JEFFREY B.

RUBIN, ESQUIRE
LAW OFFICE OF JEFFREY B. RUBIN
ONE CENTER PL, SUITE 230
BOSTON, MA 02108
Name: LM CHAN, CHUN
U.S. Department of Justice
Executive Ofce fr Immigation Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leeburg Pike, Suite 2000
Flls Church. Vrginia 22041
OHS/ICE Ofce of Chief Counsel - BOS
P.O. Box 8728
Boston, MA 02114
A047-957-053
Date of this notice: 1/6/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
King, Jean C.
Sincerely,
Donna Carr
Chief Clerk
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Chun Lam Chan, A047 957 053 (BIA Jan. 6, 2011)
For more unpublished BIA decisions, visit www.irac.net/unpublished
LM CHAN, CHUN
20 BRADSTON STREET
A047-957-053
BOSTON, MA 02118
Name: LM CHAN, CHUN
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesbur Pike, Suite 2000
Fals Clurcl, Vrinia 2204/
OHS/ICE Ofice of Chief Counsel BOS
P .0. Box 8728
Boston, MA 02114
A047-957-053
Date of this notice: 1/6/2011
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been sered with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be removed
from the United States or affirms an Immigration Judge's decision ordering that you be
removed, any petition for review of the attached decision must be filed with and received by the
appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
King, Jean C.
Sincerelv.
Do ct
Donna Carr
Chief Clerk
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Chun Lam Chan, A047 957 053 (BIA Jan. 6, 2011)
U.S. Department of Justce
Executve Ofce fr Inigaton Review
Decision of the Board of hgaton Apeals
FalChuch. Virginia 22041
File: A047 957 053 - Boston, MA
I re: CHN LAM CHAN
I REMOVAL PROCEEDIGS
APPEAL A MOTION
Date:
ON BEHLF OF RESPONENT: Jeffey B. Rubin, Esquire
APPLICATION: Terinaton
JAN 0 6 201\
The respondent, a native and citizen of Hong Kong, has appealed fom the Immigation Judge's
decision dated September 30, 2010. The Imigation Judge fund the respondent removable fom
the United States fr commission of an aggavated flony under section 237(a)(2)(A)(iii) of the
Immigation and Nationalit Act, 8 U.S.C. 1227( a)(2)(A)(iii), and fr commission of a contolle
substace violation under section 237(a)(2)(B)(i) of the Act, 8 U.S.C. 1227(a)(2)(B)(i).
Subsequently, on December 3, 2010, the respondent fled a motion to terminate or remand these
proceedings to the Immigation Judge based on the November 1 7, 2010, order fom the Fraingham
Distict Court vacating his convictions fr filure to advise te respondent of the immigation
consequences of his plea, and ganting a new tial. The respondent provided a copy of the state court
orders vacating the convictions. The Departent of Homelad Seurity has not responded to the
motion and it is thus deemed to be unopposed. 8 C.F.R. 1003.2(g)(3). I ligt of the state court
orders vacating the respondent's convictions fr failure to advise the respondent of the immigation
consequences of hs plea, we fnd that terination of the respondent's removal proceedings is
appropriate. Matter of Pickring, 23 I&N Dec. 621, 624 (BIA 2003) (a conviction that has been
vacated by the criminal court based on a procedural or substantive defect in the underlying
proceedings is no longer a conviction fr immigration puroses). See also Padilla v. Kentuck,_
U.S._, 130 S.Ct. 1473 (2010). Accordingly, the motion to terinate will be ganted.
Accordingly, the fllowing order will be entered.
ORDER: The motion is ganted and proceedings are terinated.
*
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Chun Lam Chan, A047 957 053 (BIA Jan. 6, 2011)
?
U.S. DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
Boston, Massachusetts
File A 47 957 053 Date: September 30, 2010
In the Matter of
CHUN LAM CHAN
Respondent
CHARGES:
APPLICATION:
APPEARANCES:
IN REMOVAL PROCEEDINGS
Section 237(a) (2) (A) (iii) of the Imigration
and Nationality Act - convicted of aggravated
felony.
Section 237(a) (2) (B) (i) of the Immigration and
Nationality Act - convicted of controlled
substance violation.
(1) Voluntary departure. (2) continuance.
ON BEHALF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT
OF HOMELAND SECURITY:
Annelise Araujo, Esquire
Rueben Law Off ices
One Center Plaza, Suite 230
Boston, Mass., 02108
Helen E. Moore, Esquire
Assistant Chief Counsel
JFK Federal Building - Room 425
Government Center
Boston, Mass., 02203
ORAL DECISION OF THE IMMIGRATION JUDGE
The Respondent in this case is a 23-year-old, single,
native and citizen of Hong Kong. . _emoval proceedings were
W vrvrvv..v. ...l.. :=
uvvm" --- vvrvrvrwrvr rwrvuur rvrv vvv vrvmmrvrvrvvrv vQ
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Chun Lam Chan, A047 957 053 (BIA Jan. 6, 2011)
I"

\
initiated against him when the Immigration Service of the
Department of Homeland Security issued a Notice to Appear on
February 16, 2010, charging him with being removable from the
United States on the basis of the charges set forth above.
(Exhibit 1) .
The Respondent, through counsel, admitted the truth of
factual allegations one, two and three in the Notice to Appear and
denied factual allegations four and five having to do with his
convictions. Additionally, the Respondent denied the charges of
removability. (Exhibit 2) .
December
District
The documentary evidence of record establishes that on
-o
23, 2004 the Respondent was convicted in the rrehar
U,nh t
Court, emeham, Massachusetts, for the offense of
possession to distribute marijuana. As a result of that
conviction the Respondent was assessed a victim/witness fee of
$50, court costs of $400 and required to undergo random drug
testings. (Exhibit 3).
I do find that the Respondent has either pleaded guilty
or admitted to sufficient facts as a result of which sufficient
facts were found and penalties were imposed on the Respondent as
indicated above.
The documentary evidence of record further establishes
that on January 20, 2006, the Respondent either pled guilty to or
admitted sufficient facts for a finding of possession to
distribute marijuana. Sufficient facts were found and the
A 47 957 053 2 September 30, 2010
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
)
'
'
Respondent was assessed a victim/witness fee of $50 and required
to undergo a drug evaluation. (Exhibit 4).
Once again I do find that some penalty has been imposed
on the Respondent as a result of his having either pled guilty or
admitted sufficient facts and therefore this charge also is
considered to be a conviction for Imigration purposes.
The Respondent's attorney is in the process of preparing
a Padilla motion to have the convictions vacated. A continuance
has been requested.
I decline to grant a continuance for what I hold to be a
collateral matter. As to whether or not the Respondent was
advised by one or both of his attorneys as to his Imigration
status is unclear and as to whether or not these motions will ever
be favorably considered or at what point that might happen is
further unclear.
Therefore, I decline to grant a postponement for that
purpose.
The Respondent is not eligible for voluntary departure
in that he has been convicted of an aggravated felony, to wit
distribution of marijuana, a drug trafficking crime, on two
separate occasions.
Therefore, the following orders will be entered:
ORDER
IT IS HEREBY ORDERED that the Respondent's application
for voluntary departure be denied as a matter of law.
A 47 957 053 3 September 30, 2010
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
/
t
IT IS FURTHER ORDERED that the Respondent be removed
from the United States to Hong Kong or China on the basis of the
charges contained in the Notice to Appear.
A 47 957 053 4 September 30, 2010
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
,
\

CERTIFICATE PAGE
I hereby certify that the attached proceeding before
LEONARD I. SHAPIRO, in the matter of:
CHUN LAM CHAN
A 47 957 053
Boston, Massachusetts
was held as herein appears, and that this is the original
transcript thereof for the file of the Executive Office for
Immigration Review.
rep/seh
Rhonda E. Priest, Transcriber
YORK STENOGRAPHIC SERVICES, INC.
34 North George Street
York, Pennsylvania 17401-1266
(717) 854-0077
November 15, 2010
Completion Date
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t