U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5/07 leesburg P1/ce. Su11e 2000

Falls Church. Virgm1a 220-11

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

Godoy, Mario Alejandro OHS/ICE Office of Chief Counsel - CHI
Godoy Law Office 525 West Van Buren Street
2 East 22nd Street Chicago, IL 60607
Suite 110
Lombard, IL 60148

Name: DELTORO-AGUILAR, JOSE A 090-925-971

Date of this notice: 2/12/2020

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.

G:. . I ,:�

Userteam: Docket

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Cite as: Jorge Deltoro-Aguilar, A090 925 971 (BIA Feb. 12, 2020)
U.S. Department of Justice Decision of the Board of Immigration Appeals
�xecutive Office for Immigration Review

Falls Church, Virginia 22041

File: A090-925-97 l - Chicago, IL Date:

FEB 1 2 2�20
In re: Jose DELTORO-AGUILAR

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

IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT: Mario A. Godoy, Esquire

APPLICATION: Reopening

This matter was last before the Board on August 27, 2013, when we dismissed the respondent's
appeal. On October 19, 2018, the respondent filed an untimely motion to reopen proceedings. The
Department of Homeland Security ("OHS") has not responded. The motion will be granted and
proceedings will be terminated.

The respondent, a native and citizen of Mexico and a lawful permanent resident of the United
States, was found removable for commission of an aggravated felony and a controlled substance
violation under sections 237(a)(2)(A)(iii) and (B)(i) of the Immigration and Nationality Act,
8 U.S.C. § l 227(a)(2)(A)(iii) and (B)(i). His removability was based upon his 2010 convictions
for unlawful possession of a controlled substance with intent to deliver pursuant to 720 ILCS
570/40l(c)(2), for which he was sentenced to 4 years imprisonment (IJ at 2; Exh. l).

In his motion to reopen, the respondent argues and has submitted evidence demonstrating that
an Illinois state court granted his post-conviction petition and vacated his guilty pleas on
January IO, 2017 (Respondent's Motion at l -2, 56). As the Attorney General discussed in Matter
ofThomas and Thompson, 27 I&N Dec. 674 (A.G. 2019), state court orders vacating convictions
will be given effect for immigration purposes only if based on a procedural or substantive defect
in the underlying criminal proceedings. See also Matter of Pickering, 23 l&N Dec. 62 l (BIA
2003 ). Here, the post-conviction petition filed with the state court argued that the respondent had
not been advised of the immigration consequences of his guilty pleas (Respondent's Motion at 7-
19). Thus, it appears that the respondent's guilty pleas were vacated based on a procedural defect
in his underlying proceedings. Considering the facts and circumstances of this matter and the lack
of express opposition from the DHS, we will grant the respondent's motion to reopen sua sponte
and proceedings will be terminated. Accordingly, the following order will be entered.

ORDER: The respondent's motion to reopen is granted and removal proceedings are
terminated without prejudice.

Cite as: Jorge Deltoro-Aguilar, A090 925 971 (BIA Feb. 12, 2020)