Cruz, Frances

U.S. Department of Justice

Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Fls Church. Vrginia 22041
Law Ofce of Manuel E. Solis, Dallas Ofice
P.O. Box 231649
FEDERAL DET. CENTER-OAKDALE 2
P.O. Box 1128
OAKDALE, L 71463
Houston, TX 77223
Name: CISNEROS-ORDA, OMAR ALBERTO A045-124-831
Date of this notice: 5/10/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Guendelsberger, John
Pauley, Roger
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Omar Alberto Cisneros-Ordaz, A045 124 831 (BIA May 10, 2011)
CISNEROS-ORDA, OMAR ALBERTO
A045-124-831
SLCC, 3843 STAGG AVE.
BASILE, L 70515
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 22041
FEDERAL DET. CENTER-OAKDALE 2
P.O. Box 1128
OAKDALE, L 71463
Name: CISNEROS-ORDA, OMAR ALBERTO A045-124-831
Date of this notice: 5/10/2011
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 sered with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be removed
from the United States or afrms 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 cour of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Guendelsberger, John
Pauley, Roger
Sincerelv.
DO Ct
Donna Carr
Chief Clerk
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Cite as: Omar Alberto Cisneros-Ordaz, A045 124 831 (BIA May 10, 2011)
. U.S. eparent of Justice
Executive Ofce fr Imigation Review
. Decision ofthe Board of Immigation Appeals
Falls Church, Vigia 22041
File: A045 124 831 - Oakdale, LA
I re: OMAR ALBERTO CISNEROS-ORDA
I RMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RSPONDENT: Fraces Crz, Esqure
ON BEHALF OF DHS: Dael J. Redwood
Assistant Chief Counsel
APPLICATON: Waiver under section 212(h)
MY .10 ZOii
Te respondent, a native and citizen of Mexico, who was previously granted lawfl peranent
resident status in the United States, has appealed fom the Immigration Judge's decision dated
December 15, 2010, which incororates by reference a decision rendered by the same Immigation
Judge on December 7, 20 I 0. The Immigation Judge fund te respondent removable and fund him
ineligible fr relief fom removal based on his criminal convictions.
This Boad reviews an Immigation Judge's fndings of fct, including fndings a to te
credibilit of testimony, under the "clearly erroneous" standard. See 8 C.F.R. 1003.l(d)(3)(1);
Matter of R-S-H-, 23 I&N Dec. 629 (BIA 2003); Matter ofS-H-, 23 I&N Dec. 462 (BIA 2002). This
Board reviews questions of law, discretion, and judgment, and all other issues raised in an
Imigration Judge's decision de novo. See 8 C.F.R. 1003. l (d)(3)(ii); Matter of A-S-B-, 24 I&N
Dec. 493 (BIA 2008).
On Janua 31, 2006, the respondent was convicted of Escape fom the Custody of a Peace
Ofcer, in violation of New Mexico law. A record of this conviction was entered into te record of
proceedings. See Exhs. 2, 3. See also 8 U.S.C. 1229a(c)(3)(B); 8 C.F.R. 1003.4l(a). I
addition, the respondent admitted the conviction. See Tr. at 6. See also 8 C.F.R. 1003.4l(d),
1240.IO(c).
Te respondent wa chaged wit being removable fr having been convicted of an aggravated
flony relating to obstruction of justice. See Exh. 1. The respondent conceded removability. See
Tr. at 17. The Imigation Judge fund the respondent removable a chaged. See l.J. at 2; Tr. at
17.
Te respondent requested a waver of inadmissibilit under 212(h) of the Immigaton and
Nationalit Act. See 8 U .S.C. 1 l 82(h). See Tr. at 17. However, the Immigation Judge concluded
he was ineligible fr relief because he entered a a lawfl peraent resident who ha been
convicted of an aggravated flony. See I.J. Decision dated December 7, 2010. See also 8 U.S.C.
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Cite as: Omar Alberto Cisneros-Ordaz, A045 124 831 (BIA May 10, 2011)
A0:5 124 831
I l 82(a}, (h); Matter of Ayala, 22 l&N Dec. 398 (BIA 1998); Matter of Pineda-Castellanos, 21
I&N Dec. 1017 (BIA 1997); Matter of Yeung, 21 l&N Dec. 610 (BIA 1996, 1997).
On appeal, the resondent renews his agument that he is statutorily eligible fr a 212(h) waiver
despite entering a a lawfl peraent resident. I addition, the respondent now disputes
removability despite previously conceding removabilit.
We agree with the respondent that Escape fom the Custody of a Peace Ofcer, in violation of
New Mexico Statutes 1978 section 30-22-10, does not constitute an aggravated flony relating to
obstrction of justice, a defned in section 101(a)(43)(S) of the Immigration ad Nationality Act,
to wit, "a crime relating to obstruction of justice, perur or suboration of perur, or briber of a
witness, fr which the ter of imprisonment is at least one year." See 8 U.S.C. 110l(a)(43)(S).
In Maler of Espinoza-Gonalez, 22 l&N Dec. 889 (BIA 1999), we concluded, based upon our
review of the crimes listed in 18 U.S.C. chapter 73, entitled "Obstruction of Justice," that
obstuction-of-justice crimes include (1) "either active interference with proceedings of a tibunal
or investigation, or action or threat of acton against those who would cooperate in te process of
justice," ad (2) a intent element defed as a "specifc intent to interfere wit the process of
justice." See Maller of Espinoza-Gonales, supra, at 893. Those crimes include ofenses such as
perur, briber, interference in investigation of fnacial tnsactions, jur tampering, and
threatening or intimidation of witnesses. See Maller of Espinoza-Gonzales, supra, at 891. See also
Renteria-Morales v. Muksey, 551 F.3d 1076, 1086 (summarizing the Board's articulation of both
an actus reus and mens rea element of the generic defnition of obstruction-of-justice crimes). Cf
Matter of Batista-Hernandez, 21 l&N Dec. 955 (BIA 1997).
The respondent was charged with, and pied guilt to: "willflly and caelessly driv[ing] his
vehicle in a manner endagering te live( sic) of another person to avoid apprehension aer being
given a visual or audible sigal to stop by a unifred law enfrcement ofcer in an appropriately
marked law enforcement vehicle."
We conclude that this ofense does not qualif, categorically, or under the modifed categorical
approach, as one "relating to obstuction of justice" within the meaing of Matter of Espinoza
Gonzales, supra. Specifcally, the ofense is not defned by requiring interference with the
proceedings of a tibunal or the ofcial duties of a law enfrcement ofcer, nor does conviction fr
the ofense require proof that the accused haed or threatened a person who would otherise have
cooperated in the process of justice. Although the crime of Escape fom the Custody of a Peace
Ofcer involves a efort to avoid lawfl custody, this is inufcient to establish "obstuction of
justice." See Matter of Joseph, 22 l&N Dec. 799, 808 (BIA 1999) (simply obstuctng one's own
a est would not likely constitte a aggavated flony under section 10l(a)(43)(S) of te Act).
We therefre conclude that the Department of Homeland Securit (DHS) did not establish
removabilit by clear and convincing evidence. See 8 U.S.C. 1229a(c)(3); 8 C.F.R. 1240.S(a);
Woodbyv. INS, 385 U.S. 276, 286 (1966). Cf 8 C.F.R. 1003.15, 1240.10. Consequently, we fnd
it appropriate to remand the record to the Immigration Judge to enable the OHS to consider whether
any other chages of removability ae appropriate.
2
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Cite as: Omar Alberto Cisneros-Ordaz, A045 124 831 (BIA May 10, 2011)
A045 l24 831
Accordingly, the fllowing orders will be entered.
ORER: Te decision of the Immigation Judge is vacated.
FURTR ORER: Te record is remaded to the Immigation Judge fr fer proceedings
consistent with the fregoing opinion and enty of a new decision.
FR THE BOA
'
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Cite as: Omar Alberto Cisneros-Ordaz, A045 124 831 (BIA May 10, 2011)
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from the custody of a peace officer. The offense is a fourth
degree felony, for which respondent was sentenced to 18 months'
confinement. The offense is in violation of New Mexico statute
30-22-10.
These removal proceedings commenced after issuance of
the Notice to Appear dated May 12, 2010. Master calendar
proceedings began before this Court June 9, 2010. The respondent
was represented by counsel, who requested a continuance for
preparation. At the next setting on June 22, 2010, respondent,
through counsel, admitted the four factual allegations but denied
the charge of deportability. The Department offered conviction
records into evidence, but as they were not certified, the matter
was reset. Ultimately after numerous continuances for different
reasons on the part of both parties, the respondent, through
counsel, conceded the charge of deportability Septemer 20, 2010.
Based on the respondent's admissions and concessions through
counsel, as well as the conviction records found at Exhibits 2
and 3, the Court finds that deportability has been established by
evidence which is clear and convincing.
The respondent designated Mexico as the country for
removal if removal were to become necessary. The respondent
requested a waiver under Section 212(h) of the Act pursuant to
the Fifth Circuit decision in Martinez v. Mukasey, 519 F.3d 532
(5th Cir. 2008) . The case was reset for respondent, through
counsel, to brief the issue of respondent's statutory
A 045 124 831 2 December 15, 2010
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eligibility.
Briefs were received by the parties, and the Court
issued a written decision finding that the respondent was
ineligile for the 212(h) waiver. The Court's written decision
is incorporated by reference.
When the hearing resumed December 15, 2010, the
respondent indicated that he was not seeking any other relief
from removal.
Based on the reasons in the Court's written decision
dated December 7, 2010 finding that the respondent was ineligible
for a 212(h} waiver and no other relief sought, the following
order is hereby entered.
ORDER
IT IS HEREBY ORDERED that the request for a waiver
under Section 212(h} of the Act be pretermitted for lack of
statutory eligibility.
IT IS FURTHER ORDERED that the respondent be removed
from the United States to Mexico based upon the charge contained
in the Notice to Appear.
Immigration
A 045 124 831 3 December 15, 2010
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