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Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Qffice ofthe Clerk
5107 Leesburg Pike. S11ile 2000
Falls Church. Virginia 20530

Yang, Donglai


A 027-309-219

Date of this notice: 3/18/2015

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

DCinltL cl1AAJ
Donna Carr
Chief Clerk

Panel Members:
Grant, Edward R.

Usertea m: Docket

For more unpublished BIA decisions, visit

Cite as: Hoang Van Tran, A027 309 219 (BIA March 18, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

The Law Offices of Donglai Yang

829 Baronne Street
New Orleans, LA 70113

OHS/ICE Office of Chief Counsel - NOL

1250 Poydras Street, Suite 325
New Orleans, LA 70113

.u:s. Department of Justice


ffice for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A027 309 219 -New Orleans, LA


.MA. . R 1 0 - -;

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ON BEHALF OF RESPONDENT: Donglai Yang, Esquire

Robert Weir
Assistant Chief Counsel

Notice: Sec.

212(a)(2)(A)(i)(I), l&N Act [8 U.S.C. 1182(a)(2)(A)(i)(I)] Crime involving moral turpitude


The respondent, a native and citizen of Vietnam, has appealed the Immigration Judge's
decision of September 16, 2013. In that decision, the Immigration Judge denied the respondent's
motion to reopen removal proceedings in which he was ordered removed in absentia on
January 24, 2012. The respondent's motion to reopen, based upon exceptional circumstances,
was found untimely. The Department of Homeland Security (DHS) has filed an opposition to
the appeal. The record will be remanded for further proceedings.
We review Immigration Judges' findings of fact for clear error, but review de novo
questions of law, discretion, and judgment, and all other issues in appeals. 8 C.F .R.
1003.l(d)(3)(i), (ii).
The record reflects that the respondent was accorded lawful permanent resident status on
May 3, 1984. On or about May 23, 1986, the respondent apparently was convicted in Florida of
grand theft and sentenced to 3 years probation. A Notice to Appear (NTA) was issued on
October 21, 2010, and served on the respondent on December 15, 2010, charging the respondent
as an arriving alien as being inadmissible to the United States for having committed a crime
involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act. Notations on the NTA
indicate that the respondent admitted to the factual allegations that he had been convicted of
grand theft, but that he denied the allegation that he applied for admission on June 15, 2010, at
Los Angeles International Airport (allegation 5). The Digital Audio Recording (DAR) indicates
that the Immigration Judge found insufficient evidence to sustain allegation 5 at a hearing on
August 15, 2011, and continued the proceedings to allow DHS to provide documentation. The
respondent failed to appear on January 24, 2012, and the Immigration Judge admitted into the
record the Form 1-213 (Exh. 2).
Cite as: Hoang Van Tran, A027 309 219 (BIA March 18, 2015)

Immigrant & Refugee Appellate Center | www.irac.net



A027 309 219

The January 24, 2012, in.absentia order, which is a form order, sustained the charge in
the NTA and stated that DHS had submitted documentary evidence establishing the respondent's
removability. The Form I-213 indicates that there were certified conviction records placed into
the record, but none are in the record before us. The Form I-213 also references several arrests
for the respondent, but does not clearly indicate what convictions he may have sustained. In
addition, while the NTA alleges that the respondent arrived at Los Angeles airport (Exh. 1), the
Form I-213 indicates he may have arrived at New Orleans (Exh. 2).

Moreover, in Vartelas v. Holder, 132 S.Ct. 1479 (2012), the Supreme Court held that a
provision of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which
treated a returning lawful permanent resident (LPR) as an applicant for admission, could not be
applied retroactively to an LPR who committed a felony offense before the provision's effective
date. Given that the respondent's apparent conviction in this case pre-dated the IIRIRA, we find
that a remand for further consideration of the respondent's removability from the United States is
appropriate. Accordingly, the record will be remanded to the Immigration Judge for a
determination of whether the respondent's removability was established, and whether the in
absentia order was properly entered. If it was not, reopening by the Immigration Judge for a
hearing on the issue of removability and potential relief is appropriate.
ORDER: The record is remanded to the Immigration Court for further proceedings
consistent with the foregoing opinion and for the en of a new decision.

The respondent submitted, in connection with his motion to reopen, an application for
cancellation of removal. As an attachment to that application, he submitted a one-page docket
sheet that appears to confirm the 1986 conviction for grand theft, as well as his later arrest and
resentencing for a violation of probation. This evidence was not part of the record when the in
absentia order was entered, nor does it conclusively establish the respondent's removability as
charged or his eligibility or lack thereof for any relief from removal.

Cite as: Hoang Van Tran, A027 309 219 (BIA March 18, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

On appeal, the respondent now argues that the DHS did not establish by clear,
unequivocal, and convincing evidence that the respondent is removable. See section 240(b)(5)(A)
of the Immigration and Nationality Act, 8 U.S.C. 1229a(b)(5)(A). Given the equivocal
admissions and lack of conviction records, it is not readily apparent that the respondent has
sustained a conviction for grand theft, Fla. Stat. 812.014(2)(a), (c)(l), and further that it is a
crime of moral turpitude. See Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014) (holding
that Silva-Trevino framework-insofar as it permits extrinsic examination of documents outside
of the conviction record-conflicts with the unambiguous language of the Act).1 The record
before us is insufficient to establish that the Immigration Judge addressed the sufficiency of the
factual admissions or that he addressed the legal issue whether the conviction is for a crime
involving moral turpitude.





Hoang Van TRAN




File No.: A027-309-219


Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, as an

alien who has been convicted of, or who admits having committed, or who
admits committing acts which constitute the essential elements of a crime
involving moral turpitude (other than a purely political offense) or an
attempt or conspiracy to commit such a crime.


Motion to Reopen in absentia Order of Removal

On Behalf of Resp ondent

On Behalf of the G overnment

Donglai Yang, Esq.

829 Baronne Street
New Orleans, LA 70113

Assistant Chief Counsel

DRS/ICE/Litigation Unit
One Canal Place
365 Canal Street, Suite 2450
New Orleans, LA 70130




On December 15, 2010, the Department of Homeland Security ("DHS") issued a Notice
to Appear ("NTA") alleging that Respondent is a native and citizen of Vietnam, who was
accorded lawful permanent resident status on May 3, 1984. The DHS further alleged that on or
about May 23, 1986, Respondent was convicted in the Circuit Court, 14th Judicial Circuit of Bay
County, Florida for the offense of Grand Theft in violation of section 812.014 of the Florida
Statutes and was sentenced to probation of three years. In addition, the DHS alleged that
Respondent arrived at Los Angeles International Airport on June 15, 2010 and applied for
admission to the United States as a lawful permanent resident of the United States. Based on
these allegations, the DHS charged Respondent as inadmissible pursuant to former section
212(a)(2)(A)(i)(I) of the Immigration and Nationality Act ("Act").

Page 1 of 2

Immigrant & Refugee Appellate Center | www.irac.net



On January 24, 2012, this court entered an in absentia order of removal against
Respondent. Through counsel, the Respondent filed a motion to reopen with this Court on
August 20, 2013. The DHS responded on August 29, 2013.


order entered in absentia pursuant to section 240(b)(5) may be rescinded upon a

motion to reopen filed at any time if the alien demonstrates that he did not receive notice in
accordance with sections 239(a)(l) or (2) of the Act. Id.



The Court must deny Respondent's motion as it was not timely filed. Respondent was
ordered removed in absentia on January 24, 2012. He filed the motion to reopen on August 20,
2013, more than 180 days from the date of the order of removal.
Respondent contends that he failed to appear at the hearing because he does not speak
English and did not understand the date and month on the notice he was given. The Court
provided Respondent with a Vietnamese interpreter at the last hearing he attended on August 16,
2011. Respondent was informed of his hearing and of the consequences for failing to appear. He
has not demonstrated that his failure to appear was due to exceptional circumstances.
Accordingly, the following order is hereby entered:
IT IS HEREBY ORDERED that the Motion to Reopen be DENIED.




John A. Duck, Jr.

Immigration Judge

Certificate of Service

[vJ Mail [ ] Personal Service

[vj Alien's Atty/Rep [/) DHS
To: [ ] Alien ( ] Alien c/o Custodial Officer
By: Court St aff _- /
1 /_l'3_b_ 0 l 3

This document was served by:



Page 2 of 2

Immigrant & Refugee Appellate Center | www.irac.net

An order of removal entered in absentia or in removal proceedings pursuant to section

240(b)(5) of the Act may be rescinded only upon a motion to reopen filed within 180 days after
the date of the order of removal, if the alien demonstrates that the failure to appear was because
of exceptional circumstances as defined in section 240(e)(l) of the Act. See 8 C.F.R.