U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Of
f ice ofthe Clerk

5107 leesburg Pike, Suite 2000

Falls Church, Vtrgm1a 22041

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Wilson, David L. OHS/ICE Office of Chief Counsel -BLM
Wilson Law Group (MSP)
3019 Minnehaha Avenue 1 Federal Drive, Suite 1800
Suite 200 Ft. Snelling, MN 55111
Minneapolis, MN 55406

Name: ARMAS-VILLACIS, LUIS FERNA... A 204-660-398

Date of this notice: 5/4/2017

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

Sincerely,

J

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Greer, Anne J.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Luis Fernando Armas-Villacis, A204 660 398 (BIA May 4, 2017)
U.S. Department of Justice Decision of the Board of lnunigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A204 660 398 - Fort Snelling, MN Date: MAY - 4 2017

In re: LUIS FERNANDO ARMAS-VILLACIS

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IN BOND PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: David L. Wilson, Esquire

ON BEHALF OF DHS: Colin P. Johnson

Assistant ChiefCounsel

APPLICATION: Redetermination of custody status

The Department of Homeland Security (DHS) has appealed the Immigration Judge's
September 15, 2016, bond order granting the respondent's request for a change in custody status
and setting a bond of $15,000.1 The respondent opposes the DHS's appeal. The reasons for the
Immigration Judge's custody order are set forth in a bond memorandum dated October 24, 2016.
The appeal will be dismissed.

The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under the "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i).
The Board reviews questions oflaw, discretion, and judgment and all other issues in appeals from
decisions oflmmigration Judges de novo. 8 C.F.R. 1003.l(d)(3)(ii).

The respondent is in removal proceedings, charged with removability as, among other things,
an alien convicted ofa crime relating to a controlled substance due to his conviction for fifth degree
possession, to wit: alprazolam, in violation ofMrNN. STAT. 152.025, subd. 2(a)(l) (Bond Memo
at 1-2; Bond Exh. 3). See section 237(a)(2)(B)(i) ofthe Immigration and Nationality Act, 8 U.S.C.
1227(a)(2)(B)(i). On appeal, the DHS claims that the Immigration Judge erred in not sustaining
the charge of removability under section 237(a)(2)(B)(i) of the Act, and further erred in
determining the respondent was not subject to mandatory custody pursuant to section 236(c)(l)(B)
of the Act, 8 U.S.C. 1226(c)(l)(B) (DHS's Briefat 1). We disagree.

The regulations generally do not confer jurisdiction on an Immigration Judge over custody or
bond determinations governing those aliens who are subject to mandatory detention. See 8 C.F .R.
1003. l 9(h)(2)(i)(D). However, an alien may seek a determination by an Immigration Judge that
the alien is "not properly included within" certain of the regulatory provisions which would
deprive the Immigration Judge ofbond jurisdiction, including the mandatory detention provisions
at issue in this matter. See 8 C.F.R. 1003. l 9(h)(2)(ii); Matter ofJoseph, 22 I&N Dec. 799, 802
(BIA 1999). An alien is considered not properly included in such a class ifthe Immigration Judge

1The record reflects that the respondent was released from custody on September 21, 2016, upon
posting bond.

Cite as: Luis Fernando Armas-Villacis, A204 660 398 (BIA May 4, 2017)
A204 660 398

or the Board determines that the OHS is "substantially unlikely" to prove a removal charge
subjecting the alien to mandatory custody. Matter ofJoseph, supra, at 806. In a so-called "Joseph"
hearing, the respondent bears the burden of establishing that the OHS would be substantially
unlikely to prevail on a charge ofremovability under a section ofthe Act mandating custody. See
id; Matter ofKotliar, 24 I&N Dec. 124 (BIA 2007).

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In separate removal proceedings, which are ongoing before the Immigration Judge, the
Immigration Judge determined that the charge ofremovability under section 237(a)(2)(B)(i) ofthe
Act was not sustainable based on the respondent's conviction for fifth degree possession (I.J. at
2). We conclude that the respondent met his burden to show that he is not subject to mandatory
detention at this stage ofthe proceedings given the Immigration Judge's determination. See Matter
ofJoseph, supra.

Accordingly, the following order will be entered.

ORDER: The DHS's appeal is dismissed.

Cite as: Luis Fernando Armas-Villacis, A204 660 398 (BIA May 4, 2017)
 ..

, '

DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
FORT SNELLING, MINNESOTA

Date: 0 , ;}:)Jtt

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File Number: A204-660-398

In the Matter of: )

)
Luis Fernando ARMAS-VILLACIS, )
) In Removal Proceedings
Respondent. )

Charges: INA 237(a)(l)(B)- any alien who is present in the United States in violation of
this Act or any other law of the United States, or whose nonimmigrant visa has
been revoked under section 22l(i), is deportable.

INA 237(a)(2)(B)(i) - any alien who at any time after admission has been
convicted of a violation of any law or regulation of a State, the United States, or a
foreign country relating to a controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802)), other than a single offense involving
possession for one's own use of thirty grams or less of marijuana, is deportable.

Re: Bond Redetermination

ON BEHALF OF THE RESPONDENT: ON BEHALF OF DRS:

Jaclyn E. Campoli, Esq. Darrin Hetfield, Esq.
Wilson Law Group Asst. Chief Counsel/ICE
3019 Minnehaha Ave, Suite 200 1 Federal Dr., Ste. 1800
Minneapolis, MN 55406 Fort Snelling, MN 55111

BOND DECISION OF THE IMMIGRATION JUDGE

I. Background

Luis Fernando Annas-Villacis, Respondent, is a 20-year-old man and a native and citizen of
Ecuador. (Ex. 1). Respondent was admitted to the United States at Miami, Florida on or about
November 28, 2002 as a nonimmigrant B1/82 with authorization to remain in the United States
for a temporary period not to exceed 6 months. Id. Respondent remained in the United States
beyond 6 months without authorization from the Immigration and Naturalization Service or its
successor the Department of Homeland Security (DHS). Id. DHS alleges that Respondent was
convicted on June 15, 2016 of fifth degree possession, to wit: alprazolam in violation of Minn.
Stat. 105.025, subd. 2(a)(l). Id.

Bond Order-A204-660-398 I
 )

On July 25, 2016, DHS commenced removal proceedings with the filing of a Notice to Appear
(NTA), charging Respondent with being removable pursuant to the above-captioned charge of
the Immigration and Nationality Act ("the Act" or "INA"). Respondent conceded the charge
under INA 237(a)(l)(B) for remaining in the United States for a time longer than permitted and
denied the charge under INA 237(a)(2)(B)(i). Respondent declined to designate a country of
removal, and the Court designated Ecuador should such action become necessary. The Court

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issued an order not sustaining the charge under INA 237(a)(2)(B)(i). DHS has determined that
Respondent is ineligible for bond, and Respondent requested a bond redetermination hearing by
this Court. The Court conducted a bond redetermination hearing on September 15, 2016, and

Respondent was represented by above-listed counsel.

Respondent has siblings who are U.S. citizens, a sister who has DACA, and parents who have
overstayed their visas. Respondent has also been a victim of a violent crime and is seeking a U
visa certification. Respondent was convicted for fifth degree drug possession and has indicated
that he may seek post-conviction relief because he was not informed of the immigration
consequences of his conviction. Respondent does not have other criminal history.

In light of all of this, the Court feels that Respondent has both strong positive and negative
factors, and on the balance a bond is appropriate, but at a higher level than the $10,000 requested
by Respondent's counsel. The Court concludes that a $15,000 bond is appropriate to ensure that
Respondent will appear at his hearings and for removal if so ordered. Accordingly, the Court
enters the following order:

ORDER

IT IS HEREBY ORDERED that Respondent's request for a bond be GRANTED in the

amount of $15,000.00.

Bond Order-A204-660-398 2

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