U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Qfjice of the Clerk
5107 Leesburg Pike, Suite 2000
Fall.r Church, Virginia 22041

DHS/ICE Office of Chief Counsel - SND

880 Front St., Room 2246
San Diego, CA 92101-8834

Name:YAGAO,MACJHAY

A 044-946-445

Date of this notice: 1/6/2016

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

DonnL c

WV\)

Donna Carr
Chief Clerk
Enclosure
Panel Members:

Greer, Anne J.
O'Herron, Margaret M
Neal, David L

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Macjhay Yagao, A044 946 445 (BIA Jan. 6, 2016)

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YAGAO, MACJHAY
A044-946-445
SAN DIEGO C. FACILITY
P.O. BOX 439049
SAN DIEGO, CA 92143

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A044 946 445 - San Diego, CA

Date:

In re: MACJHAY YAGAO

APPEAL
ON BEHALF OF RESPONDENT: Pro se
CHARGE:
Notice: Sec.

237(a)(2)(B)(i), I&N Act [8 U.S.C. 1227(a)(2)(B)(i)] Convicted of controlled substance violation

APPLICATION: Termination of proceedings

The respondent has appealed an Immigration Judge's decision of July 31, 2015, finding the
respondent removable as charged and ordering him removed from the United States to the
Philippines. The Department of Homeland Security ("DHS") has not filed a brief opposing the
appeal. The record will be remanded.
We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003. l(d)(3)(ii).
The record will be remanded for the Immigration Judge to conduct an assessment of the
respondent's mental competency. In Matter ofM-A-M-, 25 I&N Dec. 474 (BIA 2011), we held
that the test for determining whether an alien 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 opportunity to examine and present evidence and cross-examine witnesses. Id at 479.
If there are indicia of incompetency, the Immigration Judge must make further inquiry to
determine whether the alien is competent for purposes of immigration proceedings. Id at 480.
If the alien lacks sufficient competency to proceed, the Immigration Judge must evaluate and
apply appropriate safeguards. Id at 481.
The DHS submitted mental health records reflecting that the respondent was given a
diagnosis of "paranoid schizophrenia, unspecified condition" (Exh. 3), and the DHS specifically
requested that the Immigration Judge conduct an inquiry regarding the respondent's mental
competency (Feb. 11, 2015, DHS submission). However, the Immigration Judge did not conduct
an inquiry, nor did he address the DHS's request or the respondent's competency in his decision.
Moreover, although the respondent was represented by counsel below, he is now
unrepresented on appeal. The DHS noted in its filing before the Immigration Judge that the
respondent, if unrepresented, may qualify as a member of the main plaintiff class in the pending
Cite as: Macjhay Yagao, A044 946 445 (BIA Jan. 6, 2016)

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IN REMOVAL PROCEEDINGS

A044 946 445

Franco-Gonzalez, et al. v. Holder class action lawsuit, entitling him to additional procedural
protections (Exh. 3; Feb. 11, 2015, DHS submission). See Franco-Gonzalez v. Holder, 2013 WL
8115423 (C.D. Cal. 2013); see also Franco-Gonzales v. Holder, 2014 WL 5475097 (C.D. Cal.
Oct. 29, 2014) (setting forth an evaluation system, including a pro se competency standard, to
determine whether unrepresented detainees are competent to represent themselves).

Accordingly, the following order will be entered.

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

2
Cite as: Macjhay Yagao, A044 946 445 (BIA Jan. 6, 2016)

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Therefore, we will remand the record for the Immigration Judge to assess the respondent's
mental competency. If the respondent becomes represented on remand and thus no longer falls
within the Franco main class, the Immigration Judge must still evaluate the respondent's
competency in accordance with the standard set forth in Matter of M-A-M-, supra.


;
.

File No.: A044 946 445

) Date: July 31, 2015

)

In the Matter of

Macjhay YAGAO,
Respondent
ON BEHALF OF
THE RESPONDENT:
Alexander Amar Kannan, Esquire
401 West "A'' Street, Suite 1100
San Diego, California 9210 I
CHARGE:

) IN REMOVAL PROCEEDINGS
)
)
)
ON BEHALF OF THE DEPARTMENT OF
HOMELAND SECURITY:
Donald W. Pearcy, Esquire
446 Alta Road, Suite 5400
San Diego, California 92158

Section 237(a)(2)(B)(i) of the Immigration and Nationality Act

(Conviction Relating to a Controlled Substance).
DECISION AND ORDER OF THE IMMIGRATION JUDGE

The respondent, Macjhay Yagao, is a 27-year-old native and citizen of the Philippines
who was admitted to the United States as a Legal Permanent Resident in 1995. Although the
respondent filed a petition for a writ of habeas corpus for ineffective assistance pertaining to the
criminal charge at issue in these proceedings, that petition was recently denied. Having no relief
available to him and having already been granted numerous continuances to pursue post
conviction relief, the Court will order the respondent removed.
I.

PROCEDURAL HISTORY

On October 3, 2014, the Department of Homeland Security ("DHS") served the

respondent with a Notice to Appear ("NTA"). (Exh. 1, NTA at 2.) The DHS alleges that the
respondent (1) is not a citizen or national of the United States; (2) is a native and citizen of the
Philippines; (3) was admitted to the United States at Los Angeles, California on or about June
10, 1995 as a Legal Permanent Resident; (4) was convicted on March 25, 2014 in the Superior
Court of California, County of San Diego for the offense of transportation of more than 28.5
grams of marijuana, in violation of CAL. HEALTH & SAFETY CODE l 1360(a); and (5) was
sentenced to 180 days in custody, three years of formal probation, and ordered to pay a fine.
(Id.) The DHS charged the respondent with removability under section 237(a)(2)(B)(i) of the
Immigration and Nationality Act ("Act"), as amended, in that he has been convicted of a
violation of a law or regulation relating to a controlled substance (as defined in Section 102 of
the Controlled Substances Act, 21 U.S.C. 802), other than a single offense involving possession

&dEME.

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
446 Alta Road
San Diego, California 92158

for one's own use of thirty grams or less of marijuana. (Id.) The NTA was filed with the United
States Immigration Court at the San Diego, California detention facility on October 6, 2014,
vesting this Court with jurisdiction over these removal proceedings. See 8 C.F.R. 1003.14(a)
(2014).

On January 6, 2015, the respondent filed a petition for a writ of habeas corpus with the
Superior Court of California, County of San Diego based on ineffective assistance of counsel in
his CAL. HEALTH & SAFETY CODE 11360(a) criminal proceedings. (Exh. 6.)
On January 21, 2015, the respondent appeared for a reset master calendar hearing and
entered pleadings. (Rec. of Master Calendar, Jan. 2 1, 2015.) The respondent admitted factual
allegations 1, 2, and 3; denied factual allegations 4 and 5; and denied the single charge of
removability. (Id.) The Court granted the respondent's request for additional time to address the
charge of removability, set a filing deadline for the respondent, and reset the case to February 25,
2015. (Id.)
On February 2, 2015, the respondent filed a "Motion for Continuance and in the
Alternative, Tennination" asking the Court to continue and/or administratively close proceedings
pending post-conviction relief proceedings or, in the alternative, to terminate proceedings
because removal would be disproportionate to his underlying offense. (Resp't Mot., Feb. 2,
2015.)
On February 25, 2015, the respondent appeared for a reset master calendar hearing and
informed the Court that the Superior Court of San Diego had not yet scheduled a hearing date in
the criminal matter. (Rec. of Master Calendar, Feb. 25, 2015.) The respondent requested a 60day continuance. (Id.) The Court granted the respondent's request over the DHS's objections
and reset the case to May 5, 2015. (Id.) The Court subsequently reset the case to May 12, 2015.
On May 12, 2015, the respondent appeared for a reset master calendar hearing and again
informed the Court that he did not yet have a hearing date in the criminal matter. (Rec. of
Master Calendar, May 12, 2015.) The respondent requested another 60-day continuance. (Id)
The Court granted the respondent's request over the DHS's objection and continued the case to
July 23, 2015. (Id.)
On July 23, 2015, the respondent informed the Court that his petition for a writ of habeas
corpus had been denied. (Rec. of Master Calendar, Jul. 23, 2015.) The respondent informed the
Court that he planned to appeal the denial and requested a 60-day continuance. (Id.) The Court
denied the respondent's request for a continuance, denied his February 2, 2015 motion to
terminate, sustained the single charge of removability, and reset the case to September 17, 2015
for issuance of this written decision. (Id.)

A044 946 445

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On December 19, 2014, the respondent appeared before this Court for a reset master
calendar hearing and, through counsel, requested a continuance for case preparation. (Rec. of
Master Calendar, Dec. 19, 2014.) The Court granted the respondent's request and continued the
case to January 21, 2015. (Id)

July 31, 2015

W2&2

II.

REMOVABILITY

The term "conviction" means, with respect to an alien, a formal judgment of guilt of the
alien entered by a court, or if adjudication of guilt has been withheld, where (i) a judge or jury
has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has
admitted sufficient facts to warrant a finding of guilty, and (ii) the judge has ordered some form
of punishment, penalty, or restraint on the alien's liberty to be imposed. INA 10l(a)(48)(A).
An Immigration Judge "cannot entertain a collateral attack on a judgment of conviction, unless
that judgment is void on its face, and cannot go behind the judicial record to determine the guilt
or innocence of an alien." Matter ofRodriguez-Carrillo, 22 I&N Dec. 1031, I 034 (BIA 1999).
On January 21, 2015, the DHS submitted copies of the respondent's conviction records to
the Court. Those documents reflect that on March 25, 20 I 4, the respondent pled guilty to and
was convicted for a violation of CAL. HEALTH & SAFETY CODE l1360(a). (Exh. 5.) His guilty
plea reads as follows: "I unlawfully transported more than 28.5 grams of marijuana." (Exh. 5,
Plea of Guilty/No Contest - Felony at 3.) The respondent was sentenced to 180 days in custody,
three years of formal probation, and ordered to pay fines. (Exh. 5, Felony Minutes Pronouncement of Judgment.)
The conviction documents that the DHS submitted establish that the respondent has been
"convicted" for CAL. HEALTH & SAFETY CODE 11360(a) within the meaning of the Act because
he entered a plea of guilty on March 25, 2014 and the judge ordered a punishment, including
time in custody, probation, and a fine. See INA 101(a)(48)(A). To the extent that the
respondent argues that he possessed a valid medical marijuana card at the time of his arrest and
therefore should not have been convicted of transportation of marijuana, the judgment is not
"void on its face" and the Court "cannot go behind the judicial record to determine the guilt or
innocence" of the respondent. See Rodriguez-Carrillo, 22 I&N Dec. at I 034.
CAL. HEALTH & SAFETY CODE l 1360(a) criminalizes various activities related to
marijuana and provides, specifically:
Except as otherwise specified by this section or as authorized by law, every
person who transports, imports into this state, sells, furnishes, administers, or
A044 946 445

July 31, 2015

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A respondent charged with deportability shall be found to be removable if the DHS

proves by clear and convincing evidence that he is deportable as charged. INA
240(c)(3)(A); 8 C.F.R. 1240.8. Under section 237(a)(2)(B)(i) of the Act, any alien who at
any time after admission has been convicted of a violation of (or a conspiracy or attempt to
violate) any law or regulation of a State, the United States, or a foreign country relating to a
controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C.
802)), other than a single offense involving possession for one's own use of thirty grams or less
of marijuana, is deportable. INA 237(a)(2)(B)(i). In Matter ofDavey, the Board of
Immigration Appeals noted that "it would defeat the purpose of the exception to interpret it as
encompassing an offense that is inherently more serious than simple possession, such as
distributing, manufacturing, transporting, or being under the influence of marijuana, or
possessing marijuana in a prison or near a school." 26 l&N Dec. 37, 40 n.3 (BIA 2012).

gives away, or offers to transport, import into this state, sell, furnish, administer,
or give away, or attempts to import into this state or transport any marijuana shall
be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the
Penal Code for a period of two, three or four years.

The respondent's CAL. HEALTH & SAFETY CODE l 1360(a) conviction is a violation of a
state law "relating to a controlled substance" because CAL. HEALTH & SAFETY CODE l1360(a)
punishes activity only if it involves marijuana, a federal controlled substance. See 21 U.S.C.
802(6); 21 U.S.C. 812, Schedule l(c)(lO) (listing "Marihuana"). Moreover, the respondent's
offense does not constitute a "single offense involving possession for one's own use of thirty
grams or less of marijuana" because he pied guilty to transporting marijuana, which is "more
serious than simple possession." See Matter ofDavey, 26 I&N Dec. at 40 n.3. Based on the
foregoing, the Court found, on July 23, 2015, that the DRS established by clear and convincing
evidence that the respondent is removable as charged under section 237(a)(2)(B)(i) of the Act.
See INA 240(c)(3)(A); 8 C.F.R. 1240.8.
III.

REQUEST FOR A CONTINUANCE TO PURSUE POST-CONVICTION RELIEF

The granting or denial of a continuance rests within the sound discretion of the
Immigration Judge, who may grant a motion for continuance only "for good cause shown." 8
C.F.R. 1003.29, 1240.6; see also Matter ofPerez-Andrade, 19 l&N Dec. 433 (BIA 1987). In
determining whether a respondent has demonstrated "good cause," an Immigration Judge has
broad discretionary authority. See id.
At the reset master calendar hearing on July 23, 2015, the respondent asked the Court to
grant him a 60-day continuance so that he can remain in the United States while he appeals the
denial of his petition for a writ of habeas corpus. The Court considered the respondent's request
for a continuance in light of the procedural history and determined that the respondent failed to
establish "good cause" for any further continuance to pursue post-conviction relief. See 8 C.F.R.
1003.29. In reaching this conclusion, the Court considered the fact that the respondent has
been detained at government expense since October 3, 2014, for over nine months; that his
petition for a writ of habeas corpus was denied by the Superior Court of San Diego; and that
although he planned to appeal the denial of his petition, that appeal had not yet been filed and
there was no indication of how long the appeals process may take. Moreover, the respondent
conceded that he is not eligible for any relief from removal as he was granted cancellation of
removal in 2007 and is not eligible for any other relief. Thus, the Court, in its discretion, denied
the respondent's request for a 60-day continuance. See 8 C.F.R. 1003.29, 1240.6; see also
Matter of Perez-Andrade, 19 I&N Dec. 433.
IV.

CONSTITUTIONAL CHALLENGE TO REMOVAL

At the conclusion of the proceeding the Immigration Judge shall decide whether an alien
is removable from the United States. INA 240(c)(l)(A). The determination of the
Immigration Judge shall be based only on the evidence produced at the hearing. Id An
A044 946 445

July 31, 2015

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CAL. PENAL CODE l 1360(a) (West 2015) (emphasis added).

. .

Immigration Judge may not rule on the constitutionality of the statutes they administer or the
regulations properly promulgated under provisions of the Act. See Matter ofC-, 20 I&N Dec.
529, 532 (BIA 1 992).

Therefore, the following orders will be entered:

ORDERS
IT IS ORDERED that the respondent be removed from the United States to the
Philippines.
IT IS FURTHER ORDERED that the reset master calendar hearing scheduled for
September 1 7, 20 1 5 at 1 :00 P.M. is vacated.
APPEAL
Appeal is reserved for the respondent and an EOIR Appeal Packet is attached t
decision. Any appeal from this decision must be filed and served on the Board of I
igrat on
Appeals NO LATER than August 31, 2015.

cc:

U.S. Immigration Judge

Mr. Kannan for the respondent.

Mr. Pearcy for the DHS.

A044 946 445

July 3 1 , 201 5

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The respondent has argued throughout these proceedings that removal would be
dispropo1iionate to his criminal offense due to his ties to the United States. (See, e.g. , Resp't
Mot., Feb. 2, 20 1 5.) Although the Court is sympathetic to the respondent' s circumstances, the
Court does not have authority under the Act, the regulations, or case law to terminate
proceedings on the grounds that removal would be dispropo11ionate to the underlying offense.
See Matter ofC-, 20 I&N Dec. at 532. Accordingly, the respondent's motion to terminate was
denied on July 23, 20 1 5 .