U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 l.eesb11rg Pike, S11i1e 2000 Falls Ch11rch, Virginia 22041

Becker, Eunice, Esq. Law Office of Eunice Becker 377 Broadway, 8th Floor New York, NY 10013

OHS/ICE Office of Chief Counsel - SAJ GPO Box 365068 San Juan, PR 00936-5068

Immigrant & Refugee Appellate Center | www.irac.net

Name: ESTEVEZ, BASILIO

A044-921-877

Date of this notice: 1/18/2012

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Holmes, David B.

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Basilio Estevez, A044 921 877 (BIA Jan. 18, 2012)

U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Yirginia 22041

Decision of the Board of Immigration Appeals

File:

A044 921 877 - Guaynabo, PR

Date:

JAN 18 Z01Z

In re: BASILIO ESTEVEZ a.k.a. Edwin Rivera IN REMOVAL PROCEEDINGS MOTION ON BEHALF OF RESPONDENT: Eunice Becker, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

APPLICATION: Reconsideration; reopening This case was before the Board on August 22, 2011, when we denied the respondent's motion to reopen these proceedings. The respondent sought reopening on the basis that his 1999 conviction in a New York court of Criminaily Using Drug Paraphernalia had been vacated on constitutional grounds. The Department of Homeland Security (DHS) opposed the previous motion, which we denied because the respondent had not submitted documentation or otherwise met his burden of showing the reason that his conviction was vacated. The respondent filed the instant motion on October 28, 2011. The DHS does not oppose this motion. The motion is supported by copies of papers filed in the City Court of Utica, New York, in 20 I 0, seeking to vacate the respondent's conviction in docket 99-2941 due to counsel's failure , to advise him of the immigration consequences of his guilty plea. The Board s files contain a copy of the Certificate of Disposition issued by the court indicating that on December 6, 20 I 0, in docket 1999-2941, the respondent was convicted upon a guilty plea to violation of NEW YORK PENAL L Aw

240.20 (disorderly conduct).

On the basis of this evidence and the non-opposition of the DHS, we

will reopen these proceedings sua sponte. See 8 C.F.R.

I 003.2(a). The Board notes, however, that

the evidence before us is not conclusive, in that the Board's files do not contain a document in which the New York court expressly states that the 1999 conviction is vacated for the reasons asserted. On remand, the burden of proof on that issue remains with the respondent.' The following order will be entered. ORDER: This case is reopened and remanded to the Immigration Judge for further proceedings not inconsistent with this decision.

FOR THE BOARD

The motion requests a change in venue, based on the respondent's long residence in New York

and the location of his witnesses. The Board declines to consider the request on the existing record. A motion concerning venue may be presented to the Immigration Court in Guaynabo, PR.

Cite as: Basilio Estevez, A044 921 877 (BIA Jan. 18, 2012)