richard austin palmer, a061 494 802 (bia june 9, 2016)

Link, Richard Joseph Law Office of Richard Link 6 Greig Street Rochester, NY 14608

Name: PALMER, RICHARD AUSTIN

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5 /07 Leesburg Pike, Suite 2000 Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - BUF 130 Delaware Avenue, Room 203 Buffalo, NY 14202

A 061-494-802

Date of this notice: 6/9/2016

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

Enclosure

Panel Members:

Guendelsberger, John Kendall-Clark, Molly Holiona, Hope Malia

Sincerely,

DawtL cll/lA) Donna Carr Chief Clerk

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index/

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Cite as: Richard Austin Palmer, A061 494 802 (BIA June 9, 2016)

U.S. Department of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A061 494 802 - Buffalo, NY

In re: RICHARD AUSTIN PALMER

IN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENT: Richard Joseph Link, Esquire

ON BEHALF OF DHS: Michele Henriques Assistant Chief Counsel

CHARGE:

.JUN O 9 20f6

Notice: Sec. 237(a)(2)(A)(i), l&N Act [8 U.S.C. § 1227(a)(2)(A)(i)] -Convicted of crime involving moral turpitude

APPLICATION: Termination

The respondent appeals from the Immigration Judge's December 1, 2015, decision denying his motion to terminate these removal proceedings. See Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998) (discussing Immigration Judge's obligation to weigh the merits of a motion to terminate filed by the Department of Homeland Security after a charging document is filed and jurisdiction has vested with the Immigration Court). The Department of Homeland Security has offered a statement of non-opposition to this appeal. The appeal will be sustained and the proceedings will be terminated.

We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. See 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion. See 8 C.F.R. § 1003.l(d)(3)(ii).

The respondent was charged with removability pursuant to the above-listed charge. Prior to the commencement of these proceedings, the criminal court granted the respondent's motion to withdraw his guilty plea to the underlying offense. See Motion Tabs A-C. The Immigration Judge denied the respondent's unopposed motion to terminate the removal proceedings, finding that "it appears that the vacatur was entered solely [sic] for the basis of avoiding immigration consequences and not vacated on the merits of the (underlying) charge." See Immigration Judge's Decision at 3.

In Matter of Pickering, 23 l&N Dec. 621 (BIA 2003), the Board held that if a criminal court vacates an alien's conviction for reasons solely related to rehabilitation or immigration hardships, rather than on the basis of a procedural or substantive defect in the underlying criminal proceedings, the conviction is not eliminated for immigration purposes. Both parties to these proceedings argued before the Immigration Judge that the respondent's attorney in his

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A061 494 802

criminal case rendered ineffective assistance of counsel when advising him of the immigration consequences of a guilty plea. See Transcript of the Proceedings at 6-8, 16, 19-20. On appeal, the respondent asserts that the vacatur was based on ineffective assistance of counsel and both parties argue that termination of the removal proceedings would not contravene the holding in Matter of Pickering, supra.

While the December 18, 2013, decision of the criminal court resulted in the vacatur of the respondent's conviction to enable him to replead and avoid the immigration consequences of his initial plea agreement, upon review of the evidence before the Immigration Judge, it is clear that the vacatur was based, at least in part, on the finding that the respondent's defense attorney rendered ineffective assistance by providing the respondent with incorrect advice regarding the risk of removal arising from his December 7, 2012, plea agreement. See Padilla v. Kentucky, 559 U.S. 356, 369 (2010). The criminal court's October 18, 2013, decision vacating the conviction was not entered "solely" to enable the respondent to avoid the immigration consequences of his conviction. The criminal court's decision was also entered to correct a procedural defect in the criminal proceedings whereby the respondent was provided improper legal advice regarding the immigration consequences of his guilty plea prior to entering the plea. Accordingly the respondent's appeal will be sustained, and the motion to terminate will be granted.

ORDER: The appeal is sustained.

FURTHER ORDER: The motion to terminate the removal proceedings is granted and the proceedings are terminated.

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT BUFFALO, NEW YORK

In the Matter of:

PALMER, Richard Austin A# 061-494-802

Respondent

CHARGES: INA § 237(a)(2)(A)(i)

MOTIONS: Motion to Terminate

ON BEHALF OF RESPONDENT Richard J. Link, Esq. The Law Office of Richard Link 6 Greig Street Rochester, New York 14608

IN REMOVAL PROCEEDINGS

Crime of Moral Turpitude

ON BEHALF OF DHS Michelle Henriques, Esq. Assistant Chief Counsel 130 Delaware Avenue, Suite 203 Buffalo, New York 14202

DECISION AND ORDER OF THE IMMIGRATION JUDGE

IT IS ORDERED that the charge of removability pursuant to INA § 237(a)(2)(A)(i) is SUSTAINED. The Respondent's motion to terminate is DENIED. HAVING FOUND THAT Respondent has not put forth any alternative basis for relief from removal; IT IS FURTHER ORDERED that Respondent be REMOVED to Jamaica.

I. FACTS AND PROCEDURAL IDSTORY

Richard Austin Palmer ("Respondent") is a 25-year-old native and citizen of Jamaica. He was admitted to the United States as a lawful permanent resident at Philadelphia, Pennsylvania on February 28, 2011. On December 7, 2012, he was convicted in Chemung County Court, Elmira, New York, for Assault in the third degree, committed on or about December 4, 2011, in violation of section 120.00 Sub. 1 of the New York State Penal Law ("NYPL"). The Department of Homeland Security ("DHS") issued Respondent a Notice to Appear (''NT A''), alleging that Respondent is removable pursuant to INA§ 237(a)(2)(A)(i).

On October 18, 2013, the Chemung County Court granted Respondent's motion to vacate the plea to Assault in the third degree. That same day, Respondent plead guilty to Attempted Assault in the third degree, in violation of section 110/120.00, Sub. 1 of the NYPL, with a conviction backdate of February 1, 2013.

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Respondent first appeared before the Buffalo Immigration Court ("Court") with counsel on January 16, 2015. Respondent, through counsel, conceded service of process of the NT A, admitted factual allegations 1-3, denied factual allegations 4 and 5, and denied the charge of removability. Respondent designated Jamaica as the country for removal should removal become necessary. Respondent indicated he wished to terminate proceedings based the underlying criminal charge, which is the basis for the INA § 237(a)(2)(A)(i) charge, was vacated. Respondent submitted a Certificate of Disposition to the Court at this time. DHS then explained that Respondent was originally "written up" for assault in the third degree, Sub. 1, but Respondent had previously provided DHS with a Certificate of Disposition for attempted assault in the third degree, Sub. 1 (a B Misdemeanor). DHS further explained that it contacted the criminal court for additional information regarding Respondent, and the criminal court indicated that Respondent's conviction was reduced to the B Misdemeanor. DHS concluded that it would also move to terminate proceedings if the vacatur complies with both Matter of Pickering and Matter of Rodriguez-Ruiz, because the government would not be able to sustain the charge.

The Court indicated that it has no evidence that the vacatur complies with the relevant case law. The Court requested a copy of the plea colloquy. Respondent explained that the criminal case was not conducted by jury trial. Respondent further explained that the attorney on the criminal case negotiated for a "364-day" sentence, which he erroneously believed would "save" his client from deportation consequences. The Court indicated that requesting a vacatur for the purpose of circumventing immigration consequences will not be a valid basis to terminate proceedings. DHS stated that Respondent agreed to the plea because he was informed ( albeit, erroneously) that he would not be deported because of the 364-day sentence. DHS concluded that this could be considered ineffective assistance of counsel. DHS then explained that the attorney for the criminal case corrected his mistake by getting the charge reduced to attempted assault.

The Court stated that this is considered a "design to evade immigration laws" of the United States. DHS clarified what is relevant is the initial plea, because Respondent would not have accepted the plea, on the advice of counsel, if he knew it would make him removable. DHS indicated that it was a "definite error" on the part of counsel for the initial plea. The Court indicated it needed to review a copy of the plea colloquy. The Court warned that this does not appear to be an "appropriate use of the [ criminal court] system" concerning the negotiation of a 364-day sentence to avoid immigration consequences. DHS stated that Respondent reached out to an immigration attorney and yet the criminal attorney still made a mistake. DHS stated it was satisfied with the information presented by Respondent that this matter should be terminated. DHS explained that if Respondent did not seek the advice of immigration counsel during his criminal matter, this case would not comport with Matter of Pickering or Matter of RodriguezRuiz. The Court deferred judgment on Respondent's motion pending proof that his conviction had been properly vacated for the purpose of removal proceedings.

On April 24, 2015, Respondent appeared before the Court, with counsel present. Respondent again explained that he was originally convicted of assault in the third degree; the Court stated that Respondent had previously denied that allegation. The Court then indicated it had questions about pages 2-3 of the amended motion to terminate, dated April 6, 2015. The Court inquired whether a DHS officer was present for Respondent's criminal proceeding; DHS indicated that that would be unusual. The Court then indicated that, according to page 2, ,r 5 of

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Respondent's amended motion to terminate, it appears that the criminal attorney purposefully requested an altered sentence so that his client could avoid removal. The Court indicated it was also concerned about the backdated conviction date. The Court reiterated that if the conviction was altered for the purpose of circumventing immigration consequences, the conviction would still stand in immigration court. DHS explained that Respondent was aware of the immigration consequences, but relied on the erroneous advice of his counsel at the time that he would not be subject to removal if he agreed to the 364-day sentence. DHS stated Respondent was provided incorrect advice which would amount to ineffective assistance of counsel. Respondent stated that the conviction was vacated based on ineffective assistance of counsel and therefore, complies with Pickering. Respondent stated that the vacatur vindicated his Sixth Amendment right to effective assistance of counsel. The matter was taken under advisement.

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A conviction that has been vacated on its merits does not constitute a conviction for immigration purposes; however, "no effect is to be given in immigration proceedings to a state action which purports to expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute." Matter of Pickering, 23 I&N Dec. 621, 622-23 (BIA 2003) (citing Matter of Roldan, 22 I&N Dec. 512 (BIA 1999) and Matter of Rodriguez-Ruiz, 22 I&N Dec. 1 378 (BIA 2000)).

The Board of Immigration Appeals has held that convictions vacated under CPL Article 440 ("Art. 440") are not convictions for immigration purposes because Art. 440 "is neither an expungement statute nor a rehabilitative statute." Rodriguez-Ruiz, 22 I&N Dec. at 1379. A New York State court judgment pursuant to Art. 440 is entitled to full faith and credit and the Court should not "go behind the state court judgment and question whether the New York court acted in accordance with its own state law." Id. at 1379 -80 (citing 28 U.S.C. § 1738).

Respondent's original conviction was vacated pursuant to Art. 440, which is neither an expungement statute nor a rehabilitative statute, and it would no longer be viable for immigration purposes; however, in reviewing Respondent's plea colloquy, it appears that the vacatur was entered solely for the basis of avoiding immigration consequences and not vacated on the merits of the assault charge. Pickering, 23 I&N Dec. at 621 ("[i]f a court vacates an alien's conviction for reasons solely related to rehabilitation or immigration hardships, rather than on the basis of a procedural or substantive defect in the underlying criminal proceedings, the conviction is not eliminated for immigration purposes."). The plea colloquy provided by Respondent in no regard shows that the original conviction of assault in the third degree was vacated due to procedural or substantive defect. In fact, the Chemung County Court stated:

The Court And other than the promise that you would be sentenced to less than a year in the county jail, so that you would not be deported, and that you would be required to make restitution, other than those representations, has anyone made any other kind of promise to get you to plead guilty?

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(emphasis added). Respondent's Plea Colloquy at 4 (Dec. 7, 2012). The Court would emphasize that every reference to Respondent's 364-day sentence compromise in the plea colloquy also discusses the avoidance of deportation, and nothing else. The Court finds that, even if the criminal attorney provided erroneous information about the length of sentence imposed to avoid deportation consequences, the underlying reasoning for the attorney's request for a 364-day sentence is still solely to circumvent deportation, and there is no information provided to the Court that if different advice was given to Respondent, he would have proceeded to trial. Therefore, the Court finds that Respondent's charge of removability is sustained.

The Court shall enter the following orders:

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ORDERS

IT IS ORDERED that the charge of removability pursuant to INA § 237(a)(2)(A)(i) is SUSTAINED;

IT IS ORDERED THAT the motion to terminate proceedings is DENIED.

HAVING FOUND THAT Respondent has not put forth any alternative basis for relief from removal;

IT IS FURTHER ORDERED that Respondent be REMOVED to Jamaica.

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Date

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Philip J. Montante, Jr. U.S. Immigration Judge

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richard austin palmer, a061 494 802 (bia june 9, 2016)

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