U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5/07 Leesburg Pike. Suite 2000
Falls Church, Virginia 20530

DHS/ICE Office of Chief Counsel - BAL

31 Hopkins Plaza, Room 1600
Baltimore, MD 21201

Name: ESCAMILLA - IRAHETA, MILTON

A 039-258-200

Date of this notice: 7/13/2015

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

DOYutL

t1AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Creppy, Michael J.
Malphrus. Garry D.
Mullane, Hugh G.

Userteam: Docket

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Cite as: Milton Escamilla-Iraheta, A039 258 200 (BIA July 13, 2015)

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Berman, Joshua Adam

Blaine L. Gilbert & Assoc., P.A.
200 East Lexington Street
Suite LL
Baltimore, MD 21202

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

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ESCAMILLA - IRAHETA, MILTON

DHS/ICE Office of Chief Counsel - BAL
A039-258-200
31 Hopkins Plaza, Room 1600
WORCESTER COUNTY JAIL 5022 JOYNER Baltimore, MD 21201
ROAD
SNOW HILL, MD 21863

Name: ESCAMILLA - IRAHETA, MILTON

A 039-258-200

Date of this notice: 7/13/2015

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.

DO)VtL c
Sincerely,

t1/Vl..)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Creppy, Michael J.
Malphrus, Garry D.
Mullane, Hugh G.

Userteam: .

Cite as: Milton Escamilla-Iraheta, A039 258 200 (BIA July 13, 2015)

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U.S. pepartment of Justice

Decision of the Board of Immigration Appeals

Executive Offite for Immigration Review

Falls Church, Virginia 20530

File: A039 258 200 - Baltimore, MD

Date:

JUL l 3 20,5

In re: MILTON ESCAMILLA-IRAHETA

APPEAL
ON BEHALF OF RESPONDENT:

Joshua A. Berman, Esquire

ON BEHALF OF OHS:

Lois B. Agronick
Associate Legal Advisor

APPLICATION: Remand
This case is presently before the Board pursuant to the respondent's appeal of the
Immigration Judge's May 28, 2014, decision. On June 8, 2015, the respondent filed a motion to
remand. On June 16, 2015, the Department of Homeland Security ("DRS") filed a
non-opposition to the respondent's motion to remand. The motion will be granted and the record
will be remanded.
We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.1(d)(3)(i). We review de novo all other issues
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003.l{d)(3)(ii).
The respondent contends that his January 13, 1998, conviction for theft is no longer an
aggravated felony because the Maryland criminal statute is not divisible. While the OHS does
not oppose a remand, it does not agree with the respondent's legal basis for the motion. Thus,
we will remand this case for consideration of the respondent's eligibility for cancellation of
removal for certain lawful permanent residents. We take no position as to whether the
respondent is ultimately eligible for or deserving of cancellation of removal. See Matter of
L-0-G-, 21 I&N Dec. 413, 422 (BIA 1996). However, we note that the respondent has the
burden of establishing eligibility for cancellation of removal, which includes demonstrating that
he has not been convicted of an aggravated felony. See section 240A{a)(3) of the Act, 8 U.S.C.
1229b(a)(3); see also section 240(c)(4)(A)(i) of the Act, 8 U.S.C. 1229a(c)(4)(A)(i) (stating
that it is the alien's burden to establish eligibility for relief from removal); 8 C.F.R. 1240.8(d)
("If the evidence indicates that one or more grounds for mandatory denial of the application for
relief may apply, the alien shall have the burden of proving by a preponderance of the evidence
that such ground do not apply."). Accordingly, the following order will be entered.
ORDER: The motion is granted, and the record is remanded for further proceedings
consistent with the foregoing opinion.

Cite as: Milton Escamilla-Iraheta, A039 258 200 (BIA July 13, 2015)

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IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BALTIMORE, MARYLAND

In the Matter of

)
)
)
)

MILTON ESCAMILLA-IRAHETA
RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:
APPLICATIONS:
ON BEHALF OF RESPONDENT: ANDRES C. BENACH
ON BEHALF OF OHS: JENNIFER E. PIATESKI

ORAL DECISION OF THE IMMIGRATION JUDGE

Respondent is a citizen and national of El Salvador who was placed in removal
proceedings when a Notice to Appear dated June 25, 2013, was filed with the
Immigration Court alleging that the respondent violated Section 237(a)(2)(A)(iii) and
237(a)(2)(A)(ii) in two counts. The respondent was charged with having been convicted
in District Court for Montgomery County, Maryland, for theft of fess than $300 on
January 13, 1998, and convicted again in Montgomery County, Maryland, on May 16,
2013, for false or misleading information leading to fraud, an insurance code violation,
and on January 13, 1998, convicted in District Court of Montgomery County of the

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May 28, 2014

File: A039-258-200

offense of theft under $500 and that these crimes did not arise out of a single scheme of
misconduct.

and 3, but denied allegations 4, 5, 6, 7, 8, 9 and 10. The Government submitted

conviction documents, which the Court considered, and following the submission of the
conviction documents, the respondent changed his plea to one of conceding all three
charges. Thus, the Court finds that the Government has shown by clear and convincing
evidence that the respondent is removable as charged.
Subsequently, the respondent sought to have approval of a U visa. The issue
arose as to whether the respondent needed a waiver and the CIS declined to grant a
waiver. The counsel for the respondent argues that this Court has jurisdiction to grant a
waiver, which would then allow his client to be able to obtain an approval of a U visa
from CIS.
Apparently, there is no case law except for a Seventh Circuit decision which the
respondent's counsel argues is instructive in this particular case. Both parties
submitted briefs on the issue and the Court has considered the briefs and finds that the
Court does not have jurisdiction to consider a waiver and, therefore, there being no
application for relief before the Court, the Court finds the respondent removable as
charged.
ORDER
IT IS HEREBY ORDERED that the respondent be removed from the United
States to El Salvador.

DAVIDW. CROSLAND
Immigration Judge
A039-258-200

May 28, 2014

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The respondent appeared at a Master Calendar and admitted allegations 1, 2

CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE DAVID

MIL TON ESCAMILLA-IRAHETA

A039-258-200
BALTIMORE, MARYLAND
was held as herein appears, and that this is the original transcript thereof for the file of
the Executive Office for Immigration Review.

JANE W. GILLIAM (Transcriber)

FREE STATE REPORTING, lnc.-2
JULY 10, 2014
(Completion Date)

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W.CROSLAND, in the matter of: