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U.S.

Department of Justice Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk


5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 20530

DIAZ-MONTES, JUAN MARTIN A073-826-900 ADELANTO DETENTION CENTER 10250 RANCHO ROAD ADELANTO, CA 92301

OHS/ICE - Office of Chief Counsel 10400 Rancho Road Adelanto, CA 92301

Immigrant & Refugee Appellate Center | www.irac.net

Name: DIAZ-MONTES, JUAN MARTIN

A 073-826-900

Date of this notice: 10/21/2013

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

DOrutL ctl./lA)
Donna Carr Chief Clerk

Enclosure

Panel Members: Kendall-Clark, Molly

Lulseges Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Juan Martin Diaz Montes, A073 826 900 (BIA Oct. 21, 2013)

U.S. Department of Justice Executive Office for Immigration Review


' Falls church, Virginia 20530

Decision of the Board of Immigration Appeals

File:

A073 826 900 - Adelanto, CA

Date:

OCl. 11 Z013

In re: JUAN MARTIN DIAZ MONTES IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: CHARGE: Notice: Sec. 237(a)(2)(B)(i), l&N Act [8 U.S.C. 1227(a)(2) (B)(i)] Convicted of controlled substance violation Pro se

Immigrant & Refugee Appellate Center | www.irac.net

APPLICATION: Removability

The respondent has filed a timely appeal from the Immigration Judge's decision finding the respondent subject to removal as charged and ordering the respondent removed to Mexico. The record will be remanded. We review the Immigration Judge's findings of fact for clear error. Questions of law, discretion and judgment, and all other issues are reviewed de novo. See 8 C.F.R. 1003. l(d)(3)(i), (ii). The Notice to Appear (NTA) in the record before us charges the respondent with removability under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(B)(i), based on having been convicted of a controlled substance violation. The NT A makes the factual charge that the respondent was convicted on September 29, 2011, in the Superior Court of California, County of San Bernardino, for the offense of Possession of Marijuana for Sale, in violation of section 11359 of the California Health and Safety Code. However the only conviction document in the record before us is the Superior Court's order dated May 9, 2013, which shows the respondent pied "guilty/no contest" to three counts of violating section 11377(A) of the California Health and Safety Code. The order states that the original complaint in the matter charged the respondent with violations of section 11378 of the California Health and Safety Code, and section 148.9 of the California Penal Code. We are unable to find any reference in the order to a conviction under section 11359 of the California Health and Safety Code. We also note that the respondent was not represented by an attorney at his removal hearing and is not represented on appeal. Because the record before us is not clear as to the respondent's conviction, we find it necessary to remand the record to the Immigration Judge for further proceedings in which to again consider the respondent's removability and, if he is subject to removal, whether the respondent is eligible for any relief from removal.

Cite as: Juan Martin Diaz Montes, A073 826 900 (BIA Oct. 21, 2013)

.t
r.

r.

A073 826 900

ORDER:

The record is remanded to the Immigration Judge for further proceedings

consistent with the foregoing opinion and for the entry of a new decision.

RTHEBOARD

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Juan Martin Diaz Montes, A073 826 900 (BIA Oct. 21, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT ADELANTO, CALIFORNIA

File: A073-826-900 In the Matter of

June 19, 2013

Immigrant & Refugee Appellate Center | www.irac.net

) JUAN MARTIN DIAZ-MONTES RESPONDENT ) ) ) IN REMOVAL PROCEEDINGS

CHARGES:

Section 237(a)(2)(B)(i) of the Immigration and Nationality Act (INA).

APPLICATIONS:

None.

ON BEHALF OF RESPONDENT: PRO SE ON BEHALF OF DHS: ALVIN S. RATANA 10250 Rancho Road Adelanto, California 92301

ORAL DECISION OF THE IMMIGRATION JUDGE I. JURISDICTION Jurisdiction vested in the Immigration Court with the filing of a Notice to Appear on June 11, 2013. The Notice to Appear is dated June 7, 2013 and was personally served upon respondent on that same date. Respondent appeared at a master calendar proceeding on June 19, 2013 and admitted all factual allegations. The Court found the charge of removability sustained. Respondent designated Mexico as the country for removal, and the Court directed Mexico at respondent's designation.

Respondent is ineligible to apply for cancellation of removal for lawful permanent residents due to his conviction for an aggravated felony. Respondent is also ineligible to apply for voluntary departure because of the conviction for an aggravated felony. Respondent has waived his right to apply for protection under asylum laws and

Immigrant & Refugee Appellate Center | www.irac.net

related protections. II. UNDERLYING FINDINGS The Court found that respondent was unable to apply for relief from removal in any form aside from asylum and related protections, which respondent waived. Respondent requested that he be removed to Mexico and has no other applications on file. A bond hearing had been held, but respondent is subject to mandatory detention as a result of the aggravated felony conviction for trafficking drugs and the Court had no jurisdiction to issue a bond. Based on respondent's request, the Court will enter an order of removal to Mexico. ORDER IT IS ORDERED that respondent be removed to Mexico under safeguards. DATED: June 19, 2013

Please see the next page for electronic signature AMYT. LEE Immigration Judge

A073-826-900

June 19,

2013

,,

/Isl/ Immigration Judge AMY T. leea on August 1,


LEE

2013. at 2:42 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A073-826-900

June 19,

2013

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