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

Camilo, Jason Scott OHS/ICE Office of Chief Counsel - NEW
Law Offices of Jason Scott Camilo, LLC 970 Broad Street, Room 1300
330 Livingston Avenue Newark, NJ 07102
Suite 3A
New Brunswick, NJ 08901

Name: H C ,C A -630

Date of this notice: 3/30/2020

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Goodwin, Deborah K.

Userteam: Docket

For more unpublished decisions, visit

www.irac.net/unpublished/index

Cite as: C-H-C-, AXXX XXX 630 (BIA March 30, 2020)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A -630 - Newark, NJ Date: MAR 3 D 2020

In re: C H C a.k.a.

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

IN REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Jason Scott Camilo, Esquire

APPLICATION: Remand; cancellation of removal

In a decision dated June 21, 2018, an Immigration Judge ordered the respondent removed to
Honduras after denying his application for cancellation of removal under section 240A(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (2018). The respondent appeals from that
decision, and has also filed a motion to remand based on new evidence. 8 C.F.R. § 1003.2(c)(4)
(2019). The motion to remand will be granted. The appeal will be dismissed as moot.

The respondent's removability is undisputed, so his appeal and motion pertain to his eligibility
for cancellation of removal. The Immigration Judge found the respondent ineligible for such relief
based solely on his 1995 conviction for violating section 11352 of the California Health & Safety
Code (IJ at 7-10). Section 240A(b)(l)(C) of the Act (barring cancellation of removal as to any
applicant "convicted of an offense under section 212(a)(2)" of the Act).

In his motion to remand, the respondent provides certified court records reflecting that his 1995
conviction was vacated by a California Superior Court on September 10, 2018, pursuant to
section 14 73. 7 of the California Penal Code. Section 14 73. 7 provides as follows, in pertinent part:

(a) A person who is no longer in criminal custody may file a motion to vacate a
conviction or sentence for either of the following reasons:

(1) The conviction or sentence is legally invalid due to prejudicial error

damaging the moving party's ability to meaningfully understand, defend
against, or knowingly accept the actual or potential adverse immigration
consequences of a plea of guilty or nolo contendere. A finding of legal
invalidity may, but need not, include a finding of ineffective assistance of
counsel.

(2) Newly discovered evidence of actual innocence exists that requires

vacation of the conviction or sentence as a matter of \aw or in the interests of
justice. I

According to the respondent, the vacatur of his conviction eliminates the only impediment to his
eligibility for cancellation of removal, necessitating remand.

Cite as: C-H-C-, AXXX XXX 630 (BIA March 30, 2020)
A -630

For immigration purposes, a conviction becomes ineffective if it is vacated based on a

"procedural or substantive defect" in the underlying criminal proceedings, but it remains effective
if its vacatur is motivated solely for rehabilitative considerations or a desire to alleviate the
hardships arising from enforcement of the immigration laws. Matter of Thomas & Thompson,
27 l&N Dec. 674, 676 (A.G. 2019); Matter ofPickering, 23 l&N Dec. 621, 624 (BIA 2003).

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

A conviction or sentence can be vacated under section 1473.7(a)(l) only if it was "legally
invalid" due to ineffective assistance of counsel or some other "prejudicial error" that "damag[ed]
the moving party's ability to meaningfully understand, defend against, or knowingly accept the
actual or potential adverse immigration consequences of a plea of guilty or nolo contendere."
Though collaterally related to immigration enforcement, vacatur under section 1473.7(a)(l)
renders a conviction ineffective for immigration purposes because ineffective assistance of counsel
or "prejudicial error" in plea proceedings are "procedural or substantive defects" under California
law. Matter of Adamiak, 23 l&N Dec. 878, 879-80 (BIA 2006) (holding Ohio conviction
ineffective for immigration purposes after its vacatur under section 2943.031 of the Ohio Revised
Code for failure of trial court to advise alien defendant of possible immigration consequences of
guilty plea).

Section 14 73. 7(a)(2) states that a conviction or sentence can also be vacated based on emergent
evidence of the moving party's "actual innocence." Criminal proceedings resulting in the
conviction of an innocent defendant are also "substantively" defective, so vacatur under that
paragraph likewise renders the underlying conviction ineffective.

In conclusion, the vacatur of the respondent's 1995 conviction under section 1473.7 must be
given effect for immigration purposes because a conviction can be vacated under that section only
because of a "procedural or substantive defect" in underlying criminal proceedings. Accordingly,
the respondent's motion to remand will be granted, the Immigration Judge's removal order will be
vacated, and the record will be remanded for further consideration of the respondent's application
for cancellation of removal. 1 The following orders will be issued.

ORDER: The respondent's motion to remand is granted, the Immigration Judge's decision is
vacated in part, and the record is remanded for further proceedings.

FURTHER ORDER: The respondent's appeal is dismissed as moot.

1 After vacating the respondent's 1995 conviction, the California Superior Court found him guilty
of misdemeanor accessory after the fact under section 32 of the California Penal Code. We express
no present opinion as to the impact (if any) of that new conviction on these proceedings.

Cite as: C-H-C-, AXXX XXX 630 (BIA March 30, 2020)