Owings, Sarah, Esq.

The Antonini Law Firm

P .0. Box 89097
Atlanta, GA 30312
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesb11rg Pike, S11ite 2000
Fals Cl111rch, Vrginia 22041
OHS/ICE Ofice of Chief Counsel ATL
180 Spring Street, Suite 332
Atlanta, GA 30303
Name: ABASSY OQUELI, LUFTY ABRAHAM A029-886-971
Date of this notice: 12/30/2011
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Pauley, Roger
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: Lufty Abraham Abassy Oqueli, A029 886 971 (BIA Dec. 30, 2011)
,

U.b.DcaHcut0fJuscc
Exm0vcOfc fr mQouRe
DmouofcBo ofmg0oup
FaChh Vr 2201
File: A029 886 971 - Alanta, GA
I re: LUFTY ARA AASSY OQUELI
I ROVAL PROCEEDIGS
APEA
Date:
ON BE OF RSPONDENT: Sarah W.H. Owgs, Esquire
ON BE OF DHS:
CHARGE:
Nichole Lillibrdge
Assistant Chief Counsel
DEC ao ion
Notce: Sec. 212(a)(2)(A)(i)(I), I&N Act [8 U.S.C. l 182(a)(2)(A)(i)(I] -
Crme involving mora turpitude
APLICATON: Tenination of Removal Proceedings
The Depament of Homeland Serit (HS) appeals fom an Imgaton Judge's Agust 4,
20 I 0, decision. I that decsion, the Imgation Judge gted the respondent's moton to tene
the remova proceedings against the respondent. The appeal will be dismissed.
The respondent, a natve ad citen of Honduras, ben a lawfl perent reident of te
Unte States since 1980. I 2009, the DHS brought removal procedings agains the respondent,
allegg that he had been convicted of fcial on cad thef ad fancial trasacton cad
faud in 200 I in the Superor Cour of UHCount, Georga. The DHS chaged the respondent
with being removable under secton 212(a)(2)(A)(i)(I of the Imigaton ad Natonit Act,
8 U.S.C. l 182(a)(2)(A)(i)(I), fr having been convicte of a crime involving moral turpitude.
Dung the proceedings below, the respondent fed a motion to teninate proceedings on the
gound that his 200 I conviction fr fnancial transacton cad thef and fncial transacton cad
faud had be vacated ad set aside by the Georga court. I suppor of hs moton he provde a
copy of the Order of the Superor Court of U HCount, dated June 9, 2009, which states that
the judgent, plea, and sentence ae vcate as void ab initio, on the gound that the respondent's
Sixh Amendment rght to counsel was violated and on the gound that the respondet's plea was not
entere in kowing ad voluntar fason under state ad feeral constitutona standads of due
process of law. The reord shows th on October 9, 2009, the resondent was convcted, purst
to a guilty plea of the misdemeaor ofense of thef by takng, resultg in a 6 month sentence of
probation. The Immigtion Judge, noting that he was required to gve fl faith ad creit to the
state's June 9, 2009, order, ad that the October 9, 2009, convicton was subje to the pet ofese
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: Lufty Abraham Abassy Oqueli, A029 886 971 (BIA Dec. 30, 2011)
'
A029 886 971
excepton under setion 212(a)(2)(A)(ii)(I) of the Act, 8U.S.C. l182(a)(2)(A)(ii)(I), gante the
respondent's motion ad terminate proceedings.
The DHS argues that the state cour lacked jurisdiction to modif the respondent's criminal
conviction outside of the time limits prescrbed by the Georgia state statute. It is assered that, just
as the Georga appellate courts would not uphold the modifed cr convicton, the Immigation
Judge should have determined whether the Superor Cour of Gwinett County had the authority
under state law to vacate the respondent's convicton.
The evidence submitte by the respondent in connetion with his motion include a properly
cere copy of a certcate of dispositon, issue by the Superior Cour of Gwnnett County,
refecting that his 2001 conviction fr fincial tansaction card thef and fnancial trasaction cd
had been vacte on constitutonal gounds on June 9, 2009. The cour order vacatng the
respondent's conviction indicates that the respondent's guilty plea was constitutionally defecive
because te respondent's right to counsel had been violated.
The question in this case is the efect of the state cour order vacating the respondent's cnvicton
on the repondent's removal under the imigaton law. The DHS ages that the Georga cour
order vacting the conviction should not be recoged because the Superor Cour acte in volaton
of Gerga law. I rejeting this argument, the Immigation Judge fund d it would be
inappropriate in imgation proceedings to determine whether the Superor Court properly
applie Gerga law. We ae with the Igaton Judge that the queston of whether the Gerga
court acte in accordance with its own state law is not an issue approprae fr resoluton in
immigaton proceedings. Awe held in Matter of Rogez-Ruiz, 22 &NDec. 1378 (BIA 2001 ),
we will not look behind the state cour judgent to ascertain whether the cour acte in accordace
with state law in vacating a convicton. See Matter of Cota-Vargas, 23 &NDec. 849 (BIA 2005)
(a trial cour's decision to modif or reduce a alien's criminal sentence nunc pro tune is entitled to
m fith and credit by the Immigation Judges ad the Boad, ad such a modifed or reuced
setence is reoged as vaid fr puroses of the immigation law wthout regad to the tral court's
resons fr efeng the modificaton or reucton).
The respondent assers that he requested the modifcation based on a violaton of his
constitutona rghts (espondent's Br. at 6). The modifcaton itself maes no reference to
immigation consequences or rehabilitaton, and the DHS does not ague on appeal that this was the
basis fr the modifcation. Under the circacs, it appeas that the modcaton was base on
procedural or substantive defects in the underying proceedings. See Matter of Pickrng, 23 &N
De. 621, 625 (BI 2003). We therefre recoge that the respondent's 2001 convicton been
vacated by the convicting cour. Thus, the respondent's conviction, which is the sole basis fr m
chage of deporability, ha been vitate fr immigaton puroses. Finally, we note that the DHS
does not dispute the Immigation Judge's determination that the respondent's subseuent conviction
fls within the pett ofense excepton of secton 212(a)(2)(A)(ii)(I) of the Act. Accordigly, the
appeal wbe dismissed.
The fllowig order shall be issued.
2
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: Lufty Abraham Abassy Oqueli, A029 886 971 (BIA Dec. 30, 2011)
. 'A029 886 971
ORE The appis dismssed.
3
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: Lufty Abraham Abassy Oqueli, A029 886 971 (BIA Dec. 30, 2011)
(
UNITED STAT EPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
Atlanta, Georgia
File A 029 886 971 August 4, 2010
In the Matter of
LUFTY ABRAHAM ABASSY OQUELI, IN REMOVAL PROCEEDINGS
Respondent
CHARGE: Section 212 {a) {2) {A) {i) (I) of the Imigration and
Nationality Act.
APPLICATION: Motion to terminate.
ON BEHALF OF THE RESPONDENT:
Sarah Owings, Esquire
P. O. Box 89097
Atlanta, Georgia 30312
ON BEHALF OF THE DEPARTMENT
OF HOMELAND SECURITY:
Nicole S. Lillibridge,
Assistant Chief Counsel,
Department of Homeland Security
ORAL DECISION OF THE IMMIGRATION JUDGE
This case before the Court as a result of a Notice to
Appear that was issued by the Department of Homeland Security.
The charging document alleges that the respondent is a native and
citizen of Honduras, and that he adjusted his status in the
United States to that of a lawful permanent resident sometime in
1980. The Notice to Appear further alleges in paragraph 3 that
the respondent arrived at Hartsfield-Jackson International
Airport on January 4, 2009 and presented himself as a returning
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
JSC

(
resident.
The fifth allegation of the Notice to Appear alleges
that the respondent was convicted on August 22, 2001 in the
Superior Court of Gwinnett County for the offense of card theft
and financial transaction card fraud. The allegation further
alleges that he was sentenced to a probation of 11 months and 27
days for each count to run concurrently. The respondent denies
allegation 5. The respondent takes the position that he was not
convicted of that offense because it was later vacated on
constitutional grounds. In light of the vacated conviction, the
respondent says that he is not removable because he was later re
sentenced and pled guilty to a crime that falls within the petty
theft offense exception.
The record in this case establishes clearly that the
respondent's conviction was vacated. See Exhibit 2 at tab B.
The state Court determined that the respondent's conviction was
obtained in violation of his sixth amendment right to counsel and
was violated on the grounds that the respondent's plea agreement
was not entered into in a knowing and voluntary fashion in
violation of both the state and federal constitution standard of
due process. The evidence in the record further shows that the
respondent later was convicted of theft by taking and that he was
re-sentenced such that he is no longer removable.
The Government has submitted documents in this case to
support its position that the vacation of respondent's conviction
A 029 886 971 2 August 4, 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
JSC
should not be given full credit by the Court. According to the
Government, the plea colloquy at the respondent's sentencing in
2001, indicates that the respondent entered into a knowing and
voluntary plea. The Government asked the Court to find that the
respondent's plea did not violate the Constitution.
The Court refuses to go behind the decision of the
state Court that found that the respondent's plea was in
violation of his due process rights. The Court is required to
give full faith and credit to the decision of the state Court in
this matter. The Court will give full faith and credit to the
state Court's vacation of respondent's conviction. Having
vacated that conviction on constitutional grounds, the Court
finds that the respondent is no longer convicted based on the
plea entered in 2001.
The respondent's present conviction does not provide a
basis for his removal. In light of this, the Court will
terminate the proceedings. The Court will issue the following
order in this case.
ORDER
IT IS HEREBY ORDERED that the charge of removal in this
case be not sustained.
IT IS FURTHER ORDERED that the proceedings against
respondent be terminated.
A 029 886 971 3
EARLE B. WILSON
Irigration Judge
August 4, 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 EARLE B. WILSON in the matter of:
LUFTY ABRAHAM ABASSY OQUELI
A 029 886 971
Atlanta, Georgia
was held as herein appears, and that this is the original
transcript thereof for the file of the Executive Office for
Imigration Review.
nathan Charlton {Transcriber)
Deposition Services, Inc.
6245 Executive Boulevard
Rockville, Maryland 20852
(301) 881-3344
September 23, 2010
{Completion Date)
O1
1
'1o
cc
uU
T\
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