U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 Letslmrg Pike, S11i1e 2000 Falls Clwrch. Virgi11ia 12041

Herrera, John P.A. 1801 Ponce De Leon Boulevard Coral Gables, FL 33134

OHS/ICE Office of Chief Counsel - MIA 333 South Miami Ave., Suite 200 Miami, FL 33130

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Name: DOWNS, LAWRENCE ERIC

A076-916678

Date of this notice: 3/21/2012

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Adkins-Blanch, Charles K. Guendelsberger, John Hoffman, Sharon

Cite as: Lawrence Eric Downs, A076 916 078 (BIA Mar. 21, 2012)

U.S. Department of Justice

Executive Office for Immigration Review Falls Church. Virginia 22041

Decision of the Board of Immigration Appeals

File:

A076 916 678 - Miami, FL

Date:

MAR 212012

In re: LAWRENCE ERIC DOWNS

IN REMOVAL PROCEEDINGS

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APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: John Herrera, Esquire

Adam Weisholtz Assistant ChiefCounsel

APPLICATION:

Termination of proceedings

The Department of Homeland Security (DHS) has appealed from the Immigration Judge's decision dated September 17, 2009, terminating proceedings against the respondent, a native and citizen ofNicaragua. 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);
MatterofR-S-H-, 23 I&N Dec. 629(BlA2003);MatterofS-H-, 23 I&N Dec. 462 (BIA2002). 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. I 003. l(d)(3)(ii); Matter ofA-S-B-, 24 I&N Dec. 493 (BIA 2008). The Notice to Appear alleges that the respondent is not a citizen or national ofthe United States. It also alleges that he is a native and citizen ofNicaragua (Exh. 1). The respondent admitted these allegations (Tr. at 6-7). The Notice to Appear also alleges that the respondent entered without inspection (Exh. 1). The respondent denied that allegation. The respondent alleges that he entered as a crewman on June 30, 1995 {Tr. at 6-7). The DHS counsel conceded the June 30, 1995, entry as a crewman, but argued that the respondent left the United States after that entry and later re entered without inspection. However, the DHS counsel admitted having no evidence in support of that contention, and the DHS counsel did not offer into evidence a Record of Deportable/lnadmissible Alien (Form I-213) for the respondent (Tr. at 6-7, 9). The Immigration Judge terminated proceedings, finding that the DHS failed to carry its burden to prove removability. The Immigration Judge terminated without prejudice (I.J. at 2). We will affirm the Immigration Judge's decision terminating proceedings without prejudice. As the Immigration Judge terminated proceedings without prejudice, the DRS can file a new Notice to Appear with the appropriate factual allegations and charges ofremovability. Therefore, we find it unnecessary to address the issue concerning burdens ofproof.

Cite as: Lawrence Eric Downs, A076 916 078 (BIA Mar. 21, 2012)

:,

A076 916 678

Accordingly, the appeal will be dismissed.

ORDER:

The appeal is dismissed.

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Lawrence Eric Downs, A076 916 078 (BIA Mar. 21, 2012)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT Miami, Florida File No.: A 076 916 678 } } } } } September 17, 2009

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In the Matter of LAWRENCE ERIC DOWNS Respondent CHARGE:

IN REMOVAL PROCEEDINGS

Section 212(a} (6} (A} (i} Nationality Act.

of the Immigration and

APPLICATIONS:

ON BEHALF OF RESPONDENT: Edward F. Smith, Jr. Esquire 1801 Ponce de Leon Boulevard Coral Gables, Florida 33134

ON BEHALF OF OHS: Adam Weisholtz Assistant Chief Counsel Department of Homeland Security 333 South Miami Avenue Miami, Florida 33130

ORAL DECISION OF THE IMMIGRATION JUDGE This case came into Court on September 17, a Notice to Appear that was issued on March 6, 2009, 2009. based upon On that

notice the respondent was designated as being present in the United States without admission or parole. The notice continues

to allege that the respondent is not a citizen or national of the United States, that he is a native and citizen of Nicaragua, Florida, that

he arrived in the United States at or near Miami, after June 30, 1995,

on or

and the respondent was not then admitted or The notice

paroled after inspection by an Immigration officer.

continues with two other allegations which are not relevant to this discussion. This Court is terminating these proceedings because counsel for the respondent has denied allegation number 4, claiming that

Immigrant & Refugee Appellate Center | www.irac.net

the respondent was admitted to the United States as a crewman or in some other category. The Service indicated that they were

going to revise the Notice to Appear by withdrawing allegation number 3, and substituting an additional allegation. everything is unclear and the requirement to sustain

Essentially,

the charge of removability is that the charge has to contain evidence that is clear, convincing and unequivocal evidence, standards. Notice to Appear fails, proceedings. As such, this Court finds the

and the Court will terminate these

Immigration Judge

A 076 916 678

September 17,

2009

CERTIFICATE PAGE

hereby

certify

that

the

attached

proceeding

before

JUDGE STEPHEN E.

MANDER,

in the matter of:

LAWRENCE ERIC DOWNS

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A 076 916 678 Miami, is an accurate, Florida

verbatim transcript of the recording as provided by and that this is the the Executive Office

the Executive Office for Immigration Review original transcript thereof for the file of

for Immigration Review.

Free State Reporting,

Inc.

November 18, 2009 (completion date}

By submission of this CERTIFICATE PAGE, the Contractor certifies that a Sony BEC/T-147, 4-channel transcriber or equivalent, and/or CD, as described in Section C, paragraph C.3.3.2 of the contract, was used to transcribe the Record of Proceeding shown in the above paragraph.