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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

OHS/ICE Office of Chief Counsel - KRO


18201 SW 12th St.
Miami, FL 33194

Name: PIERRE, ALPHONSE

A 047-900-205
Date of this notice: 9/25/2015

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

DOrvtL Ca.AAJ
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Greer, Anne J.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: Alphonse Pierre, A047 900 205 (BIA Sept. 25, 2015)

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

PIERRE, ALPHONSE
A047-900-205
KROME SERVICE PROCESSING CTR
18201 SW 12TH STREET
MIAMI, FL 33194

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A047 900 205 - Miami, FL


In re: ALPHONSE PIERRE

Date:

SEP 2 5 2015

APPEAL
ON BEHALF OF RESPONDENT: Pro se
ON BEHALF OF DHS: Georgina M. Picas
Assistant Chief Counsel
CHARGE:
Notice: Sec.

237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony

Sec.

237(a)(2)(A)(ii), I&N Act [8 U.S.C. 1227(a)(2)(A)(ii)] Convicted of two or more crimes involving moral turpitude

APPLICATION: None
The respondent, a native and citizen of Haiti, appeals from the decision of the Immigration
Judge dated May 14, 2015, finding the respondent removable as charged and ordering him
removed. The Department of Homeland Security opposes the appeal. The record will be
remanded.
We review the findings of fact made by the Immigration Judge, including the determination
of credibility, for clear error. 8 C.F.R. 1003. l(d)(3)(i). We review all other issues, including
questions ofjudgment, discretion, and law, de novo. 8 C.F.R. 1003. l(d)(3)(ii).
We conclude that remand for an initial consideration of the respondent's mental competency
is appropriate. There are indicia of mental incompetence in the record. The records of
conviction relating to both his 2008 and 2015 convictions show that he was adjudicated
incompetent to proceed twice in 2007 and again in 2013 (Exhs. 2, 3). Additionally, a condition
of his probation with regards to his 2008 conviction was that he meet with a psychiatrist once a
month (Exh. 3).
Given the particular circumstances presented in this case, including the fact that the
respondent has been pro se throughout his proceedings, we conclude that remand is appropriate
for the Immigration Judge to determine whether the respondent is mentally competent. The test
for determining whether the respondent is competent to participate in immigration proceedings is
"whether he or she has a rational and factual understanding of the nature and object of the
proceedings, can consult with the attorney or representative if there is one, and has a reasonable

Cite as: Alphonse Pierre, A047 900 205 (BIA Sept. 25, 2015)

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

IN REMOVAL PROCEEDINGS

A047 900 205


opportunity to examine and present evidence and cross-examine witnesses." Matter of M-A-M-,
25 I&N Dec. 474,479 (BIA 2011).

Accordingly, the following order will be entered.


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

FOR TH

2
Cite as: Alphonse Pierre, A047 900 205 (BIA Sept. 25, 2015)

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

The Department of Homeland Security has an obligation to provide the court with relevant
materials in its possession that would inform the court about the respondent's mental
competency. Id. at 480. If, after considering all appropriate evidence, the Immigration Judge
determines that the respondent lacks sufficient competency to proceed with the hearing, the
Immigration Judge will identify and apply appropriate safeguards, conduct a new hearing, and
articulate his reasoning in the decision. Id. at 483.

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
MIAMI, FLORIDA

May 14, 2015

In the Matter of
)
)
)
)

ALPHONSE PIERRE
RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

Section 237{a)(2)(A)(ii) of the Immigration and Nationality Act (Act),


two crimes involving moral turpitude not arising out of a single
scheme of criminal misconduct; Section 237(a)(2)(A)(iii) of the Act,
aggravated felony as defined in Section 101(a)(43)(G) of the Act.

APPLICATIONS:

None.

ON BEHALF OF RESPONDENT: PRO SE


ON BEHALF OF OHS: GEORGINA PICOS, ESQUIRE

ORAL DECISION OF THE IMMIGRATION JUDGE


The Department of Homeland Security (Department) issued a Notice to
Appear which is dated April 3, 2015, which was personally served on the respondent on
or about April 27, 2015, and filed with the Immigration Court on April 27, 2015, thereby
placing the respondent in removal proceedings. This document alleges that the
respondent is not a citizen or national of the United States and that he is a native and
citizen of Haiti. It further alleges that he was admitted to the United States at or near

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F.. .fu'IS'

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

File: A047-900-205

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Miami, Florida on or about January 27, 2001, as a lawful permanent resident. It further
alleges that on January 28, 2015, he was convicted in the Seventeenth Judicial Circuit

grand theft in violation of Florida Statutes 810.02 and 812.014. For these offenses the
respondent was sentenced to two years and 20 days of incarceration. This document
further alleges that on October 30, 2008, respondent was convicted in the Seventeenth
Judicial Circuit Court for battery on a law enforcement officer and also for resisting with
violence in violation of Florida Statutes 784.072 and 843.01. For this he received three
years of probation. Lastly, this document alleges that these offenses did not arise out of
a single scheme of criminal misconduct.
This document charges the respondent with being removable pursuant to
the aforementioned sections of law.
The respondent first appeared before the Court on April 30, 2015. At that
time he was afforded a Creole interpreter and through the interpreter his rights were
explained to him. At that time he elected to represent himself and he admitted the truth
of the allegations. And based upon a review of the criminal convictions as well as his
statements to the Court under oath, the Court sustained the charges of removability.
The matter was adjourned for him to seek legal representation and the matter was
adjourned for today. On today's date, the respondent once again appeared without
counsel. The Court then inquired about whether there would be any relief available to
the respondent and unfortunately the Court was unable to find any relief that might be
available to him and, therefore, must order him removed from the United States.
FINDINGS OF FACT
As to the issue of removability, there were two charges listed in the Notice
to Appear, one is under Section 237(a)(2){A)(ii) of the Act for having been convicted of

A047-900-205

May 14, 2015

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

Court in and/or Broward County, State of Florida for burglary of a dwelling and also for

two crimes involving moral turpitude not arising out of a single scheme of criminal
misconduct. The Court has reviewed the criminal records of these offenses that were

statutes. So there is no indication of it being a single scheme of criminal misconduct.


These offenses are according to precedent decisions are crimes involving moral
turpitude. He has a conviction for burglary of a dwelling. This would categorically be a
crime involving moral turpitude. A crime involving moral turpitude is an offense that has,
as an element, the intent to commit the crime and the conduct has to be reprehensible.
This burglary of a dwelling has been determined to be a crime involving moral turpitude.
See Matter of Louissaint, 24 l&N Dec. 754 (BIA 2009). There the Board of Immigration
Appeals stated that burglary of a dwelling under Florida Statute 810.02 is categorically a
crime involving moral turpitude.
The Eleventh Circuit has found that resisting a law enforcement officer
with violence is also categorically a crime involving moral turpitude. See Cano v. U.S.
Attorney General, 709 F.3d 1052 (11th Cir. 2013). Again, the Eleventh Circuit held that
resisting an officer with violence in violation of Florida Statute 843.01 is categorically a
crime involving moral turpitude. So the Court has found that he is removable under that
section of law.
The other charge is under 237(a)(2)(A)(iii) of the Act for having been
convicted of an aggravated felony as defined in Section 101(a)(43)(G) of the Act, a law
relating to a burglary offense for which a term of imprisonment is at least one year. So
he was sentenced to two years and 20 days, so it is over one year. That part of the
charge is satisfied. It is a burglary of a dwelling. It meets the Federal definition of a
dwelling. It is not a conveyance. It is not a car or automobile, trailer, or shed. It is a
dwelling and so it does meet the definition of a Federal offense of burglary. The Court

A047-900-205

May 14, 2015

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

committed at different times, different places, and pertained to different criminal

must find that he is removable as charged.


As to relief from removal, the Court inquired whether there would be any

he could not return, so there is no asylum, withholding, or Convention Against Torture


claim. There is no cancellation of removal under Section 240A(a) of the Act because he
has been convicted of an aggravated felony. Of course that also means he is not
eligible under 240A(b) of the Act. A waiver under Section 212(a) should not be
available to him because he was admitted as a permanent resident and thereafter has
been convicted of an aggravated felony. Voluntary departure is also out because of the
aggravated felony conviction.
So in light of the fact that the Court sees no relief available to the
respondent, the following order must be entered. I want just to add though that he had
been in proceedings in the past and the matter was terminated without prejudice to the
Government so the Government was free to place the respondent back in proceedings.
For all the foregoing reasons the following order shall be entered:
ORDER
IT IS HEREBY ORDERED that the respondent will be removed from the
United States to Haiti pursuant to the charges in the Notice to Appear.

Please see the next page for electronic


signature

A047-900-205

ADAM OPACIUCH
Immigration Judge

May 14, 2015

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

reason why he could not return to Haiti. He indicated he did not have any reason why

'

/Isl/
Immigration Judge ADAM OPACIUCH

A047-900-205

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

opaciuca on June 16, 2015 at 5:27 PM GMT

May 14, 2015

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