U.S.

Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 let.h11rg Pike, Suite WOO
Fals C/111rcl1. Vrginia 210. I
OHS/ICE Ofice of Chief Counsel - LOS
606 S. Olive Street, 8th Floor
Los Angeles, CA 90014
Name: TORRES-MIRANDA, JOSE DEJESUS A088-361-024
Date of this notice: 4/9/2012
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Greer, Anne J.
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Jose DeJesus Torres-Miranda, A088 361 024 (BIA Apr. 9, 2012)
For more unpublished BIA decisions, visit www.irac.net/unpublished
U.S. Department of Justice
Executive Ofce fr Imigation Review
Falls Church, Virginia 22041
File: A088 361 024 - Los Angeles, CA
Decision of the Board of Imigation Appeals
Date:
.
APR -92012
I re: JOSE DEJESUS TORRES-MIRNDA a.k.a. Jose DeJesus Miranda; Jose DeJesus Torres;
Jose Miranda Tores; Jose Miranda Terrs; Jose Torres Miranda; Jose DeJesus Tores; Jose
Toresmiranda
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RSPONDENT: Pro se
APPLICATION: Voluntar depaure
The respondent appeals fom the October 2, 2009, decision of an Immigration Judge fnding the
respondent removable a charged and ineligible fr voluntary departure.1
We review the fndings of fct, including the determination of credibility, made by the
Immigration Judge under a "clearly eroneous" standard. 8 C.F.R. I 003.1 (d)(3)(i). We review all
other issues, including whether the parties have met their burden of proof, and issues of discretion,
under a de novo standard. 8 C.F.R. I 003.1 (d)(3)(ii).
On appeal the respondent argues, among other things, that the Immigation Judge did not take
adequate steps to deterine the respondent's mental health and its impact on his competency.
Although the Immigration Judge granted a continuance to allow the respondent's counsel to gather
and submit evidence related to the respondent's mental health, no frther steps were taken to assess
his competency.2
The Board recently published a case setting out the famework fr handling cases involving
mental competency issues. See Matter of M-A-M-, 25 I&N Dec. 4 7 4 (BIA 2011 ). Matter of M-A-M
holds that the Department of Homeland Security ("OHS") has an obligation to provide the Cour
with any evidence which may infrm the Immigration Judge about the respondent's mental
competency. Matter of M-A-M-, supra at 480. In addition, if as in this case there are indicia of
incompetency, the Immigration Judge must make fher inquiry to determine whether the alien is
competent fr purposes of immigation proceedings. Id at 480-81.
Accordingly, the fllowing orders shall be issued.
1 On October 2, 2009, the respondent withdrew his application fr cancellation of removal (I.J. at
2; Tr. at 42).
2 The respondent submitted documentar evidence related to his mental health problems, including
a letter fom the Department of Mental Health, and proof of medication use of "Zyprexa" (see Exh.
4).
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Cite as: Jose DeJesus Torres-Miranda, A088 361 024 (BIA Apr. 9, 2012)
. A088 361 024
ORDER: The appeal is sustaned.
FURTHER ORDER: The record is remanded fr frther proceedings in accordance with this
decision.
2
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Cite as: Jose DeJesus Torres-Miranda, A088 361 024 (BIA Apr. 9, 2012)
(
U.S. DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMIGRATION REVIEW
IMMIGRTION COURT
Los Angeles, California
File A 88 361 024
Date: October 2, 2009
In the Matter of
JOSE DEJESUS TORRES-MIRNDA
}
}
}
}
IN REMOVAL PROCEEDINGS
Respondent
CHGE:
APPLICATION:
APPEARNCES:
Section 212{a} {6} {A} (i} of the Immigration and
Nationality Act (Act} as amended, in that the
Respondent is present in the United States
without being admitted or paroled or who
arrived in the United States at any time or
place other than designated by the Attorney
General.
Section 240B of the Act, voluntary departure.
ON BEHALF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT
OF HOMELAND SECURITY:
David T. Acalin, Esquire Catherine Schack, Esquire
4221 Wilshire Boulevard, Suite 330 Assistant Chief counsel
Los Angeles, California, 90010 606 South Olive Street,
8th Floor
Los Angeles, California, 90014
ORAL DECISION OF THE IMMIGRTION JUDGE
The Respondent is a 36-year-old single male, native and
citizen of Mexico. The government issued a Notice to Appear dated
W. O .... .. .g,.,
W
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f
October 10, 2007, alleging that the Respondent arrived in the
United States at or near San Diego, California, on or about
January 15, 1987, and charging the Respondent with removability
under Section 212{a) (6) {A) {i) of the Act. See Exhibit 1 in the
Record of Proceedings.
on July 21, 2008, the Respondent, through counsel,
admitted the factual allegations set forth in the Notice to Appear
and conceded the charge of removability. Therefore, the Court
finds that removability has been established by clear and
convincing evidence as required by Section 240{c) (3) (A) of the
Act.
The Respondent designated Mexico as the country of
removal and Mexico was directed. The Respondent applied for
relief from removal in the forms of cancellation of removal and
voluntary departure in the alternative. Later, on October 2,
2009, the Respondent withdrew his application for cancellation of
removal pursuing voluntary departure only.
To qualify for voluntary departure the Respondent bears
the burden of establishing that he has not suffered an aggravated
felony conviction. See Section 240B{l) of the Act.
In the instant matter the Respondent submitted evidence
that he had been convicted of false imprisonment under Section 236
of the California Penal Code. The crime was characterized as a
felony and according to conviction records the Respondent was
sentenced to serve three years in state prison. See Exhibit 4,
A 88 361 024
W W .W.Y $. ....y %f
. . . . - ~ .
2 October 2, 2009

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(
(
page 28, in the Record of Proceedings.
The Court finds that the crime of false imprisonment is
an aggravated felony under Section 101{a) (43) {F) of the Act. In
this case, the Respondent did receive a term of imprisonment in
excess of a year {three years} . Therefore, the Court finds that
the Respondent's felony false imprisonment conviction meets the
definition of an aggravated felony. Therefore, the Respondent is
not eligible for voluntary departure.
The Respondent did not apply for any other forms of
relief from removal. Therefore, the Court has no alternative but
to order the Respondent removed and deported from the United
States to Mexico on the charge contained in the Notice to Appear.
ORDER
IT IS HEREBY ORDERED that the Respondent's application
for voluntary departure under Section 240B of the Act be denied.
IT IS HEREBY ORERED that the Respondent be removed from
the United States and deported to Mexico on the charge contained
in the Notice to Appear.
WARNINGS TO THE RESPONDENT
An Order of Removal has been entered against you, if you
fail to appear pursuant to a final Order of Removal at the time
and place ordered by the Department of Homeland Security other
than because of exceptional circumstances beyond your control you
will not be eligible for certain forms of relief under the
Immigration and Nationality Act for a period of ten years after
A 88 361 024 3 October 2, 2009
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1 . ff (|r|f r- *r z
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(
the date you are scheduled to appear, this includes voluntary
departure, cancellation of removal, adjustment of status and
change of status.
\ A 88 361 024
DAVID C. ANDERSON
Immigration Judge
4 October 2, 2009
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TW W
..
(
CERTIFICATE PAGE
I hereby certify that the attached proceeding before
DAVID C. ADERSON, in the matter of:
JOSE DEJESUS TORRES-MIRA
A 88 361 024
Los Angeles, California
was held as herein appears, and that this is the original
transcript thereof for the file of the Executive Off ice for
Immigration Review.
rep/ seh
.
Rhonda E. Priest, Transcriber
YORK STENOGRPHIC SERVICES, INC.
34 North George Street
York, Pennsylvania 17401-1266
(717) 854-0077
December 2, 2009
Completion Date
P~!
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