U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 l.ctsh11rg Pike. S11ite 2000 Falls C/111rch. Virgi11i11 2 2041

Abdallah, Ahmed M., Esq. 1680 North Vine Street, Suite 708 Hollywood, CA 90028

OHS/ICE Office of Chief Counsel 1545 Hawkins Blvd. El Paso, TX 79925

ELP

Immigrant & Refugee Appellate Center | www.irac.net

Name: ONATE VAZQUEZ, FRANCISCO

A079-362-130

Date of this notice: 4/14/2011

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Cole, Patricia A. Greer, Anne J. Pauley, Roger

Cite as: Francisco Onate-Vazquez, A079 362 130 (BIA April 14, 2011)

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

510 7 l.e,slmrg Pike, Suite 2000 :!20./ I

Falls Cl111rd1, Virgi11it1

ONATE VAZQUEZ, FRANCISCO A# 079-362-130 26 MCGREGOR RANGE ROAD CHAPARRAL, NM 88081

OHS/ICE Office of Chief Counsel - ELP 1545 Hawkins Blvd. El Paso, TX 79925

Immigrant & Refugee Appellate Center | www.irac.net

Name: ONATE VAZQUEZ, FRANCISCO

A079-362-130

Date of this notice: 4/14/2011

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.
Sincerely,

Donna Carr Chief Clerk

Enclosure

Panel Members: Cole, Patricia A. Greer, Anne J. Pauley, Roger

Cite as: Francisco Onate-Vazquez, A079 362 130 (BIA April 14, 2011)

'

. U.S. Department of Justice Executive Office for ImmigrationReview

Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File: A079 362 130 - Chaparral, NM In re: FRANCISCO ONATE-V AZOUEZ

IN

Date:

APR 4 zon

BOND PROCEEDINGS

APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF OHS: Ahmed M. Abdallah, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Lorely Ramirez Mravetz Assistant Chief Counsel

APPLICATION: Redetermination of custody status

On January 10, 2011, the respondent filed a timely appeal from the Immigration Judge's December 20, 2010, bond decision. The respondent, on January 5, 2011, had filed a motion before the Immigration Judge seeking reconsideration of the December 20, 20 I 0, bond decision. The motion was denied by the Immigration Judge on January 5, 2011, and the respondent filed a timely appeal from this Immigration Judge's decision as well. On January 14, 2011, the Immigration Judge issued a bond memorandum setting forth the reasons for the original decision and for denying the motion to reconsider. 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). The Immigration Judge further concluded that this decision was both legally and factually correct. The respondent's appeal from the Immigration Judge's December 20, 2010, bond decision will be sustained; the Immigration Judge's December 20, 2010, bond decision will be vacated; his appeal from the Immigration Judge's denial of his motion for reconsideration will be dismissed as moot; and the record will be remanded to the Immigration Judge for further proceedings. We would first note that an alien need not be charged with the ground that provides the basis for mandatory detention under section 236(c)(l) of the Act in order to be considered an alien who "is deportable" on that ground. See Matter of Kotliar, 24 I&N Dec. 124 (BIA 2007). The Act prescribes mandatory detention for certain aliens, including those who have committed a crime involving moral turpitude. See 8 U.S.C. 1226(c)(l)(A). The regulations generally do not confer jurisdiction on an Immigration Judge over custody or bond determinations governing those aliens who are subject to mandatory detention. See 8 C.F.R. 1003.l9(h)(2)(i)(D). However, an alien may seek a determination by an Immigration Judge that he is "not properly included within" certain of the regulatory provisions which would deprive the Immigration Judge of bond jurisdiction, including the mandatory detention provisions at issue in this matter. See 8 C.F.R. 1003.l9(h)(2)(ii); Mauer ofJoseph, 22 l&N Dec. 799, 802 (BIA 1999). An alien will not be considered "properly included" within a mandatory detention category only when an Immigration Judge is convinced that the
Cite as: Francisco Onate-Vazquez, A079 362 130 (BIA April 14, 2011)

.A079 362 130 Department of Homeland Security ("OHS") is substantially unlikely to establish, at the merits hearing, the charge or charges that subject the alien to mandatory detention. See id The record reflects that the respondent was convicted in 2002 of the offense of battery of a spouse, in violation of section 243(e)(1) of the CALIFORNIA PENAL CODE, and was convicted in 2010 of the offense of false imprisorunent, in violation of section 236 of the CALIFORNIA PENAL CODE, a misdemeanor. At the time the respondent was found guilty, pursuant to a guilty plea, of the offense of false imprisorunent, a second charge, for the offense of battery of a spouse, in violation of section 243(e)(l) of the CALIFORNIA PENAL CODE, was dismissed. On appeal, as well as in his motion to reconsider, the respondent argues: (1) the 2002 domestic battery conviction does not qualify categorically as a crime involving moral turpitude, and the files relating to this conviction, including the police records, are unavailable; (2) the false imprisorunent conviction, a misdemeanor, is not categorically a crime involving moral turpitude as only false imprisorunent effected by violence, menace, fraud or deceit, would involve moral turpitude, and would have resulted in a felony charge; and (3) the Immigration Judge improperly found that he was subject to mandatory detention for being "inadmissible." Based upon our review of the evidence submitted at the bond hearing, we are convinced that it is substantially unlikely that the OHS will establish that the respondent was convicted of a crime involving moral turpitude. The record reflects that the respondent was convicted in 2002 for the offense of battery of a spouse, in violation of section 243(e)(l ) of the CALIFORNIA PENAL CODE. Under section 242 of the CALIFORNIA PENAL CODE, a battery is any willful and unlawful use of force or violence upon the person of another. Section 243(e)(1) of the CALIFORNIA PENAL CODE provides that: When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiance, or fiancee, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisorunent in a county jail for a period of not more than one year, or by both that fine and imprisorunent. If probation is granted, or the execution or imposition of the sentence is suspended, it shall be a condition thereof that the defendant participate in, for no less than one year, and successfully complete, a batterer's treatment program. As for the respondent's second offense, false imprisorunent is defined under section 236 of the CALIFORNIA PENAL CODE as the unlawful violation of the personal liberty of another. Under section 237 of the CALIFORNIA PENAL CODE, false imprisorunent is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisorunent in the county jail for not more than I year, or by both that fine and imprisonment. If the false imprisorunent be effected by violence, menace, fraud, or deceit, it shall be punishable by imprisonment in the state prison. The Board did hold in Matter ofSanudo, 23 l&N Dec. 968 (BIA 2006), that a conviction for domestic battery, in violation of sections 242 and 243(e)(l) of the CALIFORNIA PENAL CODE, is not categorically a crime involving moral turpitude. The Immigration Judge, in his bond memorandum, after noting a conviction in violation of section 243(e)(l) of the CALIFORNIA PENAL CODE, is not 2
Cite as: Francisco Onate-Vazquez, A079 362 130 (BIA April 14, 2011)

Immigrant & Refugee Appellate Center | www.irac.net

.A079 362 130 categorically a crime involving moral turpitude, found that no documents had been provided which would allow him to determine whether the respondent's 2002 conviction was for a crime involving moral turpitude. As for the respondent's 2010 conviction for false imprisonment, in violation of section 236 of the CALIFORNIA PENAL CODE, the Immigration Judge correctly observes that this is a crime which can involve moral turpitude. However, as the respondent argues, whereas a conviction for the false imprisonment effected by violence, menace, fraud, or deceit is punishable as a felony with imprisonment in the state prison, his conviction for false imprisonment was a misdemeanor and his sentence was one of probation (Exh. 6, Tab C).

Immigrant & Refugee Appellate Center | www.irac.net

find that the respondent, with respect to his 2010 conviction for the offense of false imprisonment, was not found to have been convicted of an offense which necessarily required any violence, menace, fraud, or deceit. As a result, the respondent has met his burden to show that the DHS is substantially unlikely to prevail on a section 212(a)(2)(A)(i)(i), 8 U.S.C. l l 82(a)(2)(A)(i)(i), charge that either of his convictions involved moral turpitude. Consequently, we find that the respondent is not properly included in the category of aliens subject to mandatory detention for bond purposes. See 8 C.F.R. 1003.19(d). Inasmuch as the respondent is not subject to mandatory detention under section 236(c)(1) of the Act, we find it appropriate to remand the record to the Immigration Judge to determine whether the respondent is a danger to the community or a risk of flight pursuant to section 236(a) of the Act, 8 U.S.C. 1226(a). Moreover, we find that the respondent's appeal from the Immigration Judge's denial of his motion to reconsider is now moot. Accordingly, the respondent's appeal from the Immigration Judge's December 20, 2010, bond decision will be sustained; the Immigration Judge's December 20, 2010, bond decision will be vacated; his appeal from the Immigration Judge's denial of his motion for reconsideration will be dismissed as moot; and the record will be remanded to the Immigration Judge for further proceedings.
We

The following orders shall be issued. ORDER: The respondent's appeal from the Immigration Judge's December 20, 2010, bond decision is sustained. FURTHER ORDER: The Immigration Judge's December 20, 2010, bond decision is vacated. FURTHER ORDER: The respondent's appeal from the Immigration Judge's denial of his motion for reconsideration is dismissed as moot. FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings.

FOR THE

OARD

Cite as: Francisco Onate-Vazquez, A079 362 130 (BIA April 14, 2011)

l
UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR EL FILE: A079-362-130 PASO, TX IMMIGRATION REVIEW IMMIGRATION COURT

IN THE MATTER OF: ONATE VAZQUEZ, RESPONDENT IN REMOVAL PROCEEDINGS FRANCISCO

Immigrant & Refugee Appellate Center | www.irac.net

ORDER OF THE IMMIGRATION

JUDGE

WITH RESPECT TO CUSTODY

Request having been made for a change in the custody status of respondent pursuant to 8 CFR 236.l(c), and full consideration it is hereby having been given to the representations of the Department of Homeland Security and the respondent,

ORDERED that the request for a change in custody status be denied. ORDERED that the request be granted and that respondent be: released from custody on his own recognizance released OTHER from custody under bond of

Copy of this decision has been served on the respondent and the Department of Homeland Security APPEAL: EL PASO Date: waived

CEN

OTERO COUNTY Jan 5, 2011

)-L (!__
THOMAS C. ROEPKE XS Immigration Judge