MUSCIA, Henr, Esquie

4 Constantine Cour
Athens, NY 12015
U.S. Department of Justice
Executive Ofce fr Immigration Review
8oc-1o/ Iooig-ct|ooAppec/s
uceo/t/ec/e/
5J07 leesb11rg Pike, S11i1e 2000
Fals Church, Vrginia 2204 I
OHS/ICE Ofice of Chief Counsel - EA
P.O. Box 25158
Phoenix, A 85002
Name: MENDOZA-BENITEZ, JESUS ENRIQUE A092-161-477
Date of this notice: 1/18/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Cole, Patricia A.
Greer, Anne J.
Pauley, Roger
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Jesus Enrique Mendoza-Benitez, A092 161 477 (BIA Jan. 18, 2011)
For more unpublished BIA decisions, visit www.irac.net/unpublished
MENDOZA-BENITEZ, JESUS ENRIQUE
A#092-161-477
ICE, 1705 E. HANNA RD.
ELOY, A 85131
U.S. Department of Justice
Executive Ofce fr Immigration Review
8oc1o/IooigctioAppec/s
uceo/t/ec/e/
5/07 leesb11r Pike, Suite 2000
Fals Church, Vrgi11ia 22041
OHS/ICE Office of Chief Counsel EA
P.O. Box 25158
Phoenix, A 85002
Name: MENDOZ-BENITEZ, JESUS ENRIQUE A092-161-477
Date of this notice: 1/18/2011
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 attorey or representative has been sered with this
decision pursuant to 8 C.F.R. 1292.5(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.
Enclosure
Panel Members:
Cole, Patrcia A.
Greer, Ane J.
Pauley, Roger
Sincerelv.
DC c W
Donna Carr
Chief Clerk
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Cite as: Jesus Enrique Mendoza-Benitez, A092 161 477 (BIA Jan. 18, 2011)
:U.S. Dpartment of Justice
Executive Ofce fr Imigation Review
Decision of the Board oflmigation Appeals
Falls Church, Virginia 22041
File: A092 161 477 - Eloy, A
In re: JESUS ENRIQUE MENDOZA-BENITEZ
IN REMOVAL PROCEEDIGS
APPEAL
ON BEHALF OF RESPONDENT: Hen Muscia, Esquire
ON BEHALF OF OHS: Julie Rowe
Assistant Chief Counsel
CHARGE:
Date:
Notice: Sec. 237(a)(2)(A)(iii), I&N Act (8 U.S.C. 1227(a)(2)(A)(iii)] -
Convicted of aggravated felony
Lodged: Sec. 237(a)(2)(B)(i), I&N Act (8 U.S.C. 1227(a)(2)(B)(i)] -
Convicted of controlled substance violation
APPLICATION: Terination of proceedings
JAN J
lJlI
The Department of Homeland Security ("DHS") appeals the Immigation Judge's decision
dated April 7, 2010, terminating the respondent's proceedings. The appeal will be dismissed.
The respondent was convicted on Mach 15, 2004, in the Califria Superior Court, Count
of Fresno, fr the ofense of possession of a contolled substance fr sale, to wit; methamphetamine,
in violation of Califria Health and Safety Code section 113 78, and was sentenced to 365 days'
imprisonment (l.J. at 2; Exhs I and 4). Based on this conviction, the DHS chaged the respondent
with removability under sections 23 7(a)(2)(A)(iii) and (B)(i) of the Immigration and Nationalit Act,
8 U.S.C. 1227(a)(2)(A)(iii) and (B)(i) (Exhs. 1 and IA). In his April 7, 2010, decision, the
Immigration Judge concluded that the DHS filed to sustain its burden in establishing the
respondent's removability as charged fnding that the conviction documents did not specif the
type of contolled substance involved in the ofense and terminated the respondent's proceedings
(I.J. at 1-).
Through its Notice of Appeal, the DHS argues that the Immigration Judge erred in fnding
that it did not meet its burden of proof fr either charge of removability. Through its brief the DHS
limits its arguments to the Immigration Judge's decision regarding the aggravated flony charge
under section 237(a)(2)(A)(iii) of the Act. See DHS's Brief at 8-11. We fnd no reversible eror in
the Immigration Judge's decision concluding that the DHS did not meet its burden of proof under
both sections 237(a)(2)(A)(iii) and (B)(i) of the Act (Exh. 4). See 8 C.F.R. 1003. l (d)(3) (2010).
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Cite as: Jesus Enrique Mendoza-Benitez, A092 161 477 (BIA Jan. 18, 2011)
A092 161 477
Although DHS argues that because the respondent admitted that he was convicted of
possession of methamphetamine fr sale as alleged in allegation number 6 in the Notice to Appear
(Exh. 1; Tr. at 10-11), the Immigation Judge should have fund the respondent removable as
charged. However, the Immigration Judge did not accept the respondent's admissions nor is the
Immigation Judge required to accept the admissions. See 8 C.F .R. 1240.10( c ); see also Matter
of A-P-, 22 I&N Dec. 468, 471-72 (BIA 1999). Further, the Immigration Judge fund that issues of
fact and law remained as to allegation number 6, and consequently he did not sustain the charges of
removability (l.J. at 2 fn.2)
The record of conviction refects that the respondent pied "no contest" in accordance with
People v. West, 477 P.2d 409 (Cal. 1970) (Exh. 4). The United States Court of Appeals fr the Ninth
Circuit, where this case arises, has stated that a West plea "does not establish fctual guilt, ad
therefre, unless the record of the plea proceeding refects that the defendant admitted to fcts, a
West plea, without more, does not establish the fctual predicate to support a deterination that the
conviction was generic." Fregozo v. Holder, 576 F.3d 1030, 1040 (9th Cir. 2009). The record of
conviction does not contain a plea colloquy or transcript such that it establishes the substance
involved in the respondent's conviction (Exh. 4). Without more, the DHS did not meet its burden
of proof.
Accordingly, the DHS's appeal will be dismissed.
ORDER: The DHS's appeal is dismissed.
7 .
FOR THE BOARD
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Cite as: Jesus Enrique Mendoza-Benitez, A092 161 477 (BIA Jan. 18, 2011)
..
.-

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRTION REVIEW
IMMIGRTION COURT
1705 E. HANA RD.
MENDOZA-BENITEZ, JESUS ENRIQUE
ICE, 1705 E. HANA RD.
ELOY, AZ 85131
IN THE MATTER OF
MENDOZA-BENITEZ, JESUS ENRIQUE
ELOY, AZ 85231
FILE A 092-161-477
UABLE TO FORWARD - NO ADRESS PROVIDED
DATE: Apr 7, 2010
X ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUGE. THIS DECISION
IS FINAL UNLESS A 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 AD INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AD FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
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 rs FINAL ULESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c) (3) OF THE IMMIGRTION AD 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:
OTHER:
IMMIGRATION COURT
1705 E. HANA R.
ELOY, AZ 85231
CC: Assistant Chief Counsel
1705 E. Hanna Road
Eloy, AZ 85131
FF
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yENDOZA-BENITEZ
A092-161-477

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1705 EAST HANNA ROAD, SUITE 366
ELOY, AZ 85231
IN THE MATTER OF:
MENDOZA-BENITEZ, Jesus Enrique
Respondent

IN REMOVAL PROCEEDINGS
FILE NO. A092-161-477
DATE: April 7, 2010
CHARGES: INA 237(a)(2)(B)(i); Conviction relating to a controlled substance.
IA 237(a)(2)(A)(iii); Aggravated flony conviction, as defned in INA
101(a)(43 )(B), an ofense relating to the illicit trafcking in a controlled
substance including a drug trafcking crime.
MOTION: Termination of Removal Proceedings
ON BEHALF OF THE RESPONDENT:
Jesus Enrique Mendoza-Benitez, pro se
Eloy Detention Facility
1705 East Hanna Road
Eloy, AZ 85231
ON BEHALF OF THE DEPARTMENT:
Assistant Chief Counsel
Department of Homeland Security
1705 East Hanna Road
Eloy, AZ 85231
MEMORANDUM DECISION OF THE IMMIGRATION COURT
I. PROCEDURAL HISTORY
On January 25, 2010, the Department of Homeland Security ("OHS" or the
"Department") fed a Notice to Appear (''NT A") against the above-named respondent. (Exh. 1,
Form 1-862.) The fling of this charging document commenced proceedings and vested
jurisdiction with this Court. 8 CFR 1003.14(a). The respondent has conceded proper service of
the NTA.
1
Based upon the respondent's admissions and the certifcate of service contained in the
NTA, the Cour fnds that the NTA has been properly served. On February 2, 2010, the
Department lodged an .. Additional Charges of Inadmissibility/Deportability," Form 1-261 against
the respondent. ( Exh. 1 A.) The Department al leg es that:
1 In removal proceedings, the NTA shall be served in person on the alien or, if personal service is not
practicable, through service by mail to the alien or the alien's counsel of record. JNA 239; 8 CFR 1003.13.
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MENDOZA-BENITEZ
I
.
A092-161-477
I. The respondent is not a native and citizen of the United States;
2. He is a native and citizen of Mexico;
3. He "entered the United States on August 17, 1978 at Calexico, Califria;"
4. "At the time, [he] entered without being admitted, inspected, or paroled by an
Immigration Ofcer;"
5. His "status was adjusted to that of a Lawfl Peranent Resident (W16) on March
6, 1990;"
6. He was "on March 15, 2004, convicted in the Califria Superior Court in and fr
the County of Fresno fr the ofense of Possession of Controlled [S]ubstance fr
Sale, to wit: Methamphetamine, in violation of Section 113 78 of the Califria
Health and Safety Code;"
7. He was "sentenced to a term of imprison of 365 days in jail."
(Exh. 1, Form 1-862, 3.)
Based on these allegations, the Department charged the respondent as removable fom
the United States pursuant to Section 237(a)(2)(B)(i) of the Immigration and Nationality Act
("INA" or the "Act"), "as amended, in that, at any time afer admission, [he was] convicted of a
violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United
States, or a freign country relating to a controlled substance (as defned in Section 102 of the
Controlled Substances Act, 21 U .S.C. 802), other than a single ofense involving possession fr
one's own use of 30 grams or less of marijuana." (Exh. IA, Form 1-261, I.) The Department
further charged the respondent as removable pursuant to INA 237(a)(2)(A)(iii), "as amended,
in that, at any time afer admission, [he was] convicted of an aggravated flony as defned in
section 101(a)(43)(B) of the Act, an ofense relating to illicit trafcking in a controlled
substance, as described in section 102 of the Controlled Substance Act, including a drug
trafcking crime, as defned in section 924(c) of Title 18of the United States Code." (Exh. 1,
For 1-862, 3.)
On February 16, 2010 during a master calendar hearing, the respondent, prose, admitted
all fctual allegations and conceded the charges of removability.
2
On March 10, 2010, the Department fled a brief on removability. (Exh. 5.) On March 15,
2010, the respondent motioned to terminate these removal proceedings. (Exh. 6.)
2 Respondent admissions to fctual allegations and charges ofremovability may be accepted where an
immigration judge is satisfed that no issues of law or fct remain. 8 C.F.R. 1240. IO(c); See also Abassi v. INS,
305 F.Jd I 028 (9th Cir. 2002) ("courts have an obligation where the petitioner is prose to construe the pleadings
liberally and to aford the petitioner the beneft of any doubt.")
Based upon the totality of the evidentiar record, the Court sustains factual allegations (I) through (5), and
(7). However. fnding issues of law and fct remain, see infa. the Cour does not sustain fctual allegation (6) and
the charges of removability, and thus does not accept the respondent admissions as pertaining to such.
2
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MENDOZA-BENITEZ
I '
A092-161-477
II. STATEMENT OF THE LAW
Once a Notice to Appear is fled with the Court, an Immigration Judge may terminate
proceedings upon request or motion of either party. 8 C.F.R. 1245. l (c)(8)(ii)(D) & (iii)(C) (the
Court); 8 C.F.R. 1239.2(c) (the Department); Maller of Cota-Vargas, 23 I&N Dec. 849, 850
(BIA 2005) (the respondent). An alien may request termination on various grounds, including the
fllowing: the charging document is defctive; incongruity exists between the charge and the
allegation; the Department has filed to meet its burden of proof; or the alien is eligible to pursue
an application fr naturalization. See. e.g., 8 C.F.R. 239.2(f (pending naturalization); 8 C.F.R.
1245.1 (c)(8)(ii)(D) & (iii)(C) (power of the Court to terminate proceedings); Maller of Lopez
Barrios, 20 I&N Dec. 203, 204 (BIA 1990) (insufcient notice of proceeding or charge).
The Department has the burden to prove by clear and convincing evidence that the
respondent is removable as charged. No decision on deportability shall be valid unless it is based
upon reasonable, substantial, and probative evidence. See INA 240(c)(3)(A).
III. EVIDENTIARY RCOR
In conducting its analysis, the Court has carefully considered the entire record of
proceeding, which includes exhibits (1) through (6), the parties' briefs, motions, and supporting
documentation as frmally submitted to the Court and as contained in the Court's fle.
IV. FINDINGS AND ANALYSIS
To determine whether a specifc crime constitutes a generic ofense as fund in the Act,
the Court must frst apply the categorical approach and then if necessary the modifed categorical
approach, both set frh in Taylor v. United States, 495 U.S. 575 (1990). Alanis-Alvarado v.
Holder, 558 F.3d 833, 836 (9th Cir. 2009). Under the categorical approach, the Court must frst
compare the language and elements of the statute to a federal generic defnition of the crime to
determine .. whether conduct proscribed by the statute is broader than the generic federal
defnition." Quintero-Salazar v. Keisler, 506 F.3d 688, 692 (9th Cir. 2007) (citing Cuevas
Gaspar v. Gonzales, 430 F.3d 1013, l 017 (9th Cir. 2005)); see also Maller of Torres-Varela,
supra, at 84; Maller of L-V-C-, 22 I&N Dec. 594 (BIA 1999); Maller of Y-, l I&N Dec. 137
(BIA 1941 ). In making this comparison, the immigration judge can only consider the statutory
defnition of the crime which the individual was convicted of, and not the actual underlying fcts
conduct, or circumstances surrounding that crime. US v. Corona-Sanchez, 291 F.3d 1201, 1203
(9th Cir. 2002).
If all of the conduct proscribed by the statute flls within the generic federal defnition,
then the crime categorically qualifes. Conversely, "[w]here a state statute is categorically
broader than the generic defnition of a crime. we employ a modifed categorical approach."
Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir.2007) (en bane) (citing Kepilino v.
Gonzales, 454 F.3d 1057, 1062 (9th Cir.2006).). '"[A] modifed categorical approach is proper
when a statute is divisible into several crimes." Id If "the crime of conviction is missing an
element of the generic crime altogether," then it is categorically not equivalent to the generic
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MENDOZA-BENITEZ
A092-t 61-477
crime and is therefre not a predicate ofense fr immigration purposes. Estrada-Espinoza v.
Mukasey, 546 F.3d 1147, 1159 (9th Cir. 2008) (citing Navarro-Lopez v. Gonzales, supra.).
Under the modifed categorical approach set frh by the U.S. Court of Appeals fr the
Ninth Circuit eNinth Circuit"), only judicial documents that were actually part of the plea may
be considered when conducting this examination, such as .. the indictment, the judgment of
conviction, jury instructions, a signed guilty plea, or the transcript fom the plea proceedings."
Kipilino v. Gonzalez, 454 F.3d 1057, 1062 (9
t
Cir. 2006)(quoting Tokatly v. Ashcrof, 371 F.3d
613, 620 (9th Cir. 2004).). This is because only fcts that were .. necessarily admitted in the
plea" may be considered under the modifed categorical approach. Kipi/ino v. Gonzalez, 454
F.3d at 1062 (citing Shepard v. United States, 544 U.S. 13, 26 (2005)); see also Matter of
Vargas, 23 I&N Dec. 651 (BIA 2004), 1\atter of Olquin, 23 I&N Dec. 896, 897 n.1 (BIA 2006);
Cisneros-Perez v. Gonzales, 465 F.3d 386 (9th Cir. 2006). Also, it is proper to consider
comparable judicial documents of sufcient reliability, such as minute orders and abstracts of
judgment. Fregozo v. Holder, 576 F.3d 1030, I 040 (9th Cir. 2009); United States v.
Snellenberger, 548 F.3d 699, 701-02 (9th Cir. 2008) (en bane). However, it does not include
.. police reports or complaint applications," Shepard, 544 U.S. at 15, or presentence reports, Lara
Chacon v. Ashcrof, 345 F.3d 1148, 1153-54 (9th Cir. 2003}, though .. the contents of these
documents [and others] may be considered if specifcally incorporated into the guilty plea or
admitted by a defndant." Parrilla v. Gonzales, 414 F.3d 1038, 1044 (9th Cir. 2005).
A.
INA 237(a)(2)(B)(i)
The Court fnds that the Department has filed to meet its burden to prove by clear and
convincing evidence that the respondent's conviction is an ofense relating to a controlled
substance as defned under INA 237(a)(2)(B)(i). INA 237(a)(2)(B)(i) reads:
[a]ny alien who at any time afer admission has been convicted of a violation of (or a
conspiracy or attempt to violate) any law or regulation of a State, the United States, or a
freign country relating to a controlled substance (as defned in section I 02 of the
Controlled Substances Act [21 U.S.C. 802 et seq.]), other than a single ofense involving
possession fr one's own use of 30 grams or less of marijuana, is deportable.
The Department has submitted authenticated documentation of the respondent's
conviction. The plea reads that on January 14, 2004, the respondent pied no contest to section
113 78 of the Califria Health and Safety Code ( .. CHSC"). (Exh. 4.) On March 15, 2004, the
respondent was sentenced to 365 days in county jail fr this ofense. (Id.)
The respondent's conviction, in violation ofCHSC 11378 does not categorically meet
the defnition of a controlled substance violation. In order to prove the respondent was convicted
of an ofense as described under INA 237(a)(2)(B)(i), the substance underlying the state law
conviction must be one which is covered by the Controlled Substance Act ( .. CSA"). Mielewczyk
v. Holder, 575 F.3d 992 (9th Cir. 2009); Ruiz-Vdal v. Gonzales. 473 F.3d 1072 (9th Cir. 2007).
The Ninth Circuit has fund that that Califria law regulates the possession and sale of many
substances that are not regulated by the CSA, and therefre a Califria controlled substance
ofense is categorically broader than INA 237(a)(2)(B)(i). Id.
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tElDOZA-BENITEZ
A092-l 6 l -477
Under the modifed categorical approach, the record of conviction fils to demonstrate
the respondent's ofense relates to a controlled substance as defned under 21 U.S.C. 802 et seq.
Here, the Department has submitted a complaint, plea and rights waiver frm, and court minute
order. (Exh. 4.) Neither the plea waiver frm, nor the minute order establishes the substance of
conviction. (Id) Moreover, the Court may not consider the complaint, in that the plea waiver
reads that the respondent pied pursuant to "People v. West." Where a defendant enters a plea
pursuant to People v. West, inra, "[a] court is not limited to accepting a guilty plea only to the
ofense charged but can accept a guilty plea to any reasonably related lesser ofense." United
States v. Vdal, 504 F.3d 1072, 1087 (9th Cir. 2007) (en bane) (citing People v. Tuggle, 232
Cal.App.3d 147, 283 Cal.Rptr. 422, 426 n. 10 (Ct.App.1991) (rejecting reliance on the fct that
the ofense was charged in the conjunctive because the prosecutor could have amended the
infrmation befre the plea); People v. West, 477 P.2d 409, 419-20 (Cal. 1970) overruled on
other grounds by People v. Jenkins, I 0 Cal.4th 234, 40 Cal.Rptr.2d 903, 893 P .2d 1224 ( 1995).).
As such, lhe judgment fils to establish that respondent pied to all, or any, of the allegations as
contained in the complaint, and thereby fils to establish that the respondent pied to an ofense
relating to a controlled substance which is contained in the CSA. See Fregozo v. Holder, 576
F.3d 1030, 1040 (9th Cir. 2009) (citing United States v. Vdal, supra) (to identify a conviction as
the generic ofense through the modifed categorical approach, when the record of conviction
comprises only the indictment and the judgment, the judgment must contain the critical phrase
'as charged in the Infrmation.'").
Therefre, in fnding that the Deparment has not met its burden of proof, the Court does
not sustain fctual allegation (6), or the charge of removability pursuant to section
237(a)(2)(B)(i) of the Act.
B. INA 237(a)(2)(A)(iii)
The Court fnds that the Department has also failed to meet its burden to prove by clear
and convincing evidence that the respondent's conviction is an aggravated felony, as defned
under INA l 0l (a)(43)(B), an ofense relating to illicit trafcking in a controlled substance (as
defned in 21 U .S.C. 802, el seq.), including a drug trafcking crime as defned under 18
U.S.C. 924(c).
For the fregoing reasons fnding that the respondent has been not been convicted of an
ofense relating to a controlled substance, see supra, the Court fnds that the Department has not
met its burden to prove that the respondent has been convicted of as an ofense which involves
illicit trafcking in a controlled substance, including a drg trafcking crime.
Therefre, the Court does not sustain the charge of removability pursuant to INA
237(a)(2)(A)(iii), an aggravated felony, as defned under INA 10l (a)(43)(8).
V. CONCLUSION
The Department has filed to meet its burden to prove the charges as contained in the
Notice to Appear. Therefre. the Court will terminate removal proceedings in this matter.
5
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,MEOZA-BENITEZ
A092-161-477
Accordingly, the Court will enter the fllowing order:
ORDER: IT IS HERBY ORDERED THAT the respondent's motion to terminate
removal proceedings be GRANTED.
CERTIFICATE OF SERVICE
THIS DOCUMENTAS SERVED BY: MAIL (M) PERSONAL SEICE (P)
TO: ( ) ALIE7 ALIEN c/o Custodial Ofcer ( ) ALIEN'S A TT/RE OHS
DA TE: ' faDI ` BY COURT STAFF

Attachments: ( ) EIR-33 ( ) EOIR-28 ( ) Legal Services List ( ) Other

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