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 - LOS

606 S. Olive Street, 8th Floor
Los Angeles, CA 90014

Name: LEON-ESPERANZA, JORGE

A 095-750-346
Date of this notice: 10/18/2016

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

DOWtL CtVvu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger l John
Kendall-Clark ! Molly
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Jorge Leon-Esperanza, A095 750 346 (BIA Oct. 18, 2016)

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Ortiz, Salvador
Law Offices of Salvador Ortiz
714 W. Olympic Blvd, Suite 450
Los Angeles, CA 90015

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U.S. Department of Justice

Executive Office

for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A095 750 346 - Los Angeles, CA

Date:

In re: JORGE LEON-ESPERANZA

OCT 1 8 2016

APPEAL
ON BEHALF OF RESPONDENT: Salvador Ortiz, Esquire
APPLICATION: Adjustment of status

The respondent, a native and citizen of El Salvador, appeals from the decision of the
Immigration Judge, dated March 20, 2015, denying his application for adjustment of status under
section 245(i) of the Immigration and Nationality Act, 8 U.S.C. 1255(i) in conjunction with a
waiver of his inadmissibility under section 212(h) of the Act, 8 U.S.C. l182(h). The
Department of Homeland Security ("DRS") has not responded to the appeal. The appeal will be
sustained and the record will be remanded.
We review the findings of fact made by the Immigration Judge, including the issue of
credibility, under a "clearly erroneous" standard. 8 C.F.R. 1003.l{d)(3)(i). We review
questions of law, discretion, and judgment under a de novo standard. 8 C.F.R. 1003.1 (d)(3)(ii).
This matter was previously before the Board on January 19, 2012, when we sustained the
respondent's appeal and remanded the record for further proceedings on the respondent's
application for adjustment of status. In that decision, we found that the respondent was not
inadmissible under section 2l2(a)(2)(A)(i)(1I) of the Act, 8 U.S.C. 1182(a)(2)(A)(i)(II), based
on his federal conviction for misprision of a felony in violation of 18 U.S.C. 4 (as it relates to
21 U.S.C. 841). Specifically, we found that the respondent was convicted under the generic
misprision of a felony statute and thus, his offense was not one "relating to" a controlled
substance. We then remanded the record to give the respondent the opportunity to apply for any
waivers of inadmissibility that may be required and for the parties to develop the record as to the
merits of any applications for relief that the respondent may pursue.
Upon remand, the Immigration Judge denied the respondent's application for adjustment of
status finding that he was inadmissible under section 212(a)(2)(C) of the Act, 8 U.S.C.
1182(a)(2)(C), as an "alien who the consular or immigration officer knows or has reason to
believe is or has been an illicit trafficker in any controlled substance or has been a knowing
assistor, abettor, conspirator of colluder with others in the illicit trafficking in any such
controlled substance" (I.J. at 2).
The respondent argues on appeal that the Immigration Judge was collaterally estopped from
finding that he was inadmissible under section 212(a)(2)(C) of the Act, because the issue was
previously litigated by the parties (Respondent's Br. at 3-4). The doctrine of collateral estoppel
applies in removal proceedings when there has been a prior judgment between the parties that is
Cite as: Jorge Leon-Esperanza, A095 750 346 (BIA Oct. 18, 2016)

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IN REMOVAL PROCEEDINGS

A095 750 346

According to the record of proceedings, the Immigration Judge found that the conviction
documents alone were not enough to support the ground of inadmissibility under section
212(a)(2)(C) of the Act, for purposes of the respondent's application for adjustment of status
(Decision of the Immigration Judge dated July 21, 2011, at 2-3; Tr. at 31-32, 48-49; DHS
Opposition Brief filed on December 9, 2011, at 2, 4-5). Therefore, the Immigration Judge gave
the DHS a continuance to obtain further evidence and to determine if it was going to raise the
respondent's inadmissibility under this subsection of the Act as a bar to relief (I.J. at 2-3; Tr. at
53-54). On April 26, 2011, the DHS indicated on the record that it would not be arguing that the
respondent was inadmissible under section 212(a)(2)(C) of the Act for purposes of his
application for adjustment of status (Tr. at 73). The DHS reiterated its position at the next
master calendar hearing on May 4, 2011 (Tr. at 77).
Ultimately, the Immigration Judge denied the respondent's application for adjustment of
status on other grounds, but reiterated in his decision that the DHS waived the issue of the
respondent's inadmissibility under section 212(a)(2)(C) of the Act (Decision of the Immigration
Judge, dated July 21, 2011, at 2-3). The DHS then acknowledged in its brief in opposition to the
respondent's appeal before the Board filed on December 9, 2011, that it waived the issue of the
respondent's inadmissibility under section 212(a)(2)(C) of the Act (OHS Opposition Brief filed
on December 9, 2011, at 5). Based on the DHS's indication that it waived this issue below and
again in its previous opposition brief on appeal, we find the issue of the respondent's
inadmissibility under section 212(a)(2)(C) of the Act waived. See Matter of Edwards,
20 l&N Dec. 191, 196-197 n.4 (BIA 1990) (noting that issues not addressed on appeal are
deemed waived on appeal). 1
For the reasons stated, we will sustain the respondent's appeal, and remand the record to
provide the respondent the opportunity to apply for adjustment of status or any other available
relief. We express no opinion regarding the ultimate outcome of these proceedings at the present
time. Accordingly, the following order will be entered.

We note, however, that the Immigration Judge is not precluded from taking the respondent's
conviction and the circumstances underlying it into account in the exercise of discretion.

2
Cite as: Jorge Leon-Esperanza, A095 750 346 (BIA Oct. 18, 2016)

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sufficiently firm to be accorded conclusive effect, the parties had a full and fair opportunity to
litigate the issues resolved by and necessary to the outcome of the prior judgment, and the use of
collateral estoppel is not unfair. Matter of Fedorenko, 19 l&N Dec. 57 (BIA 1984). Collateral
estoppel applies to a question, issue, or fact when four conditions are met: (1) the issue at stake
was identical in both proceedings; (2) the issue was actually litigated and decided in the prior
proceedings; (3) there was a full and fair opportunity to litigate the issue; and (4) the issue was
necessary to decide the merits. Montana v. United States, 440 U.S. 147, 153-54 (1979); Clark v.
Bear Stearns &Co., Inc., 966 F.2d 1318, 1320 (9th Cir. 1992). We agree with the respondent
that the issue was previously decided by the parties and the Immigration Judge and therefore,
DHS was estopped from raising the issue again on remand.

'

.,

('

A095 750 346

ORDER: The appeal is sustained and the record is remanded to the Immigration Court for
fu(ther proceedings coASistent with the foregoing opinion, and for entry of a new decision.

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3
Cite as: Jorge Leon-Esperanza, A095 750 346 (BIA Oct. 18, 2016)

,
f

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LOS ANGELES, CALIFORNIA

In the Matter of

JORGE LEON-ESPERANZA
RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGES:
APPLICATIONS:

Adjustment of status along with a 212(h) waiver.

ON BEHALF OF RESPONDENT: Mr. Salvador Ortiz

ON BEHALF OF DHS: Mr. Randy Kung

ORAL DECISION OF THE IMMIGRATION JUDGE

Originally the merits were heard before Judge Burke on July 21st, 2011.
In that hearing the respondent only requested relief in the form of adjustment of status.
Judge Burke found that the respondent's conviction for misprision of a felony, document
cross-referenced to the documents in Exhibit 2 in the original package rendered the
respondent ineligible under Section 212(a}(2) (A}(i}(ii} as one who's been convicted of an
offense "relating to a controlled substance as it relates to Section 21 U.S. Code Section
844." That decision went up to the Board of Immigration Appeals.
The matter was remanded on January 19th, 2012, wherein the Board of

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

March 20, 2015

File: A095-750-346

Immigration Appeals ruled that the misprision of a felony was not one "relating to a
controlled substance.St Because the respondent was convicted under a generic

Beltran, and Coronado-Durazo v. INS, 123 F.3rd 1322, 1325 (9th Cir. 1997).
As such the Board noted that nothing in our decision should be construed
as precluding the immigration judge from finding the respondent's conviction makes him
otherwise inadmissible. See Matter of Robles, 24 l&N Dec. 2225 (BIA 2006 ). And as
such remanded the matter to give the respondent the opportunity to apply for any
waivers of inadmissibility which may be required and the parties shall have the
opportunity to develop the record as to the merits of any applications for relief that he
may pursue. The respondent has not pursed any other relief before the court.
Subsequent to the remand the respondent -- no additional documents since 2011.
There was a witness list provided to the court despite there being 13 people sitting in
the courtroom.
Regretfully, however, the court finds on the grounds that the respondent is
statutorily ineligible for adjustment of status under Section 212(a)(2)(C) which states an
impertinent part, "any alien who the consular or immigration officer knows or has reason
to believe is or has been an illicit trafficker in any controlled substance or has been a
knowing assister, abettor, conspirator, or colluder with other in the illicit tracking in any
such controlled substance is inadmissible." In the instant matter at Exhibit 2 the
respondent expressly conceded that he had knowledge of five kilos of cocaine and did
not report it to the authorities. This was the underlying offense for which the misprision
and felony conviction was based. This knowledge is set forth expressly in the
respondent's guilty plea in which at Paragraph 7 he states he received a copy of the
information and read it with his lawyer and "understands the substance to the charge

A095-750-346

March 20, 2015

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

misprision of a felony statute and the Board quoted Matter of Bautista, supra, Matter of

,,.
I

against me is that I had knowledge of someone's else's possession on five kilos of

cocaine, but I failed to notify the authorities." The plea agreements further marked into

knowledge of the actual commission of the felony. Cross-referencing to Schedule A,

the underlying offense is conspiracy to distribute and possess with intent to distribute
five kilograms or more of cocaine that's a Schedule 2 substance. Further, that the
respondent has clearly demonstrated a recognition and a primitive acceptance of
personal responsibility for the offense charged. As such the court has reasonable belief
that the respondent is involved as a drug trafficker in drug trafficking for which there is
no waiver available to the respondent. To decide otherwise would only undercut the
spirit and purpose of the statute to keep the United States drug-free noting the very
serious nature of the offense, the nature of drugs, the serious damage they do to
society. Furthermore, the respondent has not presented any other evidence for the
court to counter the reasonable belief complicit in Exhibit 2, expressed and explicit in
Exhibit 2.
Therefore, regretfully, the following shall enter. The court finding the
respondent statutorily barred from adjustment of status and not eligible for a waiver of
the responsible belief of trafficking grounds under 212(a)(2).
See as cited above.
ORDER
It is hereby ordered that the respondent's application for adjustment of
status is regretfully denied, and he is ordered removed to El Salvador.

A095-750-346

March 20, 2015

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

the record, Exhibit 2, dated on March 3rd, 2008, charging the respondent of having

Please see the next page for electronic

signature

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A095-750-346

CHRISTINE E STANCILL
Immigration Judge

March 2 0, 2 015

1"

,.

/Isl/
Immigration Judge CHRISTINE E STANCILL

A095-750-346

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stancilc on February 10, 2016 at 6:25 PM GMT

March 20, 2015