U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Qffice of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - SFR

P.O. Box 26449
San Francisco, CA 94126-6449

Name: PONCE-ZACARIAS, MARIO

A 093-205-719
Date of this notice: 9/16/2016

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

DonrtL C

11/VL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Mario Ponce-Zacarias, A093 205 719 (BIA Sept. 16, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

PONCE-ZACARIAS, MARIO
O/A093-205-719
c/o MESA VERDE DET. CENTER
425 GOLDEN STATE AVE
BAKERSFIELD, CA 93301

.,,
U.S. Departmnt of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A093 205 719- San Francisco, CA

In re: MARIO PONCE-ZACARIAS a.k.a. Pedro Ponce

Date:

SEP 1 6 2016

APPEAL
ON BEHALF OF RESPONDENT: Pro se

The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's
decision dated May 23, 2016. We review questions of law, discretion, and judgment arising in
appeals from decisions of Immigration Judges de novo, whereas we review findings of fact in
such appeals under a "clearly erroneous" standard. See 8 C.F.R. 1003.l(d)(3). The record will
be remanded.
The Immigration Judge determined that the respondent is ineligible for cancellation of
removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. 1229b(a), as
an alien convicted of an aggravated felony (I.J. at 2; Tr. at 7-8). See section 240A(a)(3) of the
Act. Specifically, the Immigration Judge found, without analysis, that the respondent had been
convicted of the sale and/or transport of a controlled substance under California Health and
Safety Code l1379(a) (I.J. at 2).
The record contains evidence that on February 25, 2014, the respondent entered a plea of no
contest to a charge of a violation of California Health and Safety Code 11379(a) under Count 2
of the complaint (Exh. 2). The respondent entered the plea pursuant to People v. West, 471 P.2d
409 (1970).
The United States Court of Appeals for the Ninth Circuit has held that California Health and
Safety Code 11379(a) is not a categorical aggravated felony. See Sandoval-Lua v. Gonzales,
499 F.3d 1121, 1128 (9th Cir. 2007), overruled on other grounds by Young v. Holder, 697 F.3d
976 (9th Cir. 2012). Moreover, because the respondent did not plead "guilty as charged" and the
complaint only recites the language of the statute, and because the respondent entered his plea
pursuant to People v. West, supra, the record does not establish that the offense is generic for
purposes of an analysis under a modified categorical approach. See United States v. Vidal,
504 F.3d 1072, 1087-89 (9th Cir. 2007). It follows that the record is insufficient to support a
conclusion that the respondent has been convicted of an aggravated felony and thus is statutorily
ineligible for relief for that reason.
Therefore, we find it appropriate to remand the record for the Immigration Judge to consider
whether the respondent is eligible for cancellation of removal under section 240A(a) of the Act,
or any other form of relief from removal, including voluntary departure under section 2408 of
the Act, 8 U.S.C. 1229c.
Cite as: Mario Ponce-Zacarias, A093 205 719 (BIA Sept. 16, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

'

J.

A093 205 719

ORDER: The record is remanded for further proceedings.

2
Cite as: Mario Ponce-Zacarias, A093 205 719 (BIA Sept. 16, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

!kt

May 23, 2016

File: A093-205-719
In the Matter of

MARIO PONCE-ZACARIAS
RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGE:

Section 237(a)(2)(B)(i) of the Immigration and Nationality Act, as an

alien who after admission has been convicted of a crime relating to
a controlled substance

APPLICATIONS:

None

ON BEHALF OF RESPONDENT: Pro Se

ON BEHALF OF DHS: Jennifer Castro

ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE

The respondent is a native and citizen of Mexico. The Department of
Homeland Security has brought these removal proceedings against the respondent
under the authority of the Immigration and Nationality Act. Proceedings were
commenceg with the filing of a Notice to Appear with the immigration court. See Exhibit
1. 8 C.F.R. 1003.14(a).
_____The respondent admitted factual Allegations 1 to 5 on the Notice to
Appear. He denied Allegation 6, and he denied the charge of removability. The court

Immigrant & Refugee Appellate Center, LLC | www.irac.net

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
SAN FRANCISCO, CALIFORNIA

sustained the charge of removability based on clear and convincing evidence. which
included , in part, on the respondent's admissions and the evidence submitted by the

_____The respondent was given the opportunity to file any forms of relief for
which he may be eligible for. The respondent claimed that he did not have any fear to
return to Mexico. The respondent is not eligible for cancellation of removal based on his
aggravated felony conviction for sale and/or transport of a controlled substance, under
California Health and Safety Code Section 11379A. See Exhibit 2.
Additionally. the court considered the respondent for voluntary departure,
but the respondent is not eligible for voluntary departure based on his aggravated felony
conviction. INA 240B(a}(1}
_____As the respondent has no forms of relief pending before the court, the
court ordered the respondent removed to Mexico.
_____Additionally, the oourt oonsidered the respondent for \'oluntal)' de1:>arture,
but the resl:)ondent is not eligible for voluntary departure based on his aggrm.ated felony
oonviation.
ORDERS
It is so ordered that the respondent be ordered removed to Mexico.

Please see the next page for electronic

signature

A093-205-719

SCOTT SIMPSON
Immigration Judge

May 23, 2016

Immigrant & Refugee Appellate Center, LLC | www.irac.net

government, specifically the criminal conviction documents at Exhibit 2.

/Is//
Immigration Judge SCOTT SIMPSON

A093-205-719

Immigrant & Refugee Appellate Center, LLC | www.irac.net

simpsos on June 24, 2016 at 6:02 PM GMT

May 23, 2016