Javier F.

Pico
Pico Law Ofice
100 City Hall Plaza, Suite 202
Boston, MA 02108
U.S. Department of Justice
Executive Offce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Flls Church, Virginia 20530
OHS/ICE Ofice of Chief Counsel - BOS
P.O. Box 8728,
Boston, MA 02114
Name: ISABEL DIAZ, JOSE MANUEL A 205-500-422
Date of this notice: 12/30/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Grant, Edward R.
. - - --
Sincerely,
DC caA
Donna Car
Chief Clerk
yungc
Userteam: Docket
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For more unpublished BIA decisions, visit www.irac.net/unpublished For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Jose Manuel Isabel Diaz, A205 500 422 (BIA Dec. 30, 2013)
ISABEL DIAZ, JOSE MANUEL
A205-500-422
PLYMOUTH CTY HOC
26 LONG POND RD
PLYMOUTH, MA 02360
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - BOS
P .0. Box 8728
Boston, MA 02114
Name: ISABEL DIAZ, JOSE MANUEL A 205-500-422
Date of this notice: 12/30/2013
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 attorey 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 fom the United States or afrms an Immigration Judge's decision ordering that you
be removed, any petition fr review of the attached decision must be fled with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Grant, Edward R.
W
Sincerely,
DQ ca
Donna Carr
Chief Clerk
yungc
Useream: Docket
.. - . . ---. .I *~
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Cite as: Jose Manuel Isabel Diaz, A205 500 422 (BIA Dec. 30, 2013)
- - 1
U.S. Department of Justice
Executve Ofce fr Imigtion Review
Decision of te Boad of Imgaton Apeals
Fals Chuch, Virgia 20530
File: A205 500 422 - Boston, M Date:
I re: JOSE MAL ISABEL DI a.k.a. Luis Maldonao
I REMOVA PROCEEDIGS
APEA AND MOTION
ON BEHAF OF RSPONDENT: Javier F. Pico, Esquire
APLICATION: Motion to remad
DEC S 0 ZOt3
The respondent ha appealed fom te Im igation Judge's August 12, 2013, decision denying
his request fr a continuace, fndng him subject to removal as chaged, ad orderng his removal
to the Dominica Republic. The appea will be dismissed.
The record refects tat the respondent, a native ad citizen of te Dominica Republic,
entered te United States witout being adtted or paoled afer inspection (Exh. 1 ). The
Depaent of Homelad Security (''HS") submitted evidence indcating tat te respondent is
the subject of crminal proceedings in Essex County Cou in Massachusetts on a chage relating to
drug taffcking (Exh. 5). The DHS aged that the respondent is iadmissible uder section
212(a)(2)(C) of te Act, 8 U.S.C. 1182(a)(2)(C), as a alien whom a imigration offcer has
"reason to believe" is or has bee a illicit taffcker in a controlled substace or has been a
kowing assister, abettor, conspirator, or colluder wit oters in the illicit taffcking in a
contolled substace ad is therefre ieligble to adjust his status.
I his August 12, 2013, decision, the Imigation Judge concluded tat the evidence of the
respondent's a est was suffciently detailed to serve as evidence of the specifcs of te uderlyng
conduct of the respondent relatng to the crminal chages (I.J. at 2; Exs. 2, 5 & 5). Upon
consideration of te criminal aest ad the inforation contained terein, the Immigaton Judge
determined tat there was suffcient evidence mang it "likely" tat the respondet paicipated in
the illicit tafcking of drgs ad is inadissible under section 212(a)(2)(C) of the Act as a
suspected drug taffcker (I.J. at 2; Exh. 5). The Im igaton Judge went on to note that the
respondent's invocaton of te Fifh Amendment in response to questions raised regadng his
alleged criminal actvities did not ad h i meeting his burde of proof i establishing that he is
not iadssible under section 212( a) of te Act fr puoses of eligibility fr adjustent of status
(I.J. at 2). On appeal, the respondent asks that proceedigs be remaded to await the outcome of
the crimial proceedings pending against hm ad so that he may renew hs request fr
pre-conclusion volunta deare. See Respondent's Brief at 3-4.
Altoug tere is no contolling case law defning a "reason to believe" as that phase is used
in section 212(a)(2)(C) of te Act, simila laguage in diferent statutes has generally been
interpreted as a "probable cause" requirement. See generally Ludecke v. United States Marshal, 15
J: ..9 _ _
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Cite as: Jose Manuel Isabel Diaz, A205 500 422 (BIA Dec. 30, 2013)
. A205 .500 422
F.3d 496, 497 (5th Ci. 1994) (equating probable cause wit a "reasonable gound" to believe the
3Ccused guilty); Adams v. Bakr, 909 F.2d 643, 649 (1st Cir. 1990) (noting tat a "reaonable
.belief' that the alien is involved in terorst actvty may be fred if te evidence linng the alien
to terorst violence is sufcient to justf a "reaorable person" in te belief tat te aien falls
within the proscrbed category); Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1407 (9t Cir. 1988),
cert. dened, 490 U.S. 1106 (1989) (equating probable cause to a "reaonable gound to believe the
accused guilt" i a extaiton case); Prshinowsk v. Samples, 734 F.2d 1016, 1018 (4t Cir.
1984) (sae); Garcia-Guillern v. United States, 450 F.2d 1189, 1192 (5t Cir. 1971), cert. denied,
405 U.S. 989 (1972) (notng tat i order to issue a order ad waat fr commitent i
interationa extadition cases, te "existence of probable cause or, in other words, te existence of
a reasonable gound to believe the accuset guilty of the crime chaged" is essential). We fd
"probable cause" to be a reasonable interretation of section 212(a)(2)(C)'s "reason to believe"
requirement, ad we adopt tat interretaton here. Matter of Casillas-Topete, 25 I&N Dec. 317
(I 2010).
We fnd no reason to distrb the hnmigaton Judge's conclusions and, thus, fnd no reason to
stay te respondent's proceedings pending te outcome of te criminal proceedings. As compaed
to a "clea ad convincing" stadad, te "reason to believe" stadad is qute low, i.e., probable
cause. Te evidence of record indicates that the respondent was obsered mang "a steet level
dg tasaction" involving cocane. I removal proceedngs the respondent took the Fif
Amendment thereby faling to provide ay other plausible explaations fr hs paicipation in te
incident. Compare Matter of Guevara, 20 I&N Dec. 238 (IA 1991) (a alien's silence in response
to questions relating to whether or not he was subject to deportation canot serve as evidence of hs
deportabiliy ad canot be gven a negative inference) with Matter of Carillo, 17 I&N Dec. 30
(BI 1979) (when aien ha already conceded deporability hs silence to questons in relation to
meeting his burde of proof fr relief fom deportation ca be given a negative iference in
decidig wheter alien met bude of proof.
Under these cicumstaces, we fnd that the Imigaton Judge was justifed in fnding that the
aesting police ofcer had a reason to believe tat the respondent was a illcit dg-traffcker or
at least a kowing asister, abettor, conspirator, or colluder wit oters in the illicit
dg-taffckig business. Te objective fcts of ths case justfy a immigation ofcer in havig
probable cause or a reaon to believe that the respondent was involved in dg-taffcking. See
Matter of Rico, 16 I&N Dec. 181 (BIA 1977) (notng tat a aien may be excluded if a
immigation ofcer kows or has reason to believe the aien is or has been a illicit taffcker in
dgs). Te respondent ha faled to prvide ay evidence disputing ths fndig ad thus has faled
to show tat he is not inassible. Moreover, sice te respondent did not concede removability
ad wave appeal of all issues, the hgation Judge corectly concluded that he is not stattorily
eligble to seek pre-conclusion voluta depare. S ction 240B(a) of te Act.
ORER: The appeal is dismissed.
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Cite as: Jose Manuel Isabel Diaz, A205 500 422 (BIA Dec. 30, 2013)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BOSTON, MASSACHUSETTS
File: A205-500-422 August 12, 2013
In the Matter of
JOSE MANUEL ISABEL DIAZ
RESPONDENT
)
)
)
)
IN REMOVAL PROCEEDINGS
CHARGES: Immigration and Nationality Act (INA) Section 212(a)(6)(A)(i) - in
that the respondent is present in the United States without being
admitted or paroled;
INA Section 212(a)(2)(C) - in that the consular or Immigration
ofcer knows or has reason to believe that the respondent is an
alien who is or has been an illicit traficker in any controlled
substance, or who is or has been a knowing assister, abettor,
conspirator or colluder with others in the illicit traficking in any such
controlled substance.
APPLICATIONS: Continuance.
ON BEHALF OF RESPONDENT: JAVIER F. PICO
ON BEHALF OF OHS: HELEN E. MOORE
ORL DECISION OF THE IMMIGRATION JUDGE
Removal proceedings against the respondent, Jose Manuel Isabel Diaz, were
initiated on July 25, 2013, with the filing in Immigration Court of the Notice to Appear.
The notice alleged that he was not a citizen or national of the United States, but was a
1
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native and citizen of the Dominican Republic; that he arrived in the United States at an
unknown place, time and date; that he was not then admited or paroled afer inspection
by an Immigration oficer; and that he has been an illicit trafficker of a controlled
substance or was, or has been a knowing assister, aider, abettor, conspirator, or
colluder with others in the illicit trafcking of a controlled substance, specifically cocaine.
He was charged with removability pursuant to INA Sections 212(a)(6)(A)(i) and
212(a)(2)(C). See Exhibit 1.
On the issue of removability, the respondent submitted pleadings on August 1,
2013. In these pleadings the respondent, through counsel, admitted to the first four
allegations in the Notice to Appear, denied the fifh allegation and conceded
removability under INA Section 212(a)(6)(A)(i), but did not concede removability under
INA Section 212(a)(2)(C). See Exhibit 3. The Court received into evidence Exhibit 2,
an 1-213, Record of Deportable/lnadmissible Alien, and in addition received into
evidence Exhibit 4 and Exhibit 5, consisting of the respondent's Essex County face
sheet and a police report describing the events that has led to the respondent's current
charge of possession with intent to distribute cocaine. Based upon the written
pleadings, as well as Exhibits 2, 4 and 5, this Court fnds by clear, convincing and
unequivocal evidence that the allegations set forth in the Notice to Appear are true, and
the two charges of removability are sustained.
The respondent initially indicated that he would seek pre-conclusion voluntar
deparure. Pre-conclusion voluntary deparure requires that the respondent concede
removability. See 8 C.F.R. 1240.26(b)(1)(i)(C). The respondent does not concede
removabilit and because he is pending a current charge does not desire to take the
stand and testifying in regard to the events concerning his current criminal charge of
possession with intent to distribute.
A205-500-422 2 August 12,2013
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The respondent seeks no other form of relief other than a continuance to await
the outcome of his criminal charge. The Court will not delay these proceedings any
longer. The respondent is removable as charged. If he is acquitted of the drug
traficking charge, he may be eligible for voluntary departure at that time. However, at
this time it is a speculative mater, and the Court will not await the disposition of his
criminal charges. The Court, therefore, denies the motion to continue these
proceedings, and there being no other relief sought will order the respondent's removal
to the Dominican Republic.
ORDER
IT IS HEREBY ORDERED that the respondent be removed to the Dominican
Republic.
signature
A205-500-422
Please see the next page for electronic
STEVEN F. DAY
Immigration Judge
3 August 12, 2013
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. .
/Isl/
Imigration Judge STEVEN F. DAY
days on Septemer 30, 2013 at 10:52 A GMT
A205-500-422 4 August12,2013
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