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U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

Basaran, Melinda M., Esq. Basaran Law Office 1061 Main Street Paterson, NJ 07503

Name: FLORES, MARIO HAROLD

5107 leesburg Pike, Suite 2000 Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - NEW 970 Broad Street, Room 1300 Newark, NJ 07102

A 043-945-828

970 Broad Street, Room 1300 Newark, NJ 07102 A 043-945-828 Date of this n o t
970 Broad Street, Room 1300 Newark, NJ 07102 A 043-945-828 Date of this n o t

Date of this notice: 11/29/2017

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

Enclosure

Panel Members:

Grant, Edward R.

Sincerely,

Donna Carr Chief Clerk
Donna Carr
Chief Clerk

LulseqeS Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index

Cite as: Mario Harold Flores, A043 945 828 (BIA Nov. 29, 2017)

BIA decisions, visit www.irac.net/unpublished/index Cite as: Mario Harold Flores, A043 945 828 (BIA Nov. 29, 2017)

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

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

U.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:

A043 945 828 - Newark, NJ

Date:

In re:

Mario Harold FLORES

IN REMOVAL PROCEEDINGS

MOTION

NOV 2 9 2D17

ON BEHALF OF RESPONDENT:

APPLICATION:

ORDER:

Reconsideration

Melinda M. Basaran, Esquire

. The respondent has filed a motion to reopen his removal proceedings.

contain

a

response

from

the

Department

of Homeland

Security.

The

The record does not

respondent's

motion

demonstrates that his prosecutions were for disorderly persons offenses which do not qualify as

"convictions" within the meaning of section 101(a)(48)(A) of the Immigration and Nationality

Act,

8

U.S.C.

§ 1101(a)(48)(A).

See

Matter of Eslamizar,

23

l&N

Dec.

684

(BIA

2004).

Accordingly, he is not removable as charged.

Under the totality of the circumstances present in

this particular

case, we conclude

reopening

is

warranted

under our discretionary authority to

reopen sua sponte to permit termination of these proceedings. 8 C.F.R. § 1003.2(a). Accordingly,

the motion to reopen is hereby granted.

Accordingly, the motion to reopen is hereby granted. FURTHER ORDER: Cite as: Mario Harold Flores, A043

FURTHER ORDER:

Cite as: Mario Harold Flores, A043 945 828 (BIA Nov. 29, 2017)

the motion to reopen is hereby granted. FURTHER ORDER: Cite as: Mario Harold Flores, A043 945

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

Immigrant & Refugee Appellate Center, LLC | www.irac.net U.S. Department of Justice Executive Office for Immigration

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

Basaran, Melinda M., Esq. Basaran Law Office 1061 Main Street Paterson, NJ 07503

Name: FLORES, MARIO HAROLD

5107 Leesburg Pike, Suite 2000

Falls Church, Virgm1a

2204/

OHS/ICE Office of Chief Counsel - NEW 970 Broad Street, Room 11048 Newark, NJ 07102

A 043-945-828

Date of this notice: 3/22/2017

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

Enclosure

Panel Members:

Guendelsberger, John

Sincerely,

Enclosure Panel Members: Guendelsberger, John Sincerely, Cynthia L. Crosby Acting Chief Clerk �

Cynthia L. Crosby Acting Chief Clerk

.t-h;·.:·q;�;:.

Userteam: Docket

Members: Guendelsberger, John Sincerely, Cynthia L. Crosby Acting Chief Clerk � .t-h;·.:·q;�;:. Userteam: Docket

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

Immigrant & Refugee Appellate Center, LLC | www.irac.net U.S. Department of Justice Executive Office for

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

Board of Immigration Appeals Falls Church, Virginia 22041 · F i l e : A043 945

·File:

A043 945 828 - Newark, NJ

Date:

In re:

MARIO HAROLD FLORES

IN REMOVAL PROCEEDINGS

MAR

2 2

2017

MOTION

ON BEHALF OF RESPONDENT:

APPLICATION:

Reopening

Melinda M. Basaran, Esquire

This matter was last before the Board on July 29, 2002, when we summarily affirmed the Immigration Judge's removal· order. This motion, submitted on December 9, 2016, is untimely filed. 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 record does not contain a response from the Department of Homeland Security. The motion to reopen will be denied.

The respondent argues reopening is warranted based on changed conditions in Peru such that he is eligible for asylum. 8 C.F.R. § 1003.2(c)(3)(ii). However, the respondent has submitted evidence only showing current conditions in Peru, and the record contains no evidence of conditions at the time of his final hearing. See Matter of S-Y-G-, 24 I&N Dec. 247, 253 (BIA 2007) (providing that "[i]n determining whether evidence accompanying a motion to reopen demonstrates a material change in country conditions that would justify reopening, we compare the evidence of country conditions submitted with the motion to those that existed at the time of the merits hearing below"). The submission of current conditions is insufficient to establish a "change" within the meaning of 8 C.F.R. § 1003.2(c)(3)(ii).

The respondent also argues sua sponte reopening is warranted based on Matter ofEslamizar, 23 I&N Dec. 684 (BIA 2004). 8 C.F.R. § 1003.2(a). Specifically, he argues that under Matter of Eslamizar his shoplifting offenses do not qualify as "convictions" within the meaning of section 101(a)(48) of the Act, 8 U.S.C. § 1101(a)(48), and that reopening is warranted based on this change in law. See Matter ofG-D-, 22 I&N Dec. 1132 (BIA 1999) (noting the Board may reopen sua sponte based on a "fundamental," material change in law). As an initial matter, we note that this purported change in law occurred over 12 years ago. See Matter of G-C-L-, 23 l&N Dec. 359 (BIA 2002) (setting forth reasons for no longer sua sponte reopening cases where more than 5 years had passed from fundamental change in law).

Additionally, even if the respondent is correct his shoplifting convictions were "disorderly persons offenses" which do not qualify as "convictions," the respondent has not established his finding of guilt under New Jersey Code of Criminal Justice § 2C:20-3A was prosecuted as a "disorderly persons offense" (Motion at 12, n.1). Unless or until the respondent's conviction under New Jersey Code of Criminal Justice § 2C:20-3A is vacated due to procedural or substantive defects in the underlying proceedings, the respondent remains removable as charged. We are not persuaded that exercise of our discretionary authority to reopen sua sponte is warranted in this case.

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

Immigrant & Refugee Appellate Center, LLC | www.irac.net A043 945 828 ORDER: The motion to reopen

A043 945 828

ORDER:

The motion to reopen is denied.

Immigrant & Refugee Appellate Center, LLC | www.irac.net A043 945 828 ORDER: The motion to reopen

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