U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 Leesburg Pike, Suite 2000 Falls Cliurcli, Virginia 22041

SANDRA ECHEVARRIA, ESQUIRE Law Office of Sandra Echevarria, P.A 14221 S.W. 120th Street, Suite 221 Miami, FL 33186

OHS/ICE Office of Chief Counsel P.O. Box 1711 Harlingen, TX 78551

PIS

Immigrant & Refugee Appellate Center | www.irac.net

Name: SIERRA, DANIEL

A074026895

Date of this notice: 6/1/2011

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. Filppu, Lauri S. Pauley, Roger

Cite as: Daniel Sierra, A074 026 895 (BIA June 1, 2011)

U.S.DepartnientofJustice E?cecutive Office for Immigration Review

Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:

A074 026 895 - Los Fresnos, TX

Date:

JUN

12011

In re: DANIEL SIERRA

IN REMOVAL PROCEEDINGS
APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF OHS: Sandra Echevarria, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Sean D. Clancy Assistant Chief Counsel

CHARGE: Notice: Sec. 212(a)(2)(A)(i)(ID, I&N Act [8 U.S.C. 1182(a)(2)(A)(i)(Il)] Controlled substance violation

APPLICATION: Reopening

The respondent, a native and citizen of Cuba, appeals from the Immigration Judge's May 27, 2009, decision denying his timely motion to reopen the removal proceedings. The appeal will be sustained and the record will be remanded.
In a decision dated January 12, 2009, the Immigration Judge ordered the respondent removed as

an alien convicted of a controlled substance violation based on his 2001 and 2007 Florida convictions for marijuana possession. Section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(2)(A)(i)(Il). In his motion to reopen, the respondent proffered evidence reflecting that his 2007 conviction was vacated, and asserted that the vacatur was based on a substantive defect in his plea. Accordingly, although the respondent did not dispute that he remained inadmissible based on his 2001 conviction, he contended that proceedings should be reopened to permit him to apply for a waiver of inadmissibility under section 212(h) of the Act, which is available to overcome a section 212(a)(2)(A)(i)(II) charge that "relates to a single offense of simple possession of 30 grams or less of marijuana." See Matter ofMartinez Espinoza, 25 I&N Dec. 118 (BIA 2009). The Immigration Judge denied the respondent's motion to reopen, however, concluding that his 2007 conviction remained binding for immigration purposes despite its vacatur under the decision of the United States Court of Appeals for the Fifth Circuit in Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002), which held that a vacated conviction remains valid for purposes of the immigration laws irrespective of the reasons why it was vacated. On appeal, the respondent argues that, despite Renteria-Gonzalez, supra, the Immigration Judge should have found that the respondent's conviction was not longer valid pursuant to the Board's decision in Matter ofPickering, 23 I&N Dec. 621 (BIA 2003), which held that if a court vacates a conviction based upon a procedural or substantive defect in the underlying proceedings, there is no

Cite as: Daniel Sierra, A074 026 895 (BIA June 1, 2011)

A074 026 895 longer a conviction for immigration purposes. We express no present opinion as to the effect of the vacatur of the respondent's 2007 conviction; however, we conclude that the respondent's motion should be adjudicated in accordance with this Board's decisions in Matter ofPickering, supra, and Matter ofChavez, 24 l&N Dec. 272 (BIA 2007). Although Renteria-Gonzalez v. INS, supra, has not been overruled, the Fifth Circuit has expressed serious concerns about it. See Discipio v. Ashcroft, 369 F.3d 472 (5th Cir. 2004), vacated byDiscipio v. Ashcroft, 417F.3d448 (5th Cir. 2005) (granting the respondent's motion to remand to the Board in order to terminate proceedings). Moreover, the Attorney General has represented to the Fifth Circuit that, pursuant to a policy review, the government would no longer seek to uphold removal decisions based on Renteria-Gonzalez, but rather would address vacated convictions in accordance with Pickering.
491 F.3d 284, 291 (5th Cir. 2007). See Gaona-Romero

Immigrant & Refugee Appellate Center | www.irac.net

v. Gonzales, 497 F.3d 694, 694-95 (5th Cir. 2007); see also Garcia-Maldonado v. Gonzales,

These proceedings will be conducted in accordance with

the Attorney General's stated policy. The respondent has demonstrated that the evidence of the vacatur of his 2007 conviction was unavailable and undiscoverable at the time of his final removal hearing and is potentially material to his eligibility for a section 212(h) waiver. See 8 C.F.R. 1003.2(c)( l). Additional fact-finding is required to consider the new evidence and to determine its effect on the proceeding as a matter of law. Accordingly, the following order will be entered. ORDER: The appeal is sustained. FURTHER ORDER: The record is remanded to the Immigration Court to reconsider the

respondent's motion to reopen in light of the foregoing opinion, and to conduct any such further proceedings as may be appropriate.

FOR THE BOARD

Cite as: Daniel Sierra, A074 026 895 (BIA June 1, 2011)

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UNITED

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OEPAR'rMl!:NT OF JUS'fICl::
FOR lMMIGRA'rION RlWIJ::W BLVV TX

li:XECU'r!VE OFFICE

IMMIGRATION COURT

27991

BUENA VISTA LOS FRESNOS,

78566

LAW 01''1"!C:E OF l!JC::HEVARJUA ECBBVARRA, SA:JDkA, ESQ.

MIAMI, FL

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10780 WES'l' FLAGLER STREET, 3317

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Immigrant & Refugee Appellate Center | www.irac.net

IN 1'HE MA'!"fl!!R Of'

::Jil!:I<RA, UAN!EL

FILE A 074-026-095

DATE:

May

28,

2009

'JI
-

UNADI,B 'l'O FORWARD

NO ADDRESS PROVIDED
THIS DECISION

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDCE. IS FINAL UNLESS AN APPEAL IS

FILED Wl'fH THE BOARD OF IMMIGRATION APPEALS PROPERLY PREPARING YOUR APVEi\L. FEE OR FEE WAIVER REQUEST

WI'tHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRIT'l'EN DECISION. SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR YOUR NOTICE OF APPEAL, MUST BE MAILED TO: ATTACHED DOCUMENTS, OFFICE OF THE CLERK P.O. BOX 8530 VA FALLS CHURCH, ATTACHED THIS AND

BOARD OF IMMIGRATION APPEALS

22041

IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT HEARING. UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE

OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL DECISION IS FINAL WITH SECTION SECTION

242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6), u.s.c. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
YOUR MOTION MUST BE FILED WITH THIS COURT: IMMIGRATION COURT

TO REOPEN,

27991

BUENA VISTA BLVD TX

LOS FRESNOS, -

78566

OTHER:

ORDER OF IMMIGRATION JUDGf_

IMMIGRATION COURT

FF

CC:

ASSISTANT DEPUTY CHIEF COUNSEL

27991
LOS

BUENA

VIS'l'A BLVD. TX,

FRESNOS,

78566

\
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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT PORT ISABEL DETENTION CENTER 27991 BUENA VISTA BLVD LOS FRESNOS, TEXAS 78566

Immigrant & Refugee Appellate Center | www.irac.net

IN THE MATIER OF: DANIEL SIERRA RESPONDENT IN REMOVAL PROCEEDINGS

) ) ) ) ) ) CASE NO. A074 026 895

MEMORANDUM AND ORDER On April I0, 2009, Respondent filed a timely motion to reopen this removal proceeding in order to apply for a waiver of inadmissibility under Section 2 I2(h) of the Immigration and Nationality Act (the Act). The removal order was issued in this case on January 12, 2009. Respondent contends in the motion to reopen that, since his December 17, 2007 conviction for possession of cannabis was vacated on February 26, 2009 by a county court in Florida based upon a procedural defect in the criminal proceeding and the criminal charge was dismissed on April 2, 2009, Respondent has become eligible to apply for a waiver of inadmissibility under Section 2 l 2(h) of the Act in his removal proceeding. The Department of Homeland Security has filed a response in opposition to the motion to reopen. The Court concludes that Respondent's motion to reopen should be denied. The United States Court of Appeals for the Fifth Circuit, in whose jurisdiction this Court presides, has held that a vacated criminal conviction remains a conviction for immigration purposes pursuant to Section 10 l (a)(48)(A) of the Act regardless of the reason the conviction was vacated. See Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002); Garcia-Maldonado v. Gonz.ales, 491 F.3d 284, 290-291 (5th Cir. 2007); Matter of Pickering, 23 l&N Dec. 621, 624, n.2 (BIA 2003), reversed on other grounds, 465 F.3d 263 (6th Cir. 2006). Therefore, since Respondent still has two convictions, within the meaning of Section IOI(a)(48)(A) of the Act, for possession of marihuana, he is not eligible to be granted a waiver of inadmissibility under Section 2 l 2(h) of the Act in order to waive his ground of inadmissibility under Section 212(a)(2)(A)(i)(II) of the Act charged in the Notice to Appear. WHEREFORE, it is hereby Ordered that Respondent's motion to reopen be denied. Dated this

7 Th

day of May, 2009.

HOWARD E. ACHTSAM IMMIGRATION JUDGE