Gerardo Candelario-torres, A087 968 160 (bia Jan. 14, 2011)

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U.S. Department of Justice Executive Office for Immigration Review Board ofImmigration Appeals Office ofthe Clerk 5107 Leesburg Pike, Suite 2000 Falls C/111rch, Virginia 22041 Ramirez, Enrique, Esq. Attorney at Law 825 Van Ness Avenue, Suite 304 San Francisco, CA 94109-0000 OHS/ICE Office of Chief Counsel - ELP 1535 Hawkins Bl vd., Suite 122 El Paso, TX 79925 Immigrant & Refugee Appellate Center | www.irac.net Name: CANDELARIO-TORRES, GERARDO A087-968-160 Date of this notice: 1/14/2011 Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely, Donna Carr Chief Clerk Enclosure Panel Members: Pauley, Roger Cite as: Gerardo Candelario-Torres, A087 968 160 (BIA Jan. 14, 2011) U.S. Department of Justice Executive Office for Immigration Review Board ofImmigration Appeals Office ofthe Clerk 5107 Leesburg Pike, Suite 2000 Fa/Js CJ111rc/1, Virginia 2204/ CANDELARIO-TORRES, GERARDO OHS/ICE Office of Chief Counsel - ELP 1535 Hawkins Blvd., Suite 122 El Paso, TX 79925 A# 087-968-160 8915 MONTANA AVE EL PASO, TX 79925 Immigrant & Refugee Appellate Center | www.irac.net Name: CANDELARIO-TORRES, GERARDO A087-968-160 Date of this notice: 1/14/2011 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. SincereIv. DorutL ct1IVt.) Donna Carr Chief Clerk Enclosure Panel Members: Pauley, Roger Cite as: Gerardo Candelario-Torres, A087 968 160 (BIA Jan. 14, 2011) \ ' U.$. Department of Justice Executive Office for Immigration Review Falls Church, Virginia 22041 Decision of the Board of Immigration Appeals File: A087 968 160 - El Paso, TX Date: JAN 14 2011 In re: GERARDO CANDELARIO TORRES IN BOND PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Enrique Ramirez, Esquire Immigrant & Refugee Appellate Center | www.irac.net Corine Dominguez Assistant Chief Counsel APPLICATION: Change in custody status; bond redetermination The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's bond order dated October 6, 2010. On November 4, 2010, the Immigration Judge issued a bond memorandum setting forth the reasons for his bond decision. The Immigration Judge found that he lacked jurisdiction to consider the respondent's request for a change in custody status, inasmuch as the respondent is subject to the mandatory detention provisions under section 236(c) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c). See 8 C.F.R. § 1003.19(h)(2)(i)(D) (2010). Furthermore, in the alternative, the Immigration Judge found that the respondent presents a danger to the community, and denied him release on bond under section 236(a) of the Act. The appeal will be sustained in part and dismissed in part. The bond record reflects and both parties agree on appeal that although in 2005 the respondent was initially charged with a crime under Cal. Penal Code § 273.5, he was ultimately convicted of assault under Cal. Penal Code § 240. Thus, the Immigration Judge committed clear error in finding that the respondent was convicted under Cal. Penal Code§ 273.5. Moreover, Cal. Penal Code§ 241 states that the punishment for assault is a fine not exceeding $1000 or imprisonment in county jail not exceeding 6 months or both. Given the petty offense exception of section 212(a)(2)(A)(ii) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii), we agree with the respondent that the Department of Homeland Security (DHS) is substantially unlikely to establish, at the merits hearing, a charge that subjects the respondent to mandatory detention under section 236(c)(1)(A) of the Act. See Matter ofJoseph, 22 I&N Dec. 799, 802 (BIA 1999). Accordingly, we reverse the Immigration Judge's conclusion that the respondent is properly included within a mandatory detention category. See 8 C.F.R. §§ 1003. l (d)(3)(ii), 1003.19(h)(2)(ii). Turning to the Immigration Judge's determination under section 236(a) of the Act, the respondent indicates that in addition to assault, he has been arrested and convicted three times of driving under the influence (DUI) in violation of Cal. Veh. Code§ 23152 in 2003, 2006, and 2010. The fact that the Supreme Court and Board have issued decisions finding DUis not to be crimes of violence or involving moral turpitude is not dispositive of whether the respondent is a danger to the Cite as: Gerardo Candelario-Torres, A087 968 160 (BIA Jan. 14, 2011) ' _.. I i. . A087 968 160 . community for bond purposes. Furthennore, the respondent argues that the record does not contain evidence establishing that he drank at or above the .08 limit, that his ability to drive was impaired, that he violated other driving regulations, or that he harmed anyone. However, he was still convicted of three DUI offenses, and it is his burden, not the DHS's, to prove that his release would not pose a danger to persons or property. See Matter ofUrena, 25 l&N Dec. 140, 141 (BIA 2009). Moreover, although the respondent contends that no criminal records were submitted regarding his 2010 DUI conviction, he has not contested the existence ofthis conviction which is discussed in the Fonn I-213 (Bond Exh. 2). See 8 C.F.R. § 1003.l 9(d) (stating that an Immigration Judge may consider any infonnation available to him or her in making a bond detennination). Finally, the respondent argues that he has a number of equities such as significant family ties and a steady employment history. However, given his assault conviction and three DUI offenses in a less than 10-year period, we agree with the Immigration Judge that the respondent has not met his burden of showing that he is not a danger to the community. Immigrant & Refugee Appellate Center | www.irac.net See Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006) (stating that the non-exhaustive factors an Immigration Judge may consider in making a detennination under section 236(a) of the Act include, inter alia, family ties, employment history, the alien's criminal record, the extensiveness of the criminal activity, the recency of such activity, and the seriousness of the offenses). to section 236(a) of the Act. ORDER: Accordingly, upon our 1003.l(d)(3)(ii). de novo review, we uphold the Immigration Judge's decision ordering the respondent detained on a "no bond" condition pursuant See 8 C.F.R. § The respondent's appeal is sustained in part and dismissed in part. 2 Cite as: Gerardo Candelario-Torres, A087 968 160 (BIA Jan. 14, 2011) . . UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT 8915 MONTANA AVENUE EL PASO, TX 79925 RAMIREZ, EL PASO, ENRIQUE., TX 79901 ESQ. 1006 MAGOFFIN Immigrant & Refugee Appellate Center | www.irac.net Date: Nov 4, 2010 File A087-9 68-160 In the Matter of: CANDELARIO-TORRES, GERARDO ��- Attached is a copy of the written decision of the Immigration Judge. This decision is final unless an appeal is taken to the Board of Immigration Appeals. Notice of Appeal, Representative, The enclosed copies of executed, FORM EOIR 26, as Attorney or and FORM EOIR 27, Notice of Entry properly must be filed with the Board of fee ($110.00). Immigration Appeals on or before The appeal must be accompanied by proof of paid Enclosed is a copy of the oral decision. Enclosed is a transcript of the testimony of record. You are granted until to submit a brief ��- to this office in support of your appeal. Opposing counsel is granted until brief in opposition to the appeal. to submit a � Enclosed is a copy of the order/decision of the Immigration Judge. All papers filed with the Court shall be of service upon opposing counsel. accompanied by proof S incerel �� ITltlli9ration c6,irt cc: HUNT, 1545 WILLIAM TA-EPD HAWKINS, TX SUITE 275 79925 EL PASO, ��/ Clerk UL .. UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW United States Immigration Court El Paso, Texas A-087 968 160 In the Matter of Gerardo Candelario-Torres, Respondent A P PLICATION: Bond Redetermination In Bond Proceedings Immigrant & Refugee Appellate Center | www.irac.net MEMORANDUM DECISION OF THE IMMIGRATION JUDGE: The respondent has requested reconsideration of his custody status pursuant to Section 236 (a) of the Act. However, the Court has determined that the respondent falls under the prohibition contained in Section 236 (c) (1) and (2) of the Act. Under the provisions of 8 C. F. R. part 3. 19 (h) (2) (i) , "an immigration judge may not redetermine conditions of custody imposed by the Service with respect to the following classes of aliens. . . Aliens in removal proceedings subject to section 236 (c) (1) of the Act. . . " The aliens described in that section include any alien who is inadmissible by reason of having committed any offense covered in section 212 (a) (2) ; any alien deportable by reason of having committed any offense covered in section 237 (a) (2) (A) (ii) (two crimes involving moral turpitude) , (A) (iii) (aggravated felony) , (B) (drug offenses) , (C) (firearms/explosives offenses) , (D) (misc sabotage or espionage) ; any alien deportable under section 237 (a) (2) (A) (i) (crime involving moral turpitude) with a sentence to imprisonment of 1 year or longer, or is inadmissible under section 212 (a) (3) (B) or deportable under section 237 (a) (4) (B) (security grounds) . According to respondent's testimony and/or evidence submitted in court, respondent is a 32 year old, native and citizen of Mexico who is physically present in the United States without admission or parole by an immigration officer. The record also reflects that respondent was convicted of Corporal Injury to Spouse in 2005, a violation of California Penal Code, section 273. 5, and was not released from state or federal custody for his criminal behavior until sometime in 2005. Such a conviction is a crime involving moral turpitude within the 1 . . meaning of section 212(a}(2}(A}(i}(I} of the Act. As such he falls within the mandatory detention requirements of Section 236(c}. See, Matter of Adeniji, Interim Decision 3417 (BIA 1999}. As the respondent appears to be within one of the classes listed above and therefore outside the jurisdiction of this Court, respondent's request for review of his custody status is denied. Immigrant & Refugee Appellate Center | www.irac.net The court also notes that the record reflects respondent was convicted of at least two, if not more, crimes involving driving while intoxicated, all within the last ten years. On this basis alone, the court finds respondent to alternatively be a danger to the community and would deny bond in the exercise of the court's discretion for this reason as well. SO ORDERED. William Lee bott United States Immigration Judge , CflJJr Memorandum Prepared Date: November 4, 2010 2