Grant, Shelley

Bagia & Associates PC

Bourse Bldg, Suite 592
111 S. Independence Mall East
Philadelphia, PA 19106
Name: PEREZ FLORES, LORENZO
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5 /07 Leesburg Pike, Suite 2000
Fals Church, Vrginia 20530
OHS LIT./York Co. Prison/CR
3400 Concord Road
York, PA 17402
A 095-419-51
Date of this notice: 7/28/2014
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Grant, Edward R.
Sincerely,
Donna Carr
Chief Clerk
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Lorenzo Perez Flores, A095 419 451 (BIA July 28, 2014)
U.S. Department of Justce Decision of te Board of Igraton Appeals
Executive Offce fr Imgration Review

Falls Cuch Viga 20530
File: A095 419 451-York, PA
I re: LORENZO PERZ FLORS a.k.a. Loreno Perez-Flores
I RMOVAL PROCEEDIGS
APEAL
ON BEHAF. OF RSPONENT: Shelley Grat, Esquire
ON BEHAF OF DHS: Jon D. Staples
Assistat Chief Cousel
APLICATION: Remad
Date:
.
fJL 2 82014
Te Depaent of Homelad Secuty ("DHS") appeals fom te decision of the
Igation Judge date April 26, 2013, ternatng removal proceedings.
1
The DHS agues
tat te Imigation Judge ered in concluding tat te respondent, a native ad citizen of
Mexico ad a lawfl peraent resident of the United States, is not subject to removal as
chaged. We will dismiss the appeal.
We review hmigation Judges' fndings of fct fr clea eror, but questions of law,
discretion, ad judgent, ad all oter issues in appeas, de novo. 8 C.F.R. 1003. l(d)(3).
Te DHS agues ta te is subject to remova as chaged unde te provisions of section
237(a)(2)(B)(i) of te I gaton ad Natonaity Act, 8 U.S.C. 1227(a)(2)(B)(i), as a result
of hs convicton on June 1, 2012, in te Montgomey County Cou of Common Pleas fr te
ofense of Use or Possession of Drg Paapheralia i violation of Title 35, Section 780-
113(a)32, of te Pennsylvaia Consolidated Statutes {The Contolled Substce, Drg, Device
ad Cosmetic Act).
We have held tat to prove a chage uder secton 237(a)(2)(B)(i) of te Act, te DHS beas
te burden of proving tat te respondent's convicton does not fll witn te "possession fr
personal use" exception. See Matter of Moncada, 24 I&N Dec. 62, 67 n.5 (BI 2007). I is well
established that te hmigaton Judge is limited to exaining te stattor eleents of te
crmina code, te chagng documents, jury istctions, written plea ageement, plea colloquy
tascrpt, ad ay explicit fctua .ndings of te tal court to whch te defendat asseted or
otherwise adopted. See Shepard v. United States, 544 U.S. 13, 26 (2005).
We agee wit te Imigation Judge tat the crmnal Ifration ad te vaous orders of
adjudicaton set frh te chages ad te impositon of pushent, but do not establish wit
precision te te of drg ivolved in te respondent's ofense. See Exh. 2, Tab C. No plea
colloquy tascrpt or oter judicially noticeable document describes te tye of substace nor
the aount of tat substace. Altoug the DHS agues tat police complant ad te affdavit
1 The Imigaton Judge incororated by refrence hs ealier decision dated Aprl 2, 2013.
ZE& - w. . . . t w . . .., . . . Z2E $ . . . .

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Cite as: Lorenzo Perez Flores, A095 419 451 (BIA July 28, 2014)
A095 419 451
of probable caue indicate that a " -gge" contaning a substace feld tested as cocane was
fund in the respondent's possession, te respondent's guilty plea does not refr to tose
documents. The DHS contends tat the ''agge" containing white powder wa sent to a lab fr
testing. On April 3, 2013, the DHS submitted te lab reort confing that the substace was
cocane. However, we agee wit the Imigation Judge tat the lab report was not pat of the
conviction record relied upon by te criminal cou. Accordingly, we affr the Iigation
Judge's conclusion tat the DHS had not met its burden of establishing tat the respondent was
removable as chaged. Mater of Dave, 26 I&N Dec. 37, 41 (BIA 2012).
Accordingly, the fllowing order will be entered,
ORDER: The appeal is dismissed.
2
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Cite as: Lorenzo Perez Flores, A095 419 451 (BIA July 28, 2014)
,
UNITED STA S DEPARTMENT OF JSTICE
EXECUTIVE 0CE FOR IMMIGRATION RVIEW
UNITED STATES IMMIGRTION COURT
YORK, PENNSYLVANIA
IN THE MATTER OF:
PEREZ FLORES, Lorenzo
Respondent
)
IN REMOVAL PROCEEDINGS
)
)
File # A 095-419-451
)
)

On Behalf of Respondent:
Antony Maturano, Esq.
Ground of Removal: IA 237(a)(2)(B)(i)
Application: Termination by Respondent
On Behalf of DHS
Jon Staples
Assistat Chief Counsel
Ruling on Ground of Removal and Order
On April 2, 2013, this court terminated the Removal proceedings against respondent, fnding
that the goverent filed to meet its burden of proof that respondent's drug parapheralia
conviction under 35 Pa.C.S. 780-113(a)(32), was not an ofense involving possession fr own's
use of 30 grams or less of maijuana, per IA 237(a)(2)(B)(i). Subsequently, on April 16, 2013,
the court issued a stay of that termination order while the cou considered "new" evidence submitted
by goverent counsel, a laborator report revealing that the contolled substance confscated fom
respondent was cocaine.
I its April 2, 2013, written interim ruling, the court fund the conviction record insuffcient
as a matter of law fr the governent to meet its burden of proof by clear and convincing evidence
that respondent was removable under INA 237(a)(2)(B)(i). In fotnote 2 it was noted tat even
though the police criminal complaint had noted that the controlled substance wa sent to a laboratory
fr analysis, it was unknown whether a laboratory analysis was conducted. As noted, fllowing
termination, goverent counsel obtained a copy of te laboratory report indicating that the
substance taen fom respondent was cocaine. Goverent counsel thus asks the cour to now fnd
that the ground of removal at INA 237(a)(2)(B)(i) to be sustained.1
Afer frther consideration, the lab report will not be considered as a part of the conviction
1 As a general proposition, a party proceeds at some peril by awaitig until the court has issued a fal
ruling in a case befre seeking additional evidence. Here, the lab report was not even sought by the goverent until
the cou had terminated the proceedings. Notwithstanding, the lab report has been appended to the record ad
considered.
1
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/
record which this court ca use to determine whether the goverent has met its burden of proof.
In an unpublished Second Circuit opinion, Scaletv. U.S. Dep't ofHomelad Sec.,311F.Appx.285
(2"d Cir. 2009), the cour fulted the Board fr considering the drug lab report on te cocaine seized
fom the alien at the time of his arrest. The court fund the lab report was not within that class of
documents constituting the offcial conviction record. Id. at 287. The cour reasoned that the record
evidence did not establish that the alien pleaded guilty based on the lab repor, and that the
goverent's burden of proof permits only that evidence to which the alien necessarily pleaded
guilty. Id
The present lab report was alluded to in the police criminal complaint, 2 which is not the
accusator instrument; an Infration was fled by the State, exhibit 2-C, and it is to this document
which respondent entered his guilty plea. The Infrmation reveals at Cout 2 that a "baggie" was
seized fom respondent, ad he was charged under 35 Pa.C.S. 780-l 13(a)(32). As is the usual
case, the Infrmation is silent as to ay paicular controlled substance. While te lab report
precedes respondent's guilty plea, this record is silent as to whether respondent pleaded guilty to
cocaine parapheralia, or generically to drug parapheralia without any refrence to, or
ackowledgment of, cocaine or any other drug.
Conclusion
This record does not establish, by clea and convincing evidence -IA 240(c)(3)(A)-that
respondent pleaded guilty to cocaine parapheralia. I Mater of Davey, 26 I&N Dec. 37, 41 (BIA
2012), that burden, when it comes to IA 237(a)(2)(B)(i), includes requiring the goverent to
prove that respondent's drug conviction does not fll within the "possession fr personal use"
exception under INA 237(a)(2)(B)(i). The Board held that such inquiry permits a "circumstace
specifc" approach.
However, such modifed categorical approach is restricted to those documents which refect
the extent that respondent was actually convicted. Evanson v. Att'y Gen., supra, at 293-294. In this
case, absent evidence to the contrary, tat singula document is the Information, which, as we kow,
is silent as to any paricular controlled substance. "We may not open our review to other records or
inquire into the fctual basis fr the uderlying conviction .... " Id. at 292. The court hereby
incororates by refrence it's original Aprl 2, 2013, order terminating proceedings.
Order: The ground of removal pursuant to INA 24l(b)(3) is dismissed, and tese proceedings are
again terminated.
April 26, 2013
2 A police criminal complaint may be the charging document in Pennsylvania. Garcia v. Att'y Gen., 462
F.3d 287, 292 (3d Cir. 2006). However, when an Infnation is fled in a criminal case, tat is the charging
document. Evanson v. Att'y Gen., 550 F.3d 284, 292-293 (3rd. Cir. 2008).
2
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