U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 Leesburg Pike. S11i1e WOO Falls Ch11rch, Virgi11ia :!2041

Nieblas, Victor D., Esq Attorney At Law 17595 Almahurst Street, #226 City of Industry, CA 91748

OHS/ICE Office of Chief Counsel 606 S. Olive Street, 8th Floor Los Angeles, CA 90014

LOS

Immigrant & Refugee Appellate Center | www.irac.net

Name: ALVAREZ GUDINO, JOSE DE JE...

A 095-748-846

Date of this notice: 6/26/2013

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

DcrutL Ct1AAJ
Donna Carr Chief Clerk

Enclosure Panel Members: Creppy, Michael J.

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Userteam: Docket

Cite as: Jose de Jesus Alvarez Gudino, A095 748 846 (BIA June 26, 2013)

U.S.

Departnlent of Justice

Decision of the Board of Immigration Appeals

Ex,ecutive Office for Immigration Review Falls Church, Virginia 22041

File: In re:

A095 748 846 - Los Angeles, CA JOSE DE JESUS ALVAREZ GUDINO

Date:

JUN .2 6 2013

IN REMOVAL PROCEEDINGS APPEAL AND MOTION

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ON BEHALF OF RESPONDENT: CHARGE: Notice: Sec.

Victor D. Nieblas P., Esquire

212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Termination

The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's February 6, 2012, decision, which ordered him removed to Mexico, as well as the Immigration Judge's July 29, 2011, written decision which denied his motion to terminate the instant removal proceedings. to the appeal. The Department of Homeland Security ("OHS") has not responded The record will be remanded for further proceedings.

We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. See 8 C.F.R. 1003.l(d)(3 )(i ). We review de nova all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion. 8 C.F.R. 1003.l(d)(3)(ii). On appeal, the respondent argues that the Immigration Judge erred in admitting the FBI Record of Arrest and Prosecution ("RAP") sheet into evidence, as the document was not properly authenticated and therefore could not be used to establish the respondent's alienage. The Immigration Judge determined that the RAP sheet was admissible, and that its contents established the respondent's alienage, as the respondent did not present contrary evidence undermining the of the record. However, while the precedents

See

reliability

Immigration Judge's determination permit the use of

authenticated

cited

in

support

of the

government records to

establish alienage, the Immigration Judge did not address the issue of authentication with regard to the FBI RAP sheet. 1 See, e.g., Lopez-Chavez v. INS, 259 F.3 d 1176 (9th Cir. 2001). We therefore find it necessary to remand the record to provide the Immigration Judge with the opportunity to address, in the first instance, whether the document relied upon to establish alienage was properly authenticated. See Matter of A-P-, 22 I&N Dec. 468 (BIA 1999) (stating that the Immigration Judge is "responsible for the substantive completeness of the decision"). On
1 The Immigration Judge's citation to Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011 ), is inapposite, as that case concerns a bond hearing, which is less formal than a removal hearing, and is not covered by regulations which are pertinent to the respondent's removal proceedings,

including 8 C.F.R. 287.6(a) .

Cite as: Jose de Jesus Alvarez Gudino, A095 748 846 (BIA June 26, 2013)

A095 748 846

remand, the parties may submit additional evidence on the issue of the respondent's alienage and inadmissibility to the United States. Due to the nature of our disposition of this matter, we need not address the respondent's

v.

remaining appellate contentions.

See Matter of S-H-, 23 I&N Dec. 462, 465 (BIA 2002); INS Bagamasbad, 429 U.S. 24, 25-26 (1976) (providing that as a general rule, courts and agencies
Accordingly, the following order will be entered.

are not required to make findings on issues the decision of which is unnecessary to the results they reach).

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ORDER:

The record is remanded to the Immigration Court for further proceedings consistent

with the foregoing opinion and for the entry of a new order.

oARri FORTlf

Cite as: Jose de Jesus Alvarez Gudino, A095 748 846 (BIA June 26, 2013)

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

File:

A095-748-846

FEBRUARY 6,

2012

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In the Matter of

JOSE DE JESUS ALVAREZ GUDINO RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

Section 212 (a} (6} (A} (i}

of the Immigration and

Nationality Act - an alien present in the United States without being admitted or paroled

APPLICATIONS:

ON BEHALF OF RESPONDENT: ON BEHALF OF OHS: COUNSEL

VICTOR D.

NIEBLAS-PRADIS, ESQUIRE,

ESQUIRE

CAROLYN M.

THOMPKINS,

ASSISTANT CHIEF

ORAL DECISION OF THE IMMIGRATION JUDGE The Government has charged that the Respondent is not a citizen or national of the United States. Government charges

the Respondent with being a native and citizen of Mexico. Government further charges the Respondent as having entered the United States at or near San Ysidro, April 2, 2005. California, on or about

Government further charges the Respondent as not

being admitted or paroled after inspection by an Immigration officer. The Government charges the Respondent with of the At a previous

removability pursuant to Section 212(a) (6) (A) (i) Immigration and Nationality Act. Master Calendar hearing, allegations, See Exhibit 1.

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the Respondent denied the four factual

as well as the charge of removability. the Court would note that

As background to this case,

the Respondent was arrested pursuant to a worksite enforcement apprehension at Micro Solutions. sweep cases. a Form I-213. These are known as the valley

The Government had submitted the certified copy of See Exhibit 2, which was marked as ID purposes. and

The Respondent had moved to terminate proceedings, moved to strike the I-213 as having been unlawfully obtained. The Government submitted in response, June 9, 2010,

which is attached to its

opposition to Respondent's written objections to and Motion to Terminate, an FBI rap sheet, and

the Form I-213,

that will be Exhibit 3.

The Court issued a written decision and the Government's

addressing the Respondent's motions, motion.

The Court denied the Respondent's Motion to Terminate. 2011, In

The Court's order was sent to the parties on August 2,

which the Court incorporates by reference in this decision. that order, the Court denied the Respondent's Motion to

Terminate for the reasons stated in that decision. will keep the I-213 as marked for ID purposes only. is not relying on the I-213 in its order.

The Court The Court

A095-748-846

February 6,

2012

The Respondent had also filed a Motion to Compel Production, which the Court has denied as moot, and the

Government had filed a Motion to Strike, denied as moot.

which the Court has

The Court found that the Government was able to

Immigrant & Refugee Appellate Center | www.irac.net

sustain allegations one and two through an FBI rap sheet that was obtained independently, and the Court gave its reasoning and 2011, and that FBI

analysis in the Court's order of August 2, rap sheet, evidence. again, is Exhibit 3,

and that is marked into

The Court ordered the Respondent to appear today, to be prepared to proceed with his burden under 8 C. F. R. 1240. S (c) .

and

Section

The Court found that the Respondent had failed to

meet his burden of proving that all of the evidence on which the Government relied to establish his alienage is inadmissible, specifically the I-213 the Court has marked as ID purposes only, and is not relying on that. relying on the FBI rap sheet. Also, the Court found that the Government satisfied However, again, the Court is

its burden of proving by clear and convincing evidence that he is an alien, and from Mexico. The Court will make a correction

to its written statement. evidence, purposes. not unequivocal,

The burden is by clear and convincing which is used for in absentia

The Court noted in its order that at today's hearing

the Respondent has the burden to prove by clear and convincing evidence that he is lawfully in the United States pursuant to a

A095-748-846

February 6,

2012

prior admission,

or otherwise clearly and beyond a doubt and is not inadmissible as charged. See also Lopez-Chavez,

entitled to be admitted,

See Section 8 C.F.R. Section 1240.S (c) . 259 F.3d at 1181.

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At the hearing today,

Respondent's Counsel stated that either oral

the Respondent would not be submitting any evidence, testimony or documentary evidence, record as is. Therefore,

and seeks to stand on the

the Court will sustain the allegations in that the

of three and four,

and the charge of removability,

Respondent has failed to carry his burden under 8 C.F.R. Section 1240.S (c) . removal, removal. The Respondent declined to designate a country for

and the Court designated Mexico as the country of The Court asked whether the Respondent wanted to seek including voluntary departure, and the

any forms of relief,

Respondent chooses to not seek any form of relief. Therefore, the Court will be issuing a removal order.

The Respondent is removable as charged under Section 212 (a) (6) (A) (i) of the Immigration and Nationality Act. ORDER IT IS HEREBY ORDERED that the Respondent be removed to Mexico as charged in the Notice to Appear. If the Respondent

fails 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 his control, such as a serious illness to the Respondent, or death of an

A095-748-846

February 6,

2012

immediate relative,

but nothing less serious,

the Respondent

will become ineligible for certain forms of relief for a period of 10 years from the date the Respondent was scheduled to appear for removal, removal, such as voluntary departure, cancellation of

Immigrant & Refugee Appellate Center | www.irac.net

change or adjustment of status.

LORI R. BASS Immigration Judge

A095-748-846

February 6,

2012

I
i.

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE LORI R. BASS, in the matter of:

Immigrant & Refugee Appellate Center | www.irac.net

JOSE DE JESUS ALVAREZ GUDINO

A095-748-846

LOS ANGELES,

CALIFORNIA

is an accurate,

verbatim transcript of the recording as provided

by the Executive Office for Immigration Review and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.

SANDRA LEVKOFF

(Transcriber) Inc.

YORK STENOGRAPHIC SERVICES, APRIL 30, 2012

(Completion Date) snl/jma