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Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net U.S. Department of Justice Executive Office for Immigration Review

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 lee.sb11rg Pike, S11ite 2000 Falls Ch11rch. Virginia 12041

Duong, Hanh H. Law Office of Hanh Duong 13370 Branch View Ln Ste. 160 Dallas, TX 75234

OHS/ICE Office of Chief Counsel - DAL 125 E. John Carpenter Fwy, Ste. 500 Irving, TX 75062-2324

Name: NGYEN, SON HOANG

A 097-683-305

Date of this notice: 5/16/2013

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

Sincerely,

DonttL c11/VL)

Enclosure

Panel Members:

Manuel, Elise L.

Donna Carr

Chief Clerk

Trane Userteam: Docket

Cite as: Son Hoang Nguyen, A097 683 305 (BIA May 16, 2013)

Immigrant & Refugee Appellate Center | www.irac.net

U.S. Department of Justice Decision ofthe Board ofImmigration Appeals Executive Office for Immigration Review Falls
U.S. Department of Justice
Decision ofthe Board ofImmigration Appeals
Executive Office for Immigration Review
Falls Church. Vugioia 22041

File:

A097 683 305 - Dallas, Texas

Date:

In re:

SON HOANG NGUYEN

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:

APPLICATION:

Reopening

Hanh H. Duong , Esquire

RESPONDENT: APPLICATION: Reopening Hanh H. Duong , Esquire MAY 162013 The respondent, a native and citizen

MAY 162013

The respondent, a native and citizen of Vietnam, has filed a timely appeal of an Immigration

Judge's April 19, 2012, order, denying his motion to reopen.

Immigration Court for further proceedings in accordance with this opinion, and the entry of a new decision.

The record will be remanded to the

entry of a new decision. The record will be remanded to the The Board reviews an

The Board reviews an Immigration Judge's findings of fact, including findings as to the credibility of testimony, under the "clearly erroneous" standard. See 8 C.F.R. § 1003.l(d)(3)(i); Matter of R-S-H-, 23 l&N Dec. 629 (BIA 2003); Matter ofS-H-, 23 I&N Dec. 462 (BIA 2002).

The Board reviews questions of law, discretion, and judgment in an appeal of an Immigration Judge's decision de novo. See 8 C.F.R. § 1003.l(d)(3)(ii).

To the extent that the Immigration Judge premised his denial of the respondent's motion to

reopen on the failure to present evidence that the 2009 Texas conviction for attempted possession of cocaine had been vacated, we find that it was correctly decided and proper under the circumstances.1 However, subsequent to the filing of his appeal of the Immigration Judge's decision, the respondent has presented evidence that his 2009 Texas conviction for attempted

possession of cocaine has been vacated by the Texas sentencing court. Specifically, the th

District

respondent has offered the copy of an order dated November 3, 2011, issued by the 195

Court, Dallas County, Texas, pursuant to an application for a Writ ofHabeas Corpus, setting aside

and vacating the respondent's 2009 Texas conviction for attempted possession of cocaine on constitutional due process grounds.

We consider the particular circumstances of this case presents an "exceptional situation" that warrants the exercise of our sua sponte authority to reopen these proceedings, as a matter of discretion. See Matter of G-D-, 22 l&N Dec. 1132, 1133-34 (BIA 1999) (stating that "as a general matter, we invoke our sua sponte authority sparingly, treating it not as a general remedy

1 We note, however, that the Immigration Judge also referenced unspecified arguments offered by the Department of Homeland Security (''DHS") in opposition to the respondent's motion to reopen, as the basis for his denial of the motion. Ordinarily, checking off a box in a form order with a general statement of agreement with the reasons stated in opposition to the motion, without identifying those reasons, provides insufficient basis for adequate review by the Board. See 8 C.F.R. § 1240.12.

Cite as: Son Hoang Nguyen, A097 683 305 (BIA May 16, 2013)

Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net A097 683 305 ' . for any hardships created

A097 683 305

'

.

for any hardships created by enforcement of time and number limits in the motions regulations, but

as an extraordinary remedy reserved for truly exceptional situations,,). appropriate to reopen these removal proceedings sua sponte. See id

Consequently, we find it

The Board in Matter ofPickering, 23 I&N Dec. 621 (BIA 2003), held that ifa court vacates a conviction based upon a procedural or substantive defect in the underlying proceedings, there is no longer a conviction for immigration purposes. The United States Court of Appeals for the Fifth Circuit, the jurisdiction wherein this case arises, has held that vacated convictions remain valid for immigration purposes, regardless of the reason for the vacatur. See Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2003). However, the court has since expressed concerns over its decision in Renteria. See Discipio v. Ashcroft, 369 F.3d 472 (5th Cir. 2004), vacated by Discipio v. Ashcroft, 417 F.3d 448 (5th Cir. 2005) (granting respondent's motion to remand to the Board in order to terminate proceedings). Moreover, we consider that in Gaona-Romero v. Gonzales, 497 F.3d 694, 694-95 (5th Cir. 2007), the court noted that, following its decision in Discipio v. Ashcroft, supra, the government undertook a policy review to determine how removal cases arising in the Fifth Circuit that involve vacated convictions should be treated. The court observed that the government concluded that it would not argue that removal decisions be upheld pursuant to Renteria, but rather would request remand to the Board so that the government could take action in accord with Pickering. See Gaona-Romero v. Gonzales, supra, at 694-95.

Consequently, the proffered evidence raises the question as to whether or not the vacated conviction remains a conviction within the meaning of the immigration laws under current Fifth Circuit and Board precedent. Additional fact-finding to determine its effect on the proceeding as a matter of law, is required. See Matter ofS-H-, 23 I&N Dec. 462, 464-65 (BIA 2002). In this regard, on remand, the Immigration Judge will also consider the new evidence offered by the respondent as it relates to the issue of inadmissibility under section 212(a)(2)(A)(i)(II) of the Act, and to determine whether the respondent can now establish his eligibility for relief from removal, including adjustment of status based on an approved immediate relative visa petition filed on his behalf by his United States citizen spouse.

Accordingly, the following order will be entered.

ORDER:

The record will be remanded to the Immigration Court for further proceedings in

accordance with this opinion and the entry of a new decision.

[.�
[.�

2

Cite as: Son Hoang Nguyen, A097 683 305 (BIA May 16, 2013)

Immigrant & Refugee Appellate Center | www.irac.net

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SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL. YOUR NOTICE OF APPEAL,
SEE
THE
ENCLOSED
FORMS
AND
INSTRUCTIONS
FOR
PROPERLY
PREPARING
YOUR
APPEAL.
YOUR
NOTICE
OF
APPEAL,
ATTACHED
DOCUMENTS,
AND
FEE
OR
FEE
WAIVER
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MUST
BE
MAILED
TO:
BOARD
OF
IMMIGRATION
APPEALS
.r
OFFICE
OF
THE
CLERK
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BOX
8530
FALLS
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VA
22041
ATTACHED
IS
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COPY
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THE
DECISION
OF
THE
IMMIGRATION
JUDGE
AS
THE
RESULT
OF
YOUR
FAILURE
TO
APPEAR
AT
YOUR
SCHEDULED
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OR
REMOVAL
HEARING.
THIS
DECISION
IS
FINAL
UNLESS
A
MOTION
TO
REOPEN
IS
FILED
IN
ACCORDANCE
WITH SECTION 242B(c)(3)
OF
THE
IMMIGRATION
AND
NATIONALITY
ACT,
8
U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION.PROCEEDINGS OR SECTION 240(c) (6),
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IN
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IF
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FILED
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In
the
Matter
of:
Case
No.:
A097-683-305
NGYEN,
SON
HOANG
Docket:
DALLAS,
TEXAS
RESPONDENT
IN
REMOVAL
PROCEEDINGS
Immigrant & Refugee Appellate Center | www.irac.net
ORDER
OF
THE
IMMIGRATION
JUDGE
Upon
consideration
of
RESPONDENT
Motion
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an
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to
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proceedins.s
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