Immigration Appeals Decisions

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

The respondent has appealed from the Immigration Judge’s decision dated April 20, 2010. The Immigration Judge issued a bond memorandum on June 15, 2010, setting forth the reasons for her bond decision. The Immigration Judge found that the respondent presented a risk of flight and ordered the respondent’s release upon payment of an $11,000 [FN1] bond pursuant to section 236(a) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a). On appeal, the respondent requests that the bond amount set by the Immigration Judge be reduced. The respondent’s 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. § 1003.1(d)(3)(i). The Board reviews questions of law, discretion, and judgment and all other issues in appeals from decisions of Immigration Judges de novo. 8 C.F.R. § 1003.1(d)(3)(ii); Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008).

We find the respondent’s contention that the bond amount set by the Immigration Judge is too high, because the respondent cannot raise the money to satisfy the bond condition is without a legal basis. The purpose of bond is not to purchase freedom but rather to provide assurance of appearance after release. See U.S. v. Melville, 309 F. Supp. 824 (D.C.N.Y. 1970). The test for determining excessiveness of bail is not whether a respondent is financially capable of posting bail but whether the amount of bail is reasonably calculated to assure the respondent’s appearance for future proceedings. See generally U.S. v. Soto Rivera, 581 F. Supp. 561 (D.C. Puerto Rico 1984). We agree with the Immigration Judge’s reasons for finding some risk of flight from future removal proceedings under the circumstances of the respondent’s case, such that an $11,000 bond amount was necessary to insure the respondent’s presence at proceedings. Thus, we find that the respondent has failed to establish that a $11,000 bond amount is unreasonable under the ckcumstances of his case. Accordingly, the following order will be entered.

ORDER: The respondent’s appeal is dismissed.
John Guendelsberger
FOR THE BOARD

FN1. In the Immigration Judge’s bond memorandum, she inadvertently provides that the respondent’s bond will be set at $8,500. However, the Immigration Judge’s bond decision and the order in the Immigration Judge’s bond memorandum clearly set forth that the Immigration Judge set an $11,000 bond. Neither of the parties have raised this as an issue on appeal.

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Eduardo A. Paredes, Esquire

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge’s decision dated August 24, 2009, which denied his application for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a). The Department of Homeland Security (DHS) has not replied to the respondent’s brief on appeal. The record will be remanded.

Under 8 C.F.R. § 1003.1(d)(3), the Board defers to the factual findings of an Immigration Judge unless they are clearly erroneous, but it retains independent judgment and discretion, subject to applicable governing standards, regarding pure questions of law and the application of a particular standard of law to those facts. Matter of A-S-B-, 24 I&N Dec. 493, 496-97 (BIA 2008).

We find that we are unable to properly review the decision on appeal. Cancellation of removal requires a finding of both statutory eligibility and eligibility in the exercise of discretion. Review of the decision on appeal does not reveal a specific determination as to the respondent’s statutory eligibility. If we assume that basic eligibility was conceded and that the Immigration Judge denied relief in the exercise of discretion, we find no particular discussion in the decision of the respondent’s favorable factors and how they balance against the adverse factors under the circumstances of this case. Matter of Sotelo, 23 I&N Dec. 201, 203 (BIA 2001); Matter of C-V-T-, 22 I&N Dec. 7, 11 (BIA 1998) (quoting Matter of Marin, 16 I&N Dec. 581, 584-85 (BIA 1978)). Inasmuch as addressing these matters may require additional factfinding, we find that it is appropriate to remand the case to the Immigration Judge. See 8 C.F.R. § 1003.1(d)(3)(iv). Accordingly, the record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.
Charles K. Adkins-Blanch
FOR THE BOARD

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Neil St. John Rambana, Esquire

Ana Maria Candela
Assistant Chief Counsel

The respondent appeals from an Immigration Judge’s April 8, 2010, decision ordering him removed from the United States. The appeal will be dismissed.

The respondent, a native and citizen of the Venezuela, was convicted in 2008 for the offenses of trafficking and conspiracy to trafficking ecstasy in violation of sections 893.135(1)(K) and 777.04 of the Florida Statutes, for which he was sentenced to 36 months in prison (Exhs. 1, 2). We find no error in the Immigration Judge’s determination that the respondent was removable as an alien convicted of an aggravated felony and a controlled substance violation pursuant to sections 237(a)(2)(A)(iii) and 237(a)(2)(B)(i) of the Immigration and Nationality Act (Act).

As a lawful permanent resident convicted of an aggravated felony, the respondent is ineligible for most forms of relief from removal, including asylum, cancellation of removal, voluntary departure, and waiver of inadmissibility. We find no indication that the respondent has expressed any fear of returning to his native country.

On appeal, the respondent argues that he was never advised that he could obtain counsel to represent him in proceedings, and never received a copy of the Notice to Appear (NTA) (Respondent’s Brief and Notice of Appeal). Contrary to respondent’s assertions, the record reveals that the respondent was advised of his right to counsel at no expense to the Government, which he indicated that he understood, at a hearing held on March 13, 2009 (Tr. at 10). He was then given a continuance in order to obtain counsel (Tr. at 12-15). At his last hearing on April 8, 2010, the respondent appeared pro se without counsel (Tr. at 17-18). These facts show that the respondent was sufficiently aware of his right to counsel. Further, the Notice to Appear indicates that a list of organizations and attorneys, who provide free legal services, was attached to the NTA. Hence, based on these facts, we are satisfied that the respondent was afforded his right to obtain counsel and that his removal hearing was fair. See Matter of Santos, 19 I&N Dec. 105, 107 (BIA 1984); Matter of Gutierrez, 16 I&N Dec. 226, 228 (BIA 1977). Further, there is no denial of a fair hearing where the presence of counsel would not change the outcome. See Cobourne v. INS, 779 F.2d 1564 (11th Cir. 1986) (per curiam); see also Matter of Escobar, 18 I&N Dec. 412, 415 (BIA 1983). Inasmuch as the respondent has failed to allege that he was prejudiced, and in light of the fact that he has failed to contest the finding of removability on appeal and does not assert that he is eligible for any relief from removal, we find that the presence of counsel at the hearing would not have changed the outcome and that the respondent was not prejudiced.

As for the respondent’s assertions that he never received a copy of the NTA, the record reveals that the Immigration Judge continued proceedings to assure that the respondent obtained a copy of the charging document and had a chance to review it (Tr. at 1-2, 4, 6-7). At his March 13, 2009, hearing the respondent confirmed that he had received the charging document (Tr. at 9-10). Further, at his April 8, 2010, hearing the respondent admitted the factual allegations set forth in the NTA and conceded that he was removable as charged (Tr. at 18-19).

In conclusion, the respondent is removable from the United States as an alien convicted of an aggravated felony and has failed to demonstrate that he qualifies for any form of relief from removal. Accordingly, the following order will be entered.

ORDER: The appeal is dismissed.
Jim Hilz
FOR THE BOARD

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Stephen A. Lagana, Esquire

Carmen A. Leal
Assistant Chief Counsel

The respondent, a native and citizen of Brazil, appeals an Immigration Judge’s decision dated April 26, 2010. The Immigration Judge denied the respondent’s motion to reopen proceedings in which he was ordered removed in absentia on November 21, 2005. The appeal will be dismissed.

We review an Immigration Judge’s findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R. § 1003.1(d)(3)(i), (ii). Before the Immigration Judge, the respondent argued that his proceedings should be reopened based on “lack of notice.” We agree with the Immigration Judge’s conclusion that no basis for reopening had been presented.

The record reflects that on September 17, 2005, the respondent was personally served with a Notice to Appear (“NTA”). The NTA informed the respondent of the requirement that he provide an address and telephone number at which he can be contacted during proceedings, and that failure to appear at his hearing will result in a removal order entered in his absence. The Immigration Judge observed, and the respondent does not contest, that the respondent did not provide any address to the Department of Homeland Security at the time the NTA was served and he did not provide an address to the Immigration Court thereafter. See 8 C.F.R. § 1003.15(d)(1) (requiring an alien to provide an address within 5 days of service of the NTA). Accordingly, no separate notice of the hearing was required to be mailed to the respondent by the court. See section 240(b)(5)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(B) (eliminating the notice requirement where the alien fails to provide contact information); see also Gomez-Palacios v. Holder, 560 F.3d 354, 360-61 (5^th Cir. 2009) (stating that if an alien’s failure to receive notice is “due to his neglect of his obligation to keep the immigration court apprised of his current mailing address” it does not mean that the alien did not receive notice).

On appeal, the respondent asserts he cannot be charged with proper notice of any address requirements because there is no indication that he was informed of these requirements in his native language of Portuguese. He cites to no statutory or regulatory requirement, however, that the relevant address warnings in the NTA be provided orally or in the respondent’s native language. Cf. Section 240(b)(7) of the Act (limiting an alien’s eligibility for discretionary relief for failure to appear at removal proceedings if the alien has been given appropriate warnings in the alien’s native language). On appeal, the respondent indicates that the NTA was defective because it did not contain the date and time of the hearing. We respond that the United States Court of Appeals for the Fifth Circuit, in which jurisdiction this case arises, has stated that “an NTA need not include the specific time and date of a removal hearing in order for the statutory notice requirements to be satisfied.” Gomez-Palacios v. Holder, supra, at 35; see also 8 C.F.R. § 1003.18(b). We conclude that the appeal presents us with no reason to disturb the Immigration Judge’s decision to deny the motion to reopen.

Accordingly, the following order shall be entered:

ORDER: The respondent’s appeal is dismissed.
Ellen Leibowitz
FOR THE BOARD

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

James McCarthy
Senior Attorney

These proceedings have an extended history that is known to the parties and which need not be restated in its entirety. Presently before the Board is the respondent’s June 14, 2010, motion to reopen. Because the administratively final order in these proceedings was entered by the Board on May 22, 2006, this motion is long since untimely. See section 240(c)(7)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2). The respondent’s motion has not been shown to qualify for any exception to the timely filing requirement imposed by law on motions to reopen removal proceedings. Id. Further, the respondent’s motion does not set forth circumstances that support an equitable tolling of this time limit. See, e.g., Valeriano v. Gonzales, 474 F.3d 669, 673 (9th Cir. 2007); Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003).

The remaining question is whether the sua sponte reopening of these proceedings is warranted in the exercise of the Board’s discretion. See 8 C.F.R. § 1003.2(a); Matter of G-D-, 22 I&N Dec. 1132 (BIA 1999) (fundamental change in law may warrant sua sponte reopening notwithstanding otherwise applicable time and number limitations on motions); Matter of J-J-, 21 I&N Dec. 976 (BIA 1997)(Board retains limited discretionary power under the regulations to reopen or reconsider only in exceptional circumstances).

We decline to reopen these proceedings sua sponte. The respondent’s motion is principally based on the decision of the United States Court of Appeals in Bravo-Predroza v. Gonzales, 475 F.3d 1358 (9th Cir 2007). [FN1] That decision was entered by the Ninth Circuit in February 2007 after the respondent had already unlawfully reentered the United States without admission or parole. [FN2] Thus, in addition to the respondent’s intervening illegal reentry, the present motion was filed more than three years after the change in case taw on which he seeks to rely. [FN3] Further, this is not a case in which a change of law affected the respondent’s underlying removability on the pertinent charge (e.g., a case in which the conviction supporting the only removal ground is vacated on its merits). The respondent was found removable based on his 1998 Arizona Attempted Burglary in the Second Degree conviction for which he was sentence to 10 years imprisonment and that conviction has not been vacated. Considering all of these circumstances, we do not find reopening of these proceedings at this. late date is warranted as a matter of discretion.

Accordingly, the respondent’s motion will be denied as untimely filed.

ORDER: The motion is denied as untimely.
David B. Holmes
FOR THE BOARD

FN1. We separately note that the circumstances of this respondent’s proceedings are factually different that those in Bravo-Predroza. Although the respondent herein was initially charged with removability based on his attempted burglary conviction in his first removal proceedings, the Department of Homeland Security (DHS) properly withdrew that charge because the relevant conviction was on direct appeal. The respondent’s first removal proceedings became administratively final when the Board dismissed the respondent’s appeal on October 15, 1999, and the respondent’s appeal in his criminal proceedings was not dismissed until November 2004.

FN2. The respondent was removed after the Board’s May 22, 2006, decision. The respondent did not file a petition for review of that decision.

FN3. While the statutory and regulatory time limits on reopening proceedings obviously do not preclude sua sponte reopening, a long delay in pursuing reopening may be a matter for consideration in the overall exercise of discretion.

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Eric Price
Assistant Chief Counsel

The Department of Homeland Security (“DHS”) appeals from the November 26, 2008, decision of the Immigration Judge terminating removal proceedings against the respondent. The respondent has not submitted a reply brief. The DHS’s appeal will be sustained, the removal proceedings will be reinstated, and the record will be remanded to the Immigration Court for further proceedings.

We review the findings of fact made by the Immigration Judge, including the determination of credibility, under a “clearly erroneous” standard. 8 C.F.R. § 1003.1(d)(3)(i). We review all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion, under a de novo standard. 8 C.F.R. § 1003.1(d)(3)(ii); Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209, 211 (BIA 2010).

The Immigration Judge terminated removal proceedings without prejudice because she determined the DHS failed to prove the respondent received proper notice of the hearing. It is undisputed, however, that the respondent was personally served with the Notice to Appear (NTA). The respondent was informed in the Spanish language of the consequences of failing to appear (Exh. 1h). He was also notified of the statutory address obligations associated with removal proceedings and of the consequences of failing to provide a current address pursuant to section 239(a)(1)(F) of the Immigration and Nationality Act (Act), 8 U.S.C. § 1229(a)(1)(F). Thus, we agree with the DHS that the Immigration Judge erroneously terminated proceedings. See section 240(b)(5) of the Act, 8 U.S.C. § 1229a(b)(5); Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001); Hamazaspyan v. Holder, 590 F.3d 744, 746 n.3 (9th Cir. 2009). In view of the foregoing, the following orders shall be entered.

ORDER: The DHS’s appeal is sustained.

FURTHER ORDER: The Immigration Judge’s November 26, 2008, decision is vacated and the removal proceedings are reinstated.

FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings consistent with this decision and entry of a new decision.
Hugh G. Mullane
FOR THE BOARD

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Ivan R. LopezDeVictoria, Esquire

John Donovan
Assistant Chief Counsel

Notice: Sec. 237(a)(1)(C)(i), I&N Act [8 U.S.C. § 1227(a)(1)(C)(i)] – Nonimmigrant – violated conditions of status

On June 5, 2008, an Immigration Judge granted the respondent’s request for pre-conclusion voluntary departure pursuant to section 240B(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(a)(1), with an alternate removal order to Kenya. Pursuant to the voluntary departure order, the respondent was required to leave by October 3, 2008. On September 10, 2008, the respondent filed a motion to reopen with the Immigration Judge to seek adjustment of status based on his marriage to a United States citizen. [FN1] The Department of Homeland Security (“DHS”) filed a brief in opposition to the motion. On October 2, 2008, the respondent also filed a motion to withdraw his voluntary departure request.

On October 2, 2008, the Immigration Judge denied the respondent’s motion to reopen because the motion was untimely (I.J. at 2). The Immigration Judge also stated that the respondent could not make a prima facie showing that he was eligible statutorily for the relief sought because he did not have an approved visa petition (I.J. at 2). See, e.g., INS v. Doherty, 502 U.S. 314 (1992); INS v. Abudu, 485 U.S. 94 (1988); Matter of Coelho, 20 I&N Dec. 464 (BIA 1992). The respondent, a native and citizen of Kenya, now appeals. The respondent’s request for oral argument is denied pursuant to 8 C.F.R. § 1003.1(e)(7) (2010). The appeal will be dismissed.

A motion to reopen must be filed within 90 days of the date of entry of a final administrative order fo removal. Section 240(c)(7) of the Act, 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2) (2010). Thus, the respondent’s motion to reopen was due by September 3, 2008. As stated previously, the respondent filed his motion on September 10, 2008.

On appeal, the respondent asserts that his motion to reopen was untimely because of “exceptional and compelling circumstances,” namely Hurricane Ike hit Houston, which caused the occupants of Houston and the surrounding areas to evacuate (Respondent’s Br. at 4). The respondent’s argument is not persuasive. Neither the Act nor the regulations provide a general “exceptional and compelling circumstances” exception to the 90-day filing deadline for motions to reopen. See section 240(c)(7)(C)(ii) of the Act, 8 U.S.C. § 1229(c)(7)(C)(ii); 8 C.F.R. §§ 1003.2(c)(3), 1003.23(b)(4). We also note that the respondent filed his motion 3 days before Hurricane Ike made land fall in the Houston area (DHS Br. at 2). See 8 C.F.R. § 1003.1(d)(3)(iv). See also Rivera-Cruz v. INS, 948 F.2d 962, 966-67 (5th Cir. 1991). Hence, the Immigration Judge correctly denied the respondent’s motion to reopen. See 8 C.F.R. § 1003.1(d)(3)(ii). See also Matter of Velarde, 23 I&N Dec. 253 (BIA 2002) (providing that a properly filed motion to reopen for adjustment of status based on a marriage entered into after the commencement of proceedings may be granted in the exercise of discretion if, among other things, the motion to reopen is filed timely).

The respondent also appeals the Immigration Judge’s failure to address the motion to withdraw voluntary departure (Respondent’s Br. at 4-5). The respondent filed his motion to withdraw voluntary departure in light of Dada v. Mukasey, 554 U.S. 1 (2008), in which the Court recognized an alien’s unilateral right to withdraw voluntary departure before the voluntary departure period expires. Although the Immigration Judge did not address the motion to withdraw voluntary departure, the motion, and the respondent’s decision to remain while it was adjudicated, reflects an election to pursue the underlying application for relief rather than voluntary departure. Thus, the voluntary departure request is deemed to have been withdrawn.

Accordingly, the following order will be entered.

ORDER: The appeal is dismissed.
Patricia A. Cole
FOR THE BOARD

FN1. The respondent stated in his motion to reopen that he married Charity Alice Wairimu Marango on March 15, 2008, when she was still a lawful permanent resident (Respondent’s Motion to Reopen, Tab A at 1). According to the respondent, Ms. Marango became a United States citizen on June 12, 2008 (Respondent’s Motion to Reopen, Tab A at 2).

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Ibrahim Ghantous, Esquire

Victoria A. Christian
Deputy Chief Counsel

The respondent, a citizen of Barbados, was ordered removed from the United States in absentia on December 29, 1999, after failing to appear at a hearing. He filed a motion to reopen on November 29, 2001. The Immigration Judge denied it on December 18, 2001, and the Board affirmed that decision on May 8, 2003. The United States Court of Appeals for the Sixth Circuit on August 19, 2004, denied the respondent’s petition for review. On June 25, 2009, the respondent filed a second motion to reopen with the Immigration Judge. The Immigration Judge denied it on August 13, 2009, and this appeal followed. The appeal will be dismissed.

Under 8 C.F.R. § 1003.1 (d)(3), the Board defers to the factual findings of an Immigration Judge, unless they are clearly erroneous, but it retains independent judgment and discretion, subject to applicable governing standards, regarding pure questions of law and the application of a particular standard of law to those facts. Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008).

The Board was last to render a decision in these proceedings. Therefore, any motion to reopen or reconsider was required to be submitted to the Board rather than the Immigration Judge. See Matter of Mladineo, 14 I&N Dec. 591 (BIA 1974); Matter of Anselmo, 20 I&N Dec. 25 (BIA 1989). The Immigration Judge lacked jurisdiction to consider the respondent’s motion. We therefore will dismiss the appeal.

Accordingly, the following order will be entered.

ORDER: The appeal is dismissed.
Jim Hilz
FOR THE BOARD

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Veerat Kalaria, Esquire

The respondent is a male native and citizen of Pakistan who has appealed the Immigration Judge’s decision mailed on May 19, 2010, denying the respondent’s motion to reconsider. The Immigration Judge had previously ordered the respondent removed in absentia on December 14, 2004, and in a decision mailed on April 8, 2010, the Immigration Judge denied the respondent’s motion to reopen. The record will be remanded.

We find that a remand is appropriate since the Immigration Judge makes insufficient findings of fact regarding whether the statutory notice requirements were met under our decision in Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001) (holding that entry of an in absentia order of removal is inappropriate where the record reflects that the alien did not receive, or could not be charged with receiving, the Notice to Appear that was served by mail at an address obtained from documents filed with the DHS several years earlier). See also Matter of S-H-, 23 I&N Dec. 462 (BIA 2002) (finding that because the Board’s fact finding ability on appeal is limited, it is important for Immigration Judges to include in their decisions clear and complete findings of fact that are supported by the record and are in compliance with controlling law). Moreover, the Immigration Judge has not addressed in the first instance whether the respondent has presented sufficient evidence to overcome the weaker presumption of delivery that attaches to notices sent by regular mail. See Matter of M-R-A-, 24 I&N Dec. 665 (BIA 2008). We will therefore remand the record for further fact-finding by the Immigration Judge, and to allow the Immigration Judge to reconsider her decision in light of our precedential authority in Matter of G-Y-R-, supra, and Matter of M-R-A-, supra.

Accordingly, the following order will be entered:

ORDER: The record is remanded to the Immigration Judge for further action or proceedings consistent with the foregoing opinion, and for the entry of a new decision.
Ellen Leibowitz
FOR THE BOARD

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Juan Reyes, Esquire

Notice: Sec. 237(a)(2)(A)(ii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(ii)] – Convicted of two or more crimes involving moral turpitude (not found)

Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] – Convicted of aggravated felony (as defined at section 101(a)(43)(G)) (found)

Lodged: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] – Convicted of aggravated felony (as defined in section 101(a)(43)(F)) (not found)

The respondent appeals from the Immigration Judge’s March 15, 2010, decision pretermitting his application for a waiver of inadmissibility under former section 212(c) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(c). The appeal will be dismissed.

The respondent, a native and citizen of Colombia, was admitted to the United States as a lawful permanent resident on October 24, 1987 (I.J. at 2; Exh. 1). He was convicted on April 18, 1990, in Harris County, Texas, of third-degree theft from a person in violation of the Texas Penal Code, for which he was sentenced to a 2-year term of imprisonment (I.J. at 2; Exhs. 1, 3). Accordingly, the Department of Homeland Security charged him with removability under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii), as an individual convicted of an aggravated felony, and specifically, as an individual convicted of an act of theft or burglary for which a term of imprisonment of at least 1 year was imposed, as outlined at section 101(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G) (Exh. 1).

The Immigration Judge sustained the charge of removability and pretermitted the respondent’s application for a waiver under former section 212(c) of the Act, finding that the respondent was statutorily ineligible for the articulated relief as no comparable ground of inadmissibility exists in section 212 of the Act forming a statutory counterpart to the aggravated felony charge (I.J. at 3-4). See Vo v. Gonzales, 482 F.3d 363, 371 (5th Cir. 2007); Matter of Brieva, 23 I&N Dec. 766, 770-73 (BIA 2005), petition for review den’d, Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir. 2007); Matter of Blake, 23 I&N Dec. 722, 726-29 (BIA 2005), rev‘d sub nom Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007); Matter of Esposito, 21 I&N Dec. 1, 7-8 (BIA 1995).

We agree with the Immigration Judge that the respondent is ineligible for a waiver of inadmissibility under section 212(c) of the Act because section 212 of the Act contains no comparable ground of inadmissibility to section 101(a)(43)(G) of the Act, the category that underpins the sustained aggravated felony charge. See 8 C.F.R. § 1212.3(f)(5); Matter of Brieva, supra, at 771; Matter of Blake, supra. The test for determining whether a ground of removability found in section 237 of the Act has a statutory counterpart in section 212 of the Act “turns on whether Congress has employed similar language to describe substantially equivalent categories of offenses.” See Matter of Brieva, supra, at 771, citing Matter of Blake, supra. No provision in section 212 of the Act establishes inadmissibility for theft or burglary as a category of offenses.

We recognize that a theft offense is ordinarily a crime involving moral turpitude, and thus, such a conviction will generally render an alien inadmissible under section 212(a)(2)(A)(i)(I) of the Act. Nonetheless, that fact does not establish that 212(a)(2)(A)(i)(I) of the Act is a comparable ground of inadmissibility to the removability ground invoked by an aggravated felony as defined at section 101(a)(43)(G) of the Act when applying the analysis used in Matter of Brieva, supra, and Matter of Blake, supra. The wide range of offenses that fall within the scope of section 212(a)(2)(A)(i)(I) of the Act simply does not compare in any way that can be described as substantially equivalent to the narrow category of theft offenses specified in section 101(a)(43)(G) of the Act. See e.g., Matter of Brieva, supra (holding that section 212(a) of the Act does not correspond to the crime of violence ground of removability at 101 (a)(43)(F)); Matter of Blake, supra (holding that section 212(a) of the act does not correspond to the sexual abuse of a minor ground of removability at 101(a)(43)(A)); see also Avilez-Granados v. Gonzales, 481 F.3d 869, 872 (5th Cir. 2007) (reaffirming Matter of Blake and finding the textual link between 101(a)(43)(A) and 212(a)(2)(A) insufficient to satisfy the comparable ground test); Vo v. Gonzales, supra, at 369-70 (finding the textual link between 101(a)(43)(F) and 212(a)(2)(A) insufficient); De La Paz Sanchez v. Gonzales, 473 F.3d 133, 135 (5th Cir. 2006) (same). Accordingly, notwithstanding the respondent’s arguments that his conviction is for a crime involving moral turpitude, we agree with the Immigration Judge that because a waiver under section 212(c) waives the charge on the Notice to Appear and not the underlying crime and because section 101(a)(43)(G) of the Act and section 212(a)(2)(A)(i)(I) of the Act do not share a textual link, the waiver is unavailable in this case (I.J. at 3-4).

To the extent that the respondent asserts that we are not bound by Matter of Blake and Matter of Brieva in light of the approach applied by the United States Court of Appeals for the Second Circuit in Blake v. Carbone, supra, we disagree. There, the Second Circuit adopted a test in which it examined whether the respondent’s conviction would render him inadmissible in determining if a statutory counterpart exists. See id. While the Second Circuit’s approach is distinguishable from the analysis outlined in our precedents in Matter of Blake and Matter of Brieva, the Second Circuit’s offense-based approach has been rejected by the United States Court of Appeals for the Fifth Circuit, the jurisdiction in which this case arises. See e.g., Avilez-Granados v. Gonzales, supra; Vo v. Gonzales, supra; De La Paz Sanchez v. Gonzales, supra. Moreover, our analysis in Matter of Blake and Matter of Brieva was previously adopted expressly by the Attorney General through the promulgation of 8 C.F.R. § 1212.3(f)(5), and that regulation has the force and effect of law on this Board. See Matter of Fede, 20 I&N Dec. 35, 36 (BIA 1989).

Accordingly, the following order will be entered.

ORDER: The respondent’s appeal is dismissed.
Lauri S. Filppu
FOR THE BOARD