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Cite as: Lorenzo Perez Flores, A095 419 451 (BIA July 28, 2014)
A095 419 451
of probable caue indicate that a " -gge" contaning a substace feld tested as cocane was
fund in the respondent's possession, te respondent's guilty plea does not refr to tose
documents. The DHS contends tat the ''agge" containing white powder wa sent to a lab fr
testing. On April 3, 2013, the DHS submitted te lab reort confing that the substace was
cocane. However, we agee wit the Imigation Judge tat the lab report was not pat of the
conviction record relied upon by te criminal cou. Accordingly, we affr the Iigation
Judge's conclusion tat the DHS had not met its burden of establishing tat the respondent was
removable as chaged. Mater of Dave, 26 I&N Dec. 37, 41 (BIA 2012).
Accordingly, the fllowing order will be entered,
ORDER: The appeal is dismissed.
2
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Cite as: Lorenzo Perez Flores, A095 419 451 (BIA July 28, 2014)
,
UNITED STA S DEPARTMENT OF JSTICE
EXECUTIVE 0CE FOR IMMIGRATION RVIEW
UNITED STATES IMMIGRTION COURT
YORK, PENNSYLVANIA
IN THE MATTER OF:
PEREZ FLORES, Lorenzo
Respondent
)
IN REMOVAL PROCEEDINGS
)
)
File # A 095-419-451
)
)
On Behalf of Respondent:
Antony Maturano, Esq.
Ground of Removal: IA 237(a)(2)(B)(i)
Application: Termination by Respondent
On Behalf of DHS
Jon Staples
Assistat Chief Counsel
Ruling on Ground of Removal and Order
On April 2, 2013, this court terminated the Removal proceedings against respondent, fnding
that the goverent filed to meet its burden of proof that respondent's drug parapheralia
conviction under 35 Pa.C.S. 780-113(a)(32), was not an ofense involving possession fr own's
use of 30 grams or less of maijuana, per IA 237(a)(2)(B)(i). Subsequently, on April 16, 2013,
the court issued a stay of that termination order while the cou considered "new" evidence submitted
by goverent counsel, a laborator report revealing that the contolled substance confscated fom
respondent was cocaine.
I its April 2, 2013, written interim ruling, the court fund the conviction record insuffcient
as a matter of law fr the governent to meet its burden of proof by clear and convincing evidence
that respondent was removable under INA 237(a)(2)(B)(i). In fotnote 2 it was noted tat even
though the police criminal complaint had noted that the controlled substance wa sent to a laboratory
fr analysis, it was unknown whether a laboratory analysis was conducted. As noted, fllowing
termination, goverent counsel obtained a copy of te laboratory report indicating that the
substance taen fom respondent was cocaine. Goverent counsel thus asks the cour to now fnd
that the ground of removal at INA 237(a)(2)(B)(i) to be sustained.1
Afer frther consideration, the lab report will not be considered as a part of the conviction
1 As a general proposition, a party proceeds at some peril by awaitig until the court has issued a fal
ruling in a case befre seeking additional evidence. Here, the lab report was not even sought by the goverent until
the cou had terminated the proceedings. Notwithstanding, the lab report has been appended to the record ad
considered.
1
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record which this court ca use to determine whether the goverent has met its burden of proof.
In an unpublished Second Circuit opinion, Scaletv. U.S. Dep't ofHomelad Sec.,311F.Appx.285
(2"d Cir. 2009), the cour fulted the Board fr considering the drug lab report on te cocaine seized
fom the alien at the time of his arrest. The court fund the lab report was not within that class of
documents constituting the offcial conviction record. Id. at 287. The cour reasoned that the record
evidence did not establish that the alien pleaded guilty based on the lab repor, and that the
goverent's burden of proof permits only that evidence to which the alien necessarily pleaded
guilty. Id
The present lab report was alluded to in the police criminal complaint, 2 which is not the
accusator instrument; an Infration was fled by the State, exhibit 2-C, and it is to this document
which respondent entered his guilty plea. The Infrmation reveals at Cout 2 that a "baggie" was
seized fom respondent, ad he was charged under 35 Pa.C.S. 780-l 13(a)(32). As is the usual
case, the Infrmation is silent as to ay paicular controlled substance. While te lab report
precedes respondent's guilty plea, this record is silent as to whether respondent pleaded guilty to
cocaine parapheralia, or generically to drug parapheralia without any refrence to, or
ackowledgment of, cocaine or any other drug.
Conclusion
This record does not establish, by clea and convincing evidence -IA 240(c)(3)(A)-that
respondent pleaded guilty to cocaine parapheralia. I Mater of Davey, 26 I&N Dec. 37, 41 (BIA
2012), that burden, when it comes to IA 237(a)(2)(B)(i), includes requiring the goverent to
prove that respondent's drug conviction does not fll within the "possession fr personal use"
exception under INA 237(a)(2)(B)(i). The Board held that such inquiry permits a "circumstace
specifc" approach.
However, such modifed categorical approach is restricted to those documents which refect
the extent that respondent was actually convicted. Evanson v. Att'y Gen., supra, at 293-294. In this
case, absent evidence to the contrary, tat singula document is the Information, which, as we kow,
is silent as to any paricular controlled substance. "We may not open our review to other records or
inquire into the fctual basis fr the uderlying conviction .... " Id. at 292. The court hereby
incororates by refrence it's original Aprl 2, 2013, order terminating proceedings.
Order: The ground of removal pursuant to INA 24l(b)(3) is dismissed, and tese proceedings are
again terminated.
April 26, 2013
2 A police criminal complaint may be the charging document in Pennsylvania. Garcia v. Att'y Gen., 462
F.3d 287, 292 (3d Cir. 2006). However, when an Infnation is fled in a criminal case, tat is the charging
document. Evanson v. Att'y Gen., 550 F.3d 284, 292-293 (3rd. Cir. 2008).
2
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