U.S.

Department of Justice
,

Executive Office for Immigration Review

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5107 Leesb11rg Pike, S11i1e 2000 Fa/ls Ch11rcl1, Virginia 2204/

SALAZAR MONTIEL, ANTONIO 45100 N 60TH STREET WEST A#091-611-884 LANCASTER, CA 93536

OHS Litigation, Mira Loma Facility 45100 N. 60th St., West Lancaster, CA 93536

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Name: SALAZAR MONTIEL, ANTONIO

A091-611-884

Date of this notice: 3/10/2011

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Adkins-Blanch, Charles K. Guendelsberger, John King, Jean C.

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Antonio Salazar Montiel, A091 611 884 (BIA March 10, 2011)

U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board of lnunigration Appeals

File:

A091 611 884- Lancaster, CA

Date:

MAR 1 0 2011

In re: ANTONIO SALAZAR MONTIEL a.k.a. Antonio Salazar

IN BOND PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Pro se APPLICATION: Redetermination of custody status

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The respondent has appealed from the December 14, 2010, bond order finding him subject to mandatory detention under section 236(c) of the Immigration and Nationality Act, 8 U.S.C. 1226(c) The bond order is accompanied by the Immigration Judge's January 13, 2011, explanatory
.

memorandum. The record will be remanded. A respondent is subject to mandatory detention under section 236(c)(1)(A) or (B) of the Act if he or she is inadmissible by reason of having committed any offense covered in section 212(a)(2) of the Act, 8 U.S.C. 1182(a)(2), or is removable by reason of having committed any offense covered in section 237(a)(2)(A)(ii), (A)(iii), {B), (C), or (D) of the Act, 8 U.S.C. 1227(a)(2)(A)(ii), (A)(iii), {B), (C), or (D), and if he or she was released from criminal custody after the expiration of the Transition Period Custody Rules ("TPCR") on October 8, 1998.

See Matter of West, 22 I&N Dec. 1405 (BIA 2000); see also Demore v. Kim, 538 U.S. 51O (2003).
In this case, the respondent has been charged with removability as inadmissible as

present without being admitted or paroled under section 212(a)(6)(A)(i) of the Act. In the bond memorandum, the Immigration Judge referenced the respondent's California conviction for possession for sale of methamphetamine as rendering him removable under section 212(a)(2)(A)(i)(II) of the Act and subjecting him to section 236(c)(l)(A) mandatory detention. However, the record does not contain conviction documents.
In the January 2011 bond

memorandum accompanying the bond order, the Immigration Judge does not specify the date of the respondent's conviction, the length of his sentence, or the date of his release from criminal custody. Consequently, it is unclear whether the respondent's release occurred subsequent to the TPCR expiration date.
In view of the foregoing, we find that a remand is necessary. On remand, the Immigration Judge is to include conviction documents in the record; ascertain the respondent's release date; and

determine whether the respondent is, in fact, subject to mandatory detention under section 236(c) of the Act. If the Immigration Judge determines that the respondent is not subject to section 236(c) mandatory detention, then the Immigration Judge should evaluate whether the respondent

Cite as: Antonio Salazar Montiel, A091 611 884 (BIA March 10, 2011)

A091 611 884

presents a danger to the community or a significant flight risk and, if not, the Immigration Judge should set bond in an amount that is appropriate to assure the respondent's appearance at upcoming immigration proceedings pursuant to section 236(a) of the Act. ORDER: The record is remanded to the Immigration Court for further proceedings and for the issuance of a new decision, consistent with this opinion.

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Cite as: Antonio Salazar Montiel, A091 611 884 (BIA March 10, 2011)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT LANCASTER, CALIFORNIA File No.: A091-611-884 In the Matter of: SALAZAR MONTIEL, Antonio Respondent.

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IN BOND PROCEEDINGS

ON BEHALF OF RESPONDENT: Pro Se c/o DHS 45100 North 60lh Street West Lancaster, California 93536

ON BEHALF OF THE GOVERNMENT: Assistant District Counsel/ICE 45100 North 601h Street West Lancaster, California 93536

BOND MEMORANDUM AND ORDER OF THE IMMIGRATION JUDGE Statement of Facts Respondent is a forty-eight-year old male, native and citizen of Guatemala who entered the United States at an unknown place, on or about an unknown date, without being admitted or paroled after inspection by an immigration officer. On October 27, 2010 the Department of Homeland Security (DHS) initiated removal proceedings against Respondent by filing a Notice to Appear (NTA) date October 22, 2010 with the Immigration Court in Lancaster, California. The NTA charges Respondent with being removable from the United States pursuant to section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA) as an alien present in the United States without being admitted or paroled. Respondent is being held in DHS custody at the Mira Loma Detention Facility pending his removal proceedings. An initial custody redetermination hearing was convened on November 17, 2010 at which time Respondent appeared unrepresented. Respondent indicated he wished to withdraw his request for a hearing on the redetermination of his custody status while he sought legal counsel. On December 14, 2010 Respondent requested a bond redetermination hearing even though he had yet to obtain legal counsel. Respondent proffered he had a conviction for Possession for Sale of Methamphetamine in violation of section 11378 of the California Health and Safety Code ("HS"). No conviction documents were provided by either party. The Immigration Judge found he was without jurisdiction to consider Respondent's request for bond because, pursuant to INA 236(c), Respondent was convicted of an offense that made him inadmissible under section 212(a)(2)(A)(i)(ll) of the INA. Specifically, Respondent was convicted of an offense relating to a controlled substance. Respondent reserved appeal. OHS waived appeal.

A091-611-884

SALAZAR MONTIEL, Antonio

ANALYSIS AND LAW Section 236(c) specifically governs the apprehension and detention of criminal aliens. In particular, Section 236(c)(1) enumerates the following classes of aliens that are considered mandatory detainees: Aliens inadmissible by reason of having committed an offense in Section 212(a)(2); 2. Aliens deportable by reason of having committed any offense covered in Section 237(a)(2)(A)(ii), (A)(iii), (8), (C), or (D); 3. Aliens deportable under Section 237(a)(2)(A)(i) on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least one year; or 4. Aliens inadmissible under Section 212(a)(3)(B) or deportable under Section 237(a){4)(8). An I mmigration Judge is without authority to consider release under a bond pursuant to 8 C.F.R. 1003.19(h)(2)(i)(D) when an alien is under one of the four enumerated grounds as set forth in Section 236(c)(1) of the Act. The statute is the controlling component that sets forth the mandatory detention rules. See. e.g., In re. West, 22 I & N Dec. 1405 (BIA 2000); Matter of Saysana, 241 & N Dec. 602 (BIA 2008). While this Immigration Judge is bound by the regulations and they have the force of law, the Immigration Judge is also bound by the laws of the statutes. See, In Re. Ponce de Leon Ruiz, 21 I & N Dec. 154 (BIA 1996). Respondent admitted he has a conviction for possession for sale of a controlled substance, to wit: methamphetamine. A conviction under HS 11378 is an offense relating to a controlled substance, so long as the controlled substance in question is listed on the federal schedule of the Controlled Substances Act ("CSA"). Mielewczyk v. Holder, 575 F.3d 992, 993, 995, 998 (9th Cir. 2009). Methamphetamine is prohibited under the CSA. 21 U.S.C. 812 Schedule Ill (a). Accordingly, Respondent was convicted of an offense relating to a controlled substance and is inadmissible pursuant to INA 212(a)(2)(A)(i)(ll). Under INA 236(c)(1)(A), Respondent's conviction makes him ineligible for bond pending his removal proceedings. Accordingly, the Immigration Judge DENIES respondent's request for a bond as respondent is a mandatory detainee under Section 236(c)(1)(B) of the Immigration and Nationality Act. In particular, respondent is inadmissible as having been convicted of an offense related to a controlled substance. 1.

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Dated: January 13, 2011

Immigration Judge