U.S.

Department of Justice

Executive Office for hnmigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 leesburg Pike, Suite 2000 Falls Church, Virginia 2204/

OHS/ICE Office of Chief Counsel - EL C Agnolucci A. Simona Howard Rice Nemerovski Canady Falk & Rabkin1115 N. Imperial Ave. El Centro, CA 92243 Three Embarcadero Center, 7th Floor San Francisco, CA 94111

Immigrant & Refugee Appellate Center | www.irac.net

Name: ADIOVA, ESTELITO JR. CARPIO

A047-899-129

D ate of this notice: 2/24/2011

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Holmes, David B.

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Estelito Jr. Carpio Adiova, A047 899 129 (BIA Feb. 24, 2011)

U.S.
,.

J>epartment of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigratibn Review Falls Church, Virginia 22041

File:

A047 899 129 - El Centro, CA

Date:

In re: ESTELITO JR. CARPIO ADIOVA a.k.a. Estelito Carpio Adiova, Jr. IN REMOVAL PROCEEDINGS APPEAL AND MOTION ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Simona A. Agnolucci, Esquire

FEB 2 4 2011

Immigrant & Refugee Appellate Center | www.irac.net

William P. Hollerick Assistant Chief Counsel

APPLICATION:

Reopening; reconsideration

On May 25, 2010, the United States Court of Appeals for the Ninth Circuit vacated the Board's order dated July 17, 2008, in which we affirmed the Immigration Judge's determination that the respondent was removable under section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(ii). The court vacated our decision pursuant to its intervening precedent decision in

Castillo-Cruz

v.

Holder,

581 F.3d 1154, 1160-61 (9th Cir. 2009) (holding that a

conviction for a violation of 496(a) of the California Penal Code is not categorically a crime involving moral turpitude). 1 The Ninth Circuit explicitly declined to remand the case to the Board. Now before the Board is a motion filed by the Department of Homeland Security (DHS) captioned as a motion to reopen. The DHS seeks further consideration of the remaining charges of removability that were sustained by the Immigration Judge, but specifically not addressed by the Board in its July 17, 2008, decision. The respondent opposes the DHS' s motion arguing, in part, that the motion is in fact a motion to reconsider, rather than a motion to reopen, because it seeks further consideration of the Board's July 17, 2008 decision and proffers no new evidence. We agree that the motion before us is properly construed as a motion to reconsider for the

reasons advanced by the respondent. See Matter of0-S-G-, 24 l&N Dec. 56 (BIA 2006). As such, the motion is untimely. See 8 C.F.R. 1003.2(b)(2). We may well have reopened and reconsidered Circuit's decision in

our prior decision if a motion to reconsider had been filed in a timely manner following the Ninth

Castillo-Cruz

v.

Holder,

while the petition for review in this case was still

pending before that court; however, the present motion was not filed for some eight months thereafter. Considering the chronology of events and the record now before us, we are not persuaded that sua sponte reconsideration of our July 17, 2008, decision is warranted. Accordingly, the DHS motion will be denied as untimely filed.

In September 2009, the Ninth Circuit held in

Verdugo-Gonzalez v. Holder, 581 F.3d I 059 (9th Cir.

2009), that a conviction for felony receipt of stolen property under 496(a) of the California Penal Code, accompanied by a sentence to imprisonment of st least one year, categorically constitutes a conviction for an aggravated felony.

Cite as: Estelito Jr. Carpio Adiova, A047 899 129 (BIA Feb. 24, 2011)

A047 899 129

..J

ORDER: The motion is denied.

FOR THE BOARD

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Estelito Jr. Carpio Adiova, A047 899 129 (BIA Feb. 24, 2011)