U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5107 Leeshurg Pike, Suite 2000
Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - CHI

525 West Van Buren Street
Chicago, IL 60607

Name: OCAMPO-LOPEZ, VICTOR J

A 200-557-585
Date of this notice: 1/6/2017

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

Dowu_ ctl./lA)
Sincerely,

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Malphrus, Garry D.
Mullane, Hugh G.
Guendelsberger l John

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Victor J. Ocampo-Lopez, A200 557 585 (BIA Jan. 6, 2017)

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

Vannucci, Kathleen Mary

Law Offices of Robert D. Ahlgren and
Associates
33 N. LaSalle Street
Suite 1800
Chicago, IL 60602

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5 /07 Leesburg Pike. Suile 2000
Falls Church. Virginia 22041

OHS/ICE Office of Chief Counsel - CHI

525 West Van Buren Street
Chicago, IL 60607

Name: OCAMPO-LOPEZ, VICTOR J

A 200-557-585
Date of this notice: 1/6/2017

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

bon.,u.,

{!t1/lA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Malphrus, Garry D.
Mullane, Hugh G.
Guendelsberger, John

Userteam:

Cite as: Victor J. Ocampo-Lopez, A200 557 585 (BIA Jan. 6, 2017)

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

OCAMPO-LOPEZ, VICTOR J
A200-557-585
c/o DODGE COUNTY DET. CENTER
216 W. CENTER STREET
JUNEAU, WI 53039

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A200 557 585 - Chicago, IL

Date:

JAN - 6 2017

In re: VICTOR J. OCAMPO-LOPEZ a.k.a. Victor J. Ocampo

APPEAL
ON BEHALF OF RESPONDENT: Kathleen M. Vannucci, Esquire
ON BEHALF OF DHS: Daniel Rah
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 under section I01(a)(43)(G) of the Act

APPLICATION: Termination

The Department of Homeland Security ("DHS") timely appeals the Immigration Judge's
decision dated August 9, 2016, terminating removal proceedings. The respondent has filed a
brief in opposition to the DHS's appeal. The appeal will be dismissed.
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. I003.l(d)(3)(ii).
The DHS alleges that the respondent is removable under section 237(a)(2)(A)(iii) of the
Immigration and Nationality Act (the "Act"), 8 U.S.C. 1227(a)(2)(A)(iii), for commission of a
an aggravated felony under section I01(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), for a burglary
offense for which the term of imprisonment is at least one year. Section 237(a)(2)(A)(iii) of the
Act directs that an alien is deportable if convicted of an aggravated felony at any time after
admission.
The respondent was convicted in Illinois on November 17, 2010, of burglary in violation of
720 ILCS 5/19(a) and sentenced to 36 months probation, a fine, and one day of imprisonment.
The respondent was placed in removal proceedings several days thereafter. The respondent filed
an application to adjust to permanent resident status, in conjunction with an application for
waiver of inadmissibility stemming from the burglary conviction pursuant to section 212(h) of
the Act. The Immigration Judge granted the waiver on August 8, 2011, and the respondent
became a lawful permanent resident.

Cite as: Victor J. Ocampo-Lopez, A200 557 585 (BIA Jan. 6, 2017)

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

IN REMOVAL PROCEEDINGS

A200 557 585

We agree with the Immigration Judge's legal determination that the respondent is not
removable as charged. See 8 C.F.R. 1003.l(d)(3)(ii). The April 17, 2013, judgment order
reflects that the respondent's probation was revoked due to a violation and that consequently, the
respondent was ordered to serve 6 years imprisonment for the burglary he committed (Exh. C).
However, at issue is whether the April 17, 2013, judgment order makes him removable.
In Matter of Perez Ramirez, 25 l&N Dec. 203 (BIA 20 I 0), we held that where a criminal
alien's sentence has been modified to include a term of imprisonment following a violation of
probation, the resulting sentence to confinement is considered to be part of the penalty imposed
for the original underlying crime, rather than punishment for a separate offense. We agree with
the Immigration Judge that the new sentence imposed for the burglary conviction means that the
conviction date, even taking into account the new sentence imposition, remained
November 17, 2010 (I.J. at 3).
Inasmuch as the respondent's aggravated felony conviction occurred before his August 8,
2011, admission, not after, he is not removable under section 237(a)(2)(A)(iii) of the Act. Thus,
we wiHdismiss the DHS's appeal, and uphold the Immigration Judge's decision to terminate
proceedings.
Accordingly, the following order is entered.
ORDER: The appeal is dismissed.

2
Cite as: Victor J. Ocampo-Lopez, A200 557 585 (BIA Jan. 6, 2017)

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

The respondent was subsequently charged with violating his probation on April 17, 2013,
and as a result of the probation violation, the Circuit Court in Kane County, Illinois, issued a
judgement order on April 17, 2013, in which it imposed a 6-year prison term based upon the
respondent's burglary conviction (Exh. C). The DHS issued a new notice to appear in May
2016, alleging that the respondent was removable under section 237(a)(2)(A)(iii) of the Act. The
respondent filed a motion to terminate, arguing that his crime had been waived in 2011, and
could not be used again on a new notice to appear, regardless of any new sentence.

--

' a

.,, .

UNITBD STATES DEPARTMENT OF JUSTICE

EXECG:. ,- 7 E OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
525 W. VAN BUREN, SUITE 500
CHICAGO, IL 60607

IN THE MATTER OF
OCAMPO-LOPEZ, VICTOR J

FILE A 200-557-585

DATE: Aug 9, 2016

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO:
BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
\\/
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c} (3} OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6),
8 U.S.C. SECTION 1229a(c} (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION,
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
525 W. VAN BUREN, SUITE 500
CHICAGO, IL 60607
OTHER:

AMENDED DECISION OF THE IMMIGRATION JUDGE

------BL--------COURT CLERK
IMMIGRATION COURT
FF
CC: MARC.JONES, DHS-ICE, ASST. CHIEF COUNSEL
525 W. VAN BUREN, SUITE 701
CHICAGO, IL, 60607

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

Law Offices of Robert D. Ahlgren and Associates

Yannucci, Kathleen Mary
33 N. LaSalle Street
Suite 1800
Chicago, IL 60602

'>;;.,:-

C
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
CHICAGO, ILLINOIS

In the Matter of:

Victor OCAMPO-LOPEZ,
Respondent.

)
)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGE:

Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"

or "Act") - Alien who at any time after admission has been convicted of
an aggravated felony as defined in INA 101(a)(43)(G), an offense
relating to a theft offense (including receipt of stolen property) or burglary
offense for which the term of imprisonment of at least one year was
imposed.

APPLICATION:

Motion to Terminate.

ON BEHALF OF THE RESPONDENT:

Kathleen M. Yannucci, Esq.
Law Office of Robert D. Ahlgren
33 North LaSalle Street, Suite 1800
Chicago, Illinois 60602

ON BEHALF OF THE GOVERNMENT:

Daniel Rah, Assistant Chief Counsel
Department of Homeland Security
525 West Van Buren Street, Suite 701
Chicago, Illinois 60607

AMENDED DECISION OF THE IMMIGRATION JUDGE

For the following reasons, the Court finds that the respondent is not removable pursuant
to INA 237(a)(2)(A)(iii). Accordingly, the Court will grant the respondent's motion to
terminate his removal proceedings.

I. BACKGROUND
The respondent is a 25-year-old male native and citizen of Mexico. He entered the United
States at an unknown place and date without inspection by an immigration officer. On November
17, 2010, he was convicted in the Circuit Court in Kane County, Illinois, of the offense of
burglary in violation of 720 ILCS 5/19-1 (a). He was sentenced to 36 months of sex offender
probation, a fine, and one day of imprisonment.
On November 22, 20 l 0, the Department of Homeland Security ("DHS" or "the
Government") initiated removal proceedings by filing a Notice to Appear ("NTA'') with the

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

Date: August 9, 2016

Fi1e #: A200-557-585

The respondent was subsequently charged with violating his probation. On April 17,
20 13, at the Circuit Court in Kane County, Illinois, the respondent stipulated that he violated the
terms of his probation. As a result of the probation violation, the Circuit Court imposed a six
year prison sentence. On June 8, 20 16, the DHS again initiated removal proceedings against the
respondent by filing a new NTA with the Chicago Immigration Court. The NTA alleges that the
respondent became a lawful permanent resident on August 18, 2011, and that he was convicted
of burglary on April 17, 2013. The NTA charges the respondent with removability under INA
237(a)(2)(A)(iii) (aggravated felony) as defined in section INA 10l(a)(43)(G) (theft or
burglary offense for which a term of imprisonment of one year was imposed). At a hearing on
June 22, 20 16, the respondent, through counsel, denied the factual allegation relating to his
burglary conviction and contested removability.

II. ANALYSIS
"[T]he Service has the burden of establishing by clear and convincing evidence that, in
the case of an alien who has been admitted to the United States, the alien is deportable." INA
240(c)(3). The OHS claims that the respondent's burglary conviction renders him removable
because it constitutes an aggravated felony as defined in INA I Ol(a)(43)(G). The respondent
contends that his conviction occurred in 20 I 0, not 20 13. He further argues that the Court's prior
grant of a 2 l 2(h) waiver that was specific to this criminal offense means that it alone cannot be
the basis of a new ground of removability. For the reasons below, the Court finds that the DHS
has not established removability by clear and convincing evidence and will therefore terminate
removal proceedings.
The following facts are not in dispute between the parties: the respondent was convicted
of burglary on November 17, 20 I 0, and sentenced to less than one year of imprisonment; he
stipulated to a probation violation on April 17, 2013; the Kane County Circuit Court imposed a
six-year term of imprisonment as a result of the probation violation. The OHS alleges in the
NTA that the date of the respondent's conviction was April 17, 2013. However, the record is
clear that the respondent was convicted of violating his probation on that date, not the underlying
burglary. Further, it is clear that the six-year term of imprisonment is tethered to the underlying
burglary conviction. Moreover, a probation violation in Illinois must be established by a
preponderance of the evidence, not beyond a reasonable doubt, which further indicates that the
respondent was not convicted of a subsequent crime on April 17, 2013. 720 ILCS 5/5-6-4(c).

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

Chicago Immigration Court. The NTA alleged the above facts and charged that the respondent
was removable from the United States. The respondent filed with the Court a Form I-485,
Application to Adjust to Permanent Resident Status, in conjunction with a Form I-601,
Application for Waiver of Grounds of Inadmissibility. The respondent requested that the Court
waive his inadmissibility stemming from his burglary conviction pursuant to INA 2 l 2(h). The
Court held a hearing on August 18, 2011. On that date, Immigration Judge Philip DiMarzio
granted the respondent's waiver application in conjunction with his application to adjust status to
that of a lawful permanent resident. Therefore, the applicant became a lawful permanent resident
on that date.

The DHS, citing to Matter of Balderas, 20 l&N Dec. 3 89 (BIA 1 991 ), argues that the
Court's prior grant of a 21 2(h) waiver for the respondent's burglary conviction does not bar the
DHS from establi shing removability on a different ground. However, the facts in Balderas are
distinguishable from the facts of this case. In Balderas, the respondent was convicted of a single
crime involving moral turpitude ("CIMT'), received a waiver under INA 2 1 2(c), and was later
convicted of a second CIMT. Id. at 391 . The BIA held that although the respondent had received
a waiver for the original CIMT, it did not disappear from his record for immigration purposes;
rather, the original CIMT could be used to support a new ground of removability under INA
237(a)(2)(A)(ii) in conjunction with a subsequent CIMT. Id. at 393 ; see also Matter of
Mascorro-Perales, 1 2 l&N Dec. 228 (BIA 1 967) (noting that the alien was Hnot deportable for
having committed the original crime, but for having been convicted of two crimes, both
involving moral turpitude"). Here, the respondent has been convicted of only one crime, which
was previously waived under 2 l 2(h); the imposition of the six-year prison sentence does not
constitute a second conviction. See Perez Ramirez, 25 I&N Dec. at 205-06. Accordingly, the
Court finds that a single criminal act, alone, cannot support a subsequent charge of removability
once it has been waived under 2 l 2(h).
The DHS argues that the respondent's probation violation constitutes additional
misconduct that can support a new ground of removability. See Balderas, 20 I&N Dec. at 392
(noting that a single conviction previously waived, '"without more cannot be the basis of a
deportation charge."). However, the DHS has not presented any legal authority to support this
argument. In both Balderas and Gordon, the respondent was convicted of a subsequent crime
that, in conjunction with the previously waived crime, supported a new ground of removability.
The OHS has not presented any legal authority that supports extending Balderas to situations,
like the respondent's, where a single criminal act is waived and subsequently supports a new
ground of removability by itself.
Moreover, because the respondent was initially charged as inadmissible during his
original removal proceedings, he could not have been charged as an aggravated felon even if his
six-year sentence had been imposed in 201 0. Thus, sustaining a subsequent ground of
removability for the same criminal act in which inadmissibility was waived would run afoul of
Mascorro-Perales. 2 1 I&N Dec. at 230 (noting that when a single act can be the basis of both
excludability and deportability, and excludability is waived by the Attorney general, the same act
cannot be the basis of deportability by itself). Further, an aggravated felony conviction would not
have precluded the respondent from eligibility for a 2 1 2(h) waiver. See INA 2 1 2(h).
Accordingly, the six-year prison sentence would not have created a new ground of removability

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

On these facts, the Court finds that the date of the respondent's burglary conviction was
November 1 7, 20 1 0. See Matter of Perez Ramirez, 25 l&N Dec. 203, 205-06 (BIA 20 1 0)
("[W]here a criminal alien's sentence has been modified to include a term of imprisonment
following a violation of probation, the resulting sentence to confinement is considered to be part
of the penalty imposed for the original underlying crime."). Therefore, the Court will not sustain
factual allegation four. Accordingly, there are insufficient factual allegations to sustain
removability. Further, for the reasons below, the new sentence for the respondent' s burglary
conviction does not render him removable under INA 237(a)(2)(A)(ii i).

C
at the time of the respondent's original removal proceedings, nor would it have prevented him
from obtaining a 2 1 2(h) waiver.

III. CONCLUSION
For the above reasons, the Court finds that the respondent is not removable under INA
237(a)(2)(A)(iii). The DHS does not allege that the respondent is removable under any other
ground. Therefore, the following order will be entered:
ORDER OF THE IMMIGRATION JUDGE
IT IS HEREBY ORDERED that proceedings be TERMINATED.

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

In sum, the Court finds that the imposition of a new term of imprisonment for the
respondent's 201 0 burglary conviction does not render him removable because this offense was
previously waived under 2 1 2(h) and because the new sentence would have had no material
effect on the respondent's prior removal proceedings.