U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Qfjice of the Clerk
5 /07 Leesburg Pike. Suite 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - SND

880 Front St., Room 2246
San Diego, CA 92101-8834

Name: RAYA-DOMINGUEZ, SERGIO GA...

A 043-488-730

Date of this notice: 10/22/2015

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

DorutL CW\/1.)
Donna Carr
Chief Clerk
Enclosure
Panel Members:

Geller, Joan B
Creppy, Michael J.
Mann, Ana

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Sergio Gabriel Raya-Dominguez, A043 488 730 (BIA Oct. 22, 2015)

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Ebrahimian, Armineh
Tsoi & Associates
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U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A043 488 730 - San Diego, CA

Date:

OCT 2 2 2015

In re: SERGIO GABRIEL RA YA-DOMINGUEZ a.k.a. Sergio Raya-Dominguez

APPEAL
ON BEHALF OF RESPONDENT: Armineh Ebrahimian, Esquire
CHARGE:
Notice: Sec.

212(a)(2)(A)(i)(I), I&N Act [8 U.S.C. 1182(a)(2)(A)(i)(I)] Crime involving moral turpitude

APPLICATION: Reopening

This case was previously before us on March 24, 1999, when we sustained the appeal of the
Department of Homeland Security ("OHS") and remanded the record of proceedings to the
Immigration Court. On April 19, 1999, the Immigration Judge found the respondent removable
as charged and ordered him removed to Mexico. On March 5, 2014, the respondent filed a
motion to reopen proceedings contending that the California conviction underlying his removal
order had been vacated on January 10, 2014, based on a procedural defect. The DHS did not file
a response to the motion. The Immigration Judge denied the motion and the respondent
appealed. The DHS did not file a brief on appeal. The appeal will be sustained and these
removal proceedings will be terminated.
We review Immigration Judges' findings of fact, including determinations of credibility and
predictions of future events, under a "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i).
We review all other issues, including whether the parties have met their relevant burden of proof,
and issues of discretion, under a de novo standard. 8 C.F.R. 1003.l(d)(3)(ii). Because the
respondent did not file an application for relief from removal in these proceedings before
May 11, 2005, his claims are governed by the amendments of the REAL ID Act. See Matter of
S-B-, 24 I&N Dec. 42 (BIA 2006).
The Immigration Judge concluded that he lacked jurisdiction to reopen proceedings that were
subject to reinstatement under section 24l(a)(5) of the Immigration and Nationality Act,
8 U.S.C. 1231(a)(5). He also found that the minute order granting the respondent's motion and
dismissing the case was based on missing records of conviction.
We conclude that the Immigration Judge possessed jurisdiction to adjudicate the respondent's
motion to reopen. Although the respondent was potentially subject to reinstatement under
section 24l(a)(5), it is undisputed that the DHS has not elected to reinstate removal proceedings
Cite as: Sergio Gabriel Raya-Dominguez, A043 488 730 (BIA Oct. 22, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

A043 488 730

under section 241(a)(5) of the Act. As a result, the respondent is not barred by section 241(a)(5)
of the Act from seeking reopening of these removal proceedings.

Under the circumstances-where the respondent's single conviction was the sole factual
predicate for removability, that conviction was vacated for a substantive rather than a
rehabilitative reason, the DHS did not oppose the respondent's motion below while it
simultaneously pursued separate removal proceedings under section 240 of the Act, and the DHS
did not file a brief opposing the respondent's appeal-we find it appropriate to grant the
respondent's motion to reopen and terminate these removal proceedings.
Accordingly the following orders will be entered.
ORDER: The appeal is sustained.
FURTHER ORDER: The proceedings are reopened and terminated.

FOR THE BOARD

2
Cite as: Sergio Gabriel Raya-Dominguez, A043 488 730 (BIA Oct. 22, 2015)

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The Immigration Judge improperly looked beyond the state court's vacatur of the plea and
dismissal of the case, which was facially based on a procedural defect. See Matter of Rodriguez
Ruiz, 22 l&N Dec. 1378, 1379-80 (BIA 2000). Moreover, even if such were permitted, the state
court records, at tab I of the respondent's motion below, do not support the Immigration Judge's
determination that the vacatur was based on the absence of conviction records that were available
to the respondent and the Immigration Court. Although the docket sheet reflects "lost or
destroyed reporter's notes," it does not reflect any other missing records pertaining to the
conviction, and it indicates that "defendant's declaration supports relief." The minute order
states that "the court has read and considered the defense motion to vacate the plea pursuant to
penal code section 1016.5," "hear[d] argument from both counsel," and the "defense motion is
granted." Because the prosecution was "unable to proceed," the case was dismissed. Thus, it is
clear from the state court records that the respondent's conviction was, in fact, vacated because
of a procedural defect. See Cal. Penal Code 1016.S(b).

U.S. Department of Justice

f '

Executive Office for Immigration Review

Immigration Court

401 West "A" Street, Suite 800

Sao Diego, Ca. 92101

Date: April 15, 2014

File A043-488-730
In the Matter of:
RAYA-DOMINGUEZ, SERGIO

__ Attached is a copy of the written decision of the Immigration Judge. This decision
is final unless an appeal is taken to the Board of Immigration Appeals. The
enclosed copies of Form EOIR-26, Notice of Appeal, and Form EOIR 27, Notice of
Entry as Attorney or Representative, properly executed, must be filed with the
The appeal must be
Board of Immigration Appeals on or before
accompanied by proof of paid fee ($110.00) or fee waiver.
Enclosed is a copy of the oral decision.
Enclosed is a transcript of the testimony of record.
__ You are granted until ---------- to submit a brief to this office
in support of the appeal.
__ Opposing counsel is granted until
appeal.

to submit a brief in opposition to the

__]__ Enclosed is a copy of the order/decision of the Immigration Judge.

All papers filed with the court shall be accompanied by proof of service upon
opposing counsel.

Immigration Court Clerk

CC: TED YAMADA, DEPUTY CHIEF COUNSEL
880 FRONT STREET, STE. 2246
SAN DIEGO, CA. 92101

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TSOI & ASSOCIATES, LAW\'ERS

ARMINEH EBRAHIMIAN, ESQUIRE
108 N. YNEZ AVENUE, SUITE 118
MONTEREY PARK, CA. 91754

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE OF IMMIRATION REVIEW
IMMIGRATION COURT
SAN DIEGO, CALIFORNIA

A Number: A043-488-730

ORDER OF IMMIGRATION JUDGE

Upon consideration of the Respondent's Sua Sponte Motion to Rpen and Dismiss Proceedings,
it is HEREBY ORDERED that the motion be [ it[ DENIED because:
[] OHS does not oppose the motion.

[] A response to the motion has not been filed with the Court.
[ ] Good cause has been established for the motion.

[ ] The Court agrees with the reasons stated in the opposition of the motion.

Date

"'f I '-I - IL(

Certificate of Service
This documei_it was served by: lail '1personal service to: [] Alien [] Alien c/o Custodial
Officer lj'S f\tty/Rep
11
, Date:
By: Court Staff...,..............
-'------

ll:lf5t

\ol>Hs

i,o

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In the Matter of RAYA-DOMINGUEZ, SERGIO

043-488-730
Sergio Raya Dominguez

According to the respondent's motion, it appears that the Superior Court applied a presumption
believing that a record of the conviction was not available. However, a record of the conviction is
available and is contained in the removal file. In fact, the conviction record specifically checks the box at
item #42 indicating: "Defendant advised of possible effects of plea on any alien I citizenship I probation
I parole status." A copy is attached, reduced from its original size. It may be that the respondent will
need to seek a motion to reopen or reconsider before the Superior Court for a decision based on the
true facts.
However, even assuming the present minute order to be valid, the unavailability or presumed
unavailability of otd conviction records has not been shown to be an uncommon situation justifying
"exceptional circumstances" for sua sponte reopening. It is not exceptional that conviction records
which formed the basis for a deportation or removal proceeding completed many years ago may no
longer be available for any of a number of reasons, including that a court of local jurisdiction may decide
as a policy to destroy old records once they reach a certain age.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Based upon review of the respondent's motion and the ren:ioval file relating to the 1997 proceedings,
the respondent's motion to reopen sua sponte based on "exceptional circumstances" is denied. See
Matter of JJ, 21 l&N Dec. 976 (BIA 1997).1

In addition, the resondent has not fully addressed the issue of jurisdiction. The respondent appears
subject to reinstatement under section 241(a)(S) of the Immigration and Nationality Act based on illegal
reentry after removal. Reopening of the prior order is not authorized by law under the plain language of
section 241(a){S) of the Immigration and Nationality Act. Section 241(a)(S) of the Act specifically states
that, "the prior order of removal is reinstated from its original date and is not subject to being reopened
orreviewed, the alien is not eligible and may not apply for any relief under this Act, and the alien shall
be removed under the prior order at any time after the reentry." (Emphasis added). Rather, the
reinstatement procedure, including any review of the validity of the prior order, is mandated to the
Immigration Officer. The alien has no right to a hearing before an Immigration Judge. The immigration
officer's specific duties regarding reinstatement are found at 8 C.F.R. 241.8. See Section 241(a)(S} of
V
r1
the Act; 8 C.F.R. 241.8; Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006); Morales-Izquierdo v. Gonzale
.f F .
486 F.3d 484 (9th Cir. 2007); In re W-C-8-, 24 l&N Dec. 118 {BIA 2007).
\.,_ ,
The respondent has not shown the reinstatement procedure to be inapplicable in his case based on
impermissible retroactivity. See Fernandez-Vargas v. Gonzales, supra; Ortega v. Holder, --- F.3d --, 1071084 {9th_Cir. Mar. 31, 2014);_ Chay lxcot v. Holder. No. 09-71597 (9th Cir. June 1, 2011).
1 This Court has no information regarding new removal proceedings in Los Angeles beyond what is alleged in the
respondent's motion, and has received no response from the OHS to this motion.

.41.l

\;

(
'

Accordingly, the motion to reopen sua sponte is denied.

"""- -- -==

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Evn taking the respondent's allegation of being waived through at the port of entry as true for
purposes of this motion, the respondent has not shown that procedural regularity for purposes of
inspection and admission means that he did not illegally reenter within the meaning of section
241(a)(S). Compare Matter of Quilantan, 25 l&N Dec. 285 (BIA 2010) and Matter of Areguillin, 17 l&N
Dec. 308 (BIA 1980) with Tamayo-Tamayo v. Holder. 725 F.3d 950 (9th Cir. 2013); Cordova-Soto v. Holder.
659 F.3d 1029 (10th Cir. 2011). Again, this is an issue for the .Immigration Officer to review in the first
instance by law.