U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5/07 leesburg P,ke, S1111e 2000

Falls Church. V1rgm1a 22041

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

Zlateva, Maria OHS/ICE Office of Chief Counsel -TAC
Maria Zlateva PC 1623 East J Street, Ste. 2
317 Court St NE Tacoma, WA 98421
Suite 203
Salem, OR 97301

Name: GARCIA-NAVARRO, JAVIER A 092-842-802

Date of this notice: 3/16/2020

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure
Panel Members:
O'Connor, Blair
Greer, Anne J.
Donovan, Teresa L.

Userteam: Docket

For more unpublished decisions, visit

www.irac.net/unpublished/index

Cite as: Javier Garcia-Navarrao, A092 842 802 (BIA March 16, 2020)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A092-842-802 - Tacoma, WA Date:

�4R t 6 2020

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

In re: Javier GARCIA-NAVARRO

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Maria Zlateva, Esquire

APPLICATION: Reopening

The respondent appeals from an Immigration Judge's June 12, 2019, decision denying his
motion to reopen removal proceedings. The appeal will be sustained, the removal proceedings
will be reopened, and the record will be remanded.

In 2012, the respondent-a native and citizen of Mexico-was convicted of a controlled

substance offense in Oregon. Based on that conviction, the Department of Homeland Security
("OHS") sought to remove him from the United States, and in late 2014 he was in fact removed to
Mexico pursuant to a final order of removal issued by an Immigration Judge.

Prior to his removal, the respondent filed a motion for post-conviction relief in Oregon on
grounds that his criminal defense lawyer had provided ineffective assistance of counsel by failing
to advise him of the likely immigration consequences of his decision to plead guilty. See generally
Padilla v. Kentucky, 559 U.S. 356 (2010). The Oregon trial court denied that motion in November
2014, but the respondent appealed that denial to the Oregon Court of Appeals in early December
2014, shortly before his removal order was entered.

In 2018, the Oregon Court of Appeals sustained the respondent's appeal, concluding that his
defense lawyer had provided constitutionally deficient representation, and remanding the matter
for the trial court to assess prejudice. Garcia-Navarro v. State, 417 P.3d 464 (Or. Ct. App. 2018).
In October 2018, the trial court granted the respondent's motion for post-conviction relief and
vacated his 2012 conviction.

On May 17, 2019, the respondent filed a motion to reopen his removal proceedings, arguing
that the vacatur of his 2012 conviction removed the legal foundation for the court's 2014 removal
order. The Immigration Judge denied the motion as untimely, found that equitable tolling of the
90-day statutory deadline on motions to reopen was unavailable because the respondent had not
exercised due diligence in filing his motion, and denied sua sponte reopening.

The respondent presently stands neither convicted nor charged with the only crime for which
he was ordered removed. Upon de novo review, 8 C.F.R. § 1003. l(d)(3)(ii), we conclude that the
vacatur of the respondent's 2012 conviction, based on a constitutional challenge commenced prior
to the execution of his removal order, is an exceptional situation warranting sua sponte reopening.

Cite as: Javier Garcia-Navarrao, A092 842 802 (BIA March 16, 2020)
A092-842-802

Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997). 1 As the United States Court of Appeals for the
Ninth Circuit has held, removal based upon an invalid conviction is not legally executed, and an
alien removed on the basis of such a conviction is entitled to reopening even after he has left the
country. Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006); Wiedersperg v. INS, 896

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

F.2d 1179 (9th Cir. 1990); Estrada-Rosales v. INS, 645F.2d 819 (9th Cir. 1981). As the
respondent has been obliged to manage his criminal and immigration cases from Mexico,
moreover, we do not find the 6-month delay between the vacatur of his conviction and the filing
of his motion to reopen to be indicative of a lack of due diligence on his part. See Weidersperg
v. INS, 896 F.2d at 1182.

Accordingly, the following order will be issued.

ORDER: The appeal is sustained, the Immigration Judge's decision is vacated, the removal
proceedings are reopened, and the record is remanded for further proceedings consistent with the
foregoing opinion.

FOR THE BOARD

1
Had the respondent filed his request for post-conviction relief after his removal order had been
executed, a different result may be appropriate. Cf Hernandez-Almanza v. INS, 547 F.2d at 103;
Matter ofC-, 8 I&N Dec. 611, 614-15 (BIA 1960).

2
Cite as: Javier Garcia-Navarrao, A092 842 802 (BIA March 16, 2020)