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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 2204/

1000 Second Avenue, Suite 2900


Seattle, WA 98104

Name: PEREZ-GUERRERO, CARLOS

A 079-746-629

DHS/ICE Office of Chief Counsel - SEA

Date of this notice: 11/6/2015

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

Don.rtL C

WV\.)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Holmes, David B.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: Carlos Perez-Guerrero, A079 746 629 (BIA Nov. 6, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

De Young, Brent Adrian


De Young Law Office
PO Box 1668
Moses Lake, WA 98837

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 2204/

DHS/ICE Office of Chief Counsel - SEA


1000 Second Avenue, Suite 2900
Seattle, WA 98104

Name: PEREZ-GUERRERO, CARLOS

A 079-746-629
Date of this notice: 11/6/2015

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,

Dowu... Ct1IVu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Holmes, David B.

Userteam:

Cite as: Carlos Perez-Guerrero, A079 746 629 (BIA Nov. 6, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

PEREZ-GUERRERO, CARLOS
CALLE ADOLFO LOPEZ MATEOS,
M252-L44
CD JOSE ANTONIO TORRES,
EDO DE MEXICO CP 55117

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A079 746 629 - Seattle, WA

Date:

In re: CARLOS PEREZ-GUERRERO

NOV - 6 2015

MOTION
ON BEHALF OF RESPONDENT: Brent A. DeYoung, Esquire
ON BEHALF OF DHS: Ryan A. Kahler
Assistant Chief Counsel
The respondent filed an untimely motion to reopen on July 29, 2015, after we dismissed his
appeal on June 18, 2003. Section 240(c)(7) of the Immigration and Nationality Act, 8 U.S.C.
1229a(c)(7); 8 C.F.R. 1003.2(c)(2). The Department of Homeland Security (the "DHS")
opposes the motion. We will grant reopening under our sua sponte authority at 8 C.F .R.
1003.2(a), and remand the case to the Immigration Court for further proceedings. 1
The respondent was convicted in 1985 in Washington State of delivery of a controlled
substance. He was found subject to removal based on this conviction, as well as for being present
in the United States without having been admitted or paroled.
The respondent presents evidence that, on December 26, 2013, the criminal court judge
signed a "First Amended Order Vacating Conviction". As part of that order, the criminal court
judge stated that "the defendant was not fully advised as to the immigration consequences of his
plea".
Where a court with jurisdiction vacates a conviction based on a defect in the underlying
criminal proceedings, a respondent no longer has a "conviction" within the meaning of section
10l(a)(48)(A) of the Act. Matter ofAdamiak, 23 I&N Dec. 878 (BIA 2006)(conviction vacated
pursuant to Ohio law for failure of the trial court to advise the alien defendant of the possible
immigration consequences of a guilty plea is no longer a valid conviction for immigration
purposes). In Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court held that the failure
to advise a non-citizen criminal defendant that a plea could result in deportation constitutes
ineffective assistance of counsel and violates the right to counsel. The DHS argues that in
Chaidez v. United States, 568 U.S. _, 133 S.Ct. 1103 (2013), the Supreme Court held that
Padilla v. Kentucky, supra, does not apply retroactively. However, according to the motion to
reopen, the request for post-conviction relief was based on Washington State case law
(Respondent's Mot. at 1).
1

The respondent's motion states that he has been removed to Mexico, and currently resides
there.

Cite as: Carlos Perez-Guerrero, A079 746 629 (BIA Nov. 6, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

A079 746 629


After considering the circumstances, the motion to reopen will be granted. The record will
be remanded to the Immigration Judge for a further hearing regarding the respondent's
removability, and so that the respondent may seek relief from removal to which he may be
entitled.

FOR THE BOARD

2
Cite as: Carlos Perez-Guerrero, A079 746 629 (BIA Nov. 6, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

ORDER: The record is remanded to the Immigration Court for proceedings consistent with
this opinion.