U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 Leesburg Pike, Suite 2000
Falls Church, Virgi11ia 22041

Fagen, David R., Esq. Manulkin, Glaser & Bennett 10175 Slater Avenue Suite 111 Fountain Valley, CA 92708-0000

OHS/ICE Office of Chief Counsel - LOS 606 S. Olive Street, 8th Floor Los Angeles, CA 90014

Immigrant & Refugee Appellate Center | www.irac.net

Name: HERNANEZ-PACHECO, ROBERTO

A072-317-637

Date of this notice: 4/22/2011

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Grant, Edward R. Malphrus, Garry D. Mullane, Hugh G.

Cite as: Roberto Hernanez-Pacheco, A072 317 637 (BIA April 22, 2011)

U.S. Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5/07 l.eesb11rg l'ike. Suite 2000 Falls Ch11rch, Virgi11ia 21041

HERNANEZ-PACHECO, ROBERTO Atf. 072-317-637 501 THE CITY DRIVE SOUTH ORANGE, CA 92862

OHS/ICE Office of Chief Counsel 606 S. Olive Street, 8th Floor Los Angeles, CA 90014

LOS

Immigrant & Refugee Appellate Center | www.irac.net

Name: HERNANEZ-PACHECO, ROBERTO

A072317637

Date of this notice: 4/22/2011

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 attorney or representative has been served with this decision pursuant to 8 C.F .R. 1292.5(a). If the attached decision orders that you be removed from the United States or affirms an Immigration Judge's decision ordering that you be removed, any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of the decision. Sincerelv.

DorutL CtYVLJ
Donna Carr Chief Clerk

Enclosure

Panel Members: Grant, Edward R. Malphrus, Garry D. Mullane, Hugh G.

Cite as: Roberto Hernanez-Pacheco, A072 317 637 (BIA April 22, 2011)

U.S.

Executiv'e Office for Immigration Review

Department Of Justice

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A072 317 637 - Los Angeles, CA

Date:

APR 12 Z011

In re: ROBERTO HERNANEZ-PACHECO a.k.a. Roberto Pacheco-Hernandez a.k.a. Roberto Hernandez-Pacheco IN REMOVAL PROCEEDINGS

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APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: David R. Fagen, Esquire

Scott D. Swanberg Assistant Chief Counsel

APPLICATION: Termination of proceedings

The Department of Homeland Security ("DHS") has appealed the Immigration Judge's November 30, 2010, decision terminating removal proceedings. The record will be remanded to the Immigration Judge. We review the findings of fact made by the Immigration Judge, including any determination of credibility, under a "clearly erroneous" standard. 8 C.F.R. 1003.1(d)(3)(i). We review de novo all other issues, including whether the parties have met their burdens of proof, and issues of discretion. 8 C.F.R. 1003.l (d)(3)(ii); Matter ofA-S-B-, 24 I&N Dec. 493, 496 (BIA 2008). The Immigration Judge terminated proceedings upon finding that the conviction records submitted by the DHS in support of its charge of removability were not properly certified. The regulations enumerate a list of documents or records that are admissible as evidence in proving a criminal conviction. See 8 C.F.R. 1003.4l(a)(l )-(6); see also section 240(c)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. 1229a(c)(3)(B). There is no dispute that the abstract of judgment and criminal complaint presented in the instant case fall within the category of conviction-related documents described in 8 C.F.R. 1003.41(a). Pursuant to 8 C.F.R. 1003.41(b), a document specified in subsection (a) "may be submitted if it complies with the requirement of 287.6(a)," which provides that official records "shall be evidenced by an official publication thereof, or by a copy attested by the official having legal custody of the record or by an authorized deputy." The regulations further provide that when a conviction record is submitted by electronic means to the DHS from a state or court as proof of the respondent's ground of removability, the conviction record must be certified by a state or court official as an official record from its repository and certified in writing by a DHS official as having been received electronically. See 8 C.F.R. 1003.41(c); see also sections 240(c)(3)(A), (C) of the Act. The documents initially submitted by DHS bore no certification stamps. The Immigration Judge then granted the DHS a continuance to obtain the proper certification. The resubmitted documents
Cite as: Roberto Hernanez-Pacheco, A072 317 637 (BIA April 22, 2011)

A072 317 637 each bore a stamp stating, "certified true and correct copy of original," with the date of "9-20-2010," foJJowed by a signature of "T.Cowgill." However, the Immigration Judge found this to be inadequate because the certification stamp itself does not indicate that the person certifying the records was a DHS official. The regulation at 8 C.F.R. 1003.4l(b) does not require that the signing official be identified on the document itself. Given the DHS's assertion that "T.Cowgill" is Tamara Cowgill, a DHS Immigration Enforcement agent (Br. at 5, n.1), the record will be remanded for the Immigration Judge to resolve the factual issue as to whether the signing officer was in fact a DHS official. Moreover, on remand, the Immigration Judge should consider whether the documents submitted by the DHS would fall within the ambit of the regulation at 8 C.F.R. 1003.41(d), which provides that "any other evidence that reasonably indicates the existence of a criminal conviction may be admissible as evidence thereof." Accordingly, the following order will be entered. ORDER: The record is remanded for and for the entry of a new decision. er proceedings consistent with the foregoing opinion

Immigrant & Refugee Appellate Center | www.irac.net

2
Cite as: Roberto Hernanez-Pacheco, A072 317 637 (BIA April 22, 2011)

r I

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT Los Angeles, California

File A 07 2 317

637

November 30,

2010

Immigrant & Refugee Appellate Center | www.irac.net

In the Matter of

ROBERTO HERNANEZ-PACHECO, Respondent

IN REMOVAL PROCEEDINGS

CHARGE:

Section 237 (a) (2) (A) (iii) of the Inunigration and Nationality Act (Act) as amended in that any time after admission the respondent has been convicted of an aggravated felony as defined in Section lOl(a) (43) (B) of the Act.

APPLICATION:

ON BEHALF OF THE RESPONDENT:

ON BEHALF OF THE DEPARTMENT OF HOMELAND SECURITY: Scott D. Swanberg Assistant Chief Counsel 60 6 South Olive Street 8th Floor Los Angeles, California 90014

David Fagen, Esquire 10175 Slater Avenue Fountain Valley, California 92 7 08

ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE The parties agree that the respondent is a native and citizen of Mexico who became a permanent resident on October 23, 1 9 97 . See Exhibit 1 in the record of proceedings. The Department of Homeland Security issued a Notice to Appear dated September 2 8, 2 010 alleging that on December 10,

2 00 9 the respondent was convicted in the California Superior

DSC Court at Riverside County for the offense of possession of methamphetamine in violation of Section 1 137 8 of the California Health and Safety Code. Homeland Security alleged that for that

offense the sentence included incarceration for a period of one

Immigrant & Refugee Appellate Center | www.irac.net

year and four months.

Respondent was charged with removability of the Act.

under Section 2 37 (a) (2 ) (A) (iii)

Homeland Security issued this Notice to Appear with those allegations on September 28, 2 0 10 and filed this Notice to 2 0 10. On November

Appear with the Immigration Court October 14, 16, 2 010,

the respondent admitted that he was a native and

citizen of Mexico who became a permanent resident in 1997 . However, he denied all the allegations relating to the existence

of a criminal conviction and he denied the sole charge of removability. Therefore, the respondent placed Homeland Security

on notice that he was contesting the existence of a criminal conviction November 1 6, 2 0 10.

Although the Department of Homeland Security detained the respondent and made allegations about a criminal conviction as early as September 2 8, 2 0 10, Homeland Security was given a

continuance on a detained calendar to meet its burden of proof. It did not have conviction records prepared to submit at the initial hearing of November 1 6, 2 0 10, the same date when the

respondent denied the allegations and the charge relating to the existence of any criminal conviction. given from November 1 6, A 07 2 3 17 637 Homeland Security was 2 010 to submit November 30, 2010

2 0 10 to November 30, 2

i
'

'

DSC evidence to support the contested allegations and the charge. On November 23, 2010, Homeland Security submitted at

the Court's window an uncertified copy of an abstract of judgement and felony complaint. in the record of proceedings. On November 30, 2010, counsel for the respondent Because there was no See Exhibit 2 for identification

Immigrant & Refugee Appellate Center | www.irac.net

opposed its inclusion into the record. original certification, document in the record.

the Immigration Judge did not include the Homeland Security offered another copy This time

of the abstract of judgement and felony complaint.

there is an original stamp on the back of both of those documents. That original stamp reads as follows, date, 9-20-2010 by "certified true [signature. Jn

and correct copy of original,

The Department of Homeland Security has argued that this certification is sufficient for the certification of a conviction record. The Immigration Judge noted that whoever signed this There

certification stamp did not identify who that person was.

is no information as to whether whoever signed the stamp was an employee of the Department of Homeland Security who had received the conviction records over facsimile or by other electronic means. Alternatively, there is no information as to whether

whoever signed the certification stamp was an officer of the state court that generated any original or copy of the conviction records. Homeland Security in the end did not believe that it

was necessary to obtain a proper certification because Homeland A 072 317 637 3 November 30, 2010

(
)SC

Security acted in good faith in relying on the certification stamp. The Court finds that the certification is insufficient

and the second set of the copies of the abstract of judgement and felony complaint were not admitted into the record.

Immigrant & Refugee Appellate Center | www.irac.net

Homeland Security should have had evidence which meets certification requirements when it generated its Notice to Appear and detained the respondent because of the allegation of the crime. It did not have that type of evidence. Homeland Security

was nevertheless given an opportunity during Immigration Court hearings on a detained calendar to meet its burden of proof. Homeland Security was unsuccessful in doing that. never agreed that there was a conviction. The respondent

He has opposed any

further continuances to find out whether the Government can meet its burden of proof. The Court is unable to find good cause for

continuance because Homeland Security has argued that what it has already submitted is sufficient to meet its burden of proof. Accordingly, proceedings will be terminated with

prejudice to the Department of Homeland Security. ORDER IT IS HEREBY ORDERED that proceedings be terminated with prejudice.

DAVID C. ANDERSON Immigration Judge A 072 317 637 4 November 30, 2010

CERTIFICATE PAGE

I hereby certify that the attached proceeding

before DAVID C.

ANDERSON in the matter of:

ROBERTO HERNANEZ-PACHECO

Immigrant & Refugee Appellate Center | www.irac.net

A 072 317

637

Los Angeles,

California

was held as herein appears,

and that this is the original

transcript thereof for the file of the Executive Office for

Immigration Review.

Daniel Charlton

{Transcriber)

Deposition Services, Germantown,

Inc.

12321 Middlebrook Road, Suite 210 Maryland 20874 (301) 881-3344

January 5,

2011

(Completion Date)