Bryan Sanchez-Vazquez, A205 213 774 (BIA Aug. 30, 2013)

7/30/2019 Bryan Sanchez-Vazquez, A205 213 774 (BIA Aug. 30, 2013)

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Alson ukanch201 S. Brgheaf Bvd Se 4Smhfed NC 27577

Executiv Oc r Immigraion Rview

Board of Immigtion AppealsOjce of he Clek

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OHS/IC ce of Chef Counse - SOC146 CCA Roadumpkn GA 31815

Name SANCHZVAZQUZ BRYAN A 205-213-774

Dae of hs noce 8/30/2013

Enclosd is a copy of th Board's dcision and order in h abov-rfrnced cas.

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Cite as: Bryan Sanchez-Vazquez, A205 213 774 (BIA Aug. 30, 2013)


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SANCHEZVAZQUEZ, BRYANA205-23774146 CC RoadLumpkin GA 31815

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OHSICE ice of Chief Counsel SOC146 CCA Roadumpkin, GA 31815

Name: SANCHZVAZQUEZ, BRYAN 20523774

Date of this notice: 8/30/2013

Encosd s a coy of th Boad's dcson n th aboncd cas Ths coy s bnodd to you as a coutsy You attoy o sntat has bn sd wth thsdcson usuant to 8 CFR 1292(a). If th attachd dcson ods that you bmod om th Untd Stats o ams an mmaton Juds dcson odn that youb mod any tton w of th attachd dcson must b d wth and cdby th aoat cout of aas wthn days of th dat of th dcson

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U.S pm JuExecutiv Oc r Immaion Rvw

Dcson of th Boad ofmmation Appals

Fal Chuch, Vgna4

File: 205 2 3 774 - Lumpkin G Dae

n e: BRY SANCHEZ-VAZQUEZ REMOV PROCEEDNGS

PPE

ON BEH OF RESPODE: ison ukanich, Esuir

O BEH OF DHS: Diane Doddssistant Chie Couns

CHRGE:

AUG 3 201

otice: Sec 2 2(a)(6)()(i) & c [8 SC 1182(a)()()(i)] Prsent wiout being admited o paroed

PPCO: Volunary departur

he Depamen o Homand Scurity ("DHS) appas om he mmiation udgesMach 29 2013 dcision graning h respondents applicaion r vountary dparur Scion240B(a)() o he mmigation and Naionaliy c 8 SC 1229c(a)(). The rspondn anative and ciizen o Mexico opposes h appea 1 he appal wi e dismissed

e eview r cear or the ndings o ct including the dtermination o crdiilitymad by the mmigraion udge 8 CF R 1003 1(d)(3)(i) reviw de novo a ohr issusincuding whher paries have met the evant burdn o proo and issues o discrtion8 CFR 1003(d)(3)(ii)

e a the mmiaion udges grant o vountary dpartur under safguards to thespondn W disagre wit h DHS hat the mmigraion udge impeissiby shied thebudn o proving ha he rspondens convicion r maintaining a pace r controldsubsancs in violaion o section 90108(a)(7) o orth Caroina Genera Saus was r anaggravaed ony Thre is no dispue ha i is he espondents budn to estaish eigiiity

r he reie hat he seks d thus to show that he was not convicd o an agavatd lony(Rspondns Repy Bie a 45) See 240(c)(4) o the ct 8 SC 1229a(c)(4) 8 CFR l 42(b)(I )(i)(E)

1 h respondent contends hat e DHS did no propery se him is appeal brie andconseueny requests summa dismissa o e DHSs appa e concude tha smaydismissal is not waranted as a resu o this procdua iguarity in his instanc bu t hrespondents reuest to accep his ae epy bri



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205 213 774

e a the mmiion udges conclusion tat e responden me is bude i is cee record o coniction reects at te respondent was convicted o a misdemeor (Ex 2)The DHS assers tat e respondents oense is a dug acking agavaed elony because iis euivaen o a lony under he Federal Conrolled Subsances ct specically 2 USC 856(a) See Lopez Goales 549 US 47 (2006) see also secion 01(a)(3)(B) o te ct8 SC 101(a)(43)(B)

Presuming hat he convicion rested upon noting more tan he east o te acscriminalied we concude hat the minimum conduct necessary to sustain a conviction underNC Gen Sa 90108(a)(7) does not sais he eemens o he dera stue SeeMoncriefe v. Holder, 33 SC 1678 684 (203) To obtain a convicion under herespondens saute o conviction e Stae mus prove a deendan () kowingy orinenionaly kep or maintained (2) a buiding or oer pace (3) being used r e keeping orseling o a controed subsance State Fuller 196 NCpp 412 24 674 SE 2d 824 832(2009) hus knowngy bu no inenionally keeping a place being used by anoher pesonbu not onese r merey "keeping a conroled substance woud mee he reuirements o NCGen Sa 90108(a)(7) However hs conduc ls short o te conduct ta would sustain aconvicion under secion 856(a)(l ) o ie 2 which reuires at te individua personayinend o engage in proibied drug manucuring disbution or usage bu does not proibimere keeping o a conolled subsance and does not reach the conduc o oters Similary hemnimum conduc uder NC Gen Sa 9008(a)(7) alls so o tat reuired to sustain aconviction under section 856(a)(2) o ie 2 which reuires a "kowing and ientionalmens rea ccordingy violaion o he respondens satue o convicion is no categoicay andug tracking agavaed ony oense See Moncrie older supra a 685 n4(providing hat he anaysis reuired o deeine wha aien was convicted o is he same inboth the removabiiy and reie conexs)

he record does no conclusivey esabis which o he oenses encompassed by NC GenStat 9008(a)(7) is he basis r he respondents convicion and hus under te modiedcategorical approach i does no esabish ha he respondens convicion was r a agavatedlony See Descamps US. 33 SC 2276 (2013) (providing hat te modied categoricalapproach is appropate when a staute o conviction is divisibe) However because te recordo convicion reects a he respondens convicion was r a misdemeanor e has establishedha his oense is not euivalen o 21 SC 856(a)(2) wich includes te mens rea o"knowingy ad inentionally See NC Gen Sa 9008(b) (poviding tat violaion o tissection is a Class misdemeanor excep ha a vioation commied intentionaly is a Class elony) oreover he responden presened a compee record o conviction and te recorddoes no support e concusion at oher judiciay coible documens exist tha woud shedaddtiona ligt on he respondents convicion e conclude ha te sponden has me isburden by showing by a preponderance o he evidence that he was not conviced o anaggravaed lony and herere ha he is no precuded om oherwse esabishing eligibiliyr volun depaure

he HS does no caenge he mmigration udges vorable exercise o discreion in thiscase ccordingly he DHSs appeal wi be dismissed and voutary deparure wi bereinsaed

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A205 213 774

ORDER: The appea 'is dismisse.

FURHR ORDER Pusuant to the Imigration Judges order d conditioned uoncompiance with conditions set h by the mmigration udge ad the statute, the respondent is

permied to voluntarily depart the nite Sttes wihout expense to he Goveent, witin 30ays o the date of is oder or ay extension beyond that tie s ay be ganted y he HSSee section 240B(a) of e Imigration an Nationaity ct, 8 U.SC. 229c(a); see also8 CF.R 124026(b), ( n the event te espondent is to vountariy depart te UnitedStates, te respondent shal be removed s provided in te mmiatio Judges order

NOIC: If the resondent fais to voluniy deprt the United Sttes within te tieperiod specied, or ay extensios anted by te DHS, the respondent sa be subject to a civipenaty as provided y the reulations an te statute and sall be ineigibe r a period of 10yeas r y er elief unde section 240B and sections 240, 24, 248, and 249 of e ct.See sectio 240B(d) of te ct

WG: If he respondent les a motion to reopen or reconsider prior to the expiration ofe voutary departure period set rh above he ant of volnry depture is automaticayterminated he peiod aowed r voutay departure is not styed toed, or extended. If egrt of volty depature is automaticay teinated upon te ling of a otion, the penatiesr failue to epat under section 240B(d) of te ct shal not apply. See 8 C.R 124026(e)()

WING If, rior to earting the United States, he respondent es any judiciachalenge to tis adminisativey na order, such as a petition r review prsut to section

242 of te ct, 8 US.C 252, he grt of vounay depe is automaticay teinated, dhe ateate oder of remova sa iediatey take eect However, if te respondent es apetition r review ad en depats he Unite States within 30 days of suc ing, teespondent wil not e deemed to ave eaed under an order of emova if te alien providesto te HS suc evidence of his or he depaure that he Imiation ad Customs EnrcementFied Oce Director of te DHS may require ad provides evience DHS deems suciet thate or se a reained outide of the United States he penaties r iure to de undersection 240B() of the ct sha not apy to an aien who es a petition r review,nowitstading y period of tie that e o she reains in te nited Sttes whie te petitionr review is pending See 8 C.F.R 124026(i).

3Cite as: Bryan Sanchez-Vazquez, A205 213 774 (BIA Aug. 30, 2013)


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(

UNITED STAES DEPARTMNT OF JUSICEXCUTIVE OFFC FOR MMGRAON RVEW

NTD STATES IMMIGRATION COUR

LUMPKN, GEORGIA

Fe: A205-21377

n the Maer of

March 29 203

BRYAN SANCHEZVAZQUZ

RESPONDENT

))

))

IN REMOVAL PROCDINGS

CHARGS Section 212(a)(6)(A)(i) present wthout being admitted or paroled.

APPLICATIONS Preconclusion vounta depaure

ON BHALF OF RSPONDENT: ALISON LUKINICH

ON BHALF OF DHS: DIANE DODD

OAL DCSON O H MMGRATON JUDG

EXHIBTS

xhibit 1 Notce to Apear; Exhibit 2, record of respondent's convction Exhibt

3, Fo 213 xhbt respondents memorandum of aw in suppo of his request for

volunta depaure Exhibit 5 respondents prehearing bref xhbit 6 statement from

Detectve Mao

WTN

Respondent

n arrving of my finding of acts and conclsons of aw I have considered al the

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documenta and testimonia evidence in this case My failue to comment of a specific

exhibit or paicuar testimony does not mean that I faied to consider it

CRDIBILIT

Based upon the totaity of the cicumstances I find respondent to be cedibe

NDINGS OF ACT AND CONCLUSIONS O W

xhibit 1 was seed on respondent on Octobe 5, 2012 On Decembe 27,

2012 in accodance with the respondents peas the alegations in xhibit 1 wee

sustained and espondent was und by cea and convincing evidence to be emovable

as charged in xhibit 1 Mexico was designated as the count of emova

Respondent is not an ariving aien

Respondents equest for vounta departue is timely Respondent has made

no additiona equests r relief Respondent concedes emovabiity and waived appea

of a issues

Respondent is not depotabe uder Section 237(a)(2)(A)(iii) as an aggravated

feon o unde Section 237(a)() fo security o reated gounds Although the

Depaent of omeland Secuity argues that respondent is an aggavated feon, I am

unabe to conclude that espondent has been convicted of any oense related to

traicking in a controled substance

find that espondent does merit a favoabe execise of my discretion in granting

vounta depaure

Respondent has a criina histo which demonstrates a toubled childhoodRespondent is now 19 years of age Respondent admits that he has o convictions

invoving dugs one or possessing maijuana and one fo possessing cocaine Indeed

respondent admits that he enjoys smoking marijuana xhibit 2 shows that

espondents aest fo possessing cocaine was disposed of by his conviction fo

A205-21377 2 Mach 29 2013


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mantaining a vehcle fr purpses f a cntrled substance Respnden explained

tha he was fund pssessng ccaine while traveling as a passenger n a car ccuped

and drven by thers

Respnden was brught t the United States in 1993 when he was ny tw

mnths ld The Unted States s the ny hme that he has ever knwn Respndent

has t aunts wh are awful permanent resdents several US citzen cusns and a

15yearld US cten brther

Snce the respnden has turned 18 he admits tha he has been arrested tice

Respnden has been cnvcted since he tured 18 fr pssessin f an achc

beverage cnsuming alchc beverages and drivng wihu a icense e has as

been cnvicted as shwn n Exhibt 2

thstanding respndent's crimnal hstry I cncude that as a matter f

discretn respnden st warrants a vluntary departure in his case am mndfu that

much f respndents crmnal encunters ccurred while he was a juvene and nt as

an adult am als mndfu f the fac tha essentaly respndents crimina maters are

reatvey mnr in nature

Accrdngly I am gng t enter the flwing rder

ORDER

IT S EREBY ORDERED respndents reques fr vluna depaure is

granted A wrien rder refectng the abve decsin wl be prvided separately and

made pa f the recrd

signature

A20521377

Please see the nextpage for electronicDA TRIMBLEmmgratin udge

3 March 29 2013


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C i

A20S-213.774 4 March 29, 2013


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//s//

Iigration Judge DAN TRIMBLE

rmled n May 2, 2013 a 1:28 GMT

205-213774 5 Mac 29, 2013

Bryan Sanchez-Vazquez, A205 213 774 (BIA Aug. 30, 2013)

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Transcript of Bryan Sanchez-Vazquez, A205 213 774 (BIA Aug. 30, 2013)