Grace E.

Chisholm, Esquire
Aret & Chisholm
PO Box 18981
Denver, CO 80218
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Fals Chuch, Vrginia 20530
OHS/ICE Office of Chief Counsel - DEN
12445 East Caley Avenue
Centennial, CO 80111-5663
Name: RAMIREZ-LAINEZ, MARIO ENRI ... A 205-236-187
Date of this notice: 8/21/2014
Enclosed is a copy of the Board's decision and order in te above-refrenced case.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Guendelsberger, John
Hofman, Sharon
Sincerely,
Do Ca
Donna Carr
Chief Clerk
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Mario Enrique Ramirez-Lainez, A205 236 187 (BIA Aug. 21, 2014)
U.S. Department of Justice
Executive Offc fr IIgation Review
Decision of te Board of Imgton Apeals
Falls Cuch Virgina 20530
File: A205 236 187 - Auora, Colorado
I re: MARIO ENQUE RZ-LAZ
I RMOVAL PROCEEDIGS
APPEAL
Date:
ON BEHALF OF RESPONENT: Grace E. Chisholm, Esquire
ON BEHALF OF DHS: Natha L. Herber
Assistat Chief Counsel
CHARGE:
AUG 212014
Notice: Sec. 237(a)(2)(B)(i), I&N Act [8 U.S.C. 1227(a)(2){)(i)]
-
Convicted of contolled substace violation
APPLICATION: Terination of removal proceedings, continuance
The respondent, a native and citizen of El Salvador, timely appeals fom a Imigation
Judge's Februay 10, 2014, decision. I that decision, the Imigation Judge fund te
respondent removable under section 237(a)(2)(B)(i) of the Imigation ad Nationality Act,
8 U.S.C. 1227(a)(2)(B)(i), on account of his 2013 Colorado conviction fr a contolled
substace violation. Te appeal will be dismissed.
The Boad reviews a Imigation Judge's fndings of fct, including fndings as to the
credibility of testmony, under te "clealy eroneous" stadad. See 8 C.F.R. 1003. l (d)(3)(i);
Matter of R-S-H-, 23 I&N Dec. 629 (BIA 2003); Matter of S-H-, 23 I&N Dec. 462 (BI 2002).
The Boad reviews questions of law, discretion, ad judgent and all other issues in a appeal of
a Im gation Judge's decision de novo. See 8 C.F.R. 1003.l(d}(3)(ii).
Altoug the respondent does not dispute that he sustained the 2013 Colorado conviction fr a
contolled substace violation, as alleged in the Notice to Appear (For I-862) (Exh. 1), he
noneteless challenges the Iigation Judge's removability fnding on account of that
conviction. The respondent contends that even thoug he was ganted derivative non-immigt
U visa status by te United States Citizenship ad Imigation Serices ("USCIS"), tis did not
constitute a "admission" within the meaing of section 10l{a){l3)(A) of the Act, 8 U.S.C.
l 101(a)(l3), so as to have him come within te puiew of section 237(a)(2)(B)(i) of te Act.
1
1
Section 237(a)(2)(B)(i) of the Act provides that:
"[a]ny alien who at any time afer admission has been convicted of a violation of
(or a conspiracy or atempt to violate) ay law or regulation of a State, the Unted
Sttes, or a freig county relating to a controlled substance (a defned in secton
802 of Title 21 ), oter than a single ofense involving possession fr one's own use
of 30 gras or less of marijuaa, is deportable (emphais added)."
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Cite as: Mario Enrique Ramirez-Lainez, A205 236 187 (BIA Aug. 21, 2014)
. A205 236 187
We ae not persuaded by the respondent's appellate aguents challengng his removability.
The respondent's reference to te defition of "admission" in section 101(a)(13)(A) does not
adequately aswer the question of te intended scope of te ter "aer adission" in te context
of te criminal removability provisions fund in section 237(a)(2) of te Act (including
section 237(a)(2)(B)(i) of te Act), as applied to aliens, such as the respondent, i lawfl
non-immigat U visa stats. See e.g., Matter of Rosas-Ramirez, 22 I&N Dec. 616, 619 (BI
1999) (en bae) (olding that the phase "afer admission" in section 237(a)(2)(A)(iii) of te Act
includes an alien, with no inta lawfl entry, who has since been "lawflly aditted fr
peraent residence" pursuat to a gat of adjustent of status under the defnition in
section 101 (a)(20) of te Act).
I tis cae, even though the respondent was witout a initial lawfl enty to the United
States, te USCIS approved a Petition fr Qualifng Faily Member of U-1 Recipient (For
I-918A) tat had been fled on his behalf, ad gated h dervative non-immigat U visa status,
renderng "lawfl" his continued presence in the United States (Exh. 3). See 8 U.S.C.
1101(a)(l5)(u)(ii); see also 8 C.F.R. 214.14(f(6)(i) (noting that "[w]hen USCIS approves a
For 1-918, Supplement A fr a qualifng faily member who is wit the United States, it will
concurently grant that alien U-2, U-3, U-4, or U-5 nonimmigat status . .. USCIS will notf te
principa of such approval on For I-797, ' Notice of Action,' wit For 1-94, 'Arrival-Deae
Record,' indcating U-2, U-3, U-4, or U-5 nonimigat status ... "). However, when te
qualifg faily member is outside the United States, "USCIS will frad te approved For
1-918, Supplement A, to te Depaent of State fr delivery to te U.S. Embassy or Consulate
havig jurisdiction over the aea in which the qualifng faily member is located, or, fr a visa
exempt alien, to the appropriate por of enty." See 8 C.F.R. 214.14(f(6)(ii) (approvas fr
faily members outside of te United States). The record refets the procedure fr faily
members already witin te United States was fllowed here.
Pusuat to section 245(m){l) of the Act, 8 U.S.C. 1255(m)(l), "te stats of a alien
adted into the United Sttes (or otherise provided nonimmigrant statu) under
section 1101(a)(15)(U) of ts title [may be adjusted to] tat of a alien lawflly adted fr
peraent residence .. . if (A) the alien has been physically present in the United States fr a
continuous period of at leat 3 years since the date of adssion as a nonimmigat under clause (i)
or (ii) of section 110l{a)(l5)(U) of this ttle . .. " See also 8 C.F.R. 245.24(b). The regulations
defne te ter "Continuous Physical Presence" [to mea] the period of time tat the alien has
been physically present in te United States ad must be a contnuous period of at leat 3 yeas
since te date of adssion as a U nonimmigat continuing throug the date of te conclusion of
adjudication of te application fr adjustent of status . . . " See 8 C.F.R. 245.24(a)(l).
Furterore, the regulatons defne a UNonimmigant as "a alien who is in lawfl V-1, U-2, U-3,
U-4, or U-5 status." See 8 C.F.R. 245.24(a)(4).
Sigifcatly, i establishig eligibility fr adjustent of status, neither te statte nor te
regulations diferentiate between tose aliens who were placed in lawfl dervative non-imigant
U visa stats by te USCIS because they were aleady witin te United States (albeit illegally},
ad tose aliens who are in lawfl derivative non-imigat U visa status afer ente
n
ng te United
States at a por. of entry in possession of such a non-imigat visa issued by a America
Consulate abroad. I bot instaces, the alien is described a having been "admited" to a fr of
lawfl status in the United Sttes, i.e., lawfl non-im gat U visa status. See 8 U.S.C.
2
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Cite as: Mario Enrique Ramirez-Lainez, A205 236 187 (BIA Aug. 21, 2014)
. A205 236 187
1255(m)(l)(A). We fnd the description in te statute ad the regulations identifng aliens i
lawfl non-imigat U visa status as having been "admitted," equaly applcable in te cria
removal context. Otherwise, it would appea inconguous wit Congessional intent to fd te
law would allow a alien who enters the country without inspection ad is later gated
non-immigat U visa stats, such tat he is now lawflly present in te United States, to avoid
remova if he subsequently commits a removable crima ofense. See Matter of Rosas-Ramirez,
supra, at 618 (citing K-Mart Corporation v. Cartier, 486 U.S. 281 (1988) (indicating tat te
laguage of a statute should be construed with regad to te wordng ad desig of the statute as a
whole); United States v. Hockngs, 129 F.3d 1069, 1071 (9t Cir. 1997) (noting tat when
interretng a statute, one must constue te provisions of te entire law, including its object ad
policy, to ascertai the intent of Congess)).
A alien who was admited on a U visa may be placed in removal prceedings "fr conduct
committed afer admission" at ay time. See 8 C.F .R. 214. l 4(i). Terefre, as te record
includes clea ad convincing evidence (Exh. 2B) tat te respondent sustaned a 2013 Colorado
conviction fr a contolled substace violation, he was properly chaged under
section 237(a){2)(B)(i) of te Act, because his conviction occur ed afer his 'adssion' by way of
a USCIS gat of derivative non-imgat U visa status, ad we agee with te I igaton
Judge tat the respondent is subject to removal on that basis. See section 240(c)(3)(A) of the Act,
8 U.S.C. 1229a(c)(3){A).
Finally, we ae not persuaded by te respondent's apellate aguments challengg te
Imigation Judge's denial of his request fr a continuace pending adjudicaton ofhs request fr
Advace Permission to Enter te United States as a Non-Imigat (For I-192). The decision
to gat or deny a continuace is witn te discretion of te Imigation Judge, if good cause is
shown, ad tat decision will not be overed on appeal unless it appeas that te respondent was
deprived of a fll ad fair heaing. Matter of Perez-Andrade, 19 I&N Dec. 433 (BI 1987).
Tere respondent has not shown ay evidence of such deprivation in the present case. See also
Matter of Sibrun, 18 l&N Dec. 354,356-57 (BIA 1983) (alien must show tat denial of a
continuace caused him "actual prejudice ad ha ad materially afected te outcome of hs
case").
Accordingly te appeal will be dismissed.
ORDER: The appeal is dismissed.
3
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Cite as: Mario Enrique Ramirez-Lainez, A205 236 187 (BIA Aug. 21, 2014)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
AURORA, COLORADO
File: A205-236-187 Februar 10, 2014
In the Mater of
MARIO ENRIQUE RAMIREZ-LAINEZ
RESPONDENT
CHARGES:
APPLICATIONS:
)
)
)
)
ON BEHALF OF RESPONDENT: GRACE CHISHOLM
ON BEHALF OF DHS: NATHAN L. HERBERT
IN REMOVAL PROCEEDINGS
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is 19 years of age. He admits that he is a native and
citizen of El Salvador. The respondent first came into the United States at the age of 4
and, according to his attorney, he was not inspected and admitted by an Immigration
ofcer. Then the respondent was granted a derivative U Visa through his mother on
April 29, 2013, so he was granted a lawful non-immigrant status on that date. Allegation
4 on the Notice to Appear says he was convicted of possession of hydrocodone, a
controlled substance, in the District Court, Boulder County, Colorado, on November 18,
2013.
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Counsel has filed a brief arguing that the granting of a U Visa is not an
admission and that, therefore, the respondent is not deporable for having been
convicted of a drug ofense afer admission.
The ter admission means "the lawful entr of the alien into the United
States afer inspection and authorization by an Immigration oficer''. Section 101 (a)(13)
of the Immigration and Nationality Act. The Board of Immigration Appeals held that
aliens who arrive without inspection and later adjust to permanent residency have been
admited and, terefore, are subject to removal for a crime committed afer admission.
Matter of Rosas, 22 l&N Dec. 616 (BIA 1999). However, in that decision the Board
expressly declined to resolve this issue as to other contexts, such as a non-immigrant
visa.
The regulation does not make the issue crstal clear, but the regulation in
8 C.F.R. 214.14 states that when the USCIS approves the U Visa for a qualifing family
member, they must record the action with Form 1-94, arrival/deparure record, and I take
notice of the fact that an arrival/deparure record is used when an alien is acually
admitted to the United States. The other regulation states that nothing in the regs will
prohibit the Government from proceeding against someone in removal proceedings for
conduct committed "after admission". So I find that the action of granting the
respondent non-immigrant status does constitute an admission. Exhibit 2 proves he
was convicted of this ofense afer admission. Page 16 of Exhibit 2 shows that the
substance was hydrocodone, which is a controlled substance.
Accordingly, I find the charges sustained.
A205-236-187 2 February 10, 2014
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ORDER
\ I

IT IS ORDERED that the respondent be removed to El Salvador.
A205-236-187
J. P. VANDELLO
Immigration Judge
3 Februar 10, 2014
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CERTIFICATE PAGE
I hereby certif that the attached proceeding before JUDGE J. P. VANDELLO, in
the matter of:
MARIO ENRIQUE RAMIREZ-LAINEZ
A205-236-187
AURORA, COLORADO
was held as herein appears, and that this is the original transcript thereof for the fle of
the Executive Ofce for Immigration Review.
CASEY S. SMITH (Transcriber)
DEPOSITION SERVICES, lnc.-2
MARCH 31, 2014
(Completion Date)
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