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Immigrant & Refugee Appellate Center | www.irac.net

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

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

Wargo, Holli Beasley, Esq. Collins & Martin, P.C. 55 Town Line Road, Third Floor Wethersfield, CT 06109

Name: GUL, HUBERT LUKASZ

5 /07 Leesburg Pike, Suite 2000 Falls Clmrch, Virginia 22041

OHS/ICE Office of Chief Counsel - HAR P.O. Box 230217 Hartford, CT 06123-0217

A 055-902-141

Date of this notice: 5/29/2013

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

Sincerely,

DorutL ct1/Vt..)

Enclosure

Panel Members:

Hoffman, Sharon

Donna Carr

Chief Clerk

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Immigrant & Refugee Appellate Center | www.irac.net

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

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk

GUL, HUBERT LUKASZ

A055-902-141

GREENFIELD HOUSE OF CORR 160 ELM STREET GREENFIELD, MA 01301

Name: GUL, HUBERT LUKASZ

510 7

l.eesb11rg Pike. Suile 2000

Falls Clr11rclr. Virgi11ia

22041

OHS/ICE Office of Chief Counsel - HAR P.O. Box 230217 Hartford, CT 06123-0217

A 055-902-141

Date of this notice: 5/29/2013

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a courtesy. Your attorney or representative has been served with this decision pursuant to 8 C.F.R. § 1292.S(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 for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of the decision.

Sincerely,

DorutL ctViA.J

Enclosure

Panel Members:

Hoffman, Sharon

Donna Carr

Chief Clerk

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Userteam: Docket

Cite as: Hubert Lukasz Gul, A055 902 141 (BIA May 29, 2013)

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Immigrant & Refugee Appellate Center | www.irac.net

,. . U.S. Department of Justice Decision of the Board of Immigration Appeals . Executive Office
,.
. U.S. Department of Justice
Decision of the Board of Immigration Appeals
.
Executive Office for Immigration Review
Falls Church, Virginia 22041
File:
A055 902 141 - Hartford, CT
Date:
MAY
.2 9 2013

In re: HUBERT LUKASZ GUL a.k.a. Herbert Gui

IN REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Holli B. Wargo, Esquire

ON BEHALF OF DHS:

Amit Patel Assistant Chief Counsel

APPLICATION:

Remand

The respondent, a native and citizen of Poland, appeals the decision of the Immigration Judge, dated February 20, 2013, ordering his removal from the United States. The respondent has also filed a motion to remand. We will grant the motion.

On appeal, the respondent does not meaningfully dispute that, as a result of his Connecticut state conviction for a drug-related crime, he is subject to removal from the United States under the provisions of section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (I.J. at 1; Exh. 1). See Matter of Moncada, 24 l&N Dec. 62 {BIA 2007). While the respondent is apparently seeking to vacate his conviction, the conviction remains effective for immigration purposes unless and until it is vacated or modified by a court of competent jurisdiction. See Matter ofCuellar, 25 l&N Dec. 850, 855 (BIA 2012).

We agree with the respondent that, in light of the Supreme Court's recent decision in Moncrieffe v. Holder, 133 S.Ct. 1678 (2013), it is appropriate to remand the record to the Immigration Judge for further consideration of the issue of whether the Department of Homeland Security has established that the respondent is subject to removal from the United States under the provisions of section 237(a)(2)(A)(iii) of the Act. See section 240(c)(3)(A) of the Act, 8 U.S.C. § 1229a(c)(3)(A). Additionally, regardless of the disposition of the charge of removability under section 237(a)(2)(A)(iii) of the Act, we conclude that, upon remand, the Immigration Judge should provide the respondent with an opportunity to present his claim to cancellation of removal under section 240A(a) of the Act, 8 U.S.C. § 1229b(a), wherein the respondent, among other things, would bear the burden of demonstrating the absence of a conviction for an aggravated felony and that he warrants such relief as a matter of discretion. See section 240(c)(4)(A) of the Act; 8 C.F.R. § 1240.8(d); Matter ofAlmanza, 24 l&N Dec. 771 (BIA 2009) (recognizing that the burden is on the alien to establish eligibility for relief); Matter of S-H-, 23 l&N Dec. 462 (BIA 2002) (recognizing the need for clear and complete decisions which address all relevant issues raised during the course of removal proceedings)

Immigrant & Refugee Appellate Center | www.irac.net ,. . U.S. Department of Justice Decision of the

While we conclude that remanded proceedings are warranted, we express no opm1on regarding the ultimate outcome of these proceedings at the present time. See Matter of L-0-G-, 21 l&N Dec. 413 (BIA 1996).

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Immigrant & Refugee Appellate Center | www.irac.net

1\055 902 141 For the reasons set forth above, the following order is entered.
1\055
902 141
For the reasons set forth above, the following order is entered.

ORDER:

The

respondent's

motion

to remand is

granted,

and the

record is

remanded to the

Immigration

Court for

further proceedings

consistent with

the

foregoing opinion and

for

the

entry of a new decision.

Immigrant & Refugee Appellate Center | www.irac.net 1\055 902 141 For the reasons set forth above,

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Immigrant & Refugee Appellate Center | www.irac.net ,• UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR
Immigrant & Refugee Appellate Center | www.irac.net ,• UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT HARTFORD, CONNECTICUT

File: A055-902-141

In the Matter of

HUBERT LUKASZ GUL

RESPONDENT

February 20, 2013

)

)

IN REMOVAL PROCEEDINGS

)

)

CHARGES:

APPLICATIONS:

Section 237(a)(2)(A)(iii) of the Immigration Act INA - convicted of an aggravated felony drug trafficking offense. Section 237(a)(2)(B)(i) of the Immigration and Nationality Act - convicted of an offense related to a controlled substance.

Motion for continuance for outcome for writ of coram nobis.

ON BEHALF OF RESPONDENT: HOLLI WARGO

Immigrant & Refugee Appellate Center | www.irac.net ,• UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR

ON BEHALF OF OHS: Ll�ICOLN JALELIA�I

I

ORAL DECISION OF THE IMMIGRATION JUDGE Respondent was served with a Notice to Appear by an Immigration officer on January 18, 2013.:.r He was given-ha& time to obtain counsel and for counsel to plead to the charges. Respondent, through counsel, admits allegations 1 and 3 and denies allegation 4 and the charge of removability. The first issue is whether the respondent is

Immigrant & Refugee Appellate Center | www.irac.net ,• UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR

removable as charged. The Court finds that the respondent was clearly convicted.I.

based on the plea

colloquy...

of an offense involving marijuana. Therefore, the charge of

I

an offense relating to a controlled substance has been sustained. The next issue is whether he is subject to removal based on the aggravated felony conviction. The record reflects that he pied guilty to the sale of a controlled substance, in violation of

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Immigrant & Refugee Appellate Center | www.irac.net

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Immigrant & Refugee Appellate Center | www.irac.net ,. Section 21a-277(b) of the Connecticut general statutes. The
Immigrant & Refugee Appellate Center | www.irac.net ,. Section 21a-277(b) of the Connecticut general statutes. The

Section 21a-277(b) of the Connecticut general statutes.

The prosecutor indicated that

Immigrant & Refugee Appellate Center | www.irac.net ,. Section 21a-277(b) of the Connecticut general statutes. The

tl=le respondent, that there was a marijuana scale and indicia of possessing marijuana

with intent to sell. The respondent pied guilty. The Court that finds that OHS has met

its burden of proof by clear and convincing evidence that this is an aggravated felony drug trafficking offense. Page three of the plea colloquy indicates that this was marijuana and that this was marijuana with intent to sell. The respondent seeks a continuance for a writ of coram nobis that was

filed earlier in February. The writ states that the court may have advised him of the immigration consequences, but did not believe the warning applied to him because his attorney had never suggested he should be concerned about Immigration consequences. The Court would note that, on the bottom of page six of the plea colloquy, he clearly indicated he was aware of the Immigration consequences. In any

event, the Court finds that it will not grant a further continuance in the exercise of discretion. The Court would note that this conviction is final for Immigration purposes and whether this writ will ultimately be granted is total speculation. See Matter of Adetiba, 20 l&N Dec. 506 (BIA 1992); Matter of Ponce De Leon, 21 l&N Dec. 154 (BIA

Immigrant & Refugee Appellate Center | www.irac.net ,. Section 21a-277(b) of the Connecticut general statutes. The

1996). The Court finds no reason to continue this matter any further. The respondent has not applied for nor does he appear to be eligible for any other relief under the

Immigration laws. Accordingly, the Court must order his removal to Poland. ORDER

Immigrant & Refugee Appellate Center | www.irac.net ,. Section 21a-277(b) of the Connecticut general statutes. The

HEREBY ORDERED that the respondent's motion for continuance for adjudication of a writ of coram nobis is denied.

IT IS FURTHER ORDERED that the respondent be removed to Poland.

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February 20, 2013

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Immigrant & Refugee Appellate Center | www.irac.net .. MICHAEL W. STRAUS Immigration Judge A055-902-141 3 February

MICHAEL W. STRAUS Immigration Judge

Immigrant & Refugee Appellate Center | www.irac.net .. MICHAEL W. STRAUS Immigration Judge A055-902-141 3 February