Christian Cortes Duran, A096 587 962 (BIA Jan. 31, 2012)

8/13/2019 Christian Cortes Duran, A096 587 962 (BIA Jan. 31, 2012)

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Guerra, Raul F, Esq.Monzon Law, PC, LLO650 "J" STREET SUITE 401Lincoln NE 68508

Name: CORTES DURAN CHRISTIAN

US epartmet ustice

Execuive Oce r Immigation Review

Board ofImmigration ppealsOce of the Clerk

5107 Leburg Pike Suite 000Fals Chrch Vin 04

HS/ICE Oice of Chief Counsel - OMA1717 Avenue HOmaha, NE 6811O

A096-587962

Date of this notice 1/31012

Enclosed is a copy of he Boad's decisio ad ode i he above-erenced case.

Eclosure

Pael Membes:Gedelsbee, JohMaphs, a DPaey oe

Sceely

Doa CaChef Cek

Cite as: Christian Cortes Duran, A096 587 962 (BIA Jan. 31, 2012)

For more unpublished BIA decisions, visit www.irac.net/unpublished


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U.S e of usticeExecuv Oce r Imigaton Reew

Decso of the Board of maton Appeals

Fas Chuh, irginia 22041

Fe A096 587 962 Omaa NE

n e CHSTN COTES UN

EMOVAL ROCEEIS

AEAL

ON BEHALF OF RESONENT a F ea Esqe

ON BEHALF OF HS Cee Samsonsssant Ce Conse

CHE

ate

JAN 8120

Noce Sec 237(a)(2)(A)() &N Ac [8 SC 122(a)(2)(A)()] Convcted o aavated ony

ALICATION Temnaton

Te espondent a natve and ctzen o Meco appeas om te Immaton desSeptembe 27 2011 decson c ncopoates s Sepembe 14 2011 decson ssann te

cae o emovaby nde secon 237(a)(2)(A)() o e Imaton and Natonay Act8 SC 1227(a)(2)(A)() and denyn e espondents moton o emnae te emoapoceedns Te appea be dsmssed

We eve e ndns o c ncdn e detemnaton o cedby made by ematon de nde a "ceay eoneos sandad 8 CF 1003 (d)(3)() We eve aote sses ncdn ete e pes ave met e eevant bden o poo and sses odsceon nde a de novo standad 8 CF 003 (d)(3)(); Mae of-S-B-, 24 I&Nec 493 (BIA 2008)

We concde a e epamen o Homeand Secy ("S) met s bden by cea and

convncn evdence o pove at e esponden as been convced o an aavaed ony asdened n secton 10 (a)(43)(T) o e Act 8 USC. 1 (a)(43)(T) e "e to appea beea co psnt o a co ode o se o o dspose o a e o a ony c a senenceo 2 yeas mpsonment o moe may be mposed Ts e Immaton de commted noeo by sstann te soe cae o emovaby

n 2010 te esponden as convcted o voatn secon 29908 o te Nebasa evsedSattes c saes a "oeve s caed a ony ad s eeased om cstody deba ecozce o a condtoned eese and y s to appea bee e cot antnsc eease en eay eqed o to sende mse tn ee days eeae sa be ty



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A096 587 962,

of a Css IV lony . . We agree wth he Immigration Judges deternation that a convictonunder section 29-908 does not quai categoricay s an agavated ony, as the required eementsto be convicted under the state are broader than hose required under section 10(a)(43)() of thect (IJ at 3) Tung to e modied categocal approach, however, we conclude that therespondent's conviction under section 29908 quies as an aggravated ony

The respondent does not ispute that his conviction under secton 29908 was a conviction r"ure to appear ere a cour, n that his appearancews required in order "to nswer to ordispose of a feony r which a sentence of 2 years imprsonent or more may be impose Therespondent's soe dispute s that his volation of secton 29-908 does not consttute an agavatedony because his obigation to appea was not "pursuant to a cour order We disagree

The documens tited "Joa Ent d Order, whch were signed by a judge, indicate hat abai bond was set in the respondent's case, he posted and was reeed on bond, and he thensubsequenty rfeited his ond by faing to appear at a hearing t was this ilure to appea that

served he basis r the respondent's conviction under section 29908 of the Nebraska RevsedStatutes s noted by the Iigraton Judge, secton 29-506 of he ebrasa Revsed Stautes sttesthat if an oense is baiabe, "the accused may be reeased pursuant to Chapter 29, artice 9, suchrelease to be condtoned on his appearance bere the dsrict couras ordered" (Emphass added);see also B V. S 2990102 (requirng a judge authorizing a dendnt's reease undersection 29-901 to issue a witen order containing a statement of the condition or conditionsmposed); NB V S 2990 (a judge orderng a balale defendant's reease sha imposeconditions to reaonaby assure the dendant's appearance) Thus, n Neraka, implct n a reeaseon bond s an order conditioning the accuseds appearance bere the cour s such, it llows thatone who s to appear aer having been reeased on bai has necessariy iled to appear n vioatonof a cour order reeasng him on bai

We are neither persuaded nor bound by the respondent's reiance on decisons by the UnitedStates Cour of ppeas r the inth Crcuit and the nited States Dsrct Cour r the Dsrict ofConnecticut The respondent cites Renteria-Morales v. Muksey, 551F3d 1076 (9h Cr 2008),n which the cour, tng to the modied categorca approach, concluded that the aien'sconvicton r ilure to appear, i.e, ba umping, under 18 U .S.C 3146 did not constute anaggravated ony uner secton 0(a)(43)() of the ct mong other reaons to reach itsconclusion, the cour stated that the udicay noticeable documents presented by the goeentdid not esabish that the aien was under a "cou order, as the charging document ony alleged thatthe aien ed to appear "a directed, wthout ny menton of a cour order Id. at 085

Nor are we persuaded by he respondent's reiance on an unpuished oard decision,Mtter ofGuo Hua Zhao 046 4 0 906, 008 WL 44669 ( ug 6, 008 unpushed), whc aosen the jurisdcton of the in Circuit n that decson, the oard conclued that the aensudgment of convction did not estbish that he peaded guiy to a, or any, of the ctuaaegations in he ndictment charging hi with ing to appear, as woud quai as an aggravatedony under section 101(a)(43)(T) of the ct, because he udgent id not conain the critcalphase "as charge n the Indicent, and thus he indictment could not be ooked at nder hemode categoca approach pursuant to nth Crcut precedent

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06 6.

e responen aso cies Baaby v Reno 142 Supp d 27 7 (ED Con 2001), in wiche dera disic cou, also ing o he moie caegorica approac, concude ha he aliensiure o appear convicion, C GEN. S 53a172, r willy iling o appear wenlegy calle i no uali as e ega equivaen o iure o appear pursuan o a cour oreruder secion 10l (a)(43)() o e c e cour reasone a here was no language in eappearanc bond a could be consued as a cour orer, and a a bond appearance rmin Coecicu, i signed, consiues merey a promise o appear a various ies an recognizescerain consequences in he iure o o so Id a 2720

Unike in Renteraora/es an Barnaby were e cours sae ha ere was no inicaiona e aiens were uner a cour orer o appear, he ebraska Revised Saues, as expaineabove, make cear ha ayone reease on bon is release pursuan o a wren orer by a ugeconining he condiios o suc release us, unlike i he cases cie by e responden, eevience in is maer does inicae ha e responen was uner a cour orer coniioning isreease on is appearance a a earing a e DHS id no presen is orer as evienc is o no

consequence, as e orer was iplici in e responens reease on bail 2

ccoringly, we arm e mmigraion uges enia o e responens moion o erminaee remova proceeigs as e DHS me is burden by clear and convincing evidence o prove ae responen is reovable an aggravae on uner secio 37(a)()()(iii) o e c s eresponden oes no appea e miaion udges nding a e i no seek y r o relieom remova, we eem e issue as waive on appea, an e owing order w be nere

ORDER: e appea is ismisse

OR E ORD

In Reneraoraes e Nin ircui sa a i a b rsonal o inr o linsconvicion a e was uner a cou orer o appar because, as assere by e goveen, onya uicia ocer as e auoriy o irec an accuse release on bai o appear, an a suc arecive o apper woud be a cour orer Rentera-ora/es v uksey supra a 05 Te courowever, di no reac is issue, reasonig a, on is ce, e evience esabised neier ahe aien was uner a cour orer nor a was ordered o appar o answer or dispose o acg d

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U.S DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IIGRATION REVIEWIIGTION CORT

Omaha Nebraska

File A 6 8 6 Date: September

In the Matte of

CHRISTIAN CORTES DU IN RMOVA ROCEEDINGS

Respondent

CGE

ALICATION

ACES

Section 3{a) () (A) {i) of the Immgration

and Nationalty Act - any alen who s

convcted of an aggravated felony as defined

in Section (a) (43) {) of the Act a lawrelating to a failure to appear before a Courtpursuant to a court order to answer or dsputea charge of a felony for which a sentence of

two years mprsonment may be mposed at any

tme after admsson

None

ON BELF OF RESPONDNT: ON BHF OF TH DEARTMENTOF HOMEL SCRITY

Raul F. Guerra Esqire6 J Street Ste 4The Mill Town BuildingLincoln NE 688

Debra Robinson EsquireAssistant Chef CounselUS Department o HomelanSecurityImmigration and ustomsEnforcement Avenue H Ste 4Omaha NE 68


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O DECSON O THE TON JE

The Respdet is a -year-ld ative ad citize f

Mexic wh etered the Uited States Jauary 2 with a

B-2 visitr visa See Exhibit 2 at page e The Respdet's

status was adjusted t that a lawful permaet residet May

26 July 2 2 the Departmet f Hmelad Security

cmmeced remval prceedigs agaist the Respdet by persally

servig him with a Ntice t ppear ad chargig him with

remvability as idicated abve See Exhibit

The Respdet deied the charge f remvability ad

filed a Mti t Termiate these prceedigs See Exhibit 3.

The Curt received evidece the issue f remvability ad

issued a rder deyig the Respdets Mti t termiate See

Exhibit

The urt fids that the Respdet is remvable as

charged fr the reass stated i the urts rder dated

September 4 2 See Exhibit The Curt desigates Mexic

as the cutry f remval shuld that be ecessary

t a hearig i this curt the Respdet was ifed

that he culd apply fr ay available frms f relief ad was

give a deadlie t file fr such relief The Respdet appeared

i Curt tday ad stated that he has t filed fr ay frm f

relief ad that he is t seekig ay relief i this Curt

ccrdigly th fllwig rder will be etered:

6 87 62 2 September 27 2


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(

ORDR

I IS RB ORDRD tat te Resodet be eoved to

exco o te cage cotaed te otce to ea

96 587 962

D MOISgato udge

3 Setebe 27, 2011


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CERTIFICATE PAGE

I hereby certify that the attached proceeding before

DNIEL A. MORIS, in the matter of:

CHRISTIN CORTES DU

A 96 8 962

Omaha Nebraska

was held as herein appears, and that this is the original

transcript thereof for the file of the Executive Office for

mmigration Review.

slf/bjn

Stephanie L. Fink Transcriber

YORK STENORAPHIC SERVICES, INC.

34 North eorge StreetYork, Pennsylvania 40-266() 84-00

November 8 20

mpion ate

Christian Cortes Duran, A096 587 962 (BIA Jan. 31, 2012)

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