)(B); 8 C.F.R. 1208. 16(c)(4) and 1208. 16(d)(2) and (3). The conviction is for a per se particularly serious crime, since the respondent was sentenced to imprisonment of 5 years therefor.1 However, the respondent did not express any fear of torture in Samoa at his removal hearing or on appeal, and he designated that country as the one to which he wished to be removed. See Tr. at 19. He has not disputed that the aforementioned conviction is for both an aggravated felony and a particularly serious crime.

1 The respondent's indeterminate prison sentence is considered to be a sentence for the maximum term imposed. See Matter ofD-, 20 I&N Dec. 827 (BIA 1994).

Cite as: Tui Pele Falo, A035 046 579 (BIA Nov. 1, 2013)

A.035 046 579

On appeal, the now 45-year-old respondent asserts that, if he is separated from his family due to his removal, he will incur further punishment. To the extent that he contends that his removal amounts to cruel and unusual punishment in violation of the Eighth Amendment, we observe that the constitutional prohibition against cruel and unusual punishment is a criminal law concept that does not apply in civil immigration proceedings. See, e.g., Matter of Sanchez and Escobar, 19 l&N Dec. 276 (BIA 1985), ajf'd, Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986). To the extent that the respondent alleges that his removal amounts to a repeat punishment for his criminal misconduct so that he is being subjected to double jeopardy, the constitutional prohibition against double jeopardy also is inapplicable in civil immigration proceedings. See Matter ofC-, 20 l&N Dec. 529 (BIA 1992). Finally,. the respondent indicates that he has been in the United States since he was 9 years old, and he has a wife and four children in this country. To the extent that he seeks humanitarian relief to enable him to remain in the United States, this Board and the Immigration Judges have limited jurisdiction and can grant only those forms of relief from removal that are expressly authorized by Congress. See Matter of Medina, 19 I&N Dec. 734 (BIA 1988). We have no power to grant equitable remedies or to confer general humanitarian relief on aliens. If the respondent wishes to obtain relief on humanitarian grounds, he must pursue such relief with the Department of Homeland SecUrity Accordingly, we will dismiss the appeal.2 ORDER: The appeal is dismissed.

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...

2 To the extent that the respondent has submitted new evidence with his appeal, we cannot consider any new evidence proffered on appeal in this case, in which the appeal was filed after September 25, 2002. See Matter of S-H-, 23 I&N Dec. 462 (BIA 2002); 8 C.F.R. 1003.l(d)(3). We do not find that this documentation is sufficiently material so as to warrant a remand for its consideration. 2
Cite as: Tui Pele Falo, A035 046 579 (BIA Nov. 1, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT SALT LAKE CITY, UTAH

Immigrant & Refugee Appellate Center | www.irac.net

File: A035-046-579 In the Matter of

June 19, 2013

TUI PELE FALO RESPONDENT

) ) ) )

IN REMOVAL PROCEEDINGS

CHARGES:

APPLICATIONS:

ON BEHALF OF RESPONDENT: PRO SE ON BEHALF OF OHS: JEFFERY D. CLARK

ORAL DECISION OF THE IMMIGRATION JUDGE The respondent, Tui Pele Falo, is 45 years old, a native and citizen of Samoa who was admitted to the United States as an immigrant on August 13, 1979 at Honolulu, Hawaii. That is the day he because a permanent resident. He was convicted in Third District Court, Salt Lake County, Utah of theft, a third degree felony, on September 21, 2012. He was sentenced to zero to five years in the Utah State Prison. He has admitted all of these allegations and the Government charges that he is deportable for an aggravated felony. There are many types of aggravated felonies and one of them is a theft offense where someone receives a prison term of at least one

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year. Under the law, a sentence of zero to five years is considered a five year sentence for Immigration purposes. So I find that he was sentenced to at least one year. He pied guilty to the crime listed in Exhibit 2 and, according to that, on July 23, 20 12, he exercised control over the property of another person with the intent to deprive the person of the property. The Board of Immigration Appeals has held that, for aggravated felony purposes, the taking of the property does not have to involve the intent to permanently deprive the owner of the benefits. Any intent to deprive is sufficient. Matter of V-Z-S, 22 l&N Dec. 1338 (BIA 2000). So I find that Mr. Falo has been convicted of the. It was a sentence of more than one year. So it is an aggravated felony. And I find that this statute falls within the definition of theft under the Board's decision. Accordingly, there is no relief available. It is ordered that the respondent be removed to Samoa.

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Please see the next page for electronic signature

J. P. VANDELLO Immigration Judge

A035-046-579

June 19,

2013

..

//s// Immigration Judge J.

P.

VANDELLO 2013 at 1:53 PM GMT

vandellj on August 22,

Immigrant & Refugee Appellate Center | www.irac.net

A035-046-579

June 19, 2013