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Department of Justice
Executive Office for Immigration Review
A 094-408-360
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Cole, Patricia A.
Greer, Anne J.
Pauley, Roger
Usertea m: Docket
Cite as: Elmer A. Mangandi, A094 408 360 (BIA Nov. 25, 2014)
Forsythe, Jordan G.
U.S.
D_S'partment of Justice
File:
Date:
APPEAL
ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:
Melissa K. Metz
Assistant Chief Counsel
CHARGE:
Notice:
Sec.
212(a)(6)(A)(i), l&N Act [8 U.S.C. l 182(a)(6)(A)(i)] Present without being admitted or paroled
The respondent, a native and citizen of El Salvador, seeks to renew his application for
temporary protected status ("TPS") in these removal proceedings. See 8 C.F.R. 1244.11. On
March 28, 2013, the Immigration Judge pretermitted the respondent's application, concluding
that he did not show that he has not been convicted of two misdemeanors involving driving while
impaired in violation of North Carolina law. See 8 C.F.R. 1244.4(a). Subsequently, on
April 23, 2013, th Immigration Judge denied the respondent's motion to reconsider, which was
supported by additional evidence. The respondent's appeal of these decisions will be sustained
and :the record will be remanded for further proceedings.
The Board reviews an Immigration Judge's findings of fact for clear error.
1003.l(d)(3)(i).
8 C.F.R.
8 C.F.R.
1003. l(d)(3)(ii).
On appeal, the respondent argues that the Immigration Judge incorrectly placed the burden
on him to show that his 2004 conviction was not vacated for immigration purposes (I.J. at 2).
We disagree.
As the respondent has conceded removability, he bears the burden of
demonstrating eligibility for relief. See 8 C.F.R. 1240.8(d) and 1244.9(a)(3); see also Salem
v. Holder, 641F.3d 111, 115-17 (4th Cir. 2011).
On the other hand, we agree with the respondent's contention that the Immigration Judge
erred in holding that he has not shown eligibility for TPS under 8 C.F.R. 1244.4(a) (l.J. at 3-6).
The respondent submitted a North Carolina court order and copies of his criminal record
establishing that on September 23, 2011, the court vacated his 2004 conviction for driving while
impaired (Tabs D-E). Furthermore, the court order states that the respondent's guilty plea is
vacated "after having considered the arguments of counsel" (Tab E). In this regard, the
Cite as: Elmer A. Mangandi, A094 408 360 (BIA Nov. 25, 2014)
IN REMOVAL PROCEEDINGS
respondent's Motion for Appropriate Relief requests that the court vacate his 2004 guilty plea
pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010) (Tab E). The respondent further presented.
an affidavit in which his criminal attorney states that no other basis for setting aide the
contrary to the Immigration Judge, we conclude that the respondent has demonstrated that his
conviction was vacated based on a defect in the underlying criminal proceedings, as opposed to
reasons unrelated to the merits of the proceedings such as rehabilitative or immigration purposes.
See Matter of Adamiak, 23 l&N Dec. 878 (BIA 2006); Matter of Pickering, 23 I&N Dec. 621,
624 (BIA 2003). Consequently, the respondent has established that he has not sustained two
convictions for misdemeanors that would preclude him from receiving TPS. See id.; 8 C.F.R.
1244.4(a).
We will remand the record so the respondent may endeavor to satisfy the remammg
requirements for receiving TPS, including showing that he merits a favorable exercise of
discretion. See 8 C.F.R. 1244.2; Matter of Echeverria, 25 I&N Dec. 512, 513-14 (BIA 2011).
On remand, the parties may submit additional evidence and argument regarding the respondent's
eligibility for TPS or any other form of relief for which he may be eligible.
Accordingly, the following order is entered.
ORDER: The appeal is sustained, the decisions below are vacated, and the record is
remanded for further proceedings and the entry of a new decision consistent with this opinion.
Cite as: Elmer A. Mangandi, A094 408 360 (BIA Nov. 25, 2014)
conviction was discussed and the district attorney did not oppose the motion (Tab F). The
respondent also submitted a form showing that on October 28, 2011, the prosecutor voluntarily
dismissed the charge for driving while impaired, meaning that the respondent will not be
prosecuted again for his conduct occurring in 2003 (I.J. at 5; Tabs D-F). For these reasons,
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ALIEN ATTORNEY:
CASE NO.
A# 094-408-360
( ] DEPORTAUON
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(] EXCLUSION
(X]REMOVALPROCEEDINGS ( ]AOCASYLUMONLY
MO';I'ION TO RECONSIDER has been filed in the above captioned case. The Motion has
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RANTED.
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e Motion has been duly considered and it appears to the Court that no substantial grounds
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"A motion to reconsider shall state the reasons for the motion by specifying the errors of
fact or law in the Immigration Judge's prior decision and shall be supported by pertinent
authority." 8 C.F.R. 1003.23(b)(2); INA 240(c)(6)(C); Matter ofO-S-G-, 24 l&N Dec. 56
(BIA 2006).
The Court denies Respondent's motion to reconsider because Respondent failed to
Respondent asserts that, in his
Motion for Appropriate Relief ("MAR"), he claimed that his Sixth Amendment rights were
violated, and that he was not given sufficient assistance of counsel when he was not adequately
informed of the immigration consequences of his guilty plea in 2004.
Respondent further
contends that his MAR complied with the pertinent North Carolina statute, and that he was
entitled to attack his guilty plea on the basis that it was not voluntarily or knowingly given.
The Court previously considered Respondent's arguments, contained in his MAR, in its
prior decision. The Court found that Respondent's statements in his MAR were insufficient to
satisfy his burden under the framework analysis espoused in Matter ofPickering. In so finding,
the Court concluded that the state court order failed to: (1) reference the law under which it was
vacating the guilty plea; and (2) explain its rationale for vacating the guilty plea by neglecting to
clearly adopt one or more of Respondent's reasons for the vacatur. Thus, the Court found that
the record was inconclusive regarding the rationale for the vacatur of Respondent's conviction.
The Court finds that there was no error of law or fact in reaching this decision.
Respondent asks the Court to consider new evidence regarding the vacatur, including but
not limited to, an affidavit from his prior attorney who represented him in his MAR and the state
prosecutor's voluntary dismissal form regarding the 2004 DWI charge.
reconsider its decision in light of this new evidence presented.
demonstrate why this evidence was not previously available prior to the Court's rendering of its
decision. See 8 C.F.R. I 003.31(c). Respondent has been in removal proceedings since he was
served with his Notice to Appear in September 2012, and therefore had ample time to compile all
pertinent evidence regarding his MAR. Regardless, with respect to the affidavit of Respondent's
previous counsel, it is well settled that mere statements of counsel do not constitute
evidence. See, e.g., lN.S.
v.
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Accordingly, the Court will not disturb its prior
finding that Respondent's record is inconclusive regarding the rationale for the vacatur of
Respondent's 2004 DWI conviction. In light of the Respondent's failure to present a legal or
factual error in the Court's prior decision, the Court hereby denies Respondent's motion to
reconsider.