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 22041

DHS/ICE Office of Chief Counsel - WAS

1901 S. Bell Street, Suite 900
Arlington, VA 22202

Name: LEE, SO HEE

A 044-726-322
Date of this notice: 9/30/2016

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

DOWtL C

t1/v1.)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: So Hee Lee, A044 726 322 (BIA Sept. 30, 2016)

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Varughese, Jennifer Sheethel

Livesay & Myers, P.C.
3975 University Drive
Suite 325
Fairfax, VA 22030

,U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Flls Church, Virginia 2204 I

File: A044 726 322 - Arlington, VA

Date:

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Jennifer S. Varughese, Esquire
CHARGE:
Notice: Sec.
Sec.

237(a)(2)(B)(i), I&N Act [8 U.S.C. 1227(a)(2)(B)(i)] Convicted of controlled substance violation (sustained)
237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony (as defined in section 10l(a)(43)(B))
(sustained)

APPLICATION: Termination

The respondent, a native and citizen of South Korea, is a lawful pennanent resident of the
United States. The respondent appeals a decision, dated November 4, 2015, in which an
Immigration Judge denied her Motion to Terminate Proceedings and concluded that the
Department of Homeland Security ("DHS") had established her removability by clear and
convincing evidence. See 8 C.F.R. 1240.8(a). The record will be remanded.
The Board reviews an Immigration Judge's findings of fact for clear error. 8 C.F.R.
1003.l(d)(3)(i). We review issues of law, discretion, or judgment de novo. 8 C.F.R.
1003.l{d)(3)(ii).
The respondent admits that on October 21, 2010, she was found guilty of: (a) 2 counts of
Possession of a Schedule I or II Controlled Substance pursuant to Va. Code 18.2-250; and (b)
1 count of Distribution of a Schedule I or II Controlled Substance as an Accommodation under
Va. Code 18.2-2480 (I.J. at 1-2; Exh. 2; Respondent's Brief at 1). The respondent further
concedes that she was sentenced to 5 years of incarceration for each of the 3 counts with the
entire 15-year period suspended, and 2 years of supervised probation on each of the 3 counts to
run concurrently (I.J. at 1-2; Exh. 2; Respondent's Brief at 2).
On appeal, the respondent argues that the Immigration Judge erred by failing to apply the
categorical approach and proceeding directly to the modified categorical approach in holding that
the DHS had satisfied its burden of proof (l.J. at 2-3; Respondent's Brief at 4-5 (citing
Mellouli v. Lynch, 135 S.Ct. 1980 (2015), and Omargharib v. Holder, 715 F.3d 192
(4th Cir. 2014)). We agree. See Omargharib v. Holder, supra, at 196-98.
Cite as: So Hee Lee, A044 726 322 (BIA Sept. 30, 2016)

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In re: SO HEE LEE a.k.a. So He Lee

SEP 3 O 2016

A044 726 322

In addition, the record reflects that during the hearing on June 3, 2013, the respondent
admitted the allegations in the Notioo to Appear ("NTA"), conceded the charge under section
237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(B)(i), and denied
the charge pursuant to section 237(a)(2)(A)(iii) of the Act (Tr. at 9; Exh. 1 ). On the day of the
final hearing, the respondent submitted a motion in which she requested that her prior factual
admissions and concession of removability be withdrawn, and the proceedings be terminated
pursuant to Mellouli v. Lynch, supra (Respondent's Brief at 2). The transcript reveals that the
Immigration Judge granted the respondent's motion to withdraw her concession of removability
under section 237(a)(2)(B)(i) of the Act (Tr. at 20). However, the Immigration apparently did
not rule upon the respondent's request to withdraw her admissions to the factual allegations in
the NTA. On remand, the Immigration Judge should adjudicate the respondent's motion to
withdraw her factual admissions.
Should the motion be denied, the Immigration Judge must determine what effect, if any, the
respondent's admissions in these proceedings that she was convicted of possession of
Oxycodone, possession of Buprenorphine, and distribution as an accommodation of Oxycodone
have on the question whether the DHS has satisfied its burden of proving removability (Exh. 1).
In this regard, the Supreme Court set forth three reasons undergirding its decision reaffirming an
elements-only categorical inquiry, as opposed to an approach allowing inquiry into the conduct
of a specific criminal offender. See Mathis v. United States, supra, at 2252-53. Such reasons
would apparently not be relevant where the particular drug involved in an alien's conviction is
identified not through her record of conviction in a modified categorical analysis, but through her
admission to factual allegations levied by the OHS in removal proceedings. See id
Pending the remand, we need not adjudicate the respondent's alternative argument that the
Immigration Judge wrongly determined that the DHS had satisfied its burden of proof under the
2
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The respondent further contends that under the categorical approach, the Immigration Judge
should have concluded that the OHS has not satisfied its burden of proving removability because
Virginia's list of controlled substance is broader than the generic list set forth in the
Controlled Substances Act (I.J. at 2-3; Respondent's Brief at 4-6). See 21 U.S.C. 812;
21 C.F.R. 1308.11-1308.15. As relevant to this issue, on October 30, 2015, the
Attorney General ordered the Board to refer to her our decisions in Matter ofChairez-Castrejon,
26 I&N Dec. 478 (BIA 2015), and Matter of Sama, 2015 WL 4761234 (BIA), for her review
(Respondent's Brief at 7; Tr. at 23-29). The Attorney General stayed our decisions in those
cases pending her review. On September 6, 2016, the Attorney General remanded those cases to
the Board for appropriate action. In so doing, the Attorney General observed that on June 23,
2016, the Supreme Court issued a decision in Mathis v. United States, 136 S.Ct. 2243 (2016),
addressing the question of the appropriate method for determining "divisibility" in the context of
a criminal prosecution. In that case, the Court clarified its prior interpretation of the categorical
approach, in a manner which corresponds with the interpretation adopted by the United States
Court of Appeals for the Fourth Circuit, in whose jurisdiction this case arises. See Mathis
v. United States, supra, at 2251 n.l (citing Omargharib v. Holder, supra). Therefore, we will
remand this matter for the Immigration Judge to determine in the first instance whether the OHS
has met its burden of proving removability under the interpretation of the categorical and
modified categorical approaches set forth in Mathis v. United States, supra.

A044 726 322

modified categorical approach by evaluating a Certificate of Analysis, which she asserts is not a
part of the record of conviction (l.J. at 3; Exh. 2; Respondent's Brief at 8-10). On remand, the
parties should be allowed to submit additional evidence and argument concerning any relevant
issue.

ORDER: The record is remanded for further proceedings consistent with this opinion and the
entry of a new decision.

3
Cite as: So Hee Lee, A044 726 322 (BIA Sept. 30, 2016)

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Accordingly, the following order is entered.

November 4, 2015

File: A044-726-322
In the Matter of

IN REMOVAL PROCEEDINGS

SO HEE LEE
RESPONDENT
CHARGES:

Section 237(a)(2)(B)(i) of the Act, a controlled substance violation;

Section 237(a)(2)(A)(iii) of the Act, aggravated felony as defined in
Section 101(a)(43)(B) of the Act, a drug trafficking offense

APPLICATIONS:

Termination of proceedings

ON BEHALF OF RESPONDENT: Jennifer Varughese

ON BEHALF OF OHS: Justin Leone

ORAL DECISION OF THE IMMIGRATION JUDGE

Respondent is admittedly a native and citizen of Korea. She was admitted
to the United States as a permanent resident in 1995. On October 21st, 2010, she was
convicted in Prince William County, Virginia for possession of a Schedule 1 or 2
controlled substance, to wit Oxycodone in violation of Virginia law and sentenced to five
years incarceration. At the same time she was also convicted of possession of a
Schedule 1 or 2 controlled substance, to wit, propiophenone [phonetic], sentenced to
five years. And also on the same day, possession of Oxycodone and five years

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ARLINGTON, VIRGINIA

sentence also, was all suspended. The respondent, through counsel, has denied both
charges. The basis for the denial is that the Virginia statute is overbroad, and it cannot

the federal schedules. It would be possible to be convicted under the Virginia statute
without being guilty under the federal statute. Whether that's likely or not is another
story. But there are some discrepancies between the schedules. The particular drugs
that respondent was convicted of possessing or distributing are on the federal schedule
as well as the Virginia schedules.
However, respondent objects to the inclusion in the record of conviction at
Exhibit 2 of the chemical analysis, which is really the only thing that tells us for sure
what substances were involved. Although I do note that on one of the charge sheets,
called a point of arrest felony in Virginia, a drug Oxycontin [phonetic] is mentioned.
The government attorney points out that it's not possible to be convicted
under the Virginia statute without being convicted of possessing a named drug.
Although the statute may say Schedule 1 or Schedule 2, there can't be a conviction in
Virginia unless the particular drug is identified so that the parties could determine
whether it is or it is not on the schedule. So the Virginia court must necessarily have
made a finding as to the substances involved. Respondent's counsel has some
argument, though, that not everything is part of the record of conviction. The case law
as to what is or isn't part of the record of conviction is not as clear as it might be. And
she argues that the chemical analysis is not part of the record of conviction, and
therefore, it should not be considered by the court in determining whether respondent
has categorically been convicted of a drug offense or an aggravated felony drug
trafficking offense.

A044-726-322

November 4, 2015

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be comparable to the federal statute. The Virginia schedules are not exactly identical to

Now, the court is aware that the 4th Circuit has essentially held that there
is no theft anymore in Virginia because the Virginia theft statute could be theft or it could

theft and fraud. That's the 4th Circuit's decision, and it's certainly binding on the court.
But it is not something that the court would analogize to in this particular case. If I were
to accept respondent's counsel's argument in this case, which is a clever argument,
there would essentially be no drug convictions in Virginia. Virginia drug convictions
would not have any effect on removability from the United States, not only as to the
aggravated felony, but as to the basic controlled substance conviction. It is absolutely
clear that Congress intended and specifically stated that it wanted state and federal
convictions to both be considered for removability under these charges. There can be
no serious doubt about that. That being the case and there not being any specific
precedent to the contrary, I find that both charges are sustained based on Exhibit 2, the
record of conviction in this case. The controlled substance is obviously sustainable
because respondent was convicted of possessing controlled substances. And the
aggravated felony charge is sustainable because respondent's second conviction would
certainly be a drug trafficking offense as it's defined in federal law. As a violation of the
Controlled Substances Act, that is a felony, i.e., two years or more in jail. Certainly,
respondent's distribution conviction is that.
There have been a lot of Supreme Court cases that contribute to
respondent's argument, but none of them are directly applicable. I won't analyze them
any further at this time.
Respondent, being convicted of an aggravated felony, is not eligible for
any relief under the Act other than termination of proceedings. Therefore, the court
enters the following order. 1) I find respondent is removable under Section
A044-726-322

November 4, 2015

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be fraud, and therefore, could never be an aggravated felony because it can't be both

237(a)(2)(B)(i); 2) I find that respondent is removable under Section 237(a)(2)(A)(iii),

aggravated felony; 3) I order respondent removed to South Korea.

signature

A044-726-322

LAWRENCE 0. BURMAN
Immigration Judge

November 4, 2015

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Please see the next page for electronic

'

/Isl/
Immigration Judge LAWRENCE 0. BURMAN

A044-726-322

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burrnanl on January 13, 2016 at 1:59 PM GMT

November 4, 2015