U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 leesburg Pike, Suite 2000 Fals l Church, Virginia 2204/

Makki, Zeina S., Esq Nabih H. Ayad & Associates, P.C. 2200 Canton Center Road, Suite 220 Canton, Ml 48187-0000

OHS/ICE Office of Chief Counsel - DET 333 Mt Elliott St., Rm. 204 Detroit, Ml 48207

Immigrant & Refugee Appellate Center | www.irac.net

Name: MAZID, ABDULJABAR AHMED

A 043-308-397

Date of this notice: 4/12/20 13

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

DorutL CtVvV
Donna Carr Chief Clerk

Enclosure Panel Members: Holmes, David B.

williame Userteam: Docket

Cite as: Abduljabar Ahmed Mazid, A043 308 397 (BIA Apr. 12, 2013)

U.S. Department of Justice

Executive Office for Immigration Review. Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:

A043 308 397 - Detroit, MI

Date:

APR 1 2 2013

In re: ABDULJABAR AHMED MAZID IN REMOVAL PROCEEDINGS MOTION ON BEHALF OF RESPONDENT: APPLICATION: Zeina S. Makki, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Reopening; termination

ORDER: This matter was last before the Board on December 6, 2012, at which time we dismissed the respondent's appeal. On February 21, 2013, the respondent filed a timely motion to reopen and terminate these proceedings, urging that his 1996 weapons conviction has been vacated by the state court and thus, he is no longer removable. The Department of Homeland Security ("DHS") has not responded to the motion. The motion will be granted. The respondent asserts that on February 14, 2013, the State of New York, Buffalo City Court, County of Erie vacated his plea of guilty and subsequent judgment and conviction for attempted criminal possession of a weapon in the 4th degree in violation of New York State Penal Law sections 110 and 265.01. This conviction formed the basis for the respondent's sole charge of removability under section 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(C). The respondent urges that the plea and resulting conviction were vacated by the state court because he had not been apprised of the possible immigration consequences resulting from his guilty plea pursuant to

Padilla v. Kentucky,

130 S.Ct. 1473

(2010). He further argues that the DHS can no longer meets its burden of proof regarding the only charge of removability based on the vacatur of his plea and conviction. The Board finds that the uncontested evidence presented with the respondent's unopposed motion shows that the underlying conviction which served as the basis for the respondent being subject to removal has been vacated due to a defect in the criminal proceeding and the 1996 conviction was "dismissed." If a court with jurisdiction vacates a conviction based on a defect in the underlying criminal proceedings, the respondent no longer has a "conviction" within the meaning of section 101(a)(48)(A) of the Act.

Matter of Adamiak,

23 l&N Dec. 878 (BIA

2006)( conviction vacated pursuant to Ohio law for failure of the trial court to advise the alien defendant of the possible immigration consequences of a guilty plea is no longer a valid conviction for immigration purposes).

Cite as: Abduljabar Ahmed Mazid, A043 308 397 (BIA Apr. 12, 2013)

A043 308 397

As it is uncontested that the respondent is no longer subject to removal from the United reopened and terminated. 1 States based upon the charges against him, removal proceedings against the respondent are

FOR THE BOARD

Immigrant & Refugee Appellate Center | www.irac.net

The parties should advise the United States Court of Appeals for the Sixth Circuit of the entry

of this order. 2

Cite as: Abduljabar Ahmed Mazid, A043 308 397 (BIA Apr. 12, 2013)