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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk

5107 leesburg Pike, Suite 2000
Falls Church, Virgm1a 22041

Immigrant & Refugee Appellate Center, LLC | www.irac.net
Abrusley, Luke H. OHS/ICE Office of Chief Counsel - ORL
Luke Abrusley Law 3535 Lawton Road, Suite 100
Po Drawer 1299 Orlando, FL 32803
Oakdale, LA 71463

Name: KIRLEW, VIVROY A 058-906-861

Date of this notice: 11 /30/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Grant, Edward R.

Usertea m: Docket

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Cite as: Vivroy Kirlew, A058 906 861 (BIA Nov. 30, 2017)
U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk

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

Immigrant & Refugee Appellate Center, LLC | www.irac.net
KIRLEW, VIVROY OHS/ICE Office of Chief Counsel - ORL
LPDC 3535 Lawton Road, Suite 100
P.O. BOX 560 Orlando, FL 32803
TROUT, LA 71371-0000

Name: KIRLEW, VIVROY A 058-906-861

Date of this notice: 11/30/2017

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. § 1292.5(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 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,

DCWU- ct1IVt.)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Grant, Edward R.

Userteam:

Cite as: Vivroy Kirlew, A058 906 861 (BIA Nov. 30, 2017)
U.S. Departmep.t o( Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A058 906 861 - Orlando, FL Date:

In re: Vivroy KIRLEW
NOV 3 0 2017

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IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT: Luke H. Abrusley, Esquire

APPLICATIONS: Reopening; remand; stay of removal

This case was last before us on January 14, 2015, when we entered a final administrative
order dismissing the respondent's appeal. On June 13, 2017, the respondent submitted the instant
motion to reopen and remand pursuant to 8 C.F.R. § 1003.2. He requests a stay of removal. The
Department of Homeland Security (DHS) has not responded to the motion. The motion will be
granted.

The record reflects that the respondent, a native and citizen of Jamaica, was granted lawful
permanent resident status on September 10, 2006, was arrested and charged with possession of
drug paraphernalia on December 16, 2009, and was convicted on January 19, 2010, in a Florida
state court of possession of drug paraphernalia. On July 18, 2011, the respondent was issued a
Notice to Appear and charged with removability as an alien convicted of a controlled substance
·

violation.

On August 15, 2013, the Immigration Judge found the respondent to be removable as charged,
and pretermitted his application for a waiver of inadmissibility under section 212(h) of the
Immigration and Nationality Act, 8 U.S.C. § l 182(h), upon finding that the respondent's
2010 conviction cut off the period of lawful residency required for statutory eligibility for the
waiver. On appeal, we agreed with the Immigration Judge and, citing Matter of Martinez­
Espinoza, 25 I&N Dec. 118 (BIA 2009), we concluded that the respondent cannot demonstrate
seven years of continuous lawful residence immediately preceding the issuance of his 2011 Notice
to Appear to be eligible for a section 212(h) waiver.

The respondent now seeks reopening and a remand based on his assertion that his conviction
for possession of drug paraphernalia is no longer an inadmissible offense pursuant to Mellouli v.
Lynch, 135 S.Ct 1980 (2015), and his claim that his legal residency can be reinstated. See Motion
at 2. He contends that reopening sua sponte is warranted.

The decision of the Court in Mellouli v. Lynch, 135 S.Ct at 1980, abrogated Matter of
Martinez-Espinoza, 25 I&N Dec. at 118, by holding, in part, that our interpretation of the federal
removal statute under which convictions for paraphernalia possession trigger removal whether or
not they necessarily implicate a federally controlled substance, was not entitled to deference under

Cite as: Vivroy Kirlew, A058 906 861 (BIA Nov. 30, 2017)
· A058 906 861
.
.

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct.
2778, 81L.Ed.2d 694 (1984).

The respondent's motion has been filed out of time. See section 240(c)(7)(C)(i) of the Act,
8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § l003.2(c)(2) (with limited exceptions, a motion to reopen
must be filed within 90 days of the date of entry of a final administrative order). Further, the

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Court's decision in Mellouli v. Lynch, 135 S.Ct at 1980, was issued on June l, 2015, more than
two years before the respondent filed the instant motion. However, in view of the totality of the
circumstances presented here, we will reopen these proceedings sua sponte and remand the record
to the Immigration Judge for further proceedings and the entry of a new decision. See 8 C.F.R.
§ l003.2(a). In remanding, we intimate no opinion regarding the respondent's claims regarding
his eligibility for relief from removal. Accordingly, the motion will be granted. The respondent's
stay request is moot.

ORDER: The motion to reopen is granted, and the record is remanded to the Immigration
Judge for further proceedings and the entry of a new decision.

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Cite as: Vivroy Kirlew, A058 906 861 (BIA Nov. 30, 2017)