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U.S.

Department of Justice Executive Office for Immigration Review Board ofImmigration Appeals Office of the Clerk
5107 Leesburg Pike, Suite 2000 Falls Church. Virginia 20530

Acosta, Jr., Mario 611 Wilshire Blvd., Ste. 1215 Los Angeles, CA 90017

OHS/ICE Office of Chief Counsel 10400 Rancho Road Adelanto, CA 92301

Immigrant & Refugee Appellate Center | www.irac.net

Name: VACA-BUENO, SALVADOR

A 072-956-700

Date of this notice: 12/5/2013

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

Dowu_ ct1/lA)
Donna Carr Chief Clerk

Enclosure
Panel Members: Pauley, Roger

williame
Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Salvador Vaca-Bueno, A072 956 700 (BIA Dec. 5, 2013)

U.S. Department of Justice Executive Office for Immigration Review Board ofImmigration Appeals Office of the Clerk
5107 leesburg Pike, Suite 2000

Falls Church, Virginia 20530

VACA-BUENO, SALVADOR A072-956-700 ADELANTO DETENTION CENTER 10250 RANCHO ROAD ADELANTO, CA 92301

OHS/ICE - Office of Chief Counsel 10400 Rancho Road Adelanto, CA 92301

Immigrant & Refugee Appellate Center | www.irac.net

Name: VACA-BUENO, SALVADOR

A 072-956700

Date of this notice: 12/5/2013

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. 1292.5(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,

DonrtL ct1/VL)
Donna Carr Chief Clerk

Enclosure
Panel Members: Pauley, Roger

williame Userteam: Docket

Cite as: Salvador Vaca-Bueno, A072 956 700 (BIA Dec. 5, 2013)

U.S. Department of Justice Executive Office for Immigration Review


Falls Church, Virginia 20530

Decision of the Board of Immigration Appeals

File: In re:

A072 956 700 - Adelanto, CA

Date:

DEC-$ 2013

SALVADOR VA CA-BUENO a. k.a. Salvador Vaca Bueno

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDIN GS
APPEAL ON BEHALF OF RE SPONDENT: ON BEHALF OF DH S: Mario Acosta, Jr., Esquire Sandra Anderson Chief Counsel

In a decision dated July 16, 2013, an Immigration Judge found the respondent removable and 1 ordered him removed from the United States to Mexico. The respondent appealed from that decision. The record will be remanded. The respondent was found removable as charged, as convicted of a controlled substance violation under section 237(a)(2)(B)(i) of the Act, 8 U.S.C. 1227(a)(2)(B)(i). This charge is based on his February 2013 conviction for "possession of injection/ingestion device" under Cal. Health & Safety Code 11364.l(a). Such conviction is substantiated by conviction documents. See Ex. 2. Section 237(a)(2)(B)(i) of the Act provides, in relevant part, "[a]ny alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance ... , other than a single offense involving possession for one's own use of thirty grams or less of marijuana, is deportable. " The statute under which the respondent was convicted, Cal. Health & Safety Code 11364.l(a), is a law relating to a controlled substance within the meaning of section 237(a)(2)(B)(i) of the Act. See Estrada v. Holder, 560 F.3d 1039, 1042 (9th Cir. 2009). However, the Immigration Judge's July 2013 decision contains no findings or analysis concerning the applicability of the "possession of marijuana for personal use" exception. See Matter of Davey, 26 I&N Dec. 37, 39-41 (BIA 2012) (holding that the section 237(a)(2)(B)(i) "possession of marijuana for personal use" exception calls for a circwnstance-specific inquiry in which the Department of Homeland Security bears the burden of proof). In the present case, the conviction documents and the transcript are unclear as to the particular controlled substance and the particular device that were involved in the respondent's offense. See Ex. 2; I. J.at 3; Tr.at 12-13.

The proceedings before the Immigration Judge in this matter were completed in Adelanto, California through telephone conference pursuant to section 240(b)(2)(A)(iv) of the Immigration and Nationality Act, 8 U.S.C. 1229a(b)(2)(A)(iv).

Cite as: Salvador Vaca-Bueno, A072 956 700 (BIA Dec. 5, 2013)

A072 956 700

Given the foregoing, we find that a remand is necessary.

Upon remand, the Immigration

Judge shall make additional findings of fact and shall enter a new decision. If the respondent is found removable on remand, the Immigration Judge shall inform him of any relief for which he appears to be eligible and shall give him a reasonable opportunity to file applications therefor. 2 See 8 C.F.R. 1240.1 l(a)(2); Matter ofS-H-, 23 l&N Dec. 462 (BIA 2002). Accordingly, we issue the following order. ORDER: The record is remanded to the Immigration Court for further proceedings and for the issuance of a new decision, consistent with this opinion.

Immigrant & Refugee Appellate Center | www.irac.net

The Department of Homeland Secwity ("DR S") initially argued that the Immigration Judge's
v.

decision should be affirmed but subsequently notified this Board that the respondent is a possible class member under Franco-Gonzalez Holder, No. CV 10-02211, 2013 WL 3674492 (C.D. Cal. 2013), given that he has been diagnosed with "Depressive Disorder, NO S; Cannabis Dependence." However, as acknowledged by the DH S, the record does not otherwise contain indicia that the respondent lacks competency. Further, the respondent did not raise the issue of competency before the Immigration Judge or this Board. See Matter of M-A-M-, 25 l&N Dec. 474, 479-80 (BIA 2011). He was represented by counsel before the Immigration Judge and currently is represented by counsel on appeal. "Absent indicia of mental incompetency, an Immigration Judge is under no obligation to analyze an alien's competency." Id. at 477. Therefore, we do not find a basis for consideration of the respondent's competency, upon remand.

2
Cite as: Salvador Vaca-Bueno, A072 956 700 (BIA Dec. 5, 2013)

UNITED

STATES DEPARTMENT OF JUSTICE IMMIGRATION COURT SUITE 92301 201A CA

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW 10250 RANCHO RD., ADELANTO,

LAW OFFICE OF MARIO ACOSTA, MARIO ACOSTA, LOS ANGELES, JR., CA ESQ.

JR.

Immigrant & Refugee Appellate Center | www.irac.net

611 WILSHIRE BLVD. STE. 1408 90017 FILE A 072-956-700 DATE: Jul 17, 2013

IN THE MATTER OF VACA-BUENO, SALVADOR -

UNABLE TO FORWARD

NO ADDRESS PROVIDED THIS DECISION

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. IS FINAL UNLESS AN APPEAL IS FILED WITH THE WITHIN 30 CALENDAR YOUR NOTICE OF DAYS SEE THE ENCLOSED FORMS AND APPEAL, MUST BE MAILED TO: INSTRUCTIONS FOR DOCUMENTS, BOARD OF OF PROPERLY OF THE DATE OF THE MAILING ATTACHED THIS

IMMIGRATION APPEALS WRITTEN DECISION. PREPARING YOUR APPEAL.

AND FEE OR FEE WAIVER REQUEST

BOARD OF IMMIGRATION APPEALS OFFICE OF THE CLERK P.O. BOX 8530 FALLS CHURCH, VA 22041 THE RESULT HEARING.

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS

OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION THIS DECISION IS FINAL UNLESS WITH SECTION 242B(c} (3) SECTION 1252B(c)(3} 8 u.s.c. TO REOPEN, YOUR OF THE IMMIGRATION AND A MOTION TO REOPEN IS

OR

OVAL
ACT,

FILED

IN ACCORDANCE 8 U.S.C.

NATIONALITY

IN DEPORTATION PROCEEDINGS OR SECTION 240(c)(6), IF YOU FILE A MOTION COURT:

SECTION 1229a(c)(6) IN REMOVAL PROCEEDINGS. MOTION MUST BE FILED WITH THIS IMMIGRATION COURT 10250 RANCHO RD., ADELANTO, CA SUITE

201A

92301

IMMIGRATION CC: Santos, Ms. Sandra. ESQ. 10400 Rancho Road Adelanto, CA, 92301

COURT

FF

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT ADELANTO, CALIFORNIA

File No.: A072-956-700 In the Matter of:


VACA-BUENO, Salvador,

Respondent
CHARGE:

) ) ) ) ) ) )

DETAINED

Immigrant & Refugee Appellate Center | www.irac.net

Immigration and Nationality Act ("INA") section 237(a)(2)(B)(i) - alien


convicted of a violation ofa law relating to a controlled substance.

APPLICATION:

Motion to Terminate
ON BEHALF OF THE DEPARTMENT:

ON BEHALF OF RESPONDENT:

Mario Acosta, Jr., Esq Law Offices of Mario Acosta, Jr. 611 Wilshire Blvd., Suite 1408 Los Angeles, California 90017

Sandra Santos, Assistant Chief Counsel U.S. Department of Homeland Security 10400 Rancho Road Adelanto, California 92301

DECISION AND ORDER OF THE IMMIGRATION JUDGE I. Procedural History

Salvador Vaca-Bueno (Respondent) is a native and citizen of Mexico who was admitted to the United States on July 15, 1996, as a lawful permanent resident. On June 24, 2013, the U.S. Department of Homeland Security (Department) filed a Notice to Appear (NTA) with the Court, thereby vesting jurisdiction and commencing removal proceedings against Respondent. 8 C.F.R. 10013.14(a). See Exhibit 1. On July 2, 2013, the Court held an Initial Master Calendar hearing at which Respondent was represented by counsel Mario Acosta. Respondent, through counsel, pled to the allegations and the charges listed on the NTA. Specifically, Respondent admitted allegations I - 3, but denied allegation 4, which claimed Respondent had been convicted under California Health & Safety Code (HSC) 11364. l(a) for possession of controlled substance paraphernalia. Further, Respondent contested the Department's charge of removability under INA 237(a)(2)(B)(i), as an alien who has been convicted of a law or regulation relating to a controlled substance. The Court finds that the Department has satisfied its burden of proof in establishing that Respondent has been convicted under HSC 11364. l (a) and that such conviction renders him removable under INA 237(a)(2)(B)(i) for violating a law relating to a controlled substance.

I.

Law & Analysis

The Department of Homeland Security must prove by clear and convincing evidence that the respondent is subject to removal as charged. No decision on deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence. Section 240(c)(3)(A).
An alien is removable under section 237(a)(2)(B)(i) if, at any time after admission, he has been convicted of a violation of a law relating to a controlled substance as defined in section 102 of the Controlled Substances Act (CSA). See INA 237(a)(2)(B)(i). In the present matter, the Department submitted a certified copy of the Misdemeanor Complaint charging Respondent with, "the crime of Possession of Injection/Ingestion Device, in violation of Health & Safety Code Section 11364.l(a)," (Count 1) and, "the crime of Possession of Burglar's Tools, in violation of penal code section 466, " (Count 2). Only Count 1 is relevant for the purposes of this Order. In addition, the Department provided a certified copy of the Minute Order which showed that Respondent pled no contest to Count 1. Further, the Minute Order indicated that Respondent was sentenced to three years of probation. The certified copy of the Sentencing and Probation Order further listed a series of requirements for Respondent, including reporting to a treatment program, reporting in person to a Probation Officer, maintaining a residence approved by his Probation Officer, maintaining a standard of personal appearance that will not impede obtaining employment, and many other restrictions on Respondent's liberty. See Exhibit 2.

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First, the Court finds that the Department has sustained its burden of proof in establishing that Respondent has been convicted, as defined in INA 10l(a)(48)(A), under HSC 11364.l(a). The certified criminal records establish that Respondent entered into a plea of nolo contendere and that the criminal court ordered a restraint on Respondent's liberty as described in the Probation Order. See Exhibit 2. Next, the Court considers Respondent's argument that a conviction under HSC 11364.l(a) does not fall within the definition of a violation relating to a controlled substance under INA 237(a)(2)(B)(i). Section 11364. l(a) of the HSC reads: It is unlawful to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking (1) a controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, specified in subdivision (b) or (c)of Section 11055, or specified in paragraph (2) of subdivision (d)of Section 11055, or (2) a controlled substance which is a narcotic drug classified in Schedule III, IV, or V. Respondent argues that because the drugs referenced in this provision include drugs not listed in CSA I 02, the statute is overbroad. Respondent argues that HSC 11364.1(a) is therefore, categorically not a crime related to a controlled substance. Respondent argues that under the US Supreme Court's recent ruling in Descamps v. United States, No. 11-9540 (U.S. June 20, 2013), once a finding is made that a statute in question is categorically not a controlled 2

\ f

substance violation, the Court's inquiry goes no further and Respondent cannot be found removable under INA 237(a)(2)(B)(i). Alternatively, Respondent argues that even if Descamps does not control here, the Department fails because the Court must at least apply the modified categorical approach to determine whether Respondent's conviction involved paraphernalia for a drug listed in CSA 102. Respondent cites Ruiz-Vidalv. Gonzales, 473 F .3 d 1072 (9th Cir. 2007) to support this argument. Because the conviction record does not specify which drug paraphernalia Respondent possessed, Respondent contends that the Department failed to meet its burden.

Immigrant & Refugee Appellate Center | www.irac.net

The Court finds the Ninth Circuit's decision in Luu-Lev. INS, 224 F.3d 911 (9th Cir. 2000) dispositive of this issue. The respondent in Luu-Le had been convicted for possession of drug paraphernalia under a similar Arizona statute. Importantly, the Arizona statute included a definition of drugs that did not match CSA 102. Notwithstanding the overbroad definition of drugs in the Arizona statute, the Court found the statute met the meaning of a law relating to a controlled substance. The Court reasoned, "[the Arizona paraphernalia statute] is plainly intended to criminalize behavior involving the production or use of drugs at least some of which are also covered by the federal schedules of controlled substances as printed in 21 USC 812 (c) through focusing on drug paraphernalia." Id at 915 (emphasis added).
-

The decision in Ruiz-Vidal did not upset the Ninth's Circuit's holding in Luu-Le. In fact, the Ninth Circuit specifically distinguished its decision from that in Luu-Le in a footnote by stating that, unlike Arizona's drug paraphernalia statute, a particular controlled substance was at issue in California's possession of a controlled substance statute. See, Ruiz-Vidal atl 078 n. 5. Moreover, in Estradav. Holder, 560 F.3d I 039 (9th Cir. 2009), the Ninth Circuit, relying on Luu-Le, concluded that a conviction under HSC 11364 is a violation of a law relating to a controlled substance. 560 F.3d at 1042. The Court therefore finds that Respondent's conviction under HSC 11364 is categorically a violation of a law relating to a controlled substance. Accordingly, it is unnecessary to apply the modified categorical approach in this matter. See Descamps, slip op. at 8. For the reasons set forth above, the Court finds that the Department has met its burden of proof in establishing that Respondent is removable under INA 237(a)(2)(B)(i). Further, the Court directs Mexico as the country of removal. Respondent has declined to request relief from removal. The Court DENIES Respondent's request to terminate proceedings. The Court ORDERS Respondent removed to Mexico.

DATE:

1 }\Li

't3
Immigration Judge

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