U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5/07 leesb11rg Pike, Suite 2000

Falls Church, Virginia 22041

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Panzarino, Jason P. OHS/ICE Office of Chief Counsel - BOS
98 North Washington Street, Suite 402 P.O. Box 8728
Boston, MA 02114 Boston, MA 02114

Name: RAMIREZ, CELSO A 072-020-938

Date of this notice: 4/12/2017

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

Sincerely,

,"'-.,.

Cynthia L. Crosby
Acting Chief Clerk

Enclosure
Panel Members:
KELLY, EDWARD F.

Usertea m: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: Celso Ramirez, A072 020 938 (BIA April 12, 2017)
"
u.S.Department of Justice Decision of the Board of Immigration Appeals
,Executive Office for Immigration Review

Falls Church, Virginia 2204 I

File: A072 020 938 - Boston, MA Date:

In re: CELSO RAMIREZ APR 1 2 2017

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Jason P. Panzarino, Esquire

APPLICATION: Remand

The respondent is a native and citizen of Guatemala who was granted lawful permanent
resident status on September 22, 2008. The respondent appeals from the Immigration Judge's
May 1, 2013, decision denying his request for a continuance and ordering his removal pursuant
to sections 2l 2(a)(2)(A)(i)(I), 2l 2(a)(6)(C)(i), and 2l2(a)(7)(A)(i)(I) of the Immigration and
Nationality Act, 8 U.S.C. l182(a)(2)(A)(i)(I), l l 82(a)(6)(C)(i), l182(a)(7)(A)(i)(I). The
respondent also requests a remand based on new evidence regarding vacatur of his criminal
conviction. We review an Immigration Judge's findings of fact for clear error, but questions of
law, discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R.
1003.l(d)(3)(i), (ii). The respondent's motion will be granted and the record will be
remanded.

On appeal, the respondent presents evidence that his 2005 conviction for malicious
destruction of property has been vacated. We find that a remand for further consideration as to
the respondent's removability is appropriate. See Matter of Pickering, 23 l&N Dec. 621
(BIA 2003); Matter of Rodriguez-Ruiz, 22 l&N Dec. 1378 (BIA 2000). If the respondent's
conviction has been vacated, then he is improperly charged with inadmissibility under section
212(a) of the Act as an arriving alien (Exh. 1). See Matter of Pena, 26 l&N Dec. 613 (BIA 2015)
(holding that an alien returning to the United States who has been granted lawful permanent
resident status cannot be regarded as seeking an admission and may not be charged with
inadmissibility under section 212(a) of the Act, if he does not fall within any of the exceptions in
section 10l(a)(13)(C) of the Act).

If the respondent's conviction remains, then further analysis is required to determine whether
it is for a crime involving moral turpitude, such that he is properly charged under section 212(a)
of the Act. The United States Court of Appeals for the First Circuit has affirmed the Board's
finding that the statute at issue is divisible, such that application of the modified categorical
approach is appropriate. See Da Silva Neto v. Holder, 680 F.3d 25 (1st Cir. 2012);
see also Matter ofSilva-Trevino, 26 I&N Dec. 826 (BIA 2016).

Cite as: Celso Ramirez, A072 020 938 (BIA April 12, 2017)
 .
A072 020 938
.-

Accordingly, the following order is entered.

ORDER: The respondent's motion to remand is granted and the record is remanded to the
Immigration Court for further proceedings consistent with the foregoing opinion and for the
entry of a new decision.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Cite as: Celso Ramirez, A072 020 938 (BIA April 12, 2017)
 Immigrant & Refugee Appellate Center, LLC | www.irac.net
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BOSTON,MASSACHUSETTS

File: A072-020-938 May 1,2013

In the Matter of

CELSO RAMIREZ IN REMOVAL PROCEEDINGS

RESPONDENT

CHARGES: Section 212(a)(2)(A)(i)(I); 212(a)(6)(C)(i); 212(a)(7)(A)(i)(I).

APPLICATIONS: Motion to continue; motion to terminate; voluntary departure.

ON BEHALF OF RESPONDENT: ROBERT CASSESSO

ON BEHALF OF OHS: MARK SAUTER

ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE

Respondent is an adult male,and a native and citizen of Guatemala,who

was issued a Notice to Appear on April 13, 2012. In pleadings filed with the Court on

January 22, 2013,the respondent admitted allegations 1, 2,3, 5, 7 and 8,but denied

allegations 4 and 6 in the Notice to Appear. The respondent denied all three charges of

removability.

The Court held a hearing on the respondent's motion to terminate the

proceedings and to determine the respondent's removability from the United States as

charged on May 1, 2013. The Court also heard the respondent's motion to continue
 Immigrant & Refugee Appellate Center, LLC | www.irac.net
and his request for voluntary departure. The case is now in order for a determination.

The motion to terminate, the motion to continue, and the request for

voluntary departure in the alternative are all denied.

EVIDENCE

The following documents were marked and entered into evidence: Exhibit

1, Notice to Appear; Exhibit 2, pleadings; Group Exhibit 3, DHS submission of January

23, 2013, page 1 through 20: and, Group Exhibit 4, motion to continue removal

proceedings.

STATEMENT OF THE LAW

At the conclusion of the proceedings, the Immigration Court decides

whether an alien is removable from the United States. The determination of the

Immigration Judge shall be based only on the evidence produced at the hearing. See

INA Section 240(c)(1)(A). See also Woodby v. INS, 385 U.S. 276 (1966). For arriving

aliens, the Department of Homeland Security must prove by clear and convincing

evidence that the respondent is an arriving alien. Whether an alien is an "applicant for

admission" is answered by reference to the definition at Section 101 (a)(13). If the

Department of Homeland Security proves that the respondent is an arriving alien, the

respondent must prove that he is clearly and beyond a doubt entitled to be admitted and

is not inadmissible under INA Section 212. INA Section 240(c)(2)(A): 8 C.F.R. Section

1240.8(b).

A party seeking a continuance of his removal proceedings bears the

burden of establishing good cause for the continuance. 8 C.F.R. Section 1003.29;

Alsamhouri v. Gonzales, 484 F.3d 117 (1st Cir. 2007). The decision to grant or deny a

continuance is within the discretion of the Immigration Judge, if good cause is shown.

See Matter of Perez-Andrade, 19 l&N Dec. 433 (BIA 1987). Pursing post-conviction

A072-020-938 2 May 1, 2013

 Immigrant & Refugee Appellate Center, LLC | www.irac.net
relief in the form of a collateral attack on one's criminal conviction does not affect the
validity of the conviction for Federal Immigration purposes. Matter of Adetiba, 20 l&N

Dec. 506 (BIA 1992); Matter of Madrigal, 21 l&N Dec. 323, 327 (BIA 1996). Collateral
attacks upon an alien's conviction do not operate to negate the finality of the conviction

unless and until it is overturned.

For voluntary departure at the conclusion of the removal proceedings, the

respondent must be ready, willing, and able to depart the United States at his own
expense. He must also show that he merits relief as a matter of discretion. But,

voluntary departure is not available to an the proi.<ision does not apply to arriving alien.

See INA Section 240B(a)(4).

FINDINGS AND ANALYSIS

I. Removability

The Court finds that the Department of Homeland Security has proven by

clear and convincing evidence that the respondent is an arriving alien. INA Section

101(a)(13); provides guidance in determining whether the alien is an applicant for

admission. Under INA Section 101(a)(13), !f._the respondent has committed an offense

identified in Section 212(a)(2) (crime involving moral turpitude.lQ!Mil), an alien

otherwise admitted for lawful permanent residence is deemed to be seeking an

admission to the United States. In this case, as the Respondent has been convicted of

a CIMT, OHS properly considers him to be an arriving alien .

_____The Court also finds that as OHS has proven that the respondent is an

arriving alien, the burden, wruGR-tRfell to the respondent to prove that he is clearly

and beyond a doubt entitled to be admitted and is not inadmissible under Section 212,
and he has not met that burden. For these reasons, the motion to terminate is denied.
See Exhibit 2, pleadings, relief requested in the form of termination. The Supreme Court

A072-020-938 3 May 1, 2013

 Immigrant & Refugee Appellate Center, LLC | www.irac.net
case of Vartelas v. Holder, 132 S.CU*u:t 1479 (2012) does not help the respondent, as

his conviction is from 2005, well after the passage of the Illegal Immigration Reform and

Immigrant Responsibility Act.

In his pleadings, the respondent denied allegations 4 and 6. Allegation 4

is that on or about June 7, 2005 that the respondent was convicted in Lawrence District

Court for malicious destruction of property over $250 in violation of Chapter 266 Section

127 of Massachusetts General Laws. OHS offered the record of conviction, which

establishes that the respondent was in fact convicted of malicious destruction of

property over $250 as alleged. See Group Exhibit 3, pages 7 and 8. Therefore, the

Court finds allegation 4 to be true.

The respondent also denied allegation 6, which is that on or about

January 8, 2008 he procured a visa, other documentation, or admission into the United

States by fraud or willful misrepresentation, specifically by failing to disclose his 2005

conviction for malicious destruction property on his NACARA application. DHS

submitted the NACARA application, which the Court has had an opportunity to review.

See Group Exhibit 3, pages 9 through 20. In answer to a question in Part 8, Question 1,

the respondent left the following question unanswered:

"1. Have you ever either in the United States or in another country been

arrested, summoned into court as defendant, convicted, fined, imprisoned, placed on

probation, or forfeited collateral for an act involving a felony, misdemeanor, or breach of

any public law or ordinance (including, but not limited to, driving violations involving

alcohol)?"

As noted, the respondent had the opportunity to check a "Yes" box or a

"No" box, but simply failed to answer the question. Attached to his application was an

index of documents in support of the 1-881. See Group Exhibit 3, page 17 through 20.

A072-020-938 4 May 1, 2013

 Immigrant & Refugee Appellate Center, LLC | www.irac.net
Identified in the list of documents is "certified docket sheets." However, the certified

docket sheets submitted are only for charges involving operating after a revoked

registration and prostitution. jg. at 18 to 20. The respondent argues that by attaching

certified docket sheets he has in fact answered the question that the Court finds was not

answered. The Court disagrees with this assessment. The respondent neither

answered the question about arrests and 0f convictions and did not disclose in any

place in the application or the attachments that he had been arrested, let alone

convicted, of malicious destruction of property. As the respondent went to the trouble to

disclose his criminal history for crimes other than those that would bar his relief, the

Court finds this disclosure to be intentional-:-_and therefore finds that he has by fraud or

willful misrepresentation of a material fact obtained his permanent residency pursuant to

his NACARA application on or about January 8, 2008.

The respondent is, based upon the allegations he admitted, as well as the - Formatted: Don't adjust right indent when grid
allegations found to be true by the Court, charged with three separate grounds of is defined, Line spacing: s!ngle, Widow/Orphan
control, Don't adjust space between Latin and
removability. The first ground of removability is that he has been convicted of a crime Asian text, Don't adjust space between Asian
involving moral turpitude. The Court sustains this charge of removability. Although text and numbers, Tab stops: Not at l" + 6S
counsel reported, during the Court's oral decision in this matter, that the conviction for a
crime involving moral turpitude has been vacated, the Court does not have evidence of
that. Though the Court has no reason to doubt counsel's word, his word is not evidence
and the charge is sustained. Malicious destruction of property in Massachusetts under

---------------
Chapter 66, Section 127, has been found to be a crime involving moral turpitude. See
Da Silva Neto v. Holder, 680 F.3d 25 {151 Cir. 2012).First Cirouit 2012. Formatted: Superscript
Formatted: Font: (Default) CourlerNewPSMT,
The second charge of removability is under INA Section 212(a) (6)(C) (i), Complex Script Font: CourlerNewPSMT

the procuring of his admission to the United States by fraud or willful misrepresentation.

As the Court has found allegation 6 to be true, it sustains this charge of removability as

well.

Finally, under INA Section 212(a)(7)(A)(i) (I), the Court finds that because

the respondent fraudulently or by willful misrepresentation obtained his permanent

resident status, at the time he applied for admission to the United States on March 13,

A072-020-938 5 May 1, 2013

 Immigrant & Refugee Appellate Center, LLC | www.irac.net
2012, he was not in possession of a valid immigrant visa, re-entry permit, border

crossing card, or other valid entry document, and the Court sustains this charge of

removability as well.

II. Motion to Continue

The Court finds that the respondent has not established good cause for

the continuance. The respondent sought to continue the proceedings because of his

expectation that his request for post-conviction relief, which was being considered,

would be granted. Counsel has since reported, as indicated above, that that motion for

post-conviction relief has been granted. However, even if the respondent submits

evidence to the Court that the malicious destruction of property conviction is vacated,

that would only mean that the respondent is not removable under one of the three

grounds of removability charged. The Court would still find that the respondent failed to

disclose the conviction, which was valid for Ummigration purposes at the time he

applied for NACARA and was granted permanent resident status, and at the time he

attempted to enter the United States on March 13,2012, he did not have a valid entry

document. Moreover, the seeking of post-conviction relief does not constitute good

cause for a continuance. Matter of Perez-Andrade, 19 l&N Dec. 433.

Ill. Voluntary Departure

The Court finds that the respondent is not eligible for voluntary departure,

as he is an arriving alien, and because he has been convicted of a crime involving moral

turpitude. See INA Section 240B(a)(4).

The respondent declined the opportunity to withdraw his application for

admission to the United States in the alternative.

Even if the respondent's conviction for the crime involving moral turpitude

were vacated, and the respondent became eligible for voluntary departure, the request

A072-020-938 6 May 1, 2013

 Immigrant & Refugee Appellate Center, LLC | www.irac.net
for voluntary departure would be denied in the exercise of the Court's discretion. The

Court finds the respondent's intentional withholding of material information on his

NACARA application to be serious enough to result in the denial of voluntary departure.
No positive equities have been presented which would overcome the finding of fraud or

willful misrepresentation on the part of the respondent.

ORDERS

The following order.. shall enter'"

The respondent's motion to terminate and motion to continue are denied.

The respondent is found removable as charged and his alternate request

for voluntary departure is denied.
The respondent is ordered removed to Guatemala.

If any party wishes to appeal this decision, the appeal will be due at the
Board of Immigration Appeals on or before May 31, 2013.

Please see the next page for electronic

signature
ROBIN E. FEDER
Immigration Judge

A072-020-938 7 May 1, 2013

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!Isl/
Immigration Judge ROBIN E. FEDER
federr on September 23, 2013 at 6:52 PM GMT

A072-020-938 8 May 1, 2013