R. Joel Hatch Smith, Gardner, Slusky, Lazer, Pohren & Rogers LLP 8712 West Dodge Road, Suite 400 Omaha, NE 68114

Name: TELESFORD, DALE ANDERSON

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5 J 07 Leesburg Pike, Suite 2000 Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - OMA 1717 Avenue H Omaha, NE 6811 O

A 079-020-706

Date of this notice: 5/27/2014

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

Enclosure

Panel Members: Wendtland, Linda S.

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Sincerely,

DorutL CtVvV

Donna Carr Chief Clerk

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For more unpublished BIA decisions, visit www.irac.net/unpublished

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Cite as: Dale Anderson Telesford, A079 020 706 (BIA May 27, 2014)

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U.S. Department of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A079 020 706 - Omaha, NE

In re: DALE ANDERSON TELESFORD

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: R. Joel Hatch, Esquire

CHARGE:

Notice: Sec. 237(a)(l)(B), I&N Act [8 U.S.C. § 1227(a)(l)(B)] -In the United States in violation of law

Date:

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

Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] -Convicted of aggravated felony as defined in section 10 l(a)(43)(B) of the Act

APPLICATION: Termination

MAY .2 7 2014

The respondent, a native and citizen of Trinidad and Tobago, appeals the Immigration Judge's February 3, 2012, decision finding that the respondent is removable as charged and denying the respondent's request that his removal proceedings be terminated. We review the Immigration Judge's factual findings for clear error and all other issues de novo. See 8 C.F.R. § 1003.1 (d)(3). The record of proceedings will be remanded.

On June 16, 2003, the respondent pled guilty to Delivery of a Schedule I Controlled Substance (marijuana) in violation of Iowa Co��. § . 124.40 1 (1 )(d), a class D felony (Count III) (I.J. at 2). The respondent was granted a def�rreCl judgment and was sentenced to 2 years of probation (I.J. at 2). See Exh. 3 at 8. He was also ordered to pay the State of Iowa $620 for his court-appointed attorney, a Hprobation enrollment fee" of $250, a law initiative surcharge of $125.00, and a DARE fee of $10 (l.J. at 4). See Exh. 3 at 8. He was also assessed costs. See Exh. 3 at 8. On June 1, 2004, the court issued an Order of Dismissal from Deferred Judgment Probation. See Exh. 3 at 11. On November 16, 2009, at the respondent's request, the court issued an Order Clarifying Dismissal from Deferred Judgment (l.J. at 2). See Exh. 2, Tab A. On appeal, the respondent argues that the Immigration Judge erred by finding that the respondent's conviction was final for immigration purposes.

In Matter of Marroquin-Garcia, 23 I&N Dec . 705, 715 (BIA 1997; A.G. 2005), the Attorney General held that under section 101(a)(48)(A) of the Immigration and Nationality Act, the term '"conviction., includes an offense to which the respondent pied guilty and the judge withheld a formal adjudication of guilt but imposed penalties or restraints on the person's liberty.

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Cite as: Dale Anderson Telesford, A079 020 706 (BIA May 27, 2014)

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A079 020 706

See also Matter of Cabrera, 24 l&N Dec. 459, 461-62 (BIA 2008) (holding that imposing costs and surcharges in the criminal sentencing context constitutes a form of punishment or penalty for purposes of determining· whether the respondent was "convicted" under section 10 I (a)( 48)(A) of the Act); see, e.g., Vasquez-Velezmoro v. INS, 281 F.3d 693, 696 (8th Cir. 2002) (citing Matter of Roldan-Santoyo, 22 l&N Dec. 512, 516 (BIA 1999), as holding that an alien remains convicted for immigration purposes despite any subsequent state action that purports "to erase" the determination of guilt through a "rehabilitative policy").

In this case, the respondent attempts to distinguish Matter of Marroquin, supra, and argues that his conviction is not final for immigration purposes because no penalty or restraint on liberty was ultimately imposed on him. See Respondent's Brief at 8. The respondent argues that the Iowa District Court for Boone County did not impose restraints on the respondent's freedom and only imposed a civil penalty. See Respondent's Brief at 5. 1 According to the respondent, the court placed the respondent ''under probation, but as a term of the deferred judgment which would monitor Defendant's Compliance with his deferred status." See Exh. 2, Tab A; see also Respondent's Brief at 5.

Despite this argument, the state court's June 1, 2004, order of dismissal indicated that the respondent "was placed on formal probation to the Second Judicial District Department of Correctional Services for a period of two (2) years." See Exh. 3 at 11.2 Further, the respondent was ordered to pay, not simply the alleged "civil penalty" that he now emphasizes, but a "probation enrollment fee" of $250, $620 for his court-appointed attorney, a law initiative surcharge of $125.00, and a DARE fee of $10 (l.J. at 4). He was also assessed costs. See Exh. 3 at 8. Given the evidence presented, we agree with the Immigration Judge that the state court imposed penalties or restraints on the respondent in this case. See Matter of Cabrera, supra. While the respondent additionally argues that "voluntary" compliance with the terms of probation does not constitute a restraint on liberty, we conclude that this argument relies largely on semantics, and that probation constitutes a restraint on liberty irrespective of whether the defendant "chooses" to subject himself to it as a condition of receiving a deferred adjudication. For these reasons, we conclude that the respondent was "convicted" for immigration purposes.

The respondent also argues on appeal that his conviction may not be for an aggravated felony pursuant to Matter of Castro Rodriguez, 25 l&N Dec. 698 (BIA 2012). See Respondent's Brief at 11. In Matter of Castro Rodriguez, supra, this Board stated that, in determining whether an

1 Although the respondent attempts to distinguish Matter of Cabrera, supra, by arguing that the court in this case only imposed a civil penalty, the state court indicated in its 2009 order that it "did not impose a civil liability." See Exh. 2, Tab A; see also Respondent's Brief at 5, 9. Further, to the extent that the respondent seeks to have us apply the law of a federal circuit other than the Eighth Circuit in which this case arises, we decline to do so. See Matter of Anselmo, 20 I&N Dec. 25, 31 (BIA 1989) (the Board historically follows a court's precedent in cases arising in that circuit); see also Respondent's Brief at 6-7, 9-10. Further still, as discussed in the text infra, even if the respondent did receive a civil penalty, he also was assessed other costs and charges that qualify as a penalty under our precedent.

2 The court found that "the purposes of probation have been fulfilled and Defendant should be dismissed from probation without entry of judgment." See Exh. 3 at 11.

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Cite as: Dale Anderson Telesford, A079 020 706 (BIA May 27, 2014)

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alien convicted of possession of marijuana with intent to distribute would have been eligible for federal misdemeanor treatment under 21 U.S.C. § 84l(b)(4), thereby causing his offense not to constitute an aggravated felony "drug trafficking crime" under section 101(a)(43)(B) of the Act, the alien has the burden to show that he was convicted of possessing a "small" amount of marijuana and that no remuneration was intended. See Matter of Castro Rodriguez, supra, at 703-04. In this case, the respondent argues that his conviction may have involved a small amount of marijuana. See Respondent's Brief at 14-15.

In Moncrieffe v. Holder, 133 S. Ct. 1678, 1690 (2013), however, the Supreme Court disagreed with the Board's approach in Matter of Castro Rodriguez, supra. The Court stated that, to determine if a state conviction qualifies as an aggravated felony under the Act, "we look 'not to the facts of the particular prior case,' but instead to whether 'the state statute defining the crime of conviction' categorically fits within the 'generic' federal definition of a corresponding aggravated felony." Moncrieffe, supra, at 1684. The Court indicated that "we must presume that the conviction 'rested upon [nothing] more than the least of th[e] acts' criminalized [in the statute], and then determine whether even those acts are encompassed by the generic federal offense." Id We must examine the language of the statute under which the respondent was convicted and "not what he did." Id at 1690.

In this case, the respondent was convicted under Iowa Code § 124.40l(l)(d). This statute provides:

I. Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with the intent to manufacture or deliver, a controlled substance, a counterfeit substance, or a simulated controlled substance, or to act with, enter into a common scheme or design with, or conspire with one or more other persons to manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance, a counterfeit substance, or a simulated controlled substance .. . . d. Violation of this subsection, with respect to any other controlled substances, counterfeit substances, or simulated controlled substances classified in section 124.204, subsection 4, paragraph "ai", or section 124.204, subsection 6, paragraph "i", or classified in schedule IV or V is an aggravated misdemeanor. However, violation of this subsection involving fifty kilograms or less of marijuana or involving flunitrazepam is a class "D" felony.

Because this statute encompasses marijuana delivery without any exception relating to small amounts or absence of remuneration, we cannot conclude that the respondent's conviction under the statute constitutes an aggravated felony under the Act. See Moncrieffe, supra, at 1686; see also 21 U.S.C. § 841(b)(4). Therefore, we cannot affirm the Immigration Judge's determination that the respondent's conviction constitutes an aggravated felony.3

3 Both Matter of Castro-Rodriguez and Moncrieffe were decided after the Immigration Judge's decision was issued in this case. See 8 C.F.R. § 1003.l(e)(S).

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Cite as: Dale Anderson Telesford, A079 020 706 (BIA May 27, 2014)

A079 020 706

Nonetheless, the respondent does not contest that he is removable under section 237(a)(l)(B) of the Act. Further, in view of our rejection of the respondent's argument that the disposition of his criminal drug offense charge did not amount to a "conviction," and in the absence of any other argument by the respondent relating to removability under section 237(a)(2)(B)(i) of the Act based on a controlled substance conviction, we will not disturb the Im.migration Judge's finding of removability on that ground. Because we determine that the respondent has not been convicted of an aggravated felony under the Act, however, we will remand this case to the Immigration Judge to determine if the respondent is eligible for any relief from removal. On remand, the parties should be afforded an opportunity to submit additional evidence and/or arguments in that regard.

Accordingly, the following order will be entered.

ORDER: The record is remanded to the Im.migration Judge for further proceedings consistent with this opinion and the entry of a new decision.

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Cite as: Dale Anderson Telesford, A079 020 706 (BIA May 27, 2014)

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT OMAHA, NEBRASKA

File #: A079-020-706 Date: February 3, 2012

In the Matter of:

Dale Anderson TELESFORD,

) ) ) ) )

IN REMOVAL PROCEEDINGS

Respondent.

CHARGE: Section 237 (a)(l)(B) of the Immigration and Nationality Act ("INA" or "the Act") - remaining longer than permitted

Section 237 (a)(2)(B)(i) of the Immigration and Nationality Act ("INA" or ''the Act") - conviction of a controlled substance violation

Section 237 (a)(2)(A)(iii) of the Immigration and Nationality Act ("INA" or "the Act") - conviction of an aggravated felony

APPLICATION: Motion to Terminate

ON BEHALF OF RESPONDENT: R. Joel Hatch, Esq. Smith, Gardner, Slusky, Lazer, Pohren & Rogers, LLP 8712 West Dodge Road, Suite 400 Omaha, NE 68114

ON BEHALF OF THE GOVERNMENT: Elizabeth A. Treacy, Assistant Chief Counsel U.S. Department of Homeland Security Immigration and Customs Enforcement for Omaha, Nebraska

DECISION OF THE IMMIGRATION JUDGE

I. Background and Procedural History

The Respondent is a male native and citizen of Trinidad and Tobago who was admitted to the United States as a nonimmigrant student on August 17, 2004. The government commenced removal proceedings against him through the issuance of a Notice to Appear ("NT A") on December 11, 2009, charging him with removability pursuant to the above-captioned sections of the INA. See Exh. l.

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The Respondent has admitted factual allegations 1-5 as contained in the NTA and conceded removability under INA§ 237 (a)(l)(B). Trinidad and Tobago has been designated as the country of removal should such action become necessary.

However, the respondent denies allegation 6 as well as removability under the remaining grounds. Although he admits that he was charged with Delivery of a Schedule I Controlled Substance in violation of Iowa Code section 124.40l(l)(d) on June 16, 2003, in the Iowa District Court for Boone County, he argues that because he was granted deferred judgment, he was not actually "convicted" within the meaning of INA §(a)(48)(A). This section defines the term "conviction" as ''a formal judgment of guilt of the alien entered by a court," but also specifies that where an adjudication of guilt has been withheld, the conviction will stand for immigration purposes where "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 guilt, and the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed."

In support of this allegation and these grounds of removability, the government has submitted the Trial Information (containing five counts, the first four of which accuse him of the offense of Delivery of Marijuana) dated March 12, 2003, the Court's Order of June 16, 2003, which states "(b )y guilty plea, the Defendant stands convicted of Delivery of a Schedule I Controlled Substance, to wit: Marijuana, in violation of Iowa Code Section 124.401(l)(d), a class "D" felony", the State of Iowa's Motion to Dismiss Counts I, II, IV, and V, and an Order of Dismissal from Deferred Judgment Probation granted under Chapter 907. See Exhibit 3.

The respondent has also submitted an Order Clarifying Dismissal from Deferred Judgment dated June 1, 2009. See Exhibit 2. This Order states:

On June 16, 2003 this court granted Defendant deferred judgment pursuant to Iowa Code Section 907 . 1 ( 1 ). Iowa Code Section 907. I ( 1) defines deferred judgment as:

A sentencing option whereby both the adjudication of guilt and the imposition of a sentence are deferred by the court and whereby the court assesses a civil penalty as provided in Section 907.14 upon the entry of the deferred judgment." Id.

Pursuant to this section, the court did not find the defendant guilty of Delivery of a schedule I controlled substance in violation of Iowa Code Section 124.401(1)(d), a class "D" felony. Rather, the court withheld adjudication of this finding until the Defendant was given an opportunity to comply with the voluntary conditions of his deferral.

Pursuant to this section, the court did not place restrains (sic) Defendanfs liberty. To wit: the court did not impose a jail sentence; the court did not impose a civil liberty. The court did place Defendant under probation, but as a term of the defen·ed judgment which would monitor Defendant's compliance with his deferred status.

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The respondent cites a decision from the Court of Appeals for the Fourth Circuit1 holding that some criminal court adjudications conducted pursuant to Virginia's first offender statute do not constitute "convictions" under INA§ 10l(a)(48)(A). Crespo v. Holder,_ F.3d_, No. 09-2214 (4th Cir. 201 I).

The government argues that the decisions of the Attorney General in Matter of Marroquin, 23 I & N Dec. 705 (A.G. 2005) and the Board of Immigration Appeals in Matter of Cabrera, 24 I & N Dec. 459 (BIA 2008) control.

II. Analysis and Findings

In Matter of Marroquin, the Attorney General held that the federal definition of "conviction" at section 10l(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2000), encompassed convictions, other than those involving first-time simple possession of narcotics, that had been vacated or set aside pursuant to an expungement statute for reasons that did not go to the legal propriety of the original judgment, and that continued to impose some restraints or penalties upon the defendant's liberty.

The respondent in Marroquin had been convicted in state court of unlawful possession of a firearm and was placed on 5 years' probation. The state court ordered, as conditions of probation, that he spend 365 days in the county jail and pay $ 100 restitution and the costs of his probation. The respondent was subsequently ordered deported but, while his appeal was pending, requested that his conviction be expunged. The California Superior Court granted his motion for relief under this expungement statute on December 18, 1994, and ordered Marroquin­Garcia' s "felony charge reduced . .. to a misdemeanor," his plea of guilty set aside and vacated, and the complaint against him dismissed. However, the Attorney General noted that during the pendency of the proceedings, Congress had enacted a new federal statutory definition of the term "conviction" and that when read in concert with Matter of Roldan, 22 I & N Dec. 512 (BIA 1999), the new federal definition of "conviction" meant that for a conviction not involving first­time simple possession of narcotics, an alien remained convicted, and thus removable notwithstanding a subsequent state action to vacate or set aside the conviction. The Attorney General also noted that statutes such as the California expungement provision merely provided a means by which certain defendants who had been lawfully convicted and subjected to punishment could be relieved of many, though not all, of the remaining legal consequences that normally attended an adjudication of guilt.

In Matter of Cabrera, the Board held that the imposition of costs and surcharges in the criminal sentencing context constituted a form of "punishment" or "penalty" for purposes of establishing that an alien had suffered a "conviction" within the meaning of section 10l(a)(48)(A) of the Immigration and Nationality Act, also noting that:

The clear majority of Federal courts of appeals have held that the imposition of costs and other assessments constitutes a form of criminal punishment or penalty. See, e.g., United States v. Jungels, 910 F.2d I 501, 1504 (7th Cir. 1990) (finding that the imposition of costs under certain Federal tax laws

1 The Omaha Immigration Court lies within the jurisdiction of the Eighth Circuit Court of Appeals. It is also noted that, unJike here, the defendant (respondent) in Crespo v. Holder did not plead guilty.

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was mandatory upon criminal conviction); United States v. Mayberry, 774 F.2d 1018, 1021 (I 0th Cir. 1985) (holding that the imposition of a special assessment under 18 U .S.C. § 3013 to offset the costs of a victims' assistance fund was a form of punishment within the meaning of the Assimilative Crimes Act); see also United States v. Ashburn, 884 F.2d 901 (6th Cir. 1989) (same); United States v. King, 824 F.2d 313 (4thCir. 1987) (same); United States v. Smith, 818 F.2d 687 (9th Cir. 1987)(same)

III. Conclusion

Based upon a thorough consideration of the arguments and authorities cited by the parties, the Court finds that the respondent's conviction is final for immigration purposes. The respondent pleaded guilty to Count III of the Information relating to Delivery of Marijuana (Class D Felony) and, pursuant to the deferred judgment provisions, was placed on probation for two years, ordered to pay a $250 probation enrollment fee, a $125 law enforcement initiative surcharge, a $10 DARE fee, and was also ordered to pay reimbursement to the State of Iowa in the amount of $620. Notwithstanding the entry of the "Order Clarifying Dismissal from Deferred Judgment approximately six years later, the Order itself notes that in so doing, "the court assesses a civil penalty" and that it would "monitor Defendant's compliance with his deferred status".

The Court therefore finds that the respondent is also removable under INA §§ 237 (a)(2)(B)(i) and 237 (a)(2)(A)(iii). He makes no application for any form of administrative relief. Accordingly, the following order will be entered:

ORDER OF THE IMMIGRATION JUDGE

IT IS HEREBY ORDERED that the respondent shall be removed from the United States to Trinidad and Tobago on the charges contained in the Notice to Appear.

( James R. Fujimoto Immigration Judge

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