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Ricardo Mata-Rosas, A076 404 712 (BIA April 20, 2011)

Ricardo Mata-Rosas, A076 404 712 (BIA April 20, 2011)

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In this unpublished decision, the Board of Immigration Appeals (BIA) found the respondent was eligible to apply for a 212(h) waiver in spite of an aggravated felony conviction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In this unpublished decision, the Board of Immigration Appeals (BIA) found the respondent was eligible to apply for a 212(h) waiver in spite of an aggravated felony conviction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.

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ROHIT SHARMA, ESQUIRE

Sharma law firm, PLLC
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
A076-404·712
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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
A�ina Becerra (Transcriber)
Deposition Services, Inc.
12321 Middlebrook Road, Suite 210
Germantown, Maryland 20874
{301) 881-3344
February 3, 2011
( Completion Date)
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