U.S. Department of Justice

Executive Office for Immigration Review Board of immigration Appeals Office of the Clerk 5107 Leesburg Pike, Suite 2000 Falls Church. Virginia 2204/

DHSIICE Office of Chief Counsel

Name:

Date of this notice: 9/16/2016

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

Donna Carr Chief Clerk

Enclosure Panel Members: Cole, Patricia A. Pauley, Roger Wendtland, Linda S.

Userteam: Docket

U.S. Department of:Justice

Decision of the Board ofImmigration Appeals

Executive Office for Immigration Review Falls Church, Virginia 22041

Date:

File:

SEP 16 2016

In re: IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Mario R. Urizar, Esquire CHARGE: Notice: Sec,

Sec.

237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] Convicted of aggravated felony (conceded) 237(a)(2)(B)(i), I&N Act [8 U.S.C. § 1227(a)(2)(B)(i)] Convicted of controlled substance violation (conceded)

APPLICATION: Reopening

The respondent, a native and citizen of Cuba, has appealed from the Immigration Judge's decision dated June 1,2015, denying his motion to reopen proceedings sua sponte to apply for relief under former section 212(c) of the Immigration and Nationality Act, 8 U.S.c. § 1182(c) (1990). For the following reasons, the appeal will be sustained, proceedings will be reopened, and the record will be remanded to the Immigration Judge. I We review an Immigration Judge's findings of fact for clear error, but questions of law, discretion, and judgment are reviewed de novo. 8 C.F.R. § 1003.I(d)(3)(i), (ii). For clarity, we provide a brief recitation of the undisputed facts. The respondent became a lawful permanent resident of the United States as of 1975 (Exhs. 1,2). On May 21, 1990, in the United States District Court for the Southern District of Florida, a jury rendered a guilty verdict against the respondent for conspiracy to import cocaine, and importation of cocaine (U. at I; Exh.3). On November 29, i990, the Immigration Act of 1990, Pub. 1. No. 101-649, 104 Stat. 4978, 5052 ("IMMACT") became effective, barring aliens that had served 5 years or more in prison as a result of an aggravated felony conviction from receiving relief under section 212(c) of the Act. On December 12, 1990, the respondent was sentenced to 188 months in prison (Exhs. 1,2,3; Motion to Reopen (MTR) at 2, & Tab C). On February 3, 2004, the respondent accepted an order of removal (U. at I; MTR at Tab A).

I

The respondent's motion for oral argument is denied.

In May 2015, the respondent submitted a motion to reopen sua sponte, explaining that his prior attorney had erroneously believed his conviction date was December 12, 1990, when it was really May 21,1990, and that he now wished to apply for relief under section 212(c) of the Act (MTR at 6). The Immigration Judge denied the motion because, among other things, the criminal documents in the record supported the finding that he was convicted on December 12, 1990, and that he had served more than 5 years in prison, and thus was not eligible for the relief sought (U. at 1). The respondent appealed (Resp. Brief at 4). We disagree with the Immigration Judge's decision to deny sua sponte reopening, as the respondent has presented exceptional circumstances. See Matter of Beckford, 22 I&N Dec. 1216 (BIA 2000) (holding that to warrant sua sponte reopening, an alien must demonstrate an exceptional situation, including a substantial likelihood that the result in his case would be different if proceedings were reopened). Regarding relief, the respondent has made out a prima facie case for eligibility under former section 212(c) of the Act. Jd. Because the respondent was convicted prior to IMMACT, he may yet demonstrate eligibility for a section 212(c) waiver. The definition of "conviction" is a legal determination, which we review de novo. 8 C.F .R. § 1003.l(d)(3)(ii). The term "conviction" is defined in section 101(a)(48)(A) of the Act. We applied that definition in a section 212(c) context in Matter of Moreno-Escobosa, 25 I&N Dec. 114 (BIA 2009). In that case, the alien had entered a guilty plea in 1991, but was not sentenced until 2005. We held that "[i]t is the date of an alien's plea agreement, rather than the date of sentencing, that controls in determining whether the alien is eligible for a section 212(c) waiver." [d. at 116 (emphasis added). Subsequently, we clarified in Matter of Abdelghany, 26 I&N Dec. 254, 268-69 (BIA 2014), that convictions by plea agreement and convictions by jury trial are to be treated the same. Thus, under this case law, we deem the respondent to have been convicted for purposes of section 212(c) eligibility when the jury verdict was rendered, not when his sentence was entered. 2 See Matter of Moreno-Escobosa, supra. Therefore, on remand, the Immigration Judge should consider whether the respondent has demonstrated he merits relief under section 212(c) of the Act. 3 2 We do not disagree with the dissent's point that the courts of appeals have construed the phrase "formal judgment of guilt" to include the sentence. But the timing of the conviction is a separate question from the question of section 212(c) eligibility. Moreover, we disagree with the Immigration Judge that the respondent is bound by his attorney's pleadings. It would be nonsensical to hold the respondent to his attorney's admissions when, at the time pleadings were taken, we had not yet published Matter of Abdelghany, supra, or Matter of Moreno-Escobosa, supra, which vastly changed the legal landscape for the respondent.

Section 511 (a) ofIMMACT made aliens ineligible for 212(c) relief if they had been convicted of an aggravated felony and served 5 years or more in prison. Section 511 (b) of IMMACT stated that section 511(a) "shall apply to admissions occurring after the date of the enactment of [IMMACT,]" which was November 29, 1990. Later, in Matter of A-A-, 20 I&N Dec. 492, 502 (BIA 1992), we clarified that "the phrase 'shall apply to admissions' as used in section 511(b) of [IMMACT] refers to all applications for relief pursuant to section 212(c) of the Act submitted after November 29, 1990, whether at a port of entry or in subsequent proceedings before a (continued ... ) 3

2

In addition, the respondent has presented a number of sympathetic factors that, together, estaulish an exceptional circumstance. The respondent has been in the United States since arriving as a child in 1963 (MTR at Tab J). The respondent's conviction, while serious, was his sole criminal conviction in over 50 years of living in the United States (Exh. 1; Resp. Brief at 1-2). Since his release from prison, the respondent has demonstrated remorse for his criminal behavior, opened a successful business, been granted numerous patents, befriended many in the community, and reconnected with his United States citizen grandchildren and children, including a son who served in Operation Enduring Freedom in Afghanistan as a Lieutenant Corporal ofthe United States Marine Corps (MTR at Tabs F-L). Because .the respondent has presented exceptional circumstances, and has established a prima facie eligibility for relief, we will reopen these proceedings and remand for further consideration by the Immigration Judge. Accordingly, the following orders shall be entered. ORDER: The appeal is sustained and these removal proceedings are reopened. FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion.

FOR THE BOARD

( ... continued) district director or Immigration Judge." However, Matter of A-A-, supra, did not have reason to address the argument-presented by this respondent-that applying section 511(a) ofIMMACT would have an impermissible retroactive effect for aliens convicted prior to IMMACT. We conclude that the respondent is not subject to the holding in Matter of A-A-, supra, because his conviction occurred prior to the effective date of IMMACT. To apply section 511(a) to the respondent would give that provision an impermissible retroactive effect. See Vartelas v. Holder, 132 S. Ct. 1479 (2012); Judulang v. Holder, 132 S. Ct. 476 (2011); INS v. St. Cyr, 533 U.S. 289 (2001).

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U.S. Departnient of Justice

Decision ofthe Board ofImmigration Appeals

Executive Office for Immigration Review Falls Church, Virginia 22041

File:

Date:

SEP I 62016

In re: DISSENTING OPINION: Patricia A. Cole

I respectfully dissent. I would affirm the Immigration Judge's finding that the respondent was convicted on December 12,1990, the date of his sentencing and "Judgment." The term "conviction" is defined in section 101 (a)(48)(A) of the Act. The relevant part of the definition is, "the term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court .. :." The respondent argues that he has a "formal judgment of guilt of the alien entered by a court" on May 21,1990, when the jury verdict was rendered (Resp. Brief at 4). However, numerous circuit courts, including the Eleventh Circuit, have found it instructive to look to Fed. R. Crim. Proc. 32(k)(I) for the meaning of "formal judgment of guilt." See Mejia Rodriguez v. Us. Dep't of Homeland Security, 629 F.3d 1223, 1226-27 (II th Cir. 2011); see also Frias-Camilo v. Att'y Gen., 2016 WL 3443111 (3d Cir. 2016) (citing Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002»; Singh v. Holder, 568 F.3d 525, 530 (5th Cir. 2009). Fed. R. Crim. Proc. 32(k)(I) states that, for "the judgment of conviction, the court must set forth the plea, the jury verdict or the court's findings, the adjudication, and the sentence." (emphasis added). In this case, Exhibit 3 is the "Judgment in a Criminal Case" and it is dated December 12, 1990 (Exh. 3). The Immigration Judge properly relied upon this document for the date of the respondent's conviction (U. at 1). See generally Perez v. Elwood, supra, (citing the document "Judgment in a Criminal Case" as dispositive of the date of conviction in the context of eligibility for relief under section 212(c) of the Act). Thus, because the sentence is a required element for a "formal judgment of guilt" to have been entered in Federal court, and a "formal judgment of guilt" defines the date of conviction, I find that the Immigration Judge's determination that the respondent's conviction date is December 12, 1990, was not clearly erroneous. I agree with the majority that the definition of "conviction" is a legal determination. However, the issue here is the date of the respondent's conviction and that is a factual finding, which we review for clear error. 8 C.F.R. § 1003.1(d)(3)(i); Matter of Moreno-Escobosa, 25 I&N Dec. 114 (BIA 2009). The majority cites to two cases as support for its deeming the respondent to have been convicted when the jury verdict was rendered, not when his sentence was entered (emphasis added). In the first case, Matter of Moreno-Escobosa, the alien had entered a guilty plea in 1991, but was not sentenced until 2005. This Board held that "[iJt is the date of an alien's plea agreement, rather than the date of sentencing, that controls in determining whether the alien is eligible for a section 212(c) waiver." Id. at 116. The case was decided after the United States Supreme Court determined that although section 212(c) had been repealed, the waiver remains

available to aliens whose convictions were obtained through plea agreements and who would ha¥e been eligible for relief at the time of their plea. INS v. St. Cyr, 533 U.S. 289 (2001). The Court was concerned with an alien's reliance on the availability of section 212(c) relief when he agreed to plead guilty. INS v. St. Cyr, 533 U.S. at 321-25. The majority also cites to Matter of Abdelghany, 26 I&N Dec. 254, 268-69 (BrA 2014), where this Board held that convictions by plea agreement and convictions by jury trial are to be treated the same. The case finds that a conviction by plea is not required, in cases for 212(c) relief after another Supreme Court decision on impermissible retroactivity. In Vartelas v. Holder, 132 S. Ct. at 1491, the Supreme Court made clear that the "essential inquiry" for anti-retroactivity purposes is not whether a new law attaches unanticipated consequences to pre-enactment decisions, but simply "whether the new provision attaches new legal consequences to events completed before its enactment." Vartelas v. Holder, 132 S. Ct. at 1491 (emphasis added) (quoting Landgrafv. USI Film Products, 511 U.S. at 270) (internal quotation marks omitted). Matter of Abdelghany holds that after Vartelas it is not necessary to prove any type of reliance, and whether it resulted from a plea or a trial, a conviction entered before April 1, 1997 (the expiration date for applying for 212(c) relief), is an "event completed." Neither of the cases the majority cites is relevant in determining the date of a conviction nor whether a conviction exists. Therefore, with a conviction date of December 12, 1990, and having served more than 5 years in prison, the respondent is unable to demonstrate he is prima facie eligible for relief under section 212(c) of the Act. I would dismiss the appeal.

Patricia A. Cole Board Member

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