COSME, ANTHONY OLIVO

JE-7619/A042-271-032
1111 ALTAMONT BLVD
FRACKVILLE, PA 17931
Name: COSME, ANTHONY OLIVO
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041
DHS LIT./York Co. Prison/YOR
3400 Concord Road
York, PA 17402
A 042-271-032
Date of this notice: 2/27/2013
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Sincerely,
DcrutLCtVLAJ
Donna Carr
Chief Clerk
LulsegeS
Userteam: Docket
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Cite as: Anthony Olivo Cosme, A042 271 032 (BIA Feb. 27, 2013)
U.S. Department of Justice ..
Executht.e Office for Immigration Review
Falls Church, Virginia 22041
File: A042 271 032- York, Pennsylvania
In re: ANTHONY OLIVO COSME
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Pro se
ON BEHALF OF bHS: Jon D. Staples
Assistant Chief Counsel
CHARGE:
Decision ofthe Board of Immigration Appeals
Date:
FEB 2 7 2013
Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -
Convicted of aggravated felony under section 101(a)(43)(F) ofthe Act
Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)]-
Convicted of aggravated felony under section 101(a)(43)(G) ofthe Act
APPLICATION: Relief
The respondent, a native and citizen of the Dominican Republic, and a lawful permanent
resident of the United States since his admission as an immigrant on December 29, 1989, has filed
an appeal from an Immigration Judge's November 7, 2012, decision. In that decision, the
Immigration Judge found the respondent removable, as charged, based on his admissions (Tr. at 2)
as to his 2009 Pennsylvania convictions
1
for Robbery and Burglary, which the Immigration Judge
found to constitute aggravated felony offenses, as defined under sections 101(a)(43)(F) and (G) of
the Immigration and Nationality Act, 8 U.S.C. 110l(a)(43)(F) and (G), respectively. The
respondent's appeal will be dismissed. The respondent's request to proceed on appeal in forma
pauperis is granted under 8 C.P.R. 1003.8(a)(3). See Matter ofChicas, 19 I&N Dec. 114 (BIA
1984).
The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility oftestimony, under the "clearly erroneous" standard. See 8 C.P.R. 1003.1(d)(3)(i);
Matter of R-S-H-, 23 I&N Dec. 629 (BIA 2003); Matter of S-H-, 23 I&N Dec. 462 (BIA 2002).
The record reflects the respondent was convicted on August 31, 2009, upon a plea of guilty, in
the Court of Common Pleas ofLehigh County, Commonwealth of Pennsylvania, ofthe offense of
Robbery, in violation of PA. STAT. ANN. TIT. 18 370l(A)(1)(iv), and sentenced to a term of
imprisonment of not less than 12 months and not more than 59 months. The record also reflects the
respondent was convicted on August 31, 2009, upon a plea of guilty, in the Court of Common
Pleas of Lehigh County, Commonwealth of Pennsylvania, of the offense of Burglary, in violation
ofPA. STAT. ANN. TIT. 18 3502(a), and sentenced to a term of imprisonment ofnot less than 24
months and not more than 59 months, to be served concurrently with his Robbery conviction.
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Cite as: Anthony Olivo Cosme, A042 271 032 (BIA Feb. 27, 2013)
A042 271 032
The Board reviews questions of law, discretion, and judgment and all other issues in an appeal of
an immigration Judge's decision de novo. See 8 C.F.R. 1003.1(d)(3)(ii).
The respondent does not dispute that he freely admitted that he was convicted of a "crime of
violence" and a "theft" aggravated felony, on account of the 2009 Pennsylvania convictions
alleged in the Notice to Appear (form I-862) ("NTA"), and that his admissions support the
Immigration Judge's findings as to his removability (Tr. at 2-3). See 8 C.F.R. 1240.1 O(c). The
only issue raised on appeal is a due process challenge to the Immigration Judge's conduct of these
proceedings.
However, contrary to the respondent' s appellate contentions, we find that the Immigration
Judge's actions were consistent with a fair hearing, and find no support for the respondent's claims
as to a denial of due process. In the context of an immigration hearing, due process requires that
aliens threatened with removal are provided the right to a full and fair hearing that allows them a
reasonable opportunity to present evidence on their behalf. Castro v. Attorney General of US.,
671 F.3d 356 (3d Cir. 2006); see also Cabrera-Perez v. Gonzales, 456 F.3d 109, 115 (3d Cir.
2006) (citing Abdulrahman v. Ashcroft, 330 F.3d 587, 596 (3d Cir. 2003)). "The fundamental
requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful
manner." Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (quoting Mathews v. Eldridge,
424 U.S. 319, 333 (1976)) . In order to prevail on a denial of due process claim, the respondent
must establish that defects in the deportation proceeding violated his due-process rights and that he
suffered prejudice as a result of those defects. See, e.g., Chhay v. Mukasey, 540 F.3d 1, 9
(1
51
Cir. 2008); see also Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir.2003) (finding "no due
process violation in the absence of prejudice."). Although the respondent need not conclusively
demonstrate that he would have received relief to show prejudice, he must show that there were
"plausible grounds for relief." See, e.g., UnitedStatesv. Moriel-Luna, 585 F.3d 1191, 1196
(9
1
h Cir. 2009). The respondent has not met that burden.
Under the regulations, the Immigration Judge has a duty to inform an alien of the availability
of relief in removal proceedings only where the circumstances of the case reasonably reflect the
alien's "apparent eligibility" for the particular form of relief at issue, 8 C.F.R. 1240.11(a)(2), or
where the alien expresses a fear of persecution or harm upon return to any of the countries to which
the alien may be removed, 8 C.F.R. 1240.1l(c)(1). However, in the matter before us, the
respondent has not shown the Immigration Judge failed to comply with his duty to inform, as
required by the regulations, where the respondent not only failed to express a fear of persecution or
harm upon return to the Dominican Republic, but also having been convicted of two aggravated
felony offenses, failed to establish his eligibility for any relief or protection from removal.
The respondent bears the exclusive burden of proving all requisite facts pertinent to his
eligibility for relief from removal. 8 C.F.R. 1240.8(d). Furthermore, where the evidence
indicates that a ground for mandatory denial of an application for relief may apply, the alien has the
burden of demonstrating by a preponderance of the evidence that such grounds do not apply
(emphasis added). !d. The respondent cannot show the "substantial prejudice" required for a
successful due process challenge. See Jarbough v. Att'y Gen. of the US. , 483 F.3d 184, 192
(3d Cir.2007) (citing Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir. 2006)). To this day, the
respondent has yet to offer any argument or evidence sufficient to establish his eligibility for any
relief or protection from removal.
2
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Cite as: Anthony Olivo Cosme, A042 271 032 (BIA Feb. 27, 2013)
..
A042 271 032
There is nothing in the record of proceedings to suggest that the respondent was denied due
process of law, a fair hearing, or any fundamental constitutional rights in this matter. The
requirements of due process "depend[ ] on the circumstances of the particular situation."
Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003) (en bane) (quoting Marincas v. Lewis,
92 F.3d 195, 203 (3d Cir. 1996)). The record reflects that the respondent was informed by the
Immigration Judge of his right to retain counsel and was provided with a list of low cost and
pro-bono legal services providers (Tr. at 1). Furthermore, the Immigration Judge offered the
respondent a continuance in order to retain counsel, and the respondent elected to proceed pro se
(Tr. at 1 ). Therefore, we find no violation of due process.
Although the respondent did not establish his eligibility for any relief or protection from
removal, he nonetheless appears to request such relief on general humanitarian grounds due to the
hardship that would befall him and his family, if he is required to return to the Dominican
Republic. We have no wish to minimize the hardship that the respondent's removal might cause
him and his family; however, our authority to grant relief from removal is limited by the Act and
the regulations. Matter of Medina, 19 I&N Dec. 734, 7 46 (BIA 1988).
Accordingly, the respondent's appeal will be dismissed.
ORDER: The appeal is dismissed.
~
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Cite as: Anthony Olivo Cosme, A042 271 032 (BIA Feb. 27, 2013)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
YORK, PENNSYLVANIA
File: A042-271- 032 November 7 , 2012
In the Matter of
ANTHONY OLIVO COSME IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES : 237(a) (2) (A) (iii), aggravated felonies .
APPLICATIONS : None.
ON BEHALF OF RESPONDENT: PRO SE
ON BEHALF OF DHS: JON D. STAPLES , ESQUIRE, ASSISTANT CHIEF
COUNSEL
ORAL DECISION OF THE IMMIGRATION JUDGE
Respondent's a 23-year- old
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single male alien, n ative
and citizen of the Dominican Republic, placed into removal
proceedings with the issuance of a Notice to Appear, Form I-862,
served on October 12, 2012, by certified mail. The NTA itself
is dated September 7, 2012.
The Respondent waived his right to an attorney in this
matter, after being fully apprised of his right to counsel . He
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(
has also been served a copy of the legal aid copy
of which he signed is appended to t he record.
The Respondent conceded allegations one through four .
Based upon the description in the Notice to Appear and the
allegations as to the Respondent's conviction, and without
evidence of record at this juncture, the Court finds the
government ' s met its burden of proof for both of the grounds of
removal; in this case , aggravated felonies under 101 (a) (43) (G)
and (F). Respondent's convictions-for burglary and robbery in
the state of Pennsylvania, where he was sentenced to a maximum
term of prison of 59 months, constitutes those aggravated
felonies .
As there are no other issues pending before t he Court,
the followed orders are hereby entered .
ORDER
Respondent's hereby ordered removed from the United
States to the Dominican Republic.
Please see the next page Eor electr onic signatureWD
A042-271-032
WALTER A. DURLING
Immigration Judge
2 November 7, 2012
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/Is//
Immigration Judge WALTER A. DURLING
durlingw on January 16, 2013 at 4:24 PM GMT
A042-271-032 3 November 7, 2012
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