In this unpublished decision, the Board of Immigration Appeals (BIA) found the respondent was eligible to apply for a 212(h) waiver in spite of an aggravated felony conviction under Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008), because he was admitted to the United States as a conditional permanent resident. The decision was written by Member Charles Adkins-Blanch.
In this unpublished decision, the Board of Immigration Appeals (BIA) found the respondent was eligible to apply for a 212(h) waiver in spite of an aggravated felony conviction under Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008), because he was admitted to the United States as a conditional permanent resident. The decision was written by Member Charles Adkins-Blanch.
In this unpublished decision, the Board of Immigration Appeals (BIA) found the respondent was eligible to apply for a 212(h) waiver in spite of an aggravated felony conviction under Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008), because he was admitted to the United States as a conditional permanent resident. The decision was written by Member Charles Adkins-Blanch.
403 S. Cheyenne Ave., Ste. 1200 Tulsa, OK 74103 Name: MATA-ROSAS, RICARDO U.S. Department of Justice Executive Ofce fr Immigation Review Board of Immigration Appeals Ofce of the Clerk 5107 Leeburg Pike, Suite 2000 Falls Church, Vrginia 2204 I OHS/ICE Ofice of Chief Counsel OKD 4400 SW 44th Street, Suite A Oklahoma City, OK 73119-2800 A076-404712 Date of this notice: 4/20/2011 Enclosed is a copy of the Board's decision and order in the above-refrenced case. Enclosure Panel Members: Adkins-Blanch, Charles K. Sincerely, Donna Carr Chief Clerk I m m i g r a n t
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w w w . i r a c . n e t Cite as: Ricardo Mata-Rosas, A076 404 712 (BIA April 20, 2011) MATA-ROSAS, RICARDO 300 N. DENVER A076-404-712 TULSA, OK 74103 Name: MATA-ROSAS, RICARDO U.S. Department of Justice Executive Ofce fr Immigation Review Board of Immigration Appeals Ofce of the Clerk 5107 Leeburg Pike, Suite 1000 Falls Church, Vrinia 2104 I OHS/ICE Ofice of Chief Counsel - OKD 4400 SW 44th Street, Suite A Oklahoma City, OK 73119-2800 A076-04-712 Date of this notice: 4/20/2011 Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a couresy. Your attorney or representative has been sered with this decision pursuant to 8 C.F.R. 1292.5(a). If the attached decision orders that you be removed from the United States or affirms an Immigration Judge's decision ordering that you be removed, any petition fr review of the attached decision must be filed with and received by the appropriate cour of appeals within 30 days of the date of the decision. Enclosure Panel Members: Adkins-Blanch, Charles K. Sincere Iv. DO c t Donna Carr Chief Clerk I m m i g r a n t
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w w w . i r a c . n e t Cite as: Ricardo Mata-Rosas, A076 404 712 (BIA April 20, 2011) U.S, Department of Justice Executive Ofce fr Imigation Review Decision of the Board oflmigation Appeals Falls Church, Virginia 22041 File: A076 404 712 - Oklahoma City, OK In re: RICARDO MATA-ROSAS I REMOVAL PROCEEDINGS APPEAL Date: APR I 0 201' ON BEHALF OF RESPONDENT: Rohit Shana, Esquire ON BEHALF OF DHS: APPLICATION: Remad Jack D. Spencer Assistat Chief Counsel The respondent, a native and citizen of Mexico, who was previously granted lawfl peranent resident status in the United States, has appealed fom the Immigration Judge's decision dated December 14, 2010. The Immigration Judge fund te respondent removable and fund him ineligible fr relief fom removal based on his criminal conviction. This Board reviews an Immigration Judge's fndings of fct, including fndings as to the credibility of testimony, under the "clearly erroneous" standard. See 8 C.F .R. 1003 .1 ( d)(3)(I); Matter of R-S-H-, 23 l&N Dec. 629 (BIA 2003); Matter ofS-H-, 23 l&N Dec. 462 (BIA 2002). This Board reviews questions of law, discretion, and judgment, and all other issues raised in an Immigration Judge's decision de novo. See 8 C.F.R. 1003. l(d)(3)(ii); Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008). On August 11, 2003, the respondent was convicted of Child Abuse or Neglect, in violation of Oklahoma law. A record of this conviction was entered into the record of proceedings. See Exh. 3. See also 8 U.S.C. 1229a(c)(3)(B); 8 C.F.R. 1003.41(a). In addition, the respondent, through counsel, admitted the conviction. See Tr. at 2. See also 8 C. F.R. 1003.4l(d), 1240.IO(c). The respondent was charged with being removable fr having been convicted of an aggravated flony involving a crime of violence, a crime involving moral trpitude committed within 5 years of admission fr which a sentence of 1 year or longer may be imposed, and a crime of child abuse or child neglect. See Exh. 1. The respondent, through counsel, conceded removability as charged. See Tr. at 3-4. The Imigration Judge fund the respondent removable as charged. See I.J. at 2-3. The respondent, through counsel, requested no relief and conceded that he was ineligible fr relief, and the Immigration Judge concluded he was ineligible fr relief. See Tr. at 5-6; 1.J. at 3. The respondent did request a continuance of his removal hearing to enable him to pursue a motion to . . v.v , "''nw"nr . ( . .. , . .'. :;" , , I m m i g r a n t
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w w w . i r a c . n e t Cite as: Ricardo Mata-Rosas, A076 404 712 (BIA April 20, 2011) A076 404 712 vacate his convictions pursuant to Padilla v. Kentuck, 559 U.S. g 130 S.Ct. 1473 (2010). 1 However, the Immigration Judge denied the motion. See Tr. at 4-5; l.J. at 3. On appeal, the respondent disputes removability. 2 The respondent argues that, despite his admission of the fctual allegations concering the convictions and his concession of removability as charged, he is not, in fct, removable as charged. We fnd, however, that the pror admissions of fct and concessions of removability are binding on the respondent. See Matter of Velasquez, 19 I&N Dec. 377, 382 (BIA 1986) (absent egregious circumstances, a distinct and frmal concession made by counsel is binding on the alien). Cf Hoodho v. Holder, 558 F.3d 184, 191 (2d Cir. 2009) (holding that fcts admited by a pay are "judicial admissions" that bind that party throughout the litigation). 3 Moreover, we note that the respondent does not assert a claim of inefective assistance of counsel. See Matter of Assaad, 23 l&N Dec. 553 (BIA 2003); Matter of Grialva, 21 l&N Dec. 472 (BIA 1996); Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), afd, 857 F.2d 10 (1st Cir. 1988). 4 On appeal, the respondent also challenges denial of the continuace. A Immigation Judge may gant a continuance where good cause is shown. See 8 C.F.R. 1003.29, 1240.6. However, we conclude that good cause was not shown. While the respondent is fee to pursue his post-conviction motion, such a motion does not justif a stay of the removal proceedings against the respondent. See Matter of Madrigal, 21 I&N Dec. 323, 327 (BIA 1996). The post-conviction motion does not render the convictions non-fnal. See Matter of Madrigal, supra. The convictions became fnal fr immigration purposes when te respondent filed to appeal them, allowed the appeal period to lapse, waived his right to a direct appeal, or exhausted the direct appeal of his convictions. See 8 U.S.C. 1101(a)(48)(A); Matter of Adetiba, 20 l&N Dec. 506 (BIA 1992). See also Martinez-Montoya v. INS, 904 F.2d 1018, 1025 (5th Cir. 1990); Wilson v. INS, 43 F.3d 211, 216-17 (5th Cir.), cert. denied, 516 U.S. 811 (1985); Marino v. INS, 537 F.2d 686, 691-93 (2d Cir. 1976). 1 In Padilla v. Kentuck, the Supreme Court held that the filure to advise a non-citizen criminal defndant that a plea could result in his deportation constitutes inefective assistance of counsel and violates his right to counsel. 2 The same counsel that represented te respondent below represents the respondent on appeal. 3 The respondent was present at that hearing ad at no time expressed any objection to the admissions or concessions made on his behalf. See Tr. at 2-4. 4 The respondent may bring a motion to reopen if he believes he sufered prejudice as a result of inefectiveness assistance of counsel. However, he must comply with te prerequisites fr establishing inefective assistance of counsel. See Matter of Assaad supra; Matter of B-B-, 22 I&N Dec. 309 (BIA 1998); Matter of Grialva, supra; Matter of Lozada, supra. 2 I m m i g r a n t
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w w w . i r a c . n e t Cite as: Ricardo Mata-Rosas, A076 404 712 (BIA April 20, 2011) A076 404 712 Also on appeal, the respondent asserts eligibility fr a waiver of inadmissibility under section 212(h) of the Immigation ad Nationality Act. See 8 U.S.C. 1182(h).5 The respondent alleges that he falls within the exception in Martinez v. Muksey, 519 F.3d 532 (5t Cir. 2008). In Martinez v. Muksey, the Fifh Circuit Court of Appeals concluded that the statutory bar on eligibility fr waiver of inadmissibility under section 212(h) of those convicted of an aggavated felony, is limited in its application to aliens who, at time of their admission, were admitted as lawfl peranent residents, and does not apply to aliens whose status was adjusted to that of lawfl peranent resident afer their admission to the United States. As indicated in the Notice to Appear and the Record of Deportable/lnadmissible Alien (For 1-213), the respondent was lawflly admited as a conditional lawfl permanent resident when he arved in the United States. See Exhs. 1, 2. Therefre, under Martinez v. Muksey, the respondent is statutorily eligible fr relief under section 212(h). Consequently, we will remand the record to enable the respondent to apply fr that relief. Accordingly, the fllowing order will be entered. ORDER: The record is remanded to the Immigration Judge fr fher proceedings consistent with the fregoing opinion and enty of a new decision.
s In deciding whether a gant of a 212(h) waiver is waranted, the Immigration Judge is required to balance the adverse fctors evidencing an alien's undesirability as a peranent resident with the social and humane considerations presented on his behalf to determine whether the gant of relief in the exercise of discretion appears to be in the best interest of this country. See Maller of Mendez, 21 l&N Dec. 296, 300 (BIA 1996). 3 I m m i g r a n t
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w w w . i r a c . n e t Cite as: Ricardo Mata-Rosas, A076 404 712 (BIA April 20, 2011) ... 1 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT Oklahoma City, Oklahoma File A 076 404 712 December 14, 2010 In the' Matter of RICARDO MATA-ROSAS, IN REMOVAL PROCEEDINGS Respondent CHARGE: Violation of Section 237 (a) (2) (A) (i); 237(a) (2) (A) (iii); 237(a) (2) (E) (i). APPLICATION: None stated. ON BEHALF OF THE RESPONDENT: Rohit Sharma, Esquire Tulsa, Oklahoma ON BEHALF OF THE UNITED STATES OF AMERICA: Jack Spencer, Oklahoma City, Oklahoma ORL DECISION OF THE IMMIGRATION JUDGE The respondent is a male, native and citizen of Mexico, who was issued a Notice to Appear on October 20, 2010. See Exhibit 1. At a master calendar hearing previously held on November 29, 2010, the respondent appeared with his attorney and asked for a continuance for attorney prep. The Court notes that the respondent is detained at the Tulsa County Jail in Tulsa, Oklahoma, and has been transported to Oklahoma City for court. On November 29, 2010, the Court granted the respondent's request for continuance for attorney prep and I m m i g r a n t
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w w w . i r a c . n e t (
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( ( continued the case until December 14, 2010, with the instruction that on today's date, counsel should be prepared to articulate - their pleadings and relief. On November 29, 2010, the Court also marked and admitted, without objection, the I-213 as Exhibit 2, as well as a copy of conviction documents from the District Court of Creek County, Oklahoma, case CF2003-142, for the felony offense of child abuse/neglect, in violation of 10 O.S. 7115, as Exhibit 3. On Tuesday, December 14, 2010, the respondent, still in custody, appeared again with his attorney and admitted allegations 1 through 6 of the NTA. The respondent's counsel denied allegation 7. After reviewing Exhibit 3, specifically page 2 of Exhibit 3, the conviction document reflects, on its face, that the respondent was sentenced to serve five years in prison. That period of time was later suspended. Based on the information contained on page 2 of Exhibit 3, the Court found allegation 7 to be true. The respondent, through his attorney, initially denied removability on the three charges contained in the NTA. However, counsel for the respondent later withdrew the denials and conceded that his client is removable as charged on each of the three allegations contained in the Notice to Appear, and acknowledges that his client is an aggravated felon. Counsel for the respondent declined, when given the opportunity, to designate a country of removal. Based on his admission to allegation 2, A 076 404 712 2 December 14, 2010 I m m i g r a n t
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w w w . i r a c . n e t !LB ( r (
( ( the Court has designated the nation of Mexico. Therefore, based on the admissions and concessions entered by the respondent through his attorney of record, the Court finds that the respondent has conceded his removability from the United States, as alleged. The Court has designated Mexico as the country of removal. See Section 240(c) (1) (A) of the Act. Counsel for the respondent was then asked to articulate whatever relief that the respondent had available. Counsel for the respondent indicated that the respondent had hired a criminal lawyer to pursue some form of post-conviction/Padilla relief in state court of Creek County, Oklahoma. However, counsel for the respondent frankly acknowledges that no order granting such relief has been entered. Therefore, in accord with the United States Board of Imigration Appeals decision in Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), the Court finds that the fact that the respondent may be pursuing post-conviction relief in the form of collateral attack on a state court criminal conviction does not affect its finality for federal Imigration purposes. Counsel for the respondent was asked to articulate what other relief that the respondent had available, and counsel acknowledges that he has no relief because he is an aggravated felon. ORDER Therefore, it is hereby the order of the Court that the A 076 404 712 3 December 14, 2010 I m m i g r a n t
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w w w . i r a c . n e t ( LB respondent be removed from the United States to the nation of Mexico. The respondent will be advised of his appeal rights separately on the record. Tuesday, December 14, 2010. United States Immigration Court Judge A 076 404 712 4 December 14, 2010 I m m i g r a n t
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w w w . i r a c . n e t . . . ( - ( CERTIFICATE PAGE
( ! c I hereby certify that the attached proceeding before MICHAEL P. BAIRD in the matter of: RICARDO MATA-ROSAS A 076 404 712 Oklahoma City, Oklahoma was held as herein appears, and that this is the original transcript thereof for the file of the Executive Office for Imigration Review. Aina Becerra (Transcriber) Deposition Services, Inc. 12321 Middlebrook Road, Suite 210 Germantown, Maryland 20874 {301) 881-3344 February 3, 2011 ( Completion Date) I m m i g r a n t