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Emmanuel Amparo Abreu, A087 287 722 (BIA Dec. 24, 2013)

Emmanuel Amparo Abreu, A087 287 722 (BIA Dec. 24, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA), following a remand from the Third Circuit, upheld the denial of a motion to reopen filed by a respondent who had been removed during the pendency of the appeal. The Board stated that in light of the position of both parties, it would not consider the respondent's removal during the pendency of the appeal to constitute a "departure" under 8 CFR 1003.4. The decision was written by Member Kendall-Clark and joined by Member David Holmes and Member Ellen Liebowitz.
In this unpublished decision, the Board of Immigration Appeals (BIA), following a remand from the Third Circuit, upheld the denial of a motion to reopen filed by a respondent who had been removed during the pendency of the appeal. The Board stated that in light of the position of both parties, it would not consider the respondent's removal during the pendency of the appeal to constitute a "departure" under 8 CFR 1003.4. The decision was written by Member Kendall-Clark and joined by Member David Holmes and Member Ellen Liebowitz.

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01/30/2014

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U.S.

Department of Justice
,

Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk
5107 Leesburg Pike, Suile 2000 Fal/.i; Church, Virginia 20530

Conroy, Charles R., Esq. Law Offices of Charles Conroy, PLLC 11 Broadway, Suite 615 New York, NY 10004

OHS/ICE Office of Chief Counsel - ELZ 625 Evans Street, Room 135 Elizabeth, NJ 07201

Immigrant & Refugee Appellate Center | www.irac.net

Name: AMPARO ABREU, EMMANUEL

A 087-287-722

Date of this notice: 12/24/2013

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

D&utL cl1/Vt.)
Donna Carr Chief Clerk

Enclosure Panel Members: Holmes. David B. Liebowitz, Ellen C Kendall-Clark, Molly

yungc Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Emmanuel Amparo Abreu, A087 287 722 (BIA Dec. 24, 2013)

!.• ,

Executive Office for Immigration Review Falls Church, Virginia 22041

U.S. Depariment of Justice

Decision of the Board of Immigration Appeals

File: A087 287 722 - Elizabeth, NJ In re: EMMANUEL AMPARO ABREU
IN REMOVAL PROCEEDINGS

Date:

DEC 2 4.2013

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:

Charles R. Conroy, Esquire

Anna Gbur Assistant Chief Counsel

CHARGE: NOTICE:

Sec.

237(a)(1 )(D)(i), I&N Act [8 U.S.C. § 1227(a)(l)(D)(i)] Conditional resident status terminated 237(a)(2)(B)(i), I&N Act [8 U.S.C. § 1227(a)(2)(B)(i)] Convicted of controlled substance violation

Sec.

APPLICATION:

Reopening; remand

This case is before the Board pursuant to an April 4, 20 13, order of the United States Court of Appeals for the Third Circuit granting the Office of Immigration Litigation's unopposed motion to remand. The respondent's appeal will be dismissed. The Third Circuit remanded for us to consider whether the respondent's removal during the pendency of his appeal to the Board [from the Immigration Judge's denial of his motion to reopen] constituted a "departure" within the meaning of 8 C.F.R. § 1003.4 (departure from the United States of a person who is the subject of removal proceedings, except for arriving aliens, subsequent to the taking of an appeal, but prior to a decision thereon, shall constitute a withdrawal of the appeal). See Matter of Diaz-Garcia, 25 I&N Dec. 794, 797 n.4 (BIA 2012) ("We express no view on the question whether a lawful deportation or removal during an appeal period or during the pendency of an appeal would constitute a 'departure'. Cf Matter of Armendarez, 24 I&N Dec. 646 (BIA 2008) (addressing our jurisdiction to reopen proceedings following a departure pursuant to a final order of removal)"). The respondent asserts that his forcible removal from the United States did not constitute a "departure." The Department of Homeland Security states that it would be prudent in the present case for the Board to decide his appeal on the merits. Based on the parties' positions, we will not consider the respondent's forcible removal from the United States to be a "departure" within the meaning of 8 C.F.R. § 1003.4, and will address his appeal on the merits. We affirm the Immigration Judge's May 8, 20 12, decision which denied the respondent's motion to reopen for the reasons discussed therein, and as discussed below. The respondent met
Cite as: Emmanuel Amparo Abreu, A087 287 722 (BIA Dec. 24, 2013)
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A087 287 722

the first two requirements in Ma tter of Lozada, 19 I&N Dec. 637 (BIA 1988), in alleging ineffective assistance of former counsels. He did not meet the third requirement, or satisfactorily explain why he did not filed complaints against his former counsels subsequent to filing his motion to reopen. However, even assumingly substantial compliance with Lozada, we agree with the Immigration Judge that the respondent did not show prejudice from any ineffective assistance of former counsels. See Fadiga v. US. Att'y Gen , 488 F.3d 142, 157 (3d Cir. 2007) (an alien must show that he or she was prejudiced by counsel's poor performance).
.

Immigrant & Refugee Appellate Center | www.irac.net

Because of the respondent's New York conviction for attempted criminal possession of a controlled substance (oxycodone) in the seventh degree (Exh. 2), he is removable under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) [convicted of controlled substance violation]. Further, the conviction renders him inadmissible under section 212(a)(2)(A)(i)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II) [controlled substance violation]. He is not eligible for a waiver under section 2 I 2(h) of the Act because a waiver of a controlled substance violation is expressly limited to a single offense of simple possession of 30 grams of less of marijuana. He thus cannot readjust his status to permanent resident under section 245 of the Act, 8 U.S.C. § 1255. Nor has he shown prima facie eligibility for any other form of relief, given his controlled substance conviction. Finally, we conclude that there is no reason to reopen proceedings and remand the record to the Immigration Judge to allow the respondent to pursue post-conviction motions in criminal court. See Matter of Onyido, 22 I&N Dec. 552, 555 (BIA 1999) (the availability of post­ conviction motions or other forms of collateral attack does not affect the immigration consequences of a criminal conviction unless and until the conviction has been overturned pursuant to such a motion). To date, the respondent had provided no evidence that his conviction has been vacated. Under these circumstances, the respondent has not shown that he was prejudiced by any alleged attorney misconduct relating to the respondent's conviction. We conclude that because the respondent did not show prejudice from any ineffective assistance of former counsels, his motion was properly denied, and we will dismiss his appeal from the Immigration Judge's decision. Accordingly, the following order will be entered.
ORDER:

The appeal is dismissed.

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Cite as: Emmanuel Amparo Abreu, A087 287 722 (BIA Dec. 24, 2013)

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