U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike. S111te 2000

Falls Church, V1rgmia 22041

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Camren, Nathaniel James OHS/ICE Office of Chief Counsel - SLC
Andrade Legal 2975 Decker Lake Dr. Stop C
P.O. Box 2109 West Valley City, UT 84119
Boise, ID 83701

Name: KESEROVIC, HARIS A 075-077-076

Date of this notice: 5/24/2017

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

Sincerely,

J
"'---'

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
O'Connor, Blair
Cole, Patricia A.
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Haris Keserovic, A075 077 076 (BIA May 24, 2017)
U:S. DeP.,artment of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A075 077 076 - Salt Lake City, UT Date:

MAY 2 4 2017
In re: HARIS KESEROVIC

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Nathaniel J. Dainren, Esquire

ON BEHALF OF DHS: Jeffrey D. Clark

Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -

Convicted of aggravated felony

APPLICATION: Motion to reopen

The Department of Homeland Security ("DHS") appeals the Immigration Judge's decision
dated May 23, 2016, granting the respondent's untimely motion to reopen sua sponte and
terminating his proceedings. The appeal will be dismissed.

The record reflects that the respondent was ordered removed by the Immigration Judge on
October 15, 2012, based on his June 26, 2012, conviction for the offense of petit theft in violation
of Idaho Code section 18-2407(2), for which he was sentenced to a term of imprisonment of
365 days. In particular, the Immigration Judge found the respondent's offense to be an aggravated
felony as defined by section 10l(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C.
1101(a)(43)(G). The respondent was offered a continuance pending the outcome of collateral
litigation on his criminal conviction but declined and was ordered removed. The respondent
waived appeal and was removed on January 28, 2013.

Subsequent to the respondent's removal, a Magistrate granted the State's motion to summarily
dismiss his petition for post-conviction relief. However, that decision was reversed on appeal.
The State thereafter appealed and the appeals court affirmed the lower court's decision, holding
that the respondent received ineffective assistance of counsel in his plea proceedings regarding the
immigration consequences of his plea. See Keserovic v. State, 345 P.3d 1024, 1029-31
(Idaho Ct. App. 2015) (citing Padilla v. Kentucky, 559 U.S. 356 (2010)). Upon remand to the
criminal court, the parties agreed to the entry of an order amending the period of incarceration for
the conviction nunc pro tune to 364 days, and an order was entered to that effect on
August 28, 2015. Approximately 9 months later, the respondent filed an untimely motion to reopen
and terminate with the Immigration Judge requesting he exercise his sua sponte authority to grant
the motion and arguing that, in light of the reduction in his sentence, his conviction was no longer
an aggravated felony under section 101(a)(43)(G) of the Act.
Cite as: Haris Keserovic, A075 077 076 (BIA May 24, 2017)
A075 07'1076

On May 23, 2016, the Immigration Judge, finding the respondent's motion untimely,
nevertheless granted the motion sua sponte and terminated the proceedings. The
Immigration Judge found that, although the respondent had been removed from the United States,
the motion could be granted sua sponte because the United States Court of Appeals for the
Tenth Circuit, where the case arises, "ha[d] ordered that a motion may be filed subsequent to a
respondent's removal, where a conviction has been vacated." For his authority, the Immigration

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Judge cited Contreras-Bocanegra v. Holder, 678 F.3d 811 (10th Cir. 2012). In
Contreras-Bocanegra, the Tenth Circuit held that the post-departure bar to filing a motion to
reopen proceedings was ultra vires as applied to the statutory right to file one motion to reopen
because, it found, the departure bar regulation contravenes "the right to file a motion to reopen,
regardless of whether [the movant] ha[s] departed the United States." See id. at 819.

The OHS appeals the Immigration Judge's decision contending that he erred in granting the
respondent's untimely motion because, notwithstanding Contreras-Bocengra, the motion is barred
by the regulatory post-departure bar. See DHS's Brief at 5-8. The OHS also argues that the
Immigration Judge failed to address the requisite gross miscarriage of justice required for a
collateral attack on a prior removal order and failed to justify the use of his sua sponte authority.
See id. at 8-12. The respondent has filed an opposition to the DHS's appeal. Notwithstanding the
DHS's contentions on appeal, we will not disturb the Immigration Judge's decision sua sponte
reopening the respondent's proceedings. See 8 C.F.R. 1003. l (d)(3)(ii) (2017) (de novo review).

The sole reason the respondent's conviction was amended to a sentence of less than a year in
prison was because he received ineffective assistance of counsel in the underlying plea
proceedings, as reflected in the published Idaho Court of Appeals decision. Therefore, the
respondent's original plea was constitutionally defective. Given this fact, the aggravated felony
charge, which is the sole charge of removability was, in essence, void from its inception since it
was based on a constitutionally defective conviction. Therefore, we find, based on the rationale
of our decision in Matter of Bulnes, 25 I&N Dec. 57 (BIA 2009), that applying the departure-bar
under circumstances such as these would give greater force to the removal order than it is entitled
to as a matter of law, since the order itself was void from its inception.

Accordingly, the DHS's appeal will be dismissed.

ORDER: The DHS's appeal is dismissed

FOR THE BOARD

Board Member Roger A. Pauley respectfully dissents. It is the majority order that is ultra vires.
We lack jurisdiction to reopen sua sponte because the departure bar regulation precludes such
action. See, e.g., Ovalles v. Holder, 577 F.3d 288 (5th Cir. 2009). Contreras-Bocanegra v. Holder,
678 F.3d 811 (10th Cir. 2012), is not to the contrary since the Act does not afford an alien a right
to file an untimely motion and therefore the departure bar regulation is not in conflict with the Act
as regards an untimely motion. See Macias v. Holder, 590 Fed. Appx. 829 (10th Cir. 2015)
(Gorsuch, J.). Matter ofBulnes, 25 I&N Dec. 57 (BIA 2009), is irrelevant.

Cite as: Haris Keserovic, A075 077 076 (BIA May 24, 2017)
. '

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
SALT LAKE CITY, UTAH

In the Matter of: A Number: 075-077-076

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

Haris Keserovic
IN REMOVAL PROCEEDINGS
RESPONDENT
ORDER OF THE IMMIGRATION JUDGE

Upon consideration of the respondent's MOTION TO REOPEN REMOVAL ORDER, it is

HEREBY ORDERED that the respondent's motion be GRANTED

D The DHS does not oppose the motion.

D The respondent does not oppose the motion.

D A response to the motion has not been filed with the court.

D Good cause has been established for the motion.

D Good cause has not been established for the motion.

D The court agrees with the reasons stated in the Motion to Reopen Removal

Proceedings.

D The court agrees with the reasons set out in the Opposition to the Motion filed by

theDHS.

0 The motion is untimely per 8 C.F.R. 1003.23(b)(l)

IZI Other: The Court exercises its sua sponte authority to reopen and terminate.

STATEMENT OF LAW

A. Burden of Proof

Motions to reopen immigration proceedings have been historically disfavored. See lN.S.

v. Abudu, 485 U.S. 94, 107 (1988). The movant, therefore, bears a heavy burden in seeking a

reopening of removal proceedings. See Matter of Coelho, 20 I. & N. Dec. 464, 473 (BIA 1992).

B. Reopening an Order of Removal

An immigration court may, sua sponte - upon its own motion at any time-or upon

motion of one of the parties reopen any case in which it has made a decision, unless jurisdiction

has vested with the Board of Immigration Appeals. 8 C.F.R. 1003.23(b)(l). A motion to reopen

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 ) )
must be filed within 90 days of the date of entry of a final administrative order of removal. Id.
C. Sua Sponte Reopening

Sua sp onte authority allows a court to remedy an extraordinary circumstance when the
normal course of proceedings will likely yield an objectionable result. See Matter ofG-D-, 22
I&N Dec. 1132. A change in how a key term of art is defined, for example, is an example of a

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proper situation in which a court should use sua sp onte authority. Id. Otherwise, it should be
used sparingly as not to contravene legislative intent or remedy ordinary hardships. Id

As a general matter, sua sponte authority should be invoked sparingly, treating it not as a

general remedy for any hardships created by enforcement of the time and number limits in the

motions regulations, but as an extraordinary remedy reserved for truly exceptional situations. In

Re G-D-, 22 I&N Dec. 1132, 1133-34 (BIA 1999) (citing Matter ofJ-J-, 21 I&N Dec. 976 (BIA
1997).

STATEMENT OF FACTS

The respondent is a thirty-year-old (DOB 08/30/1985) male, native and citizen of Bosnia

Herzegovina. (NTA.) The respondent adjusted to the status of lawful permanent resident on

April 22, 2005, under section 209A of the Act. On June 26, 2012, the respondent was convicted

of the offense of Petit Theft, in violation of section 18-2407(2) of the Idaho Code. (Id) The
NTA, served on July 26, 2012, charged the respondent with one count of removability,

237(a)(2)(A)(iii), for having been convicted of an aggravated felony theft offense. (Id.) On

September, 26, 2012, the respondent filed for post-conviction relief in in the Idaho state courts

due to ineffective assistance of counsel. On October 15, 2012, while the petition was pending,

the Court ordered the respondent removed. The respondent was physically removed from the

United States on January 28, 20-13. On February 11, 2015, the Idaho Court of Appeals held that

the respondent's plea was constitutionally defective under Padilla v. Kentucky, 559 U.S. 356
(2010). On remand, the parties stipulated to an entry of an order that amended the period of

incarceration nunc pr o tune to 364 days, which the court entered on August 28, 2015.
On April 26, 2016, 242 days after the stipulated order in the Idaho state court, the

respondent filed a motion to reopen with this Court, asking the Court to use its sua sp onte
authority to reopen and terminate the respondent's case due to the stipulated nunc pr o tune order
the respondent obtained in state court in August of 2015. The respondent argues that the nunc

pr o tune order precludes the underlying conviction from qualifying as an aggravated felony and

2
A: 075-077-076
 ) ,
presents exceptional circumstances warranting the Court's exercise of its sua sponte authority to

reopen his case. Alternatively, the respondent argues that the deadline for a motion to reopen

should be equitably tolled in his case.

On April 28, 2016, the DHS filed an opposition to the respondent's motion to reopen.

The DHS argued that the respondent's motion to reopen is untimely and that, due to the

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respondent's substantial criminal history inside the United States, it would not be in the best

interest of the United States to allow his proceedings to be reopened and then terminated. The

DHS argues that "exceptional circumstances" do not exist in the respondent's case to justify the

exercise of the Court's sua sponte authority to reopen proceedings in this matter.

ANALYSIS AND ORDER

For the reasons set forth below, this Court GRANTS the respondent's motion to reopen

removal proceedings and terminate proceedings.

The respondent's motion to reopen is untimely, as it was filed over three and a half years

after he was deported, over three' years after he was physically removed from the United States

substantially longer than the 90-day filing requirement. However, although the motion is

untimely, the Court will reopen proceedings under its sua sponte authority pursuant to 8 C.F.R.

1003.23(b).

The respondent was convicted on June 26, 2012, for Petit Theft in Idaho and was

sentenced to a term of imprisonment of 365 days. The respondent was charged with being

subject to removal under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (Act or

INA) as someone convicted of an aggravated felony. The respondent was subsequently ordered

removed and physically removed from the United States.

The respondent argues that his conviction is no longer an aggravated felony. He presents

evidence that on August 28, 2015, the sentence in his criminal conviction was reduced to 364

days. In Matter of Cota-Vargas, 23 I&N Dec. 849 (BIA 2005), the Board found that a trial

court's decision to modify or reduce an alien's criminal sentence nunc pro tune is entitled to full

faith and credit by the Immigration Judges and the Board of Immigration Appeals, and such a

modified or reduced sentence is recognized as valid for purposes of the immigration law without

regard to the trial court's reasons for effecting the modification or reduction. The Idaho court's

August 28, 2015, order reducing the previously imposed criminal sentence from 365 days to 364

3
A: 075-077-076
. . .

' .

days of incarceration is entitled to full faith and credit. The respondent's conviction for Petit

Theft resulted in a sentence of 364 days of incarceration or less than 1 year; therefore, the

respondent's conviction is not an aggravated felony. See INA 237(a)(2)(A)(iii), 101(a)(43)(F).

The respondent is currently in Bosnia-Herzegovina, having been removed from the

United States in 2013. (Resp't's Mot. to Reopen at 2, 48.) The Tenth Circuit Court of Appeals

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has ordered that a motion may be filed subsequent to a respondent's removal, where a conviction

has been vacated. See Contreras-Bocanegra v. Holder, 678 F.3d 811, 817-19 (10th Cir. 2012).

Inasmuch as the respondent cannot be viewed as subject to removal from the United

States based upon the charge contained in the Notice to Appear that was affirmed by the

Immigration Judge, the case will be reopened and proceedings terminated without prejudice.

Appeal is reserved for both parties, who have 30 days from the publication of this decision to file

a Notice of Appeal with the Board of Immigration Appeals.

ORDERS

IT IS HEREBY ORDERED that the respondent's motion to reopen be GRANTED

IT IS FURTHER ORDERED that these proceedings be TERMINATED without prejudice.

David Anderson
Immigration Judge

Certificate of Service

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A: 075-077-076