U.S. Department of Justice Executive Office for Immigration Review Board ofImmigration Appeals Office of the Clerk 5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 2204/

Hyman, Marshal E., Esq. Marshal Hyman and Asoociates, PC 3250 West Big Beaver, Suite 529 Troy, MI 48084

DHSIICE Office of Chief Counsel - DET 333 Mt. Elliott St., Rm. 204 Detroit, MI 48207

Name:

AI

Date of this notice: 9/30/2015

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

OGn.ItL Cwvu Donna Carr Chief Clerk

Enclosure Panel Members: Greer, Anne J. Pauley, Roger Wendtland, Linda S.

Userteam: Docket

u.s. Department of Jnstice

Decision of the Board ofImmigration Appeals

Executive Office for Immigratiou Review Falls Church, Virginia 22041

. Detroit, MI

File:

Date:

SEP 3 02015

Inre: IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Marshal E. Hyman, Esquire ON BEHALF OF DHS: Assistant Chief Counsel CHARGE: Notice: Sec.

Sec.

237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] Convicted of aggravated felony (not sustained) 237(a)(2)(B)(i), I&N Act [8 U.S.C. § 1227(a)(2)(B)(i)] Convicted of controlled substance violation

APPLICATION: Cancellation of removal

This case was last before the Board on December 12, 2014, when we sustained the respondent's appeal of the Immigration Judge's July 2, 2014, decision denying his untimely motion to reopen his proceedings to apply for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a), and remanded the record. The Department of Homeland Security ("DHS") now appeals the Immigration Judge's May 7, 2015, decision finding it did not meet its burden of proof in establishing removability under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii), and granting the respondent's application for cancellation of removal.! The appeal will be dismissed. In our December 12, 2014, decision, we found that the respondent should be allowed the opportunity to apply for cancellation of removal under section 240A(a) of the Act based on a subsequent interpretation of the law that declared the offense of transportation of a controlled substance, in violation of California Health and Safety Code section 113 52(a), to be a divisible statute. In addition, we noted the prior Immigration Judge's error in relying on the sentence enhancement under California Health and Safety Code section 11370.4(a)(I), for transporting an amount exceeding one kilogram, to find the respondent's offense involved "trafficking" concluding that such a fmding is an impermissible inference based on conduct rather than an element of the offense. We remanded the record to the Immigration Judge to determine, under ! During the remanded proceedings, venue was changed from Los Angeles to Detroit.

the modified categorical approach, whether the DHS met its burden in establishing the respondent's removability as an aggravated felon and whether the respondent's 1998 conviction renders him ineligible for cancellation of removal. Upon remand, the Immigration Judge concluded that the DHS did not meet its burden under section 237(a)(2)(A)(iii) of the Act because the record of conviction does not establish whether the respondent's conviction was for "personal use" or "trafficking." In his decision, the Immigration Judge concluded that he could not use the sentence enhancement and relied solely on the evidence in the record of conviction. In addition, the Immigration Judge granted, in his discretion, the respondent's application for cancellation of removal. On appeal, the DHS contends that the Immigration Judge erred in not finding the respondent's conviction to be an aggravated felony rendering him removable as charged and ineligible for cancellation of removal. Here, the DHS acknowledges that the conviction was for "transportation" and it does not appear to argue that the statute is divisible under Descamps as to whether transportation was for sale or for personal use. Therefore, under the Supreme Court's "presume the least of the acts criminalized" analysis in Moncrieffi v. Holder, 133 S.Ct. 1678 (2013), even though the respondent's conviction involved over a kilogram of cocaine, it only involved transportation for personal use and not transportation for sale or distribution and thus it did not involve "trafficking." See id. Further, even if the DHS is correct in its contention that the criminal court's sentence enhancement, based on its finding that the offense involved over a kilogram of cocaine, warrants treating the amount involved as an "element" of the offense, it does not justifY the conclusion that "trafficking" is an "element" of the offense. As we noted in our previous decision, the inference that "trafficking" is an element, as predicated on the amount that was transported, would be based on the respondent's conduct rather than the offense elements and such an inference is impermissible under MoncriejJe. Therefore, we will not disturb the Immigration Judge's decision finding the DHS did not meet its burden in establishing that the respondent has been convicted of an aggravated felony nor his decision granting the respondent's application for cancellation of removal. Accordingly, the DHS's appeal will be dismissed.

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