U.S.

Department of Justice
/-

Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 /.cc.>h11rg Pike. S11i1c 1000 Fall" Clmrc/1, Virgi11i11 1204 I

Stender, Christopher J., Esq. Christopher J. Stender, Esquire 1010 Second Avenue, Suite 2300 San Diego, CA 92101

OHS/ICE Office of Chief Counsel SND 880 Front St., Room 1234 San Diego, CA 92101-8834

Immigrant & Refugee Appellate Center | www.irac.net

Name: MEZA-PEREZ, JOSE NOEL

A029-269-568

Date of this notice: 2/28/2011

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For more unpublished BIA decisions, visit www.irac.net/unpublished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: Jose Noel Meza-Perez, A029 269 568 (BIA Feb. 28, 2011)

U.S. Department f)f Justice

Executive Office for Inunigration Review Falls Church, Virginia 22041
.

Decision of the Board of hnmigration Appeals

File:

A029 269 568 - San Diego, CA

Date:

In re: JOSE NOEL MEZA-PEREZ a.k.a. Jose Noel Perez

FEB 2 8 2011

IN REMOVAL PROCEEDINGS MOTION ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Christopher J. Stender, Esquire Ted Y. Yamada Deputy Chief Counsel APPLI CATION: Reopening; termination

Immigrant & Refugee Appellate Center | www.irac.net

The Board dismissed the respondent's appeal from the Immigration Judge's decision on September 29, 2009, and the respondent filed this untimely motion to reopen and terminate on November 10, 2010.

See section 240(c)(7)(C)(i) of the Immigration and Nationality Act, 8 U.S.C.

1229a(c)(7)(C)(i); 8 C.F.R. 1003.2(c)(2).

The respondent now offers evidence that on

February 19, 2010, the Superior Court of California, County of Riverside, granted his motion to withdraw the guilty plea. In that motion, the respondent argued that he did not receive the proper warnings set forth in California Penal Code section 1016.5 .1 Although the Department ofHomeland Security ("DHS") requested and received an extension until December 28, 2010, to respond to the motion, no opposition to the motion has been received from the DHS to date. 1003.2(g). The motion will be granted and the proceedings will be terminated. The sole conviction underlying the respondent's removability under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(E)(i) (crime of domestic violence), has been vacated due to a defect in the criminal proceedings. The Board, therefore, will grant the respondent's motion sua sponte and terminate the proceedings. in exceptional situations); 8 C.F.R. 1003.2(a).

See

8 C.F.R.

See Matter of,J-J-, 21 I&N Dec. 976,

984 (BIA 1997) (discussing the Board's limited authority to reopen or reconsider cases sua sponte

See also Nath v. Gonzales,

467 F.3d 1185, 1189

(9th Cir. 2006) (a conviction vacated for reasons "unrelated to the merits of the underlying criminal proceedings" may be used as a conviction in removal proceedings whereas a conviction vacated because of a procedural or substantive defect in the criminal proceedings may not);

Matter ofPickering, 23 I&N Dec. 621 (BIA 2003) (finding that a conviction vacated for procedural
or substantive defects in the underlying criminal proceedings is no longer valid for immigration purposes).

The California Penal Code section 1016.5 requires that, prior to a court accepting a plea of guilty,

a criminal defendant be advised "on the record" of the potential immigration consequences of the plea.

Cite as: Jose Noel Meza-Perez, A029 269 568 (BIA Feb. 28, 2011)

'

A029 269 568

..---

The following orders will be entered.

ORDER: The motion to reopen is granted.

FURTHER ORDER: The removal proceedings are terminated.

FOR THE BOARD

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Jose Noel Meza-Perez, A029 269 568 (BIA Feb. 28, 2011)