oliverio millan-villegas, a091 874 177 (bia jan. 28, 2011)

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Edwards, Shirley WhiteThe E dwards Law Firm P.C4416 East Ponce De Leon Ave.Clarkston, GA 30021

Name: MILLAN-VILLEGAS, OLIVERIO

m

Executive Oce r Immigraton Review

Board ofImigration AppealsOce ofthe Clerk

lg k, 1 as rc, Vrgna

HS/ICE Office of Chief Counsel SC146 CCA RoadLumpkin, GA 31815

A091-874177

Date of this notice 1/28/2011

nclosed is a copy of the Board's decision and order in te above-rerenced case.

nclosure

Panel Members:Cole, aricia A.

Sincerly

Donna CaCief Clerk

Cite as: Oliverio Millan-Villegas, A091 874 177 (BIA Jan. 28, 2011)

For more unpublished BIA decisions, visit www.irac.net/unpublished



MILLAVILLEGAS, LIVERIA 09187417746 CCARADLUMPKI GA 385

ame MILLAVILLEGAS LIVERI

m

Executve Oce r mmgraton Revew

Boad of gao AppalsOc ofh Clk

507 lesb1rg Pik. Site Fas Ch1m:h ia 24

HS/CE fice f Chief Cunse SC146 CCA RadLumpkin GA 31815

A091874177

Date f this ntice: 1/28/2011

Enclosed is a copy of the Board's decisio in the above-referenced case. This copy is beingprovided to you as a coutesy Your attorey or representative has been seed with thisdecisio pursuant to 8 CFR § 1292S(a) If the attached decisio orders that you be removedfrom the United tates or affirms a mmigratio Judges decision ordering that you beremoved, any petition for review of the attached decisio must be fied with and received by theappropriate cout of appeas withi days of the date of the decision

Encosure

Pane MembersCoe Patrca A

v

D ca

Donna Carr Chef Cer




U.S. Deaen JusceExecutive Oce r Immigaion R�view

Fa Chuch, Virginia

ile: A09 874 177 - Lumpkin, GA

Decision ofhe Boad ofmmiaion Appeals

Date JAN 2 8 201

In re OIVERIO MILANVILLEGAS aa Jose Headez aa Oscar Ramirezaa Oiver Mia

EMOVAL PROCEEDNGS

PEA

O BEHAF OF ESPONENT Shirley White Edwards, Esqire

O EHL O DHS

CHARGE

Abby Smi

Assistat Chief Cousel

otice Sec 237(a)(2)(A)(iii), & Act [8 USC § 1227(a)(2)()(iii)] -Convicted of agavated oy uder sectio 10(a)(43)(G)

APPLCATIO Teiatio

he Departmet of Hmelad Security ("DHS) appeas a igratin Jdge's October 3,2010, decisio gtig the respdets mti to teriate his remova prceedigs Therespondet has ed a brief i oppition to he appea The DHSs appeal will be dismissed

The DHS chaeges the Immigration Judge's deteiatio at the respndet had ot beenconvicted of a aggravated loy the oese because e setece imposed was les thn year Te DHS cotends that te respodent's sentence, comprised of a term of 4 yes cement with he respondet to seve 6 mot i priso and e remaider o probatio, satised the requirementr "a te of imprsomet of at east one ye r an oese t constite a aggravated oyunder section 101(a)(43)(G) of the mmigratio ad ationality ct, 8 SC § 101(a)(43)(G)

e reviewa igratio Judges cual deterinations, including credibility determiatios,r clear error See United States v Natonal Assn. ofReal Estate Boar 339 US 485, 495 (950)(a ctua dig is not "cleary erneous merey because tere are tw pemissibe views f theevdence) Te Bar reviews n questis law, dicreti, judet, a a ther issuein appeas m decisions fmmiatio Judge Matter ofA-S-B-, 24 I&N Dec 493 (BA 2008)

The record reect tat he respondent pled guilty t ad was cnvicted f e by receivigstolen prope in vioation of Georgia Atated Code sectio 16-8-7 IJ at 12; Plea Coloquyat 4-15; Respodets Mtio to Teriate Atachmet C, Chargig Documet; Judgmet adSentence Drig e plea coqy, e tria udge articulate the etence as "u years to seesix mths i custdy d he rest n probatin Plea Colloquy at 15 he Judgmet ad




A091 874 177

Setecg dcumet ctas a e f preprted text readg "he sad dedat s hereyseteced t cemet r a perd f, wed y a a e whch s hadwte "4 yearst serve 6 mths as t Cut 1 hat dcumet rher states "HA up servce f 6 msf he ave setece, the remader f setece may e served prat Id A August 320 0, "Order t Car Setece ssued y the tra curt nun pr tun t the rga setecg

date, expas that the respdet was seteced t cemet sey r 6 mths wth the aacef he 4year setece mpsed t e seed prat

here s a tes etwee the udgmet ad Setecg dcmet, whch dcates that therespdet was seteced t "cemet f 4 years wth 6 mths t e sered, ad the setece

pruced at the pea cquy as cared y the nunpr tun rder f 4 years wth 6 mths t e served custdy twthstadg we d cear er the mmgrat Judges ctuadg that the respdet was seteced t a term f mprsmet f ess tha year We ccur that a r readg f the setecg dcumet ad the "Order t Car Setece shws that thera curt rdered a ped f cemet f 6 mths As the DHS pts ut, the Act dees aterm f mprsmet as cudg "the perd f carcerat r cemet rdered y a cutf aw regardess f ay suspes f the mpst r execut f that mprsmet r setece whe r part Sect 0a)48)B) Athugh the tra curt mpsed a uryear setece the respdet, the pea cquy ad the susequet "Order t Ca Setece c thatthe term f cemet was mted t 6 mths The tra cu expaed that the cemetcmpet f e 4-yea setece was 6 mths, s ths s t a setece where ay prt wassuspeded hus, the respdets cvct des t qua as a agavated y uder sect0a)43)), the se chage f remvaty

he DHS assers that he tra cus carcat rder has eect r mmgrat purpsesas t des t md the respdets rga setece he DHS rther cteds that the rder

s u ad vd uder erga aw he DHS des t det, ad we are uaware f, ayauthry that precudes a mmgrat udge m csderg a ta curt rder that caresrather tha mdes, a setece urher, the Bad has authrty t wegh what types f rders a state ta cut may ssue

We d ass t dstr the mmgrat udges decs t temate these prceedgsAccrdgy the wg rder w e etered

ORDER he DHSs appea s dsmssed

1 t s t uey that cmpetg a th a preprted setecg theshd creates dcuy ceary artcatg a setece that devates m that erpate aguage

2Cite as: Oliverio Millan-Villegas, A091 874 177 (BIA Jan. 28, 2011)



UNITED STATES DEPARTMENT OF JUSTICEXECUIVE OFFICE FOR IIGTION REVIEW

ITED STATS IMMIGTION COURT

Atlanta, Georgia

File No: A 091 874 177 October 13, 2010

In the Matter of

OLIVERIO MILL-VILLEGAS IN REMOVAL PROCEDINGS

Respondent

CHARGES:

APPLICATIONS:

ON BEHALF OF RESPONDNT: ON BEHALF OF DHS:

Shirley Edwards Abby Smith

OR DECISION OF THE IIGIO JG

On the basis of the respondent's admissions, the Court fids

removability has been established by clear, convincing,

unequivocal evidence. The respondent is not a native or citizen

of the United States but a native and citizen of exico, who

entered illegally but later adjusted to lawful permanent

residence under 24(a) of the Act, March 28, 1996 Howeve, on

July , 2007 in Decatur, Georgia, he was convicted of theft by

receiving stolen property for which he was sentenced to ten

years The record before this Court shows that the respondent

was convicted of theft by eceiving stoen poperty, four years

to serve six months as to count oe 12 moths to seve d six

1



onths on counts three and four All counts then to run

concurrent Okay That was nvolvng the two counts of drvng

on a suspended or revoked lcense gvng a false nae brth

certfcate and one count of the drvng suspended under a false

lcense was sx months He was convcted of volatng Georga

Controlled Substances Act and sentenced to 12 months See

xhbt 2

A revew of the convcton record the Court fnds

reovablty has been establshed by clear convncng

unequvocal evdence The respondent s not a natve or ctzen

of the nted States but a natve and ctzen of Mexco Despte

adjustng to lawful peranent resdent n 16 on July 3 2007

n Decatur Georga he was convcted of theft by recevng stoln

property and sentenced to confneent of four years Respondent

through counsel attempted to have �hs case revewed by the

sgnng court The sgnng court there s an order to clarfy

sentence ssued n ths matter on August 13 2010 nunc pro tun

to the 3rd of July 2003 As such t clarfes the sentence s

follows negotated plea of theft by recevng stolen property

count one n volaton of Georga Controlled Substances Act

sdeeanor possesson of arjuana less than 28 grams drvng

under a _st�penad l5 cou u+ a o_ l s�

of four years wth the frst sx months to be served n

confnement and the balance three years to be of sx onths

entrely on probaton a total of 12 onths wth the frst sx

A 01 874 177 2 Octobr 13 200



months served n confnement the balance of robton he

Court acceted negotated lea and ts ntenton to negotte

should be reflected on the sentencng sheet. he defendnt s

and s hereby sentenced to four years th the frst sx months

to be served n confnement the balance of these three years

sx months entrely on robaton months wth sx months to

be served n confnement and the balance entrely on robaton

and four years of the terms, the sentence to reman the same s

reflected n negotaton. he moton to clarfy dd not or does

not now mose any confnement whatsoever on the defendant bove

the sx months reously mentoned hs s the most nrtfuy

drawn decson of a loer court. He frst sentenced to four

years and then t s a sentence, and breaks t out n a balane

t aears that a far readng of ths s that the resondent s

sentenced to sx months confnement and three yers and sx

months robaton hat s a far readng of ths and as suh

deste ts nartful alcaton wll agree wth the counsel for

the resondent and termnate these roceedngs l reserve

on behalf of the Government

t aears that no greater sentence of sx months term of

confnement. t aears that, to the satsfaton of the Court

that i� as not seed to fO yer coneent to be sred

a orton and then the remander the clarfton ndatd te

sentence to onfnement as sx months no greter than sx

months As such t s not n aggravated feony o as to t

A 9 874 77 3 October 3,



NA ths would ternate proceedngs However snce ths

ndvdual s stll detaned y ternaton of these proceedngs

gven the fact that he has a drug offense ay have to also be

dealt wth But you can talk that out wth the Governent b

as to ths flng do not beleve that have any alternatve

ust accept under (ndscernble) the decson of the court

No atter how personally deterne t s nartfully drawn I

thnk the ntent of the court was y readng s at least

consstent

fnd that the Governent therefore cannot eet the

aggravated felony requreent of a sentence to confneent of a

year or ore on a theft related offense. Proceedngs are

ternated

A 9 874 77

WLL A CADYgraton JUDG

4 October 2010

oliverio millan-villegas, a091 874 177 (bia jan. 28, 2011)

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