U.S.

Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Office ofthe Clerk
5/07 Leesburg Pike. Suite 2000
Falls Church, Virginia 2204/

DHS LIT.Nork Co. PrisonNOR

3400 Concord Road
York, PA 17402

Name: RODRIGUEZ-TRINIDAD, FRANCI ...

A 044-892-640

Date of this notice: 5/18/2016

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

Sincerely,

[)onnL {!t1/lA)
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Pauley, Roger

Userteam:

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Francisco Rodriguez-Trinidad, A044 892 640 (BIA May 18, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Daniel B. Conklin, Esq.

120 South Street
Harrisburg, PA 17101

1_(s. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A044 892 640 - York. PA

Date:

MAY 1 8 2016
In re: FRANCISCO RODRIGUEZ-TRINIDAD

MOTION
ON BEHALF OF RESPONDENT: Pro se 1
ON BEHALF OF OHS: Brian G. McDonnell
Assistant Chief Counsel
APPLICATION: Reconsideration

The Department of Homeland Security (the "DHS") timely moves the Board pursuant to
8 C.F.R. 1003.2 to reconsider our decision dated February 24, 2016. The respondent has filed
a brief opposing the DHS's motion. The DHS's motion will be denied.
When this case was previously before us on February 24, 2016, we sustained the
respondent's appeal of an April 13, 2015, Immigration Judge's decision that found the
respondent removable from the United States based on his conviction for illicit trafficking in a
controlled substance (as defined in section 1012 of the Controlled Substances Act), including a
drug trafficking crime (as defined in section 924(c) of Title 18, United States Code), and thus
ineligible for relief from removal, to particularly include cancellation of removal, as an alien
See sections 10I(a)(43)(B), 237(a)(2)(A)(iii), and
convicted of an aggravated felony.
237(a)(2)(B)(i) of the Immigration and Nationality Act ("Act"), 8 U.S.C. 110I(a)(43)(B),
I227(a)(2)(A)(iii), and I227(a)(2)(B)(i). However, as it was uncontested that the respondent was
also removable under section 237(a)(2)(B)(i) of the Act, 8 U.S.C. 1227(a)(2)(B)(i), which is a
ground of removability that does not preclude cancellation of removal, we remanded this matter
to the Immigration Judge to allow the respondent to seek relief from removal.
A motion to reconsider shall specify the errors of fact or law in the prior Board decision and
shall be supported by pertinent authority. See 8 C.F.R. 1003.2(b)(l). In this case, the DHS
asserts that our determination that the respondent is not removable as an aggravated felon is the
product of legal error. In support of its claim, it raises two principal arguments. First, the OHS
argues that the Board erred in finding that there is a realistic probability that the Commonwealth
of Pennsylvania would prosecute an individual under 35 Pa. Cons. Stat. 780-I l3(a)(30) for
distribution of a small amount of marijuana without remuneration (which is conduct specifically
1

Daniel B. Conklin filed a brief on behalf of the respondent. The attorney, however, did not file
a Notice of Entry of Appearance (Form EOIR-27). We will, however, provide him with a
courtesy copy of this decision.

Cite as: Francisco Rodriguez-Trinidad, A044 892 640 (BIA May 18, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

A044 892 640

We acknowledge that, following the DHS's motion, the respondent filed his own motion to
accept supplemental filing, with attached recent Pennsylvania criminal conviction documents
which he asserts show that Pennsylvania prosecutes and convicts persons under 35 Pa. Cons.
Stat. 780-l 13(a)(30) for conduct which falls under the exception for personal use of small
amounts of marijuana not for remuneration found at 35 Pa. Cons. Stat. 780-l 13(a)(31). The
DHS has filed a brief in opposition to the respondent's motion. In light of our foregoing decision
denying the DHS's motion to reconsider, we need not address the respondent's motion or the
evidence appended thereto. However, we note that the Immigration Judge will have an
opportunity to review this evidence on remand, and to determine its applicability to the issues
before him.
Accordingly, the following order will be entered.
ORDER: The motion is denied.

<::......

2
Cite as: Francisco Rodriguez-Trinidad, A044 892 640 (BIA May 18, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

addressed under 780-l 13(a)(31)). Second, the DHS argues that, contrary to the Board's
determination, the "specific/general rule" remains enforceable and in accord with the Federal
Controlled Substances Act, despite Pennsylvania's statutory abrogation of the specific/general
rule in 2002. At its core, the DHS's motion reflects a disagreement with the legal conclusions
the Board has drawn from its review of Pennsylvania and Third Circuit case law. We are not
persuaded by the DHS's motion that our prior decision contains errors of fact or law, and we
reaffirm our prior decision for the detailed reasons stated therein.