U.S.

Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Office of the Clerk
5/07 Leesburg Pike. Suite 2000
Falls Church. Virginia 20530

FEDERAL DET. CENTER-OAKDALE 2

P.O. Box 1128
OAKDALE, LA 71463

Name: CADET, PATRICK

A 041-584-694

Date of this notice: 1/23/2015

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

caAAJ

[)onnL
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Adkins-Blanch, Charles K.

Usertea m: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Patrick Cadet, A041 584 694 (BIA Jan. 23, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

Jeffrey B. Rubin, Esquire

Law Office of Jeffrey B. Rubin, P.C.
One Center Plaza, Suite 230
Boston, MA 02108

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Qffice of the Clerk
5107 leesburg Pike. Suite 2000
Falls Church, Virginia 20530

FEDERAL DET. CENTER-OAKDALE 2

P.O. Box 1128
OAKDALE, LA 71463

Name: CADET, PATRICK

A 041-584-694

Date of this notice: 1/23/2015

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.S(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.
Sincerely,

DcrutL c

t1/\A)

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Adkins-Bianchi Charles K.

Userteam:

Cite as: Patrick Cadet, A041 584 694 (BIA Jan. 23, 2015)

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CADET, PATRICK
A041-584-694
C/OWARDEN
SLCC, 3843 STAGG AVE
BASILE, LA 70515

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File: A041 584 694 - Oakdale, Louisiana

Date:

In re: PATRICK CADET

JAN 232015

APPEAL
ON BEHALF OF RESPONDENT: Jeffrey B. Rubin, Esquire
ON BEHALF OF DHS: Lorraine L. Griffin
Assistant Chief Counsel
CHARGE:
Notice: Sec.

Sec.

237(a)(2)(A)(iii), l&N Act [8 U.S.C. l 227(a)(2)(A)(iii)] Convicted of aggravated felony under section 101(a)(43)(B) of the Act
237(a)(2)(B)(i), l&N Act [8 U.S.C. 1227(a)(2)(B)(i)] Convicted of controlled substance violation

APPLICATION: Termination
The respondent has filed an appeal from an Immigration Judge's November 12, 2014, decision.
The Im.migration Judge denied the respondent's termination request based on a putative claim to
United States citizenship; and found the respondent removable, as charged, based on his record of
conviction (Exh. 5, Tab B) as to his 2008 Federal controlled substance violations and drug-trafficking
convictions. 1 The respondent's appeal will be dismissed.
The 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 I&N Dec. 629 (BIA 2003); Matter ofS-H-, 23 I&N Dec. 462 (BIA 2002). The
Board reviews questions of law, discretion, and judgment and all other issues in an appeal of an
Immigration Judge's decision de novo. See 8 C.F.R. 1003.l(d)(3)(ii).
1

The record reflects that on December 1, 2008, the respondent was convicted, upon a plea of guilty,
in the United States District Court for the District of Massachusetts, for the offenses of Conspiracy to
Possess with Intent to Distribute and to Distribute Oxycodone, in violation of 21 U.S.C. 841, 846;
Conspiracy to Possess with Intent to Distribute and to Distribute Cocaine in violation of 21 U .S.C.
841(a)(l), 846; and Aiding and Abetting, in violation of 18 U.S.C. 2, and sentenced to a term of
imprisonment of 87 months (Exh. 5, Tab B).

Cite as: Patrick Cadet, A041 584 694 (BIA Jan. 23, 2015)

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IN REMOVAL PROCEEDINGS

A041584694

However, on de novo review, we agree with the Immigration Judge that the respondent did not
demonstrate that he acquired derivative United States citizenship through his mother under former
section 321 of the Act, the law which was in effect at the time the respondent became 18-years-old.
See section 321 of the Act, 8 U.S.C. 1432, repealed by section 103(a), title I, Child Citizenship Act
of 2000, Pub. L. No. 106-395, 114 Stat. 1631. Even though the respondent began to reside in the
United States as a lawful permanent resident with his mother while under the age of 18 years, and
while his mother later became a naturalized United States citizen before the respondent reached age
18, as he was born out-of-wedlock in Haiti, and his parents never married, he can establish a claim to
derivative United States citizenship through his mother under former section 32l(a) of the Act, if he
can show that his paternity has not been established by legitimation (emphasis added). See
section 32l(a)(3) of the Act.
Prior to 1959, the sole method to effect legitimation in Haiti was the marriage of the natural
parents. See Matter of Remy, 14 I&N Dec. 183 (BIA 1972). However, the Haitian Presidential
Decree of January 27, 1959, abolished all legal distinctions for Haitian children whether born in or out
of wedlock. See Matter of Cherismo, 19 I&N Dec. 25, 26 (BIA 1984) (citing Matter of Richard,
19 I&N Dec. 208, 210 (BIA 1982) (recognizing the effect of the 1959 Presidential Decree and
holding that persons born out of wedlock in Haiti subsequent to January 27, 1959, and acknowledged
by their natural fathers are deemed to be legitimate children under section lOl(b)(l){A) of the Act)).
In this case, the record contains an extract from the Registry of the Bureau of Vital Statistics in
Port-au-Prince, Haiti, indicating that on March 12, 1973, the respondent's birth was officially
registered by his natural father. As a result, the respondent's natural father officially acknowledged
the respondent as his son under Haitian law. See Matter of Richard, supra, at 211 (quoting
Article 305 of the Haitian Civil Code regarding a father's acknowledgement of his natural child.).
Consequently, as he was considered legitimated by his biological father's formal acknowledgement
on his Haitian birth certificate, the respondent has not met his burden to show that he derived United
States citizenship through his mother under former section 32l(a)(3) of the Act.2
Consequently, as the respondent has not established that he is a United States citizen, the
respondent is subject to the provisions of the Act. Moreover, as the respondent, on appeal, has
neither challenged nor addressed the Immigration Judge's findings as to his removability on account
2

Moreover, as the respondent presented no evidence to show that his biological parents ever
married, or that his biological father ever became a naturalized citizen of the United States, or that
such naturalization took place before the respondent became 18 .. years-old, the respondent is unable
to show that he derived United States citizenship under any of the other provisions of former
section 321 of the Act.
2
Cite as: Patrick Cadet, A041 584 694 (BIA Jan. 23, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

At the outset, a claim to citizenship, as has been proffered by the respondent, raises issues directly
related to this Board'sjwisdiction over the instant case. Thus, the threshold issue raised on appeal is
whether the respondent, who was born on January 23, 1973, in Port-au-Prince, Haiti, is a citizen of the
United States. See Matter of Rodriguez-Tejedor, 23 I&N Dec. 153, 164 (BIA 2001) (evidence of
foreign birth gives rise to a rebuttable presumption of alienage, shifting the burden to respondent to
substantiate U.S. citizenship claim). Moreover, the record reflects the respondent was admitted to
the United States as a lawful permanent resident on May 14, 1988, when he was 15-years-old. The
respondent's mother was admitted to the United States as a lawful permanent resident on July 23,
1981, and became a naturalized citizen of the United States on February 23, 1989.

A041584694
of his 2008 federal convictions for controlled substance violations and "drug-trafficking" aggravated
felony offenses, as defined under sections 101(a)(43)(B) of the Act, based on his record of
convictions (Exh. 5, Tab B), we agree with the Immigration Judge (l.J. at 3-4) that the respondent is
removable, as charged. See section 240(c)(3)(A) of the Act, 8 U.S.C. 1229(c)(3)(A).
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.

Immigrant & Refugee Appellate Center | www.irac.net

3
Cite as: Patrick Cadet, A041 584 694 (BIA Jan. 23, 2015)

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
OAKDALE, LOUISIANA

Patrick CADET
Respondent

IN REMOVAL PROCEEDINGS
File No.: A041-584-694

CHARGES: Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, as an alien, who
at any time after admission, has been convicted of an aggravated felony as defined
in section 101(a)(43)(B) of the Act, an offense relating to the illicit trafficking in a
controlled substance (as described in section 102 of the Controlled Substances
Act), including a drug trafficking crime (as defined in section 924(c) of Title 18
of the United States Code).
Section 237(a)(2)(B)(i) of the Immigration and Nationality Act, as an alien, who
at any time after admission, has been convicted of a violation of (or a conspiracy
or attempt to violate) any law or regulation of a State, the United States, or a
foreign country relating to a controlled substance (as defined in Section 102 of the
Controlled Substances Act), other than a single offense involving possession for

one's own use of 30 grams or less of marijuana.

ON BEHALF OF THE DEPARTMENT:

Assistant Chief Counsel
OHS/ICE/Litigation Unit
1010 East Whatley Road
Oakdale, LA 71463

ON BEHALF OF RESPONDENT:
Jeffrey B. Rubin, Esq.
One Center Plaza, Ste. 230
Boston, MA 02108

DECISION OF THE IMMIGRATION JUDGE

I.

PROCEDURAL & FACTUAL HISTORY

On April 8, 2014, the United States Department of Homeland Security, Immigration and
Customs Enforcement ("DHS") personally served Respondent with a Notice to Appear ("NTA"),
alleging that he is a native and citizen of Haiti who was admitted to the United States at New
York, New York on May 14, 1988 as a lawful permanent resident unmarried child of an alien
resident. The DHS further alleged that Respondent was convicted on December 1, 2008 in the
United States District Court, District of Massachusetts for: Conspiracy to Possess with Intent to
Distribute and to Distribute Oxycodone in violation of section 846 of Title 21 of the United
States Code; Conspiracy to Possess with Intent to Distribute and to Distribute Oxycodone in
violation of section 841 of Title 21 of the United States Code; Conspiracy to Possess with Intent
to Distribute and to Distribute Cocaine in violation of section 846 of Title 21 of the United States
- 1-

Immigrant & Refugee Appellate Center | www.irac.net

)
)
)
)
)
)

IN THE MATTER OF

Code; Conspiracy to Possess with Intent to Distribute and to Distribute Cocaine in violation of
section 84l(a)(l) of Title 21 of the United States Code; and Aiding and Abetting in violation of
section 2 of Title 18 of the United States Code. Lastly, the DHS alleged that Respondent was
sentenced to 87 months of imprisonment. Based on these allegations, the OHS charged
Respondent as removable pursuant to section 237(a)(2)(A)(iii), as defined in section
101(a)(43)(B), and section 237(a)(2)(B)(i) of the Immigration and Nationality Act ("Act").

At the hearing on July 16, 2014, Respondent, through counsel, admitted part of allegation
2 and all of allegation 3. He denied all other allegations contained in the NTA as well as the
removability charges. The Court reset the case for a contested master hearing. At the August 20,
2014 hearing, the DHS submitted documents and the court reset the case for a decision on
removability. On September 24, 2014, the Court rendered a written decision, sustaining the
allegations in the NTA and finding Respondent removable as charged.
On October 24, 2014, Respondent submitted a motion for an administrative order of
removal. At the hearing on November 10, 2014, Respondent, through counsel, declined to
designate a country of removal. The Court designated Haiti as the country of removal.
Respondent indicated that he would not be seeking any form of relief.
II.

APPLICABLE LAW & ANALYSIS

A. Citizenship Claim
An alien born abroad is presumed to be an alien and bears the burden of establishing his
claim to U.S. citizenship by a preponderance of credible evidence. See Matter of TiierinaVillareal, 13 I&N Dec. 327 (BIA 1969) (citing Matter of A-M-, 7 l&N Dec. 332, 336 (BIA
1956)); see also Matter of Hines, 24 l&N Dec. 544, 546 (BIA 2008). Respondent asserts that he
is a U.S. citizen pursuant to former section 32l(a)(3) of the Act, which requires "the
naturalization of the mother if the child was born out of wedlock and the paternity of the child
has not been established by legitimation." He contends that he was born out of wedlock. As
evidence, he submitted affidavits from his mother and uncle, which assert that his parents were
never married. See Exh. 2 at Tabs A, C. The Court finds that Respondent submitted sufficient
documentation to establish that his parents were never legally married and thus he was born out
of wedlock.

Respondent further contends that his paternity was not established by legitimation
because the appearance of his father's name on the birth certificate is not conclusive proof of
legitimation as defined under Haitian law. See Exh. 2 at 4. The Board of Immigration Appeals
("BIA") has recognized the effect of the Haitian Presidential Decree of January 27, 1959 and has
held that persons born out of wedlock in Haiti subsequent to January 27, 1959 and acknowledged
by their natural fathers are deemed to be legitimate children under section lOl(b)(l)(A) of the
Act. Matter of Richard, 18 l&N Dec. 208 (BIA 1982). Under the Civil Code of Haiti, as
amended by the 1959 Presidential Decree, acknowledgment may be made through a special
-2-

Immigrant & Refugee Appellate Center | www.irac.net

On May 16, 2014, Respondent, through counsel, submitted a motion to terminate removal
proceedings. At the hearing on May 28, 2014, the Court reset the case in order to give the DHS
time to respond to the Respondent's motion. The DHS submitted a response on June 13, 2014,
and Respondent subsequently submitted a reply to the DHS's submission. On June 30, 2014, the
Court rendered a written decision denying Respondent's motion to terminate.

,..~'

instrument executed before an Official of the Civil Registry if it is not made in the birth
registration act. Id. at 211.

Respondent asserts that legitimation should appear in the margin of the birth certificate.
See Exh. 2 at 4. He cites to a memorandum written by the Law Library of Congress. Id. at Tab J.
However, Respondent misstates the memorandum. The document asserts that the birth certificate
will show whether a child has been legally acknowledged by a father. Id. It states that the
father's name will appear in the text of the birth certificate if the acknowledgment took place at
the time the certificate was drawn or will appear in the margin of the certificate if the
acknowledgment took place at a later time. Id. In this case, the name of Respondent's father
appears in the text of the birth certificate. Id. at Tab A. Moreover, the certificate states that his
father "introduced to us a male child who he declared his natural son." Id. As the
acknowledgment took place at the time the birth certificate was drawn, his father's name did not
need to appear in the margin. Thus, the Court rejects Respondent's argument.
Respondent also cites to Matter of Hines, 24 l&N Dec. 544 (BIA 2008), and Matter of
Rowe, 23 l&N Dec. 962 (BIA 2006). However, these cases are inapplicable to his case because
they discussed legitimation under the laws of Jamaica and Guyana.

B. Drug Trafficking Crime

Section 101(a)(43)(B) defines an aggravated felony as an offense relating to the illicit
trafficking in a controlled substance, as defined in the Controlled Substances Act ("CSA"),
including a drug trafficking crime. See INA 10l(a)(43)(B). A "drug trafficking crime" is
defined as any felony punishable under the CSA. See 18 U.S.C. 924(c). To determine whether
a past conviction constitutes an aggravated felony, the Court must conduct a categorical
approach. See Omari v. Gonzales, 419 F.3d 303, 307 (5th Cir. 2005). This categorical inquiry
looks to the criminal statute, rather than the specific underlying facts of the particular case. Id.
When a statute is divisible into discrete subsections in which violation of one or more subparts
could constitute an aggravated felony, the Court may look to the record of conviction to
determine whether the conviction was necessarily for a particular subsection of the statute that
meets the criterion. Id. at 308. In the case of guilty plea convictions, examination of the record of
conviction may include consideration of the "charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by the trial judge to which the
defendant assented." Id. (citing Shepard v. United States, 544 U.S. 13 (2005)). Other documents,
including police reports and complaint applications, may not be considered. Id.
The conviction records indicate that Respondent pleaded guilty to Conspiracy to Possess
with Intent to Distribute and to Distribute Oxycodone in violation of section 841(a)(l) of Title 21
of the United States Code and Conspiracy to Possess with Intent to Distribute and to Distribute
-3-

Immigrant & Refugee Appellate Center | www.irac.net

Respondent submitted a certified translation of his birth certificate from the Registry of
Records from the Office of the National Archives of the Republic. See Exh. 2 at Tab A. The
document states that Respondent's father, Michelet Cadet, appeared in person, presented
Respondent, and declared him to be his son born out of the relationship with Marie Lonise
Pierre, Respondent's mother. Id. As Respondent's father officially acknowledged him as his
child in a birth registration act, Respondent was legitimated by his father under Haitian law.
Consequently, Respondent cannot derive citizenship through his mother under former section
321(a)(3) of the Act.

~.

'!

felonies.
He also pleaded guilty to Conspiracy to Possess with Intent to Distribute and to Distribute
Cocaine in violation of section 841(a)(l) of Title 21 of the United States Code and Conspiracy to
Possess with Intent to Distribute and to Distribute Cocaine in violation of section 846 of Title 21
of the United States Code. See Exh. 5, 6. Cocaine is classified as a Schedule II drug within the
CSA. See 21 U.S.C. 812(a)(4). According to the plea transcript, Respondent's offenses
involved 2,033 grams of cocaine. See Exh. 6. Violation of section 841 (a) involving 500 grams or
more of cocaine is punishable by a sentence of imprisonment of five years or more. See 21
U.S.C. 84l(b)(l)(B)(ii)(II ). Therefore, Respondent's offenses involving cocaine are punishable
as felonies under the CSA and he is removable as an aggravated felon.

C. Controlled Substance Violation

Pursuant to section 237(a)(2)(B)(i), an alien is removable if he has been convicted of a
violation of any law or regulation of a state relating to a controlled substance, as defined in the
CSA, other than a single offense involving possession for one's own use of 30 grams or less of
marijuana. See INA 237(a)(2)(B)(i). As Respondent pleaded guilty to violations of sections
841 and 846 of the CSA, he is removable for violating laws relating to controlled substances.

Ill.

CONCLUSION

Respondent cannot derive U.S. citizenship through his mother under former section
321(a)(3) of the Act. Moreover, he is removable pursuant to section 237(a)(2)(A)(iii) as defined
in section 101(a)(43)(B) of the Act for having been convicted of an aggravated felony. He is also
removable pursuant to section 237(a)(2)(B)(i) for violating controlled substance laws.

Section 812 of the CSA establishes five schedules of controlled substances and lists controlled substances that fall
under each schedule. See 21 U.S.C. 812. Schedules of controlled substances that are contained in section 812 of
the CSA are also set forth in section 1308 of Title 21 of the Code of Federal Regulations as they are changed,
updated, and republished. See 21C.F.R.1308.1.

-4-

Immigrant & Refugee Appellate Center | www.irac.net

Oxycodone in violation of section 846 of Title 21 of the United States Code. See Exh. 5, 6.
Section 84l(a)(l) of the CSA makes it unlawful to knowingly or intentionally manufacture,
distribute, or dispense, or possess with the intent to manufacture, distribute, or dispense, a
controlled substance. See 21 U.S.C. 841(a)(l). Section 846 of the CSA makes it unlawful to
attempt or conspire to commit any offense defined in the CSA. Oxycodone is classified as a
1
Schedule II drug. See 21 C.F.R. 1308.12(b)(l)(xiii). Violation of section 841(a) involving 500
grams or more of a Schedule II drug is punishable by a sentence of imprisonment of five years or
more. See 21 U.S.C. 841(b)(l)(B)(ii)(IV ). Respondent's offenses involved 36.7 grams of
oxycodone. Id. As such, his offenses involving oxycodone are not punishable under the CSA as

Accordingly, the following orders shall be issued:

ORDERS:

IT IS HEREBY ORDERED that all of the allegations contained in the NTA

are SUSTAINED.
IT IS HEREBY ORDERED that the removability charge under section
237(a)(2)(A)(iii) of the Act is SUSTAINED.

IT IS HEREBY FURTHER ORDERED that Respondent be REMOVED

from the United States to Haiti.

~ 12,,21J1f
Date

~~erry:Beattnann, Sr.
Immigration Judge

-5-

Immigrant & Refugee Appellate Center | www.irac.net

IT IS HEREBY FURTHER ORDERED that the removability charge under

section 237(a)(2)(B)(i) of the Act is SUSTAINED.