Raul Borba-Cardoso v. Loretta E. Lynch

MEMORANDUM

Raul Borges Borba-Cardoso petitions for review of the Board of Immigration Appeals (“BIA”) order dismissing his appeal from an Immigration Judge’s (“IJ”) order finding him removable for having been convicted of an aggravated felony under 8 U.S.C. § 1101 (a)(43)(S). We grant the petition and remand.

1. Borba-Cardoso argues that the government erred in failing to substitute in writing a new factual allegation after incorrectly alleging in the Notice to Appear a prior conviction under California Penal Code section “118P.” Even assuming the government erred, Borba-Cardoso’s argument lacks merit because he fails to show prejudice arising from the error. After the BIA remanded the case to the IJ, the agency considered whether Borba-Cardo-so was removable on the basis of an allegation that he had been convicted under California Penal Code section 118(a). As the record reflects, Borba-Cardoso had notice of that allegation after the remand, and the issue was raised and addressed at the hearing before the IJ. Thus, no prejudice arose from the agency’s failure to lodge in writing a substitute factual allegation. We therefore reject Borba-Cardo-so’s notice argument.

2. The…