U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5/07 l.ecsb11rg Pike, S11ite 2000 Falls C/111rc/1, Virgi11ia 22041

Silveira, Matthew J. Jones Day 555 California St., 26th Floor San Francisco, CA 90280

OHS/ICE Office of Chief Counsel LVG 3373 Pepper Lane Las Vegas, NV 89120

Immigrant & Refugee Appellate Center | www.irac.net

Name: VIVAR-FLORES, ERWIN STUAR...

A 029249620

Date of this notice: 9/10/2013

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

DOYUtL ct2tVt.)
Donna Carr Chief Clerk

Enclosure
Panel Members: Kendall-Clark, Molly

Trane
Userteam: Docket

Cite as: Erwin Stuardo Vivar-Flores, A029 249 620 (BIA Sept. 10, 2013)

,,

-i

U.S. Department of Justice

Falls Church, Virginia 22041

Decision of the Board oflmmigration Appeals

Executive Office for Immigration Review

File:

A029 249 620 - Las Vegas, NV

Date:

SEP 1 0 2013

In re: ERWIN STUARDO VIVAR-FLORES

IN REMOVAL PROCEEDINGS

APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Matthew J. Silveira, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Charles W. Baccus Assistant Chief Counsel

CHARGE: Notice: Sec. 237(a)(2)(A)(iii), I& N Act [8 U.S.C. 1227 (a)(2)(A)(iii)] Convicted of aggravated felony (as defined in section 10l(a)(43)(G))

APPLICATION: Termination

appeal from the Immigration Judge's March 29, 2004, decision ordering him removed from the United States to Guatemala. On April 8, 2009, the United States Court of Appeals for the Ninth Circuit granted the respondent's petition for review of our July 30, 2004, decision, and remanded

The respondent's case was originally before us on July 30, 2004, when we dismissed his

the record for clarification. On July 14, 2009, we provided clarification and again dismissed the respondent's appeal. The matter is now before us pursuant to the November 20, 2012, decision of the Ninth Circuit. Circuit's second remand order. We will terminate removal proceedings in accordance with the Ninth

"was required to consider what term of imprisonment was imposed" on the respondent. It further concluded that "no actual sentence was imposed" on the respondent by the criminal court in this as charged and removal proceedings will be terminated. Accordingly, the following orders will be entered.2

In its November 20, 2012, decision, the Ninth Circuit found as a legal matter that the Board

case.1 Given the court's decision in this case, we conclude that the respondent is not removable

1 We also note that the 364-day term of imprisonment ultimately ordered as a condition of probation does not support the charge because it is less than the 1 year required under section 10l(a)(43)(G) of the Act, 8 U.S.C. 1101(a)(43)(G).

2 We decline to address the respondent's request for the Department of Homeland Security ("DHS") to facilitate his return to the United States because neither the Board nor the

Immigration Judge possesses jurisdiction to resolve that request, which the respondent may raise directly with the DHS. See ICE Policy Directive Number 11061.1, "Facilitating the Return to (continued ... )

w;;.

xx

Cite as: Erwin Stuardo Vivar-Flores, A029 249 620 (BIA Sept. 10, 2013)

"

;. n.w .... (

iJ.. .o . .

.k

A029 249 620

ORDER: The Board's decisions dated July 30, 2004, and July 14, 2009, are vacated. FURTHER ORDER: The removal proceedings are tenninated and the record is returned to the Immigration Court without further action.

Immigrant & Refugee Appellate Center | www.irac.net

<.....

iOR THE BOARD

www.ice.gov/about/offices/enforcement-removal-operations/ero-outreach/faq.htm.

2 ( continued) the United States of Certain Lawfully Removed Aliens," available at http://www.ice.gov/ doclib/foia/dro_policy_memos/11061.1_current_policy_facilitating_return. pdf; see also http://

Cite as: Erwin Stuardo Vivar-Flores, A029 249 620 (BIA Sept. 10, 2013)