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Jacinto Moises Carbonell-Desliz, A074 054 226 (BIA Jan. 13, 2014)

Jacinto Moises Carbonell-Desliz, A074 054 226 (BIA Jan. 13, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) reopened proceedings sua sponte in light of the vacatur of the respondent’s conviction for second degree assault under Maryland article 27, section 12(A), because he was not advised by the criminal court of his Sixth Amendment right to assistance of counsel. The decision was written by Member Neil Miller.
In this unpublished decision, the Board of Immigration Appeals (BIA) reopened proceedings sua sponte in light of the vacatur of the respondent’s conviction for second degree assault under Maryland article 27, section 12(A), because he was not advised by the criminal court of his Sixth Amendment right to assistance of counsel. The decision was written by Member Neil Miller.

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Published by: Immigrant & Refugee Appellate Center, LLC on Jan 20, 2014
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02/20/2014

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U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk
5107 Leesburg Pike. Suite 2000 Falls Church, Virginia 20530

Vilar, Rodrigo, Esquire Vilar & Montero, P.A. 66 West Flagler Street, Suite 500 Miami, FL 33130

DHS/ICE Office of Chief Counsel - BAL 31 Hopkins Plaza, Room 1600 Baltimore, MD 21201

Immigrant & Refugee Appellate Center | www.irac.net

Name: CARBONELL-DESLIZ, JACINTO ...

A 074-054-226

Date of this notice: 1/13/ 2014

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

DOJ'UtL cf1Nt.)
Donna Carr Chief Clerk

Enclosure Panel Members: Miller, Neil P.

lulseges Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Jacinto Moises Carbonell-Desliz, A074 054 226 (BIA Jan. 13, 2014)

. U.S. Department of Justice
Executive Office for Immigration Review Falls Church, Virginia 20530

Decision of the Board of Immigration Appeals

File:

A074 054 226 - Baltimore, M D

Date:

I n re: JACINTO MOISES CARBONELL-DESLIZ IN REMOVAL PROCEEDINGS MOTION ON BEHALF OF RESPONDENT: APPLICATION: Reopening Rodrigo Vilar, Esquire

JAN 13 2014

Immigrant & Refugee Appellate Center | www.irac.net

The final order of removal in these proceedings was entered by the Board on April 9, 2002, when we dismissed the respondent's appeal. The respondent filed an untimely motion to reopen his proceedings on October 31, 2013. Nationality Act, 8 U.S.C. See section 240(c)(7)(C) of the Immigration and

§

1229a(c)(7)(C); 8 C.F.R.

§

1003.2(c)(2).

The respondent does not

dispute the untimeliness of his motion, but requests that the Board exercise its sua sponte authority to reopen his proceedings in the interests of justice. The Department of Homeland Security has not responded to the motion. The motion will be granted. The respondent has submitted evidence that a state court has granted him coram nobis relief and vacated his conviction for Assault in the Second Degree in violation of Annotated Code of Maryland article 27, section 12(A). See generally Matter of Pickering, 23 l&N Dec. 621 (BIA 2003); Matter of Chavez, 24 l&N Dec. 272 (BIA 2007). The record contains copies of the respondent's petition for writ of error coram nobis filed with the Maryland Circuit Court for Baltimore City, in which the respondent alleges that his underlying guilty plea was not voluntary and intelligent, the Maryland Circuit Court consent order dated August 12, 2013, and the State's response in opposition to the respondent's petition for writ of error coram nobis (Motion, Tabs A, B, C). The respondent asserts that he was not advised by the court of his Sixth Amendment right to assistance of counsel as mandated by Maryland Rule 4-215 (Motion, Tab A at page

I)

Considering the totality of circumstances presented in the respondent's motion, the proceedings are reopened on our own motion under the provisions of 8 C.F.R. Matter ofG-D-, 22 I&N Dec. 1132, 1133-34 (BIA 1999); Matter 1997).

ofJ-J-,

§

1003.2(a). See

21 I&N Dec. 976 (BIA

Here, the respondent has presented evidence indicating that his prior conviction was

vacated because the trial and plea procedures did not comply with Maryland Rule 4-215 (see Motion, Exhs. A4, B1). See Matter of Pickering, 23 I&N Dec. 621 (BIA 2003) (holding that a conviction that has been vacated by the criminal court based upon a procedural or substantive defect in the underlying proceedings is no longer a conviction for immigration purposes); see also Padilla
v.

Kentucky, 130 S.Ct. 1473 (2010) (holding that a criminal lawyer representing a

non-citizen in connection with a guilty plea has a constitutional duty to advise the defendant that conviction may pose a risk of deportation). We find it appropriate to remand this matter to the Immigration Judge to for further consideration of the respondent's removability. Accordingly, the following orders will be entered.

Cite as: Jacinto Moises Carbonell-Desliz, A074 054 226 (BIA Jan. 13, 2014)

. .. �. .. ,

.. � ... . ..

. . ,. A074 054

226

ORDER: The motion to reopen is granted. FURTHER ORDER: The record is remanded to the Immigration Court for further
proceedings consistent with the foregoing opinion.

Immigrant & Refugee Appellate Center | www.irac.net

2

Cite as: Jacinto Moises Carbonell-Desliz, A074 054 226 (BIA Jan. 13, 2014)

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