Hinojosa, Roberto M., Esq. Law Office of Roberto M. Hinojosa 2020 S.W. Freeway, Suite 220 Houston, TX 77098

Name: OBI, STANLEY ANOZIE

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 20530

OHS/ICE Office of Chief Counsel - HOU 126 Northpoint Drive, Suite 2020 Houston, TX 77060

A 210-114-098

Date of this notice: 6/9/2014

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

Enclosure

Panel Members: Hoffman! Sharon Guendelsberger, John Manuel, Elise

Sincerely,

DGnltL c a.JVt.)

Donna Carr Chief Clerk

Lulseges Usertea m: Docket

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For more unpublished BIA decisions, visit www.irac.net/unpublished

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Cite as: Stanley Anozie Obi, A210 114 098 (BIA June 9, 2014)

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

Falls Church, Virginia 20530

File: A210 114 098 - Houston, TX

In re: STANLEY ANOZIE OBI

IN REMOVAL PROCEEDINGS

APPEAL

Decision of the Board of Immigration Appeals

Date: JUN 0 9 2014

ON BEHALF OF RESPONDENT: Roberto M. Hinojosa, Esquire

ON BEHALF OF DHS: Kimani R. Eason Assistant Chief Counsel

APPLICATION: Termination

The respondent, a native and citizen of Nigeria whose status was adjusted to that of a lawful permanent resident on September 27, 2011, appeals the decision of the Immigration Judge dated April 18, 2013. The Immigration Judge denied the respondent's motion to terminate proceedings and found the respondent removable as charged under section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i). As the respondent did not apply for any form of relief, the Immigration Judge ordered his removal from this country. The record will be remanded to the Immigration Judge for further proceedings.

We review Immigration Judges' findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. § 1003. l(d)(3).

On appeal, the respondent argues that the Immigration Judge erred in denying his motion to terminate proceedings. See Immigration Judge's June 17, 2013, Order on Motion. As an initial matter, we agree with the Immigration Judge that although the respondent presented evidence that he had filed a writ of habeas corpus with the Texas courts, the 2012 conviction underlying his removability remained final and effective for immigration purposes. See Matter of Adetiba, 20 I&N Dec. 506, 508 (BIA 1992) ("The possibility of a decision on any post-conviction motion that has been filed does not affect our finding that the respondent is deportable. "). The fact that an alien may be pursuing post-conviction relief on the basis of Padilla v. Kentucky, 559 U.S. 356 (2010), does not affect the conviction's finality for federal immigration purposes. We reject the respondent's contention that a writ of habeas corpus based on a Padilla claim is analogous to a direct appeal, such that the conviction is not final for immigration purposes.

We note that the respondent did not request a continuance at the final hearing. Moreover, a respondent's desire to seek post-conviction relief does not amount to "good cause" for a continuance. See Cabral v. Holder, 632 F.3d 886, 890 (5th Cir. 2011). The respondent's

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Cite as: Stanley Anozie Obi, A210 114 098 (BIA June 9, 2014)

A210 114 098

conviction evidently remains undisturbed, as he has yet to indicate that he has received a vacatur. Thus, his conviction is valid for the purpose of these removal proceedings.

However, the respondent also argues on appeal that the Department of Homeland Security did not meet its burden to establish that his 2012 conviction is for a crime involving moral turpitude. See Resp. Brief at 6. The Immigration Judge denied the respondent's motion to terminate proceedings, finding that he was convicted under section 22.01 of the Texas Penal Code for intentionally and knowingly causing bodily injury to a family member. See Immigration Judge's June 17, 2013, Order on Motion at 2.

Upon review of the record, we find remand is warranted as there is insufficient fact-finding to allow us to review the removability determination. Contrary to the Immigration Judge's statement, the respondent's order of deferred adjudication identifies the offense for which he was convicted only as "Assault-Family Member". We note that neither the complaint, the information, nor the order of deferred adjudication identifies the section of law under which the respondent was convicted. In determining whether a crime involves moral turpitude, the first step in the analysis is to look to the statute of conviction to determine whether the crime categorically involves moral turpitude. See Nino v. Holder, 690 F.3d 691, 694-95 (5th Cir. 20 I 2). As the record does not establish under which statute the respondent was convicted, we find remand necessary for further fact finding.

Additionally, we note that the Immigration Judge appears to have relied on the Information included in the respondent's record of conviction in making his determination. Given recent Supreme Court and Fifth Circuit decisions raising questions about the application of the categorical analysis versus the modified categorical analysis, we find a more thorough articulation of the Immigration Judge's determination that the respondent is barred from relief is necessary on remand. See generally Descamps v. Holder, 133 S. Ct. 2276 (2013); Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014).

Under the circumstances, we find it appropriate to remand for further fact-finding and a more clear statement of the basis of the Immigration Judge's decision regarding the respondent's removability and eligibility for relief from removal. 1 Accordingly, the following order will be entered.

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.

1 The respondent also asserts that the Immigration Judge erred in finding that his �09viction ;-i�·

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for an aggravated felony (I.J. at 3). We note that the Immigration Judge-'� decision does ,not specify under which section of the aggravated felony definition she made this determin

.ation, and does contain any analysis regarding this issue. We agree with the respondent that

·there is no

support for an aggravated felony finding. ·

2

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Cite as: Stanley Anozie Obi, A210 114 098 (BIA June 9, 2014)

,,

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT HOUSTON. TEXAS

File: A210-114-098

In the Matter of

April 18, 2013

STANLEY ANOZIE OBI ) ) ) )

IN REMOVAL PROCEEDINGS

RESPONDENT

CHARGES: Section 237(a)(2)(A)(i) of the Act: convicted of a crime involving moral turpitude committed within five years after admission for which a sentence of one year or longer may be imposed.

APPLICATIONS: None.

ON BEHALF OF RESPONDENT: ROBERTO M. HINOJOSA 2020 Southwest Freeway 220 Houston, Texas 77098

ON BEHALF OF OHS: KIMANI EASON Department of Homeland Security 126 Northpoint, Room 2020 Houston, Texas 77060

ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE

The respondent is a male native and citizen of Nigeria. On January 30,

2012, the Department of Homeland Security (OHS) issued a Notice to Appear (NTA)

charging that the respondent is subject to removal pursuant to Section 237(a)(2)(A)(i) of

the Act. On March 20, 2013, the respondent appeared with counsel, admitted to the

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factual allegations contained in the NTA, paragraph 1, 2, 3, but denied factual allegation

4, and denied the ground of removability. On that day, the Government served on the

respondent's counsel the conviction document as well as the record of deportable alien.

The Government's submission was marked and entered into evidence as Exhibit 2 in

this case. Based on the Government's submission of Exhibit 2, the Court sustained the

ground of removability, as well as the factual allegations as alleged in the NT A

On April 4, 2013, the respondent submitted a motion to terminate. Prior to

the submission of the motion to terminate, the respondent was given the opportunity to

file any and all applications for relief from removal. Specifically, on the master calendar

hearing of March 20, 2013, the respondent, through counsel, requested a continuance

to allow the resolution of a writ that the respondent's counsel allegedly filed for purposes

of vacating the criminal conviction allegedly based on ineffective assistance of counsel.

However, respondent's counsel did not submit any material, documentation or evidence

to show the content of the writ that is currently pending. The only thing that the

respondent's counsel submitted was a docket sheet of the First Court of Appeals of

Texas indicating that there is a pending hearing regarding the respondent's motion.

While the Court had no clear record or evidence of what the writ was actually for, and

there is no other evidence whatsoever to show that there is reason for the Court to

continue this case or otherwise set it over to await the outcome of the writ the Court did

not grant the respondent's motion to terminate and the individual hearing, therefore,

took place today on April 18, 2013.

On March 20, 2013, the respondent's counsel was also advised that today

would be the individual hearing for any and all applications for relief from removal.

Specifically, the Court ordered that any application for relief must be filed on or before

April 4, 2013, or else it would be deemed waived or abandoned. Respondent is from

A210-114-098 2 April 18, 2013

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Nigeria, and the respondent had not submitted any applications for relief, such as

asylum, withholding of removal, Convention Against Torture protection, from Nigeria.

Furthermore, the respondent did not submit any other application, such as cancellation

of removal, waiver of inadmissibility, or any other relief under the Act. On the day of the

individual hearing, the respondent's counsel also confirmed that based on the

respondent's criminal conviction, which is a crime involving moral turpitude and an

aggravated felony, the respondent is statutorily ineligible for any form of relief at this

time.

The respondent was also questioned by the Court and he acknowledged

that he understood his counsel's action and otherwise personally is aware of the

situation surrounding his removal, as well as the lack of any application for relief. While

the respondent has been found removable as charged, and the respondent had not

submitted any application for relief and is not statutorily eligible for any form of relief, at

this time, the Court will issue the following order.

ORDER

IT IS HEREBY ORDERED that the respondent be ordered removed from

the United States to Nigeria. Should the respondent fail to comply with the final order of

removal to Nigeria, the respondent shall be subject to additional civil and criminal

penalty. Specifically, the respondent could be fined up to $5,000 or at an amount set

specifically by the Court if respondent failed to comply with the final order of this Court.

In this case, the order as set by the Court would be $5,000, and the respondent could

be subject to additional criminal penalty for his failure to comply with the Court's order.

Please see the next page for electronic

signature

A210-114-098 3 April 18, 2013

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I •

A210-114-098

MIMI YAM Immigration Judge

4 April 18, 2013

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1 1>

//s//

Inunigration Judge MIMI YAM

yamm on August 12, 2013 at 3:35 PM GMT

A210-114-098 5 April 18, 2013

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