U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Office of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - WAS

1901 S. Bell Street, Suite 900
Arlington, VA 22202

Name: ASAMOAH , DICKSON KWESI

A 086-973-978
Date of this notice: 9/10/2015

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

DCWtL c

aftA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Miller. Neil P.

Userteam: Docket

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Cite as: Dickson Kwesi Asamoah, A086 973 978 (BIA Sept. 10, 2015)

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ASAMOAH , DICKSON KWESI

A086-973-978
FARMVILLE DET. CENTER
508 WATERWORKS ROAD
FARMVILLE, VA 23901

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 2204 J

DHS/ICE Office of Chief Counsel - WAS

1901 S. Bell Street, Suite 900
Arlington, VA 22202

Name: ASAMOAH , DICKSON KWESI

A 086-973-978
Date of this notice: 9/10/2015

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

DonrtL Ca..,vu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Miller, Neil P.
,:- : ' ,

Userteam: Docket

Cite as: Dickson Kwesi Asamoah, A086 973 978 (BIA Sept. 10, 2015)

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

ASAMOAH , DICKSON KWESI

P.O. Box 132
Terna Ashaiman
GHANA, WEST AFRICA

1.1.S. Department of Justice

Executive Office for Immigration Review

Decision ofthe Board of Immigration Appeals

Falls Church, Virginia 22041

File: A086 973 978 - Arlington, VA

Date:

SEP l O 2015'

In re: DICKSON KWESI ASAMOAH

MOTION
ON BEHALF OF RESPONDENT: Pro se
CHARGE:
Notice: Sec.

212(a)(2)(A)(i)(II), l&N Act [8 U.S.C. 1182(a)(2)(A)(i)(II)] Controlled substance violation

APPLICATION: Reconsideration; termination of proceedings

The respondent moves the Board pursuant to 8 C.F .R. 1003.2 to reconsider our June 4,
2013, decision. We dismissed his appeal from the Immigration Judge's January 29, 2013,
decision which found him removable and pretermitted his application for a waiver of
inadmissibility. The record before us does not contain a response from the Department of
Homeland Security ("DHS"). We will reconsider sua sponte.
The respondent was removed from the United States to Ghana sometime after our June 4,
2013, decision. See Change of Address Form (Form EOIR-33/BIA). We have jurisdiction
pursuant to William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) (the post-departure bar in 8 C.F.R.
1003.2(d) is invalidated as it conflicts with section 240(c)(7)(A) of the Immigration and
Nationality Act, 8 U.S.C. 1229a(c)(7)(A), which provides the alien with the right to file one
motion to reopen). We conclude that William v. Gonzales, supra, applies to the present case
because section 240A(c)(6)(A) of the Act gives an alien the right to file one motion to reconsider
a decision that the alien is removable from the United States.
The motion to reconsider filed on August 3, 2015, is untimely. We will reconsider sua
sponte. The respondent relies on a change in law. Mellouli v. Lynch, 135 S. Ct. 1980 (2015) was
decided on June 1, 2015. The respondent was in contact by email with a legal aid program
conducted by a law school fu mid-June of 2015 (attached email correspondence). The motion to
reconsider was filed on August 3, 2015. We conclude that the respondent shows due diligence in
the pursuit of his case, so reconsideration sua sponte is warranted.
Upon reconsideration sua sponte, we conclude that the respondent is no longer removable
as charged. He was convicted based on an amended complaint/information on October 12, 2010,
in a Kansas criminal court of violation of Kan. Stat. Ann. 21-36a09(b)(1) (2010) (it shall be
unlawful for any person to use or possess with intent to use any drug paraphernalia to
Cite as: Dickson Kwesi Asamoah, A086 973 978 (BIA Sept. 10, 2015)
ill&

B.

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IN REMOVAL PROCEEDINGS

A086 973 978

We decline to terminate proceedings. There is evidence in the record [Exh. 2] which

raises the issue of inadmissibility under section 212(a)(2)(C) of the Act, 8 U.S.C. 1182(a)(2)(C)
[controlled substance trafficker]. We will thus reconsider sua sponte, reopen proceedings, and
remand to allow the OHS to file Additional Charges of Inadmissibility (Form I-261), if deemed
warranted.
Accordingly, the following orders will be entered.
ORDER: We reconsider sua sponte, and reopen proceedings.
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new decision.

FOR THE BOARD

Under the modified categorical approach we cannot rely on the original complaint/information
filed on February 1, 2010, for which he was not convicted (possess a quantity of marihuana with
intent to distribute) [Exh. 2].

2
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manufacture, cultivate, plant, propagate, harvest, test, analyze, or distribute a controlled

substance/ [Exh 2]. The conviction record does not identify the specific controlled substance
involved. The Court in Mellouli v. Lynch, supra, at 1983-84, stated that at the time of the
alien's conviction [2010], Kansas' controlled substance schedules included at least nine
substances not included in the federal controlled substance lists. Pursuant to Mellou/i v.
Gonzales, he is not removable because the drug paraphernalia conviction does not implicate a
federally controlled substance.