Bloom, Jonathan

Law Ofices of Jonathan Bloom

414 Hungerord Drive, Suite 211
Rockville, MD 20850
Name: VERGARA, GREGORIO
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leeburg Pike, S11ile 2000
Falls Church, Vrginia 22041
OHS/ICE Ofice of Chief Counsel - BAL
31 Hopkins Plaza, Room 1600
Baltimore, MD 21201
A076-110-704
Date of this notice: 3/8/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Pauley, Roger
Sincerely,
Donna Carr
Chief Clerk
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Gregorio Vergara, A076 110 704 (BIA March 8, 2011)
For more unpublished BIA decisions, visit www.irac.net/unpublished
U.S. Department of Justice
Exetve Ofce fr Imgaton Review
Decision of te Board of Imigraton Appeals
Falls Curch Virga 22041
File: A076 110 704 - Baltimore, M
I re: GRGORIO VERGAA a.k.a. Gregaro Vergaa
I REMOVAL PROCEEDIGS
APPEAL
Date:
ON BEHALF OF RESPONENT: Jonatha Bloom, Esquire
ON BEHALF OF DHS: Joseph B. Edlow
Assistant Chief Counsel
MAR - 8 20\1
I a decision dated October 19, 2010, an Immigation Judge fund the respondent removable and
ordered him removed fom the United States to Bolivia.1 The respondent appealed fom tat
decision. 2 The appeal will be dismissed.
The respondent was fund removable as chaged, as convicted of an aggavated flony
under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. 1227(a)(2)(A)(iii), in conjunction with
section 101(a)(43)(S) of the Act, 8 U.S.C. 1101(a)(43)(S). A substantiated by conviction
documents, he has a 2009 Maryland conviction fr the ofense of "accessory afer the fct," fr
which crime he was sentenced to imprisonment of 3 yeas. His status wa adjusted to that of lawfl
peranent resident on April 19, 2001. We fnd corect the Immigration Judge's conclusions
concering the respondent's removability and ineligibility fr removal relief, upon our de novo
review. The respondent has not challenged these deterinations on appeal.
On appeal, the respondent states that he is pursuing post-conviction relief through a pending
motion to reduce his sentence, on which a hearing was scheduled fr December 2010. The record
contains a copy of such motion, which was fled with the Maryland criminal court in Febrary 2010
ad which asks that the respondent's sentence be modifed to that of probation befre judgent. The
respondent asserts that he would like to apply fr cancellation of removal, if he obtains the sentence
modifcation. He did not fle a brief.
To the extent that the respondent agues that he should have been ganted a fher continuace
of his removal hearings, we agee wit the Immigation Judge's deterination to deny the
continuace request. The decision to gt or deny a continuance is within the discretion of
the Immigation Judge, and good cause must be shown fr a continuance. See Matter of Perez-
1 The proceedings befre the Immigation Judge in this matter were completed in Baltimore,
Marland though video conference pursuant to section 240(b )(2)(A)(iii) of the Imigation and
Nationality Act, 8 U.S.C. 1229a(b)(2)(A)(iii).
2 We note that the hnmigation Judge did not issue a separate oral or written decision. The record
has been reviewed ad, in accordance with Matter of A-P-, 22 I&N Dec. 468 (BIA 1999), te
Immigation Judge was not required to prepare a sepaate oral or writen decision in this case.
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Gregorio Vergara, A076 110 704 (BIA March 8, 2011)
A076.110 704
Andrade, 19 I&N Dec. 433 (BIA 1997); Matter of Sibrun, 18 I&N Dec. 354 (BI 1983); 8 C.F .R.
1003.29. The Immigation Judge aforded the respondent two previous continuances, fom
September 28, 2010, untl October 12, 2010; ad fom October 12, 2010, until October 19, 2010.
Te frst continuace was allowed so that the respondent could secue an attorey to reresent him,
ad the second continuace was given fr te purpose of case prepaation by the respondent's
imigation counsel. At the third and fnal hearing on October 19, 2010, the respondent infred
the Immigation Judge that he was seeking the post-conviction relief in criminal court.
Concerng the validity of the respondent's conviction, the fact that he may be pursuing post
conviction reliefin te fr of a collateral attack on that conviction in state criminal court does not
affet its fnality fr fderal immigation puroses. See Matter of Adetiba, 20 l&N Dec. 506
(BI 1992). The respondent has presented no evidence with tis appeal that a attack on his
conviction has resulted in any vacatur or any sentence modifcation. He has ackowledged that
his motion fr sentence modifcation remained pending with the Marland criminal court when he
fed his appeal with the Board. The scheduled December 2010 hearing date has passed, and we
have not been advised tat the conviction was vacated or that te sentence was modifed. The
respondent's speculation that his conviction or sentence might be invalid does not change the fnality
fr immigation puroses of the conviction, unless and until it were to be overed by a
criminal court. See Matter of Ponce de Leon, 21 I&N Dec. 154 (A.G. 1997; BIA 1997, 1996).
Concering cancellation ofremoval under section 240A(a) of the Act, 8 U.S.C. 1229b(a), we
agee with the Immigation Judge that the respondent is statutorily ineligible fr that relief due to his
conviction fr an aggavated flony, as he stads convicted of the 2009 crime fr the obstction of
justce ofense, fr which he was sentenced to the prison ter of 3 years. See section 240A(a)(3)
of te Act. The respondent also could opt to apply fr cancellation of removal fr nonperanent
residents under section 240A(b)(l) of the Act. Wile, as a lawfl peranent resident, he is not
disqualifed fom seekng cancellation ofremoval under section 240A(b)(l ) merely because of his
lawfl peranent resident status, he also is ineligible fr that relief due to his lack of 10 yeas of
continuous physical presence immediately preceding his application, his lack of good moral
chaacter stemming fom his conviction fr the aggavated flony, and his section 237(a)(2)
removability. See sections 240A(b )(1 )(A), (B), and (C) and 240A( d)(l) of the Act; section 101 (f)(8)
of the Act; Matter of A-M-, 25 I&N Dec. 66, 75-76 (BI 2009).
Accordingly, we will dismiss the appeal.
ORDER: The appeal is dismissed.
'' ..
2
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Gregorio Vergara, A076 110 704 (BIA March 8, 2011)
IMMIGRATION COURT
31 HOPKINS PLZA, ROOM 440
BALTIMORE, MD 21201
In the Matter of
case No.: A076-110-704
VERGARA, GREGORIO
Respondent IN REMOVAL PROCEEDINGS
ORDER OF THE IMMIGRATION JUGE
This is a summary of the oral decision entered on I 0 {( f q
This memorandum is solely for the convenience of the parties. If the
proceedings should be appealed or reopened, the oral decision will become
t official opinion in the case.
[ ) The respondent was ordered removed from the United States to BOLIVIA
or in the alternative to .
Respondent's application for voluntary departure was denied and
respondent was ordered removed to BOLIVIA or in the
alternative to .
( )
Respondent's application for voluntary departure was granted until
upon posting a bond in the amount of $
with an alternate order of removal to BOLIVIA.
R_spondents application for:
) Asylum was ( ) granted ) denied ( ) withdrawn.
) Withholding of removal was ( )granted ( )denied )withdrawn.
A Waiver under section was ( ) granted ( ) denied ( ) withdrawn.
) Cancellation of removal under section 240A(a) was ( )granted ( )denied
( )withdrawn.
Respondent's application for:
( ] Cancellation under section 240A(b) (1) was ( ) granted ) denied
.
( I
]
( ]
( ) withdrawn. If granted, it is ordered that the respondent be issued
all appropriate documents necessary to give effect to this order.
Cancellation under section 240A(b) (2) was ( )granted ( )denied
( )withdrawn. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this order.
Adjustment of Status under Section was ( )granted ( )denied
( )withdrawn. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this order.
Respondent's application of ( ) withholding of removal ( ) deferral of
removal under Article III of the Convention Against Torture was
( ) granted ( ) denied ( ) withdrawn.
Respondent's status was rescinded under section 246.
Respondent is admitted to the United States as a until
As a condition of admission, respondent is to post a $ bond.
Respondent knowingly filed a frivolous asylum application after proper
notice.
Respondent was advised of the limitation on discretionary relief.for
failure to appear as ordered in the Immigration Judge's oral decision.
Proceedings were terminated.
Other:
Date: f --' 2010
Appeal Due By:
II tf.10
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
.


.
. ..
Aiien Number: 076-110-704 Alien Name: VERGARA, GREGORIO
LIMITATIONS ON DISCRETIONARY RELIEF FOR FAILURE TO APPEAR
1. You have been scheduled for a removal hearing, at the time and place
set forth on the attached sheet. Failure to appear for this hearing
other than because of exceptional circumstances beyond your control**
will result in your being found ineligible for certain forms of
relief under the Immigration and Nationality Act {see Section A.
below) for a period of ten (10) years after the date of entry of the
final order of removal.
2. You have been scheduled for an asylum hearing, at the time and place
set forth on the attached notice. Failure to appear for this hearing
other than because of exceptional circumstances beyond your control**
will result in your being found ineligible for certain forms of relief
under the Immigration and Nationality Act (see Section A. Below) for a
period of ten (10) years from the date of your scheduled hearing.
3. You have been granted voluntary departure from the United States
pursuant to section 240B of the Imigration and Nationality Act, and
remaining in the United States beyond the authorized date other than
because of exceptional circumstances beyond your control** will result
in your being ineligible for certain forms of relief under the
Imigration and Nationality Act {see Section A. Below) for ten (10)
years from the date of the scheduled departure or the date of unlawful
reentry, respectively. Your voluntary departure bond, if any, will
also be breached. Additionally, if you fail to voluntarily depart the
United States within the time period specified, you shall be subject
to a civil penalty of not less than $1000 and not more than $5000.
4. An order of removal has been entered against you. If you fail to
appear pursuant to a final order of removal at the time nd place
ordered by the DHS, other than because of exceptional circumstances
beyond your control** you will not be eligible for certaiQ forms of
relief under the Immigration and Nationality Act {see Section A.
below) for ten (10) years after the date you are scheduled to appear.
**the term "exceptional circumstances" refers to circumstances such
as serious illness of the alien or death of an imediate relative
of the alien, but not including less compelling circumstances.
A. THE FORMS OF RELIEF FROM REMOVAL FOR WHICH YOU WILL BECOME INELIGIBLE ARE:
1) Voluntary departure as provided for in section 240B of the
Imigration and Nationality Act;
2) Cancellation of removal a
\
rovided for in section 240A of the
Imigration and Nationality Act; and
3) Adjustment of status or change of status as provided for in Section
245, 248 or 249 of the Imigration and Nationality Act.
This written notice was provided to the alien in English. Oral notice of
the contents of this notice must be given to the alien in his/her native
language, or in a language he/she understands by the Imigration Judge.
Date: Oct 19, 2010
Imigration Judge: or Court Clerk=

CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY: MAIL {M) PERSONAL
1
SERVICE
EN c/o Custodial Officer AIEN' s
BY: COURT STAFF
.
Attachments. OIR-33 [ J EOIR-28 [ J Legal Ser 1 [ ] Other
Z6
.. .
'
J I
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t