RODRIGUEZ-CARRILLO

Interim Decision #3413

In re Jose Antonio RODRIGUEZ-CARRILLO, Respondent

File A30 247 851 - Oakdale

Decided October 12, 1999

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

A remand of the record for issuance of a full and separate decision apprising the parties

of the legal basis of the Immigration Judge’s decision is not required under Matter of A-P-,

22 I&N Dec. 3375 (BIA 1999), where the respondent had notice of the factual and legal basis

of the decision and had an adequate opportunity to contest them on appeal, the uncontested

facts established at the hearing are dispositive of the issues raised on appeal, and the hearing

was fundamentally fair.

Pro se

Lorraine L. Griffin, Assistant District Counsel, for the Immigration and Naturalization

Service

Before: Board En Banc: DUNNE, Vice Chairman; SCIALABBA, Vice Chairman;

VACCA, HOLMES, HURWITZ, VILLAGELIU, FILPPU, MATHON, GUEN-

DELSBERGER, GRANT, MOSCATO, and MILLER, Board Members.

Dissenting Opinion: COLE, Board Member, joined by SCHMIDT, Chairman;

HEILMAN, ROSENBERG, and JONES, Board Members.

GRANT, Board Member:

In an order dated November 18, 1998, an Immigration Judge found the

respondent removable as charged and ordered him removed from the United

States to Peru. The respondent has appealed. The appeal will be dismissed.

The pertinent history of the case is as follows. The respondent was

admitted to the United States on or about December 7, 1975, as a lawful

permanent resident. He was convicted on or about April 24, 1995, in a New

York criminal court, of criminal possession of stolen property in the third

degree and was sentenced to a term of imprisonment of 1 to 3 years. On

August 18, 1998, the Immigration and Naturalization Service issued a

Notice to Appear (Form I-862) charging that the respondent was subject to

removal under section 237(a)(2)(A)(iii) of the Immigration and Nationality

Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996), as an alien convicted of

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an aggravated felony as defined in section 101(a)(43)(G) of the Act, 8

U.S.C. § 1101(a)(43)(G) (Supp. II 1996) (a theft offense, including receipt

of stolen property, or burglary offense for which the term of imprisonment

is at least 1 year). The Notice to Appear was filed with the Immigration

Court on September 10, 1998.

The respondent admitted the allegations set forth in the Notice to

Appear. In addition to admitting his conviction and term of imprisonment

as noted above, the respondent conceded that he is not a native or citizen of

the United States, but is a native and citizen of Peru. The Service did not

offer any documentary evidence on the issue of removability, but rested on

the respondent’s pleadings. The Immigration Judge did not ask the respon-

dent whether he admitted or denied his removability under the aggravated

felony charge, as is required by 8 C.F.R. § 240.10(c) (1998). Instead, the

Immigration Judge determined from the pleadings that the respondent was

subject to removal and was ineligible for any relief from removal.

According to the transcript of the hearing, the Immigration Judge explained

to the respondent that his conviction for criminal possession of stolen prop-

erty, and sentence of 1 year or longer, was an aggravated felony that ren-

dered him subject to removal and ineligible for any relief. However, the

Immigration Judge entered a summary decision that gave no reasons for his

conclusions.

On appeal, the respondent contends that he was not advised by the

criminal court judge of the immigration consequences of a guilty plea. The

respondent asserts that he is eligible for relief from removal under section

212(c) of the Act, 8 U.S.C. § 1182(c) (1994), and maintains that it is uncon-

stitutional to find that he is not eligible for relief from removal under that

section. The respondent does not, however, challenge the form of the order

issued by the Immigration Judge. Moreover, he does not argue that he was

unable to understand the basis of the decision below.

I. THE IMMIGRATION JUDGE’S DECISION

The Immigration Judge did not render a full and separate decision,

either orally or in writing, apprising the parties of the legal basis of his deci-

sion. The entry of a summary decision pursuant to 8 C.F.R. §§ 240.12(b)

and 240.13(c) (1998) was inappropriate in the instant case because the

respondent did not concede removability as charged. See Matter of A-P-, 22

I&N Dec. 3375 (BIA 1999).

As we stated in Matter of A-P-, supra, the separate oral or written deci-

sion of the Immigration Judge stating the reasons for his or her conclusions

is the means by which an alien is notified of the basis of the Immigration

Judge’s order. Furthermore, should an appeal be taken from that order, the

Immigration Judge’s decision is the means by which the Board is apprised

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of the legal basis of the order. Id. Thus, the regulations set forth at 8 C.F.R.

§§ 240.12 and 240.13 serve to ensure that the hearing conducted by the

Immigration Judge is fundamentally fair. Moreover, a decision that lacks

reference to the controlling law might not provide an adequate opportunity

to the alien, who in many cases is unrepresented, to contest the Immigration

Judge’s determinations on appeal. As a result, we may be left without ade-

quate means of performing our primary appellate function of reviewing the

basis of the Immigration Judge’s decision in light of the arguments

advanced on appeal. Id.

However, a review of the record created by the Immigration Judge in

the instant case establishes that the hearing was fundamentally fair, that the

respondent had notice of the factual and legal basis of the Immigration

Judge’s decision, and that the respondent had an adequate opportunity to

contest the Immigration Judge’s determinations on appeal. The respondent

does not assert otherwise. Moreover, the uncontested facts established at the

hearing are dispositive of the issues raised by the respondent on appeal, and

we are able to perform our appellate function in this matter.

It is evident from the record that at the conclusion of the hearing con-

ducted on November 18, 1998, the respondent was aware that he had been

ordered removed from the United States based on a criminal conviction that

also foreclosed relief from removal under the applicable provisions of the

Act. In fact, the respondent has never indicated any confusion regarding the

reasons for the Immigration Judge’s entry of an order of removal in his case.

Rather, the arguments pressed by the respondent on appeal are that he was

not advised of the immigration consequences of a guilty plea and that he is

eligible for relief from removal under section 212(c) of the Act.

Under these circumstances, we do not believe that a remand for entry

of a separate decision in light of our holding in Matter of A-P-, supra, either

is mandated by the decision in that case or would add to the record any sub-

stantive information that is not readily apparent from the materials present-

ed on appeal. In this regard, we note that the respondent’s brief on appeal

does not contest that he was convicted of criminal possession of stolen

property and sentenced to a term of imprisonment of 1 to 3 years, facts also

admitted on the record below.

The situation in Matter of A-P- was different from that presented here.

In that case, the Immigration Judge pretermitted the respondent’s applica-

tion for relief from removal under section 241(b)(3) of the Act, 8 U.S.C §

1231(b)(3) (Supp. II 1996), finding that the respondent was ineligible as a

result of having been convicted of a particularly serious crime. As we noted,

however, because the alien’s conviction and sentence did not mandate such

a finding under section 241(b)(3)(B) of the Act, further fact-finding and

analysis, beyond that revealed on the pleadings, was necessary. “The regu-

lations do not confer authority to the Immigration Judges to issue a sum-

mary decision when further fact-finding or analysis is necessary to resolve

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an issue that remains after the respondent has admitted to the factual alle-

gations and charges of removability.” Matter of A-P-, supra, at 8 (citing 8

C.F.R. §§ 240.10(c) and 240.12(b)).

Here, although the respondent did not concede removability, there was,

as discussed below, no factual or legal issue remaining once the respondent

admitted the factual allegations regarding his conviction. Although the

order of the Immigration Judge did not comply with the regulations that we

interpreted and applied in Matter of A-P-, the lack of compliance in these

circumstances does not warrant the remedy of a remand that was clearly

required by the circumstances in Matter of A-P-. The respondent does not

seek this remedy, and imposing it would further delay the adjudication of

his appeal without serving any useful purpose. Our judgment in this regard

is further influenced by the fact that the Immigration Judge’s decision in

this matter preceded our clarification in Matter of A-P- of the appropriate

standards under which an Immigration Judge may enter a summary deci-

sion. Thus, our decision in this case should not be considered to diminish

the precedential value of Matter of A-P- or to establish a broad exception to

the regulatory requirements regarding the issuance of summary decisions.

II. ANALYSIS OF THE RESPONDENT’S ARGUMENTS ON APPEAL

We turn now to the merits of the respondent’s appeal. The dispositive

facts in this matter are uncontested. The respondent is not a citizen or

national of the United States. Furthermore, he was convicted of criminal

possession of stolen property and was sentenced to a term of imprisonment

of 1 to 3 years. No further evidence need be received as to these facts that

were admitted during the pleading. See 8 C.F.R. § 240.10(d).

A conviction for the offense of criminal possession of stolen proper-

ty with a sentence of at least a year is a conviction for an aggravated

felony under section 101(a)(43)(G) of the Act. Therefore, the respondent

is removable from the United States pursuant to section 237(a)(2)(A)(iii)

of the Act, as an alien convicted of an aggravated felony at any time after

admission.

The respondent argues on appeal that he was not advised of the immi-

gration consequences of his guilty plea. Notwithstanding, it is clear that an

Immigration Judge and the Board cannot entertain a collateral attack on a

judgment of conviction, unless that judgment is void on its face, and cannot

go behind the judicial record to determine the guilt or innocence of an alien.

See Matter of Madrigal, 21 I&N Dec. 323 (BIA 1996). Further, the fact that

a defendant is not advised of the collateral immigration consequences of his

plea does not amount to a denial of due process that would vitiate the plea.

United States v. Osiemi, 980 F.2d 344, 349 (5th Cir. 1993).

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In addition, the respondent’s assertion that he should have been deemed

eligible for section 212(c) relief is misplaced. In this regard, we note that

legislation is not invalid due to retroactivity if it does not impair vested

rights or violate an express constitutional prohibition. It is well established

that Congress has the power to order the deportation of aliens whose pres-

ence in the United States is deemed hurtful. Bugajewitz v. Adams, 228 U.S.

585, 592 (1913). An alien residing in this country has no vested right to

remain. Rather, he is subject to the power of Congress to enact legislation

that might prohibit or limit his stay in this country. See Marcello v. Bonds,

349 U.S. 302, 314 (1955).

The provision of the Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”), that is cited by the

respondent on appeal is irrelevant to the disposition of this matter. The

respondent is in removal proceedings, which were created and are governed

by the provisions of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat.

3009-546 (“IIRIRA”). The presumption against retroactive application of

a statute that was enunciated in Landgraf v. USI Film Products, 511 U.S.

244 (1994), is inapplicable where Congress has expressly provided that a

statute is retroactive. Sections 304(b) and 309(a) of the IIRIRA, 110 Stat. at

3009-597 and 3009-625, expressly eliminated section 212(c) of the Act in

all cases commencing on or after April 1, 1997. Moreover, section 309(a)

of the IIRIRA expressly provides that the amendments to the Act effected

by Title III-A of the IIRIRA shall be effective in all proceedings commenc-

ing after April 1, 1997. As previously noted, the Notice to Appear was

issued on August 18, 1998, in this case. Therefore, the arguments tendered

by the respondent on appeal regarding the retroactivity of statutes are inap-

plicable in the context of the instant removal proceedings.

The respondent also argues that it would be unconstitutional to find that

he is not eligible for relief from removal under section 212(c) of the Act.

However, neither the Immigration Judge nor this Board may rule on the

constitutionality of the statutes that we administer. See, e.g., Matter of C-,

20 I&N Dec. 529, 532 (BIA 1992).

III. CONCLUSION

Inasmuch as the record in the instant case establishes that the

Immigration Judge’s explanations of the hearing provided the respondent

actual notice of the factual and legal basis of the order of removal, and as

the respondent has never indicated that he cannot adequately pursue his

appeal from the order of removal due to the Immigration Judge’s failure to

issue a full and separate decision in this matter, we find that a remand for

issuance of another decision is unnecessary to preserve the respondent’s

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due process rights. Moreover, the uncontested facts established at the hear-

ing are dispositive of the respondent’s removability, and the arguments on

appeal can be adequately addressed based on the record of the hearing cre-

ated by the Immigration Judge. In this regard, we find that our ability to

adequately carry out our primary appellate function has not been hindered

by the Immigration Judge’s failure to issue a full and separate decision in

this matter. Finally, as previously noted, neither the Immigration Judge nor

this Board may address questions regarding the constitutionality of the Act.

Accordingly, the respondent’s appeal will be dismissed.

ORDER: The appeal is dismissed.

DISSENTING OPINION: Patricia A. Cole, Board Member, in which Paul

W. Schmidt, Chairman; Michael J. Heilman, Lory Diana Rosenberg, and

Philemina M. Jones, Board Members, joined

I respectfully dissent. The instant case should be remanded with

instructions to the Immigration Judge to issue a written decision or render

an oral decision in compliance with the regulations at 8 C.F.R. §§ 240.12(a)

and 240.13 (1998). I disagree with the majority that the issuance of a full

and separate decision setting forth the reasons for the Immigration Judge’s

order is unnecessary to preserve the respondent’s due process rights.

The form “Order of the Immigration Judge” dated November 18, 1998,

indicates that it is a summary decision pursuant to 8 C.F.R. § 240.12(b). As

the majority acknowledges, the entry of a summary decision is inappropri-

ate in the instant case because the respondent did not concede removability

as charged. Nevertheless, despite the lack of a reasoned decision in this

case, in violation of the regulations, the majority finds that a remand is not

necessary to ensure the fundamental fairness of the respondent’s hearing. I

disagree.

The majority finds that the Immigration Judge erred by failing to com-

ply with the requirements of the regulations at 8 C.F.R. §§ 240.12 and

240.13, but that the respondent has neither alleged nor established that the

Immigration Judge’s error prejudiced his ability to pursue his appeal.

Although no prejudice to the respondent is evident on the record created by

the Immigration Judge, we will never know whether the Immigration

Judge’s failure to render a full and separate decision, setting forth his deter-

mination as to removability and his reasons for finding the respondent inel-

igible for any relief, operated to foreclose the respondent from raising addi-

tional legal arguments on appeal.

One issue that could have been raised is whether the respondent’s con-

viction for criminal possession of stolen property in the third degree con-

stitutes a conviction for an aggravated felony as defined in section

101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. §

1101(a)(43)(G) (Supp. II 1996) (a theft offense, including receipt of stolen

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property). The respondent cannot raise an issue if there is no Immigration

Judge decision stating the basis for finding the respondent’s conviction to

be an aggravated felony.

Furthermore, in the absence of a reasoned decision by the Immigration

Judge, the majority has now written the initial legal decision in this matter

setting forth the rationale for removability. The majority is not reviewing

the Immigration Judge’s decision for legal sufficiency or error but, rather, is

providing an immigration decision in the first instance. Thus, the majority

has usurped the role delegated by the Attorney General to the Immigration

Judge.

Moreover, the failure by the respondent to raise the absence of a deci-

sion that is in compliance with the regulation at 8 C.F.R. § 240.12(a) as an

issue on appeal is not dispositive regarding whether the respondent has been

prejudiced by the Immigration Judge’s error. In fact, in cases determining

whether an alien’s hearing was fundamentally fair and not in violation of his

due process rights, the United States Court of Appeals for the Fifth Circuit,

the jurisdiction in which this case arises, has stated that an Immigration

Judge’s decision must include a discussion of the evidence and an enumer-

ation of findings regarding deportability. See Animashaun v. INS, 990 F.2d

234, 238-39 (5th Cir.), cert. denied, 510 U.S. 995 (1993); Equan v. INS, 844

F.2d 276, 279 (5th Cir. 1988). In the instant case, the Immigration Judge

has violated a regulation that was promulgated to protect a fundamental

right derived from the Constitution, the right to notice of the reasons for the

decision. Failure to comply with a regulation affecting fundamental rights

raises significant due process concerns. See generally Waldron v. INS, 17

F.3d 511, 518 (2d Cir.), cert. denied, 513 U.S. 1014 (1994); Montilla v. INS,

926 F.2d 162, 167 (2d Cir. 1991) (citing Morton v. Ruiz, 415 U.S. 199

(1974)).

As this Board indicated in Matter of A-P-, 22 I&N Dec. 3375 (BIA

1999), a decision that lacks reference to the controlling law hinders an

alien’s opportunity to contest the Immigration Judge’s determinations on

appeal. Indeed, it is not entirely clear that the respondent was fully aware of

the reasons for the Immigration Judge’s entry of a removal order. As the

majority notes, the respondent tendered arguments on appeal that are irrel-

evant to the legal basis for the decision in this case. Therefore, I would find

that the Immigration Judge’s failure to render a proper decision in this mat-

ter has resulted in the denial of a meaningful opportunity to litigate the

issues on appeal and constitutes prejudice that requires that the proceedings

be remanded.

As a final matter, I find it to be of little import in determining that this

case should be remanded to the Immigration Judge for entry of a proper

decision that the Immigration Judge’s November 18, 1998, removal order

preceded our decision in Matter of A-P-, supra. The regulations at 8 C.F.R.

§§ 240.12 and 240.13 were controlling at the time of the Immigration

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Judge’s order, and the concept of entering a reasoned decision at the con-

clusion of an immigration hearing is not a novel one.

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