Oliver C. Ins lee, Esquire Law Offices of Tahir Mella 1814 Callowhill Street 1st Floor Philadelphia, PA 19130

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 Leesburg Pike~ Suik' 2000 Falls Church, Virginia 22041

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

Name: BELLIARD TEJADA, JUAN RAM .•. A 044-824-573

Date ofthis notice: 12/13/2012

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

Enclosure

Panel Members: Pauley, Roger

Sincerely,

0Gn.n.L CWvV Donna Carr Chief Clerk

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Cite as: Juan Ramon Belliard Tejada, A044 824 573 (BIA, Dec. 13 2012)

BELLIARD TEJADA, JUAN RAMON A044-824-573 YCP 3400 CONCORD ROAD YORK, PA 17402

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals O.ffice of the Clerk

5/07 Leesburg Pike, Sm"te 1000 Falls Church. Virginia 2204/

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

Name: BELLIARD TEJADA, JUAN RAM ... A 044-824-573

Date ofthis notice: 12/13/2012

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.

Enclosure

Panel Members: Pauley, Roger

Sincerely,

Oon.n.L. CtVvV Donna Carr Chief Clerk

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Cite as: Juan Ramon Belliard Tejada, A044 824 573 (BIA, Dec. 13 2012)

• U.S. Department of Justice Executive Offihe for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia '22041 ·

File: A044 824 573- York, PA Date:

In re: JUAN RAMON BELLIARD TEJADA a.k.a. Juan R. Belliard

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Oliver C. Inslee, Esquire

ON BEHALF OF DHS:

CHARGE:

Jeffrey T. Bubier Senior Attorney

Notice: Sec. 237(a)(2)(C), I&N Act [8 U.S. C. § 1227(a)(2)(C)] -Convicted of firearms or destructive device violation

DEC 13 2012

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 IOI(a)(43)(E)(ii))

APPLICATION: None

The respondent appeals from the Immigration Judge's September 4, 2012, decision. In that decision the Immigration Judge found, inter alia, that the respondent was removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony within the meaning of section I 0 I (a)( 43){E) of the Act, 8 U.S.C. § IIOI(a)(43)(E), a firearms offense "described in" 18 U.S.C. § 922(g)(l). The appeal will be dismissed.

The record shows, and the respondent admitted, that, on April 25, 2007, pursuant to a plea of guilty, he was convicted in the Municipal Court of Philadelphia County, Pennylvania, of the offense of corruption of minors, in violation of 18 PA. CONS. STAT.§ 6301(a)(l); the maximum sentence for this offense was 5 years imprisonment and he was sentenced to a period of probation. The record also shows, and the respondent admitted, that, on March IS, 2010, he was convicted, pursuant to a plea of guilty, in the Court of Common Pleas of Philadelphia County, Pennsylvania, of several offenses, including possession of a firearm, prohibited, in violation of

1 This provision states that whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court, commits a misdemeanor of the first degree.

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Cite as: Juan Ramon Belliard Tejada, A044 824 573 (BIA, Dec. 13 2012)

• A044.824 5'73

IS PA. CONS. STAT. § 6I05(a)(l); 2 the maximum sentence for this offense was 5 years imprisonment and he was sentenced to a period of probation. (Tr. at I2)

According to the Immigration Judge, the respondent's 20 I 0 Pennsylvania conviction was for "an offense described in" IS U.S.C. § 922(g)(l ), an "aggravated felony" under section IOI(a)(43)(E)(ii) of the Act, 8 U.S.C. § IIOI(a)(43)(E)(ii). Under IS U.S.C. § 922(g)(J), it is "unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."

On appeal, the respondent does not dispute that he was convicted in 2007 of the offense of corruption of minors, which carried a maximum sentence of 5 years imprisonment, or that he was subsequently convicted of possession of a firearm, prohibited, in violation of I 8 PA. CoNs. STAT. § 6I05(a)(I). Rather, he maintains that the Immigration Judge erred in concluding that, by reason of his conviction for the offense of possession of a firearm, prohibited, the respondent has been convicted of an aggravated felony as defined in section IOI(a)(43)(E)(ii) of the Act. He asserts that, as he was only sentenced to probation for his 2007 offense, he was not found guilty of a "a crime punishable by imprisonment for a term exceeding one year," a requirement under I 8 U.S.C. § 922(g)(l). He argues that, as he did not possess a firearm "in and affecting" commerce, his 20 I 0 firearms offense covers firearms offenses which have no nexus to interstate commerce and does not meet the nexus requirement in 18 U.S.C. § 922(g)(J).

This Board held in Matter of Vasquez-Muniz, 23 J&N Dec. 207 (BIA 2002), a precedent decision, that state and foreign statutes need not contain a nexus to interstate commerce in order to proscribe an offense "described in" I8 U.S.C. § 922(g)(I). We specifically held that the alien's crime, possession of a firearm by a felon in violation of section I202I(a)(l) of the CALIFORNIA PENAL CODE, was "described in" section IOI(a}(43)(E)(ii) of the Act, and was an aggravated felony, regardless of whether it contained the federal jurisdictional element of affecting interstate commerce contained in I 8 U .S.C. § 922(g)(l). The respondent disagrees with our decision in Matter of Vasquez-Muniz, but it is a decision which we are bound to apply. The respondent's appellate arguments do not persuade us that this precedent was wrongly decided, see, e.g., Spacek v. Holder, 688 F.3d 536, 538-9 (8th Cir. 20I2), and cases cited, and therefore we conclude that section 6I 05(a)(l )'s lack of an interstate commerce element does not preclude the offense defined by that statute from qualifYing as an aggravated felony under section IOI(a)(43)(E)(ii) of the Act.

The respondent's argument that he was not found guilty of "a crime punishable by imprisonment for a term exceeding one year," is also unavailing. His 2007 conviction for corruption of minors, in violation of 18 PA. CONS. STAT. § 630I(a)(l), was for an offense

2 This provision states that a person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.

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Cite as: Juan Ramon Belliard Tejada, A044 824 573 (BIA, Dec. 13 2012)

A044' 824 573

punishable as a first degree misdemeanor. Under Pennsylvania law, more specifically 18 PA. CONS. STAT. § 1104(1), a person who has been convicted of a misdemeanor of the first degree may be sentenced to imprisonment for a definite term which shall be fixed by the court and shall be not more than 5 years. Although the respondent was actually sentenced to a period of probation, as the maximum possible sentence of imprisonment for his offense was 5 years, we conclude that he was found guilty of a "a crime punishable by imprisonment for a term exceeding one year," a requirement under 18 U.S.C. § 922(g)(J). See United States v. Hill, 539 F.3d 1213 (lOth Cir. 2008)

Thus, we agree with the Immigration Judge that the respondent's conviction for possession of a firearm, prohibited, in violation of 18 PA. CONS. STAT. § 6105(a)(l), was for an offense described in 18 U.S.C. § 922(g)(l), thereby making it an aggravated felony under section IOI(a)(43)(E)(ii) of the Act. In conclusion, the Department of Homeland Security (the DHS) has demonstrated, by clear and convincing evidence, that the respondent is removable under section 237(a)(2)(A)(iii) of the Act as an alien convicted of an aggravated felony. Furthermore, the respondent does not seek nor has he indicated his apparent eligibility for any relief from removal. Accordingly, we need not address the remaining arguments presented on appeal; the appeal will be dismissed.

The following order shall be issued.

ORDER: The appeal is dismissed.

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Cite as: Juan Ramon Belliard Tejada, A044 824 573 (BIA, Dec. 13 2012)

• • : .• I

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT YORK, PENNSYLVANIA

File: A044-824-573 September 4, 2012

In the Matter of

JUAN RAMON BELLIARD TEJADA IN REMOVAL PROCEEDINGS

RESPONDENT

CHARGES: Section 237 (a) (2) (C); Section 237 (a) (2) (A) (i)

APPLICATIONS:

ON BEHALF OF RESPONDENT: OLIVER INSLEE, ESQUIRE

ON BEHALF OF DHS: JEFFREY T. BUBIER, ESQUIRE

ORAL DECISION OF THE IMMIGRATION JUDGE

The Respondent is a 28-year-old male Alien, native and

citizen of the Dominican Republic. He was served the Notice to

Appear on July 19, 2012. He appeared in court today with

counsel of record, conceded the allegations on the Notice to

Appear, conceded the singular ground of 237(a) (2) (C), denied the

aggravated felony on the I-261 of August 28, 2012.

The Respondent stands convicted of allegation number

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• • five. This is a class A misdemeanor under Pennsylvania criminal

law. A class A misdemeanor could carry a term of imprisonment

of five years even though the Respondent was only sentenced to

probation and no jail term. The Court is not permitted to

consider the fact of his in i&CL punishment imposed by the Court

of Common Pleas. The language in aggravated felony is defined

in INA Section lOl(a) (43) (E) (ii) for a firearm offense relates

to a person convicted in any court of a crime punishable by a

prison term exceeding one year. Accordingly, the Respondent's

maximum imprisonment could have been punished by a term

exceeding one year. Consequently, the Court must find the

aggravated felony ground of removal to be valid and is hereby

sustained.

Accordingly, and based upon the foregoing, the

following orders are hereby entered.

ORDERS

IT IS HEREBY ORDERED that the Respondent is hereby

ordered removed from the United States to the Dominican

Republic.

Immigration Judge

A044-824-573 2 September 4, 2012

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• CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE

WALTER A. DURLING, in the matter of:

JUAN RAMON BELLIARD TEJADA

A044-824-573

YORK, PENNSYLVANIA

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.

sev/mab

SARAH E. VANDERVORT {Transcriber)

YORK STENOGRAPHIC SERVICES, Inc.

October 15, 2012

{Completion Date)

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