patrick cadet, a041 584 694 (bia jan. 23, 2015)

8/9/2019 Patrick Cadet, A041 584 694 (BIA Jan. 23, 2015)

1/10

Jef

frey

B

Ru

bin E s

qu ire

Law

O ffic

e o

f

Je

ffrey B

R ubin

PC.

One

C ente

r Plaza

Suite

230

Bosto

n MA

02108

N

am e:

CADET

PATR

IC K

U

S

epa

rtmen

t of

Ju

stice

Exe

cutive O

ff ice f

or Im m

ig ratio

n Revie

w

Boar

d

of

mm

ig rati

on App

eals

O

ffice of

he C

lerk

5 07

Le es

burg Pike

Suite 2000

Falls Chu

rch Virgin

ia 20530

F

EDERA

L DE T

. CENT

ER-O A

KDAL

E 2

P.O.

Box 11

28

O AKDA

LE L

714 6

3

A 041-5

84 -694

Date

of

this no t ic e : 1

23/201

5

E

nclose d

is a co

py of th

e Boar

d s deci

sion an

d order

in the

above-r

eferenc

edcase

.

Encl

osu re

Panel

Membe

rs :

A

dkins-B

lanch

Charles

K

Since r

ely,

[

on

nL

J

Donna

C a rr

C hie

f Clerk

Userte

am Do

cket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Patrick Cadet, A041 584 694 (BIA Jan. 23, 2015)


2/10

CADET PATRICK

A041-584-694

C/OWARDEN

SLCC 3843 STAGG AVE

BASILE LA 70515

Name: CADET PATRICK

U.S. Department of Justice

Executive Office for Immigration Review

Board o mmigration Appeals

Qffice

o he Clerk

5107 leesburg Pike. Suite 2000

Falls Church Virginia 20530

FEDERAL DET. CENTER-OAKDALE 2

P.O.

Box

1128

OAKDALE LA

71463

A 041-584-694

Date

of this notice:

1/23/2015

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.S(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:

Adkins-Bianchi Charles

K

Sincerely,

crutL

c

1 / \A

Donna Carr

hief Clerk

Userteam:



3/10

U

.S.

ep artm

en t

o Justice

E

xecut ive

Office fo

r Immig

rat ion R

eview

Falls Chu

rch, V ir

ginia 205

3 0

File:

A041

584 69

4 - O ak

dale, L

ouis ian

a

In

re:

P A T R

I C K C

ADET

I

NR E M

O V A L

P R O C

E E D I N

G S

A P P E A

L

D ecis

ion

of

h

e Board

of

Im m i

grationA

ppeals

Date

:

JAN

3

2 15

ON

BEHA

LF OF

R

E S P O

N D E N T

: Jef

frey B.

Rubin,

Esquire

ONB E H A

L F

OF

DHS:

Lorra i

ne

L

G

riffin

A s

sis tant

Chief

C

ounsel

C H A R G

E :

N o

tice:

Sec.

237(a)(

2)(A)(i

ii),

l N

Act [

8 U.S.C

. l 22

7(a)(2)

(A)(iii)

] -

C o

nvic ted

o

f

agg

ravated

felony

under s

ect ion

101(a)

(43)(B)

o

f

the

A c t

Sec.

237(

a)(2)(B

)(i),

l N A ct

[8 U .S

.C. 12

27(a)(2

)(B)(i)

] -

C o

nvic ted

of con

trolled

substan

ce viol

a t ion

A P P

LIC A T

IO N :

Term i

nat ion

The respondent has filedan appeal from an Immigra tion

Judg e's

November 12, 2014, decision.

The Im

.migra

tion Ju

dge de

nied th

e respo

ndent ' s

termin

ation r

eques t

based

on a pu

tative

claim t

o

Uni te

d State

s ci t ize

nship;

and fo

und the

respon

dent re

m ovab

le, as c

harged

, based

o

n

his

record

o

f

convic

tion (E

xh. 5, T

ab B)

as to his

2008 F

ederal c

ontroll

ed subs

tance v

iolat ion

s and d

rug-tra

ffickin

g

c

onvict

ions.

1

The resp

onden

t ' s appe

al will

be dism

issed.

T h

e B oa

rd revi

ews

anI m m i

grat ion

Judge

's

find

ings of

fact,

inc ludi

ng find

ings a

s to th

e

credi

bility

of testim

ony, u

nder

the c le

ar ly er r

oneous

stand

ard.

See 8 C

.F.R.

1003 .

l(d)(3)(

i) ;

atter o

R-S-H-

23 I

NDec. 6

29 (B I

A 2003

);

atter o S

-H- 23

I

N

D

ec. 462

(BIA

2002).

Th

e

B

oard r

eviews

questio

ns o

f law, di

scretion

, and j

u d g m e

nt and

all oth

er issue

s in an

appea

l of an

Im m

igratio

n J

udge's

deci

s ion

denovo.

e

e

8 C

.F.R.

1003 .

l (d) (3)

(i i) .

1

T he

record

reflect

s that o

n Dec

ember 1,

2008, t

he resp

ondent

was

co

nvic ted

, upon

a plea

of guilty

,

in

the Uni

ted Sta

tes Dist

r ict Cou

rt for t

he Dis t

rict of

M

assach

usetts ,

for th

eoffens

es of C o

nspirac

y to

Posses

s with

I

ntent to

Distr i

bute an

d to D i

str ibute

O xyco

done,

in viola t

ion o

f 2 U.S.

C . 8

41, 846

;

C ons

piracy t

o Poss

ess w

ith Inten

t to Dis

tr ibute

and to

Distr ib

ute Co

caine in

violat

ion of

2 U .S.

C .

841(a)

(l ), 846;

a n d A i

d ing an

d A be t

ting, in

violat io

n

of 8U.S.C

. 2, a

nd sent

enced t

o a term

of

i

mpr iso

nment

of 87 m

onths (

Exh. 5 ,

Tab

B)

.



4/10


5/10

A 41

58469

4

of h

is 200

8 federa

l conv

ictions

fo rcon

tr olled

substan

cevio

lations

and dr

ug-traf

ficking

aggra

vated

felo

ny of

fenses,

as de

fin ed u

nder s

ections

101(a

)( 43)(B

)

o

f t

he Act

, base

d on h

is reco

rd of

co

nvictio

ns(Exh

. 5, T a

b B), w

agre

e wi

t

t

heIm m

ig ratio

n Judg

e (l.J. a

t 3-4)

that the

respon

dent is

re

m ovab

le ,as c

harged

.

e

e s

ection

240(c)

(3)(A)

of he A

ct, 8 U

.S .C.

1229(

c)( 3)(A

).

A ccord

in gly,

th ea pp

ealwil

l bed is

m issed

.

O RD E

R: T

heappe

alis d

is m isse

d.



6/10

U N IT

ED ST

A T ES

D E PA

R T M E

N T OF

JU

STICE

E X E

C U T I

V E O

FFICE

FOR

IM

MIGR

ATIO

N

R

EVIE

W

IM

MIGR

ATION

CO

URT

OAKD

ALE L

OUISI

ANA

IN TH M

TTE

ROF

IN

REM

OVAL

PR O C

E E D IN

G S

Patri

ckC AD

ET

)

)

)

)

)

Fi le

N o.: A

041-58

4-694

Re

spond

en t

C

HA R G

ES: Sec

tion 23

7(a)(2)

(A )(iii)

of he

Imm ig

ra tion a

ndN at

ional i ty

Act, a

s an ali

en, w h

o

at an

yt ime

a fter a

dm issio

n,has

been co

nvicted

of an

aggrav

ate d fel

ony as

defined

in sect

io n 101

(a )(43)

(B) o

f

t

heAct ,

an offe

nse rel

ating to

the i l l

ic it traf

fi cking

i na

controll ed substance (as described in section 102

of

th e Controlled Substa nces

A

ct ), inc

lu ding

a drug

tr affick

in g cri

m e (as

defined

in sec

ti on 92

4(c)

of Title

18

of he U n

it ed Sta

te s Cod

e).

Sectio

n 237(a

)( 2)(B

)( i) o

f

t

he Im m

ig ratio

n and N

ationa

li ty Ac

t, as an

alien,

who

at

any tim

eafter

admis

sio n, ha

s been

convic

te d

of

a

violat

io n o

f (o r a co

nspirac

y

or at

te m pt t

o viola

te ) any

law o

r regul

ati on

of a Sta

te ,the

U nited

States

, or a

fore

ig n cou

ntry re

lat ing t

o a con

trolled

substan

ce(as d

efined

in Sec

ti on 10

2 of

th e

Co

ntrolle

d Subs

ta nces

Act), o

th er tha

n a sin

gle off

ense in

volvin

g posse

ssion f

or

o

n e 's ow

nuse o

f30 g

ra ms or

less

of mariju

ana.

O

N B E

H A LF

OF R E

SPO N

D EN T

:

Jeffrey

B. Ru

bin, Es

q.

One Ce

nter Pl

aza, Ste

. 230

Bo

ston, M

A 0210

8

ONB

EHAL

F OF

T

HED

E PA R

T M E N

T :

A

ssistant

Chie

f C ounse

l

O H

S/ICE

/L itiga

ti on U

nit

101

0East

Whatle

yRoad

Oakda

le , L

A 71463

D ECIS

IO N OF

T H E

IMM IG

R A TI

O N

JUDGE

I. P R O C

E D U R A

L

FACT

UAL HISTOR

Y

O n Ap

ri l 8, 2

014, th

e U nite

d State

s Depa

rt m ent o

fH om

eland

Securit

y , Im m

ig ration

and

Cu

stoms E

nforce

m ent (

D H S )

person

ally se

rv ed Re

sponde

nt with

aNot i

ceto A

ppear (

NTA

),

alleging that he is a nativ

e and

cit izen

of Hai

ti w ho

was ad

m itted

to th e

United

States

at N

ew

York

, ew

Y ork on

M ay

14, 19

88 as

a lawfu

l perm

anent r

esident

unmar

ried ch

il do

f

a

n alien

reside

nt. Th

e DHS

fu rther

alleged

that R

espond

ent wa

s conv

ic ted

on D e c e

m ber

1 2008

inthe

Uni

te d Sta

te s Dis

tr ict Co

urt, Di

str ict of

M assa

chuset

ts for: C

onspir

acy to

Posses

s w ith

Intent to

Di

stribute

and to

Distri

bute O

xycodo

nein

vio latio

n of

se

ction 8

46

of Title

2 of

th

e Uni t

ed

S

ta tes C

ode; C

onspira

cy to

Possess

with I

ntent t

o Distr

ib ute a

nd to D

istribu

te Oxy

codon

e in

vi

olation

of sect

io n 84

of Tit

le

2

of

the U

nit ed S

ta tes Co

de; Co

nspirac

yto Po

ssess w

ith Int

ent

to

Distrib

ute a nd

toDist

ri bute C

ocaine

inviol

ation

of sectio

n 846

of

Title

2

o

f heUni

te dStat

es

-

1 -


7/10

Code; Conspiracy

to

Possess with Intent

to

Distribute and

to

Distribute Cocaine in violation of

section 84l(a)(l) of Title 21 of the United States Code; and Aiding and Abetting in violation of

section 2 of Title

18

of the United States Code. Lastly, the DHS alleged that Respondent was

sentenced to

87

months of imprisonment. Based on these allegations, the OHS charged

Respondent

as

removable pursuant

to

section 237(a)(2)(A)(iii), as defined in section

101(a)(43)(B), and section 237(a)(2)(B)(i) of the Immigration and Nationality Act ( Act ).

On May

16

2014, Respondent, through counsel, submitted a motion to terminate removal

proceedings. At the hearing on May 28, 2014, the Court reset the case in order to give the DHS

time

to

respond to the Respondent's motion. The DHS submitted a response on June

13

2014,

and Respondent subsequently submitted a reply to the DHS's submission. On June 30, 2014, the

Court rendered a written decision denying Respondent's motion

to

terminate.

At the hearing on July 16, 2014, Respondent, through counsel, admitted part of allegation

2 and all of allegation 3. He denied all other allegations contained

in

the NTA

as

well

as

the

removability charges. The Court reset the case for a contested master hearing. At the August 20,

2014 hearing, the DHS submitted documents and the court reset the case for a decision on

removability. On September 24, 2014, the Court rendered a written decision, sustaining the

allegations in the NTA and finding Respondent removable as charged.

On

October 24, 2014, Respondent submitted a motion for an administrative order

of

removal. At the hearing on November 10 2014, Respondent, through counsel, declined to

designate a country

of

removal. The Court designated Haiti as the country of removal.

Respondent indicated that he would not be seeking any form of relief.

II

APPLICABLE

L W

ANALYSIS

A. Citizenship Claim

n

alien born abroad is presumed

to

be an alien and bears the burden

of

establishing his

claim

to

U.S. citizenship by a preponderance of credible evidence. See Matter

of

Tiierina

Villareal,

13

I&N Dec. 327 (BIA 1969) (citing Matter of A-M-, 7 l&N Dec. 332, 336 (BIA

1956)); see also Matter of Hines, 24 l&N Dec. 544, 546 (BIA 2008). Respondent asserts that he

is

a U.S. citizen pursuant to former section 32l(a)(3) of the Act, which requires the

naturalization of the mother if the child was born out of wedlock and the paternity of the child

has not been established by legitimation. He contends that he was born out of wedlock. As

evidence, he submitted affidavits from his mother and uncle, which assert that his parents were

never married. See Exh. 2 at Tabs A, C. The Court finds that Respondent submitted sufficient

documentation to establish that his parents were never legally married and thus he was born out

of wedlock.

Respondent further contends that his paternity was not established by legitimation

because the appearance

of his father's name on the birth certificate is not conclusive proof

of

legitimation as defined under Haitian law. See Exh. 2 at 4. The Board of Immigration Appeals

( BIA ) has recognized the effect of the Haitian Presidential Decree

of

January 27, 1959 and has

held that persons born out ofwedlock in Haiti subsequent to January 27, 1959 and acknowledged

by their natural fathers are deemed to be legitimate children under section lOl(b)(l)(A) of the

Act. Matter of Richard,

18

l&N Dec. 208 (BIA 1982). Under the Civil Code

of

Haiti, as

amended by the 1959 Presidential Decree, acknowledgment may be made through a special


8/10


9/10


10/10

Ac

cordingly the

following ord

ers shall be iss

ued:

ORDERS

:

T

IS HE

REB Y OR DE

RED

that

al

l of the allega

tions contain

ed in the NTA

are SUS

TAINED.

T

IS HEREB

Y OR DER E

D

that

the

removability

charge

under

section

237 a) 2) A) iii)

of

the Act

s

SUSTAINE

D.

T

IS HER EB Y

F U R T H E R O

RDERED that

the remov

ability charg e

unde r

section 23

7 a) 2) B) i)

of

the Act

s

SU

STAINED.

T

IS

HEREBY FU

R T H E R O R

DERED

that

Respondent

be REMOV

ED

from th

eUnited Sta

te s to Haiti.

1

2 21J1f

rry eattna

nn Sr.

ate

Im migrati

on Judge

- 5

-

patrick cadet, a041 584 694 (bia jan. 23, 2015)

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