U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 Leesburg Pike, S11ile 2000 Falls C/111rc:ll, Virgi11i<I 22041

Laurence L. Smith, Esq. Simon & Smith, PC Sovereign Bank Bldg., #215, 2 S. Orange St. Media, PA 19063

OHS LIT.Nork Co. PrisonNOR 3400 Concord Road York, PA 17402

Immigrant & Refugee Appellate Center | www.irac.net

Name: GERMAN, ANTONY ARIEL

A099-232-178

Date of this notice: 2/11/2011

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Guendelsberger, John

Cite as: Anthony Ariel German, A099 232 178 (BIA Feb. 11, 2011)

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

Board of Immigration Appeals Office ofthe Clerk

51071.eesburg l'ike. Suite 2000 Falls C/111rcl1, Virginia 22041

GERMAN, ANTONY ARIEL {A099 232 178) 175 PIKE COUNTY BOULEVARD LORDS VALLEY, PA 18428

OHS LIT./York Co. Prison/YOR 3400 Concord Road York, PA 17402

Immigrant & Refugee Appellate Center | www.irac.net

Name: GERMAN, ANTONY ARIEL

A099-232-178

Date of this notice: 2111/2011

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a courtesy. Your attorney or representative has been served with this decision pursuant to 8 C.F.R. 1292.5(a). If the attached decision orders that you be removed from the United States or affirms an Immigration Judge's decision ordering that you be removed, any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of the decision. Sincerelv.

DOWtL Ct1AAJ
Donna Carr Chief Clerk

Enclosure

Panel Members: Guendelsberger, John

Cite as: Anthony Ariel German, A099 232 178 (BIA Feb. 11, 2011)

l
'

U.S. Department of Justice Executive Office for Immigration Review Falls Church, Vuginia 22041

Decision of the Board of Immigration Appeals

File: A099 232 178 - York, PA

Date:

FEB I ! 2011

In re: ANTONY ARIEL GERMAN a.k.a. Anthony German

IN

BOND PROCEEDINGS

APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Laurence L. Smith, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Jeffrey T. Bubier Senior Attorney

APPLICATION: Change in custody status

The respondent, a native and citizen of the Dominican Republic, has appealed from the Immigration Judge's bond order dated November 9, 2010, denying his request for a change in custody status for lack of jurisdiction. In the bond memorandum the Immigration Judge explained the basis for his determination that the respondent is subject to mandatory detention under section 236(c) of the Immigration and Nationality Act, 8 U.S.C. 1226(c). The record will be remanded to the Immigration Judge. This Board reviews an Immigration Judge's findings of fact, including findings as to the credibility of testimony, under the"clearly erroneous" standard. See 8 C.F.R 1003. l(d)(3)(i);Mattero/R-S H-, 23 I&N Dec. 629 (BIA 2003); Matter of S-H-, 23 l&N Dec. 462 (BIA 2002). This Board reviews questions of law, discretion, and judgment, and all other issues raised in an Immigration Judge's decision de novo. See 8 C.F.R. 1003. l(d)(3)(ii). The record indicates that the respondent was admitted to the United States as a nonimmigrant on August 5, 2001, and that he adjusted his status to that of lawful permanent resident on October 18, 2005. The record further indicates that the respondent was convicted of two theft offenses on September 14, 2009. Based on the foregoing convictions, the Department of Homeland Security (the "DHS") charged the respondent as removable under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. 1227(a)(2)(A)(iii) as having been convicted of an aggravated felony as defined in sections IOI(a)(43)(G) and (U), 8 U.S.C. 1101(a)(43)(G) and (U). In addition, the respondent was charged under section 237(a)(2)(A)(i) of the Act as an alien convicted of a crime involving moral turpitude committed within five years after admission for which a sentence of one year or more may be imposed. The Immigration Judge did not rely on the grounds of removability under section 237(a)(2)(A)(iii) of the Act in his determination that the respondent is subject to mandatory detention. Indeed, it does not appear that the respondent's theft convictions constitute aggravated felony convictions as the record confirms that the respondent's criminal sentences were vacated and the respondent was reCite as: Anthony Ariel German, A099 232 178 (BIA Feb. 11, 2011)

A099 232 178 sentenced to a period of imprisonment of less than one year. Rather, and relying on Matter ofShanu, 23 I&N Dec. 754 (BIA 2005), the Immigration Judge determined that the respondent had not established that the DHS is substantially unlikely to establish the charge of removability under section 237(a)(2)(A)(i) of the Act, that (according to the Immigration Judge) subjects the respondent to mandatory detention. See Matter of Joseph, 22 I&N Dec. 799, 806 (BIA 1999); 8 C.F.R 1003.19(h)(2)(ii). However, the charge under section 237(a)(2)(A)(i) of the Act does not implicate the mandatory detention provisions of section 236(c) of the Act as the respondent was re sentenced to a period of imprisonment of less than one year. Compare section 236(c)(l)(C) of the Act (providing for the custody of an alien "deportable under section 237(a)(2)(A)(i) of the Act on the basis o f an offense for which the alien has been sentence[d] to a term of imprisonment of at least I year") with section 237(a)(2)(A)(i)(II) of the Act (providing that an alien is chargeable under this section where, in relevant part, the alien "is convicted of a crime for which a sentence of one year or longer may be imposed"). As the respondent was not sentenced to a term of imprisonment of at least one year, the respondent is not subject to mandatory detention based on the charge under section 237(a)(2)(A)(i) of the Act.1 Accordingly, the following order will be entered.
ORDER: The record is remanded to the Immigration Judge for further proceedings.

Immigrant & Refugee Appellate Center | www.irac.net

We note that during the pendency of this appeal we issued our precedent decision in Matter of Alyazju, 25 I&N Dec. 397 (BIA 2011) (holding that an alien's conviction for a crime involving moral turpitude triggers removability under section 237(a)(2)(A)(i) of the Act only if the alien committed the crime within 5 years after the date of the admission by virtue of which he or she was then present in the United States, overruling in partMatterofShanu, supra). Accordingly, even assuming the respondent's original sentence had not been vacated and reduced to less than one year, the respondent is not chargeable under section 237(a)(2)(A)(i) of the Act as his 2009 theft offense was committed in excess of 5 years after his 200 I admission.
1

Cite as: Anthony Ariel German, A099 232 178 (BIA Feb. 11, 2011)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT 3400 CONCORD ROAD, YORK, PA SUITE 2 17402

Laurence L. Smith, Media, IN PA 19063

Esq. #215

Immigrant & Refugee Appellate Center | www.irac.net

2 South Orange Street,

THE MATTER OF ANTONY ARIEL

FILE A 099-232-178

DATE:

Nov 9,

2010

GERMAN,

UNABLE TO FORWARD

NO ADDRESS PROVIDED THIS DECISION

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE.

IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION. SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL. YOUR NOTICE OF APPEAL, MUST BE MAILED TO: ATTACHED DOCUMENTS, OFFICE OF THE CLERK P.O. BOX 8530 FALLS CHURCH, VA 22041 AND FEE OR FEE WAIVER REQUES BOARD OF IMMIGRATION APPEALS

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. 8 U.S.C. THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, SECTION 8 U.S.C. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c)(6), IF YOU FILE A MOTION YOUR MOTION MUST BE FILED WITH THIS COURT: IMMIGRATION COURT 3400 CONCORD ROAD, SUITE 2 YORK, PA 17402

TO REOPEN,

OTHER:

TI order.
DISTRICT COUNSEL, 3400 CONCORD ROAD YORK, PA, 174020000

COURT CLERK IMMIGRATION COURT CC: C/O YORK PRISON FF

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT YORK, PENNSYLVANIA IN THE MATIER OF: GERMAN, Antony Respondent ON BEHALF OF RESPONDENT: Laurence Smith, Esq. Motion: Release on Bond Ruling on Motion Respondent, through counsel, seeks release on a custody bond. The motion in this regard will be denied. Respondent bases his request for release from custody on this court's order of termination dated November 2, 2010. Respondent stresses the overwhelming number of family ties and other equitable factors in requesting release from ICE custody. However, in a case such as this, the court's authority to direct the release of an alien based on termination of proceedings requires a specific finding that the government is "substantially unlikely" to prevail on the appeal of the underlying termination order. Matter of Joseph, 22 l&N part. Dec. 799 (BIA 1999). Of course, reaching such a conclusion is always a bit perilous on the court's ) IN REMOVAL PROCEEDINGS ) ) ) ) File # A 099-232-178

Immigrant & Refugee Appellate Center | www.irac.net

)
ON BEHALF OF DHS Jeffrey Bubier Senior Attorney

In this case, there is a reasonable disagreement concerning the issue of "admission vs. adjustment." The issue is all the more opaque given that the Board's primary decision on the issue, Matter of Shanu, 23 l&N Dec. 754 (BIA 2005), was reversed by the Fourth Circuit in Aremu v. DHS, 450 F.3d 578 (41h Cir. 2006). Moreover, the court is aware that the government has requested the Board to reconsider it's Shanu holding pertaining to this issue. issued any further clarification. While the court remains of the persuasion that termination was in order, given the above The Board, to date, has not

factors, the court cannot conclude that the government is "substantially unlikely" to prevail in any hearing.

appeal it takes. Therefore, the court must deny respondent's request for a bond redetermination

W A Durling
. .

Immigration J November 9, 20IO