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COSME, ANTHONY OLIVOJE-7619/A042-271-0321111 ALTAMONT BLVDFRACKVILLE, PA 17931

Name: COSME, ANTHONY OLIVO

U.S. Department of JusticeExecutive Office for Immigration ReviewBoard of mmigration AppealsOffice ofthe Clerk5107 Leesburg Pike, Suite 2000Falls Church, Virginia 22041

DHS LIT./York Co. Prison/YOR3400 Concord RoadYork, PA 17402

A 042-271-032

Date of this notice: 2/27/2013

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

EnclosurePanel Members:Adkins-Blanch, Charles K.

Sincerely,DcrutLCtVLAJ

Donna CarrChiefClerk

LulsegeSUserteam: Docket

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U.S. Department of Justice ..Executht.e Office for Immigration ReviewFalls Church, Virginia 22041

File: A042 271 032- York, PennsylvaniaIn re: ANTHONY OLIVO COSMEIN REMOVAL PROCEEDINGSAPPEALON BEHALF OF RESPONDENT: Pro seON BEHALF OF bHS: Jon D. StaplesAssistant Chief CounselCHARGE:

Decision ofthe Board of Immigration Appeals

Date:FEB 2 7 2013

Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S .C . 1227(a)(2)(A)(iii)] -Convicted of aggravated felony under section 101(a)(43)(F) ofthe ActSec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)]-Convicted of aggravated felony under section 101(a)(43)(G) ofthe Act

APPLICATION: ReliefThe respondent, a native and citizen of the Dominican Republic, and a lawful permanentresident of he United States since his admission as an immigrant on December 29, 1989, has filedan appeal from an Immigration Judge's November 7, 2012, decision. In that decision, theImmigration Judge found the respondent removable, as charged, based on his admissions (Tr. at 2)as to his 2009 Pennsylvania convictions 1 for Robbery and Burglary, which the Immigration Judgefound to constitute aggravated felony offenses, as defined under sections 101(a)(43)(F) and (G) ofthe Immigration and Nationality Act, 8 U.S.C. 110l(a)(43)(F) and (G), respectively. Therespondent's appeal will be dismissed. The respondent's request to proceed on appeal in formapauperis is granted under 8 C.P.R. 1003.8(a)(3). See Matter ofChicas, 19 I&N Dec. 114 (BIA1984).The Board reviews an Immigration Judge's findings of fact, including findings as to thecredibility oftestimony, under the "clearly erroneous" standard. See 8 C.P.R. 1003.1(d)(3)(i);Matter ofR-S-H-, 23 I&N Dec. 629 (BIA 2003); Matter ofS-H-, 23 I&N Dec. 462 (BIA 2002).The record reflects the respondent was convicted on August 31 , 2009, upon a plea ofguilty, inthe Court of Common Pleas ofLehigh County, Commonwealth of Pennsylvania, ofthe offense ofRobbery, in violation of PA. STAT. ANN. TIT. 18 370l(A)(1)(iv), and sentenced to a term of

imprisonmentofnot less than 12 months and not more than 59 months. The record also reflects therespondent was convicted on August 31, 2009, upon a plea of guilty, in the Court of CommonPleas of Lehigh County, Commonwealth of Pennsylvania, of the offense ofBurglary, in violationofPA. STAT. ANN. TIT. 18 3502(a), and sentenced to a term of imprisonment ofnot less than 24months and not more than 59 months, to be served concurrently with his Robbery conviction.

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A042 271 032The Board reviews questions of law, discretion, and judgment and all other issues in an appeal ofan immigration Judge's decision de novo. See 8 C.F.R. 1003.1(d)(3)(ii).

The respondent does not dispute that he freely admitted that he was convicted of a "crime ofviolence" and a "theft" aggravated felony, on account of the 2009 Pennsylvania convictionsalleged in the Notice to Appear (form I-862) ("NTA"), and that his admissions support theImmigration Judge's findings as to his removability (Tr. at 2-3). See 8 C.F.R. 1240.1O(c). Theonly issue raised on appeal is a due process challenge to the Immigration Judge's conduct of theseproceedings.

However, contrary to the respondent' s appellate contentions, we find that the ImmigrationJudge's actions were consistent with a fair hearing, and find no support for the respondent's claimsas to a denial of due process. In the context of an immigration hearing, due process requires thataliens threatened with removal are provided the right to a full and fair hearing that allows them areasonable opportunity to present evidence on their behalf. Castro v. Attorney General ofUS.,671 F.3d 356 (3d Cir. 2006); see also Cabrera-Perez v. Gonzales, 456 F.3d 109, 115 (3d Cir.2006) (citing Abdulrahman v. Ashcroft, 330 F.3d 587, 596 (3d Cir. 2003)). "The fundamentalrequirement ofdue process is the opportunity to be heard at a meaningful time and in a meaningfulmanner." Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (quoting Mathews v. Eldridge,424 U.S. 319, 333 (1976)) . In order to prevail on a denial of due process claim, the respondentmust establish that defects in the deportation proceeding violated his due-process rights and that hesuffered prejudice as a result of those defects. See, e.g., Chhay v. Mukasey, 540 F.3d 1, 9(1 51 Cir. 2008); see also Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir.2003) (finding "no dueprocess violation in the absence of prejudice."). Although the respondent need not conclusivelydemonstrate that he would have received relief to show prejudice, he must show that there were"plausible grounds for relief." See, e.g., UnitedStatesv. Moriel-Luna, 585 F.3d 1191, 1196(91h Cir. 2009). The respondent has not met that burden.

Under the regulations, the Immigration Judge has a duty to inform an alien of the availabilityof relief in removal proceedings only where the circumstances of the case reasonably reflect thealien's "apparent eligibility" for the particular form of relief at issue, 8 C.F.R. 1240.11(a)(2), orwhere the alien expresses a fear ofpersecution or harm upon return to any of the countries to whichthe alien may be removed, 8 C.F.R. 1240.1l(c)(1). However, in the matter before us, therespondent has not shown the Immigration Judge failed to comply with his duty to inform, asrequired by the regulations, where the respondent not only failed to express a fear ofpersecution orharm upon return to the Dominican Republic, but also having been convicted of two aggravatedfelony offenses, failed to establish his eligibility for any relief or protection from removal.The respondent bears the exclusive burden of proving all requisite facts pertinent to his

eligibility for relief from removal. 8 C.F.R. 1240.8(d). Furthermore, where the evidenceindicates that a ground for mandatory denial ofan application for relief may apply, the alien has theburden of demonstrating by a preponderance of the evidence that such grounds do not apply(emphasis added). !d. The respondent cannot show the "substantial prejudice" required for asuccessful due process challenge. See Jarbough v. Att'y Gen. of the US. , 483 F.3d 184, 192(3d Cir.2007) (citing Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir. 2006)) . To this day, therespondent has yet to offer any argument or evidence sufficient to establish his eligibility for anyrelief or protection from removal.2

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..A042 271 032

There is nothing in the record of proceedings to suggest that the respondent was denied dueprocess of law, a fair hearing, or any fundamental constitutional rights in this matter. Therequirements of due process "depend[ ] on the circumstances of the particular situation."Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003) (en bane) (quoting Marincas v. Lewis,92 F.3d 195, 203 (3d Cir. 1996)). The record reflects that the respondent was informed by theImmigration Judge of his right to retain counsel and was provided with a list of low cost andpro-bono legal services providers (Tr. at 1). Furthermore, the Immigration Judge offered therespondent a continuance in order to retain counsel, and the respondent elected to proceed pro se(Tr. at 1 . Therefore, we find no violation ofdue process.

Although the respondent did not establish his eligibility for any relief or protection fromremoval, he nonetheless appears to request such relief on general humanitarian grounds due to thehardship that would befall him and his family, if he is required to return to the DominicanRepublic. We have no wish to minimize the hardship that the respondent's removal might causehim and his family; however, our authority to grant relief from removal is limited by the Act andthe regulations. Matter ofMedina, 19 I&N Dec. 734, 746 (BIA 1988).Accordingly, the respondent's appeal will be dismissed.ORDER: The appeal is dismissed.

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UNITED STATES DEPARTMENT OF JUSTICEEXECUTIVE OF FICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURTYORK, PENNSYLVANIA

Fi l e : A042-271 - 032 November 7 , 2012In the Matte r of

ANTHONY OLIVO COSME IN REMOVAL PROCEEDINGSRESPONDENT

CHARGES : 237(a) (2) (A) ( i i i ) , aggrava ted f e lon ies .

APPLICATIONS : None.

ON BEHALF OF RESPONDENT: PRO SEON BEHALF OF DHS: JON D. STAPLES , ESQUIRE, ASSISTANT CHIEFCOUNSEL

ORAL DECISION OF THE IMMIGRATION JUDGERespondent ' s a 23-year - o ld7 s ing le male a l i en , n a t iv e

and c i t i zen o f the Dominican Republic , placed in to removalproceed ings with the issuance of a Not ice to Appear, Form I -862 ,served on October 12, 2012, by c e r t i f i e d mai l . The NTA i t s e l fi s da ted September 7, 2012.

The Respondent waived h is r i g h t to an a t to rney in t h i smat te r , a f t e r being fu l ly app r i sed o f h i s r i g h t to counsel . He

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(

has a lso been served a copy of the l eg a l a id l i s t ~ ~ h e copyo f which he s igned i s appended to t he record .

The Respondent conceded a l l ega t ions one through four .Based upon the desc r ip t ion in the Notice to Appear and thea l l ega t ions as to the Respondent ' s convict ion , and withoutevidence of record a t t h i s junc ture , the Cour t f inds thegovernment ' s met its burden of proof fo r both o f the grounds o fremoval; in th i s case , aggravated fe lon ies under 10 1 (a) (43) (G)and (F) . Respondent ' s convic t ions - for burglary and robbery inthe s t a t e of Pennsylvania , where he was sentenced to a maximumterm of pr i son of 59 months, co n s t i t u t e s those aggravatedfe lon ies .

As t he re are no other i s sues pending before t he Court ,the fol lowed orders are hereby en te red .

ORDERRespondent ' s hereby ordered removed from the United

Sta t e s to the Dominican Republ ic .

Please see the nex t page Eor e l e c tr onic signatureWD

A042-271-032

WALTER A. DURLINGImmigrat ion Judge

2 November 7, 2012

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/ I s / /Immigration Judge WALTER A. DURLINGdurl ingw on January 16, 2013 a t 4:24 PM GMT

A042-271-032 3 November 7, 2012