Matter of Moreno-Escobosa, Interim Decision No. 3660.
| Court | U.S. DOJ Board of Immigration Appeals |
| Writing for the Court | Mullane |
| Citation | 25 I&N Dec. 114 |
| Parties | Matter of Alejandro MORENO-ESCOBOSA, Respondent. |
| Docket Number | File A026 306 037.,Interim Decision No. 3660. |
| Decision Date | 30 October 2009 |
(1) The date of an alien's plea agreement, rather than the date of sentencing, is controlling in determining whether the alien is eligible for a waiver under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994).
(2) The decision of the United States Court of Appeals for the Ninth Circuit in Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009), does not invalidate 8 C.F.R. § 1212.3 (2009), so as to preclude an alien who seeks to waive a deportation ground from establishing eligibility for section 212(c) relief.
FOR RESPONDENT: Candida S. Quinn, Esquire, Helena, Montana.
FOR THE DEPARTMENT OF HOMELAND SECURITY: Robert C. Bartlemay, Sr., Assistant Chief Counsel.
BEFORE: Board Panel: GRANT, MILLER, and MULLANE, Board Members.
MULLANE, Board Member.
In a decision dated November 21, 2008, an Immigration Judge found the respondent removable under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2006), as an alien convicted of a controlled substance violation. The Immigration Judge also pretermitted the respondent's application for a waiver of inadmissibility under former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994), and denied his application for cancellation of removal under section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (2006). The respondent has appealed from that decision. The respondent's request for a waiver of the filing fee for the appeal is granted pursuant to 8 C.F.R. § 1003.8(a)(3) (2009). The appeal will be sustained and the record will be remanded to the Immigration Judge for further proceedings.
The respondent is a native and citizen of Mexico who was admitted to the United States as a lawful permanent resident on October 23, 1985. He is the father of four United States citizen children. The record reflects that he was convicted in Arizona of unlawful possession of more than 8 pounds of marijuana on the basis of a guilty plea entered on July 21, 1991. The respondent failed to appear for sentencing, was later apprehended, and on October 26, 2005, was sentenced to more than 4 years of imprisonment.
The Immigration Judge concluded that the respondent's conviction rendered him removable and statutorily ineligible for a waiver under section 212(c) of the Act. According to the Immigration Judge, the respondent was ineligible because although he pled guilty to his offense in 1991, the conviction did not become final until he was sentenced in 2005, after the repeal of section 212(c). The Immigration Judge also denied the respondent's application for cancellation of removal in the exercise of discretion.
We review the findings of fact made by the Immigration Judge to determine whether they are "clearly erroneous." See Matter of S-H-, 23 I&N Dec. 462 (BIA 2002); 8 C.F.R. § 1003.1(d)(3)(i) (2009). There is clear error in a factual finding when the reviewing body is "`left with the definite and firm conviction that a mistake has been committed.'" Matter of R-S-H-, 23 I&N Dec. 629, 637 (BIA 2003) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). We review de novo all other questions of law, discretion, and judgment, including the question whether the parties have met the relevant burden of proof. See Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008); 8 C.F.R. § 1003.1(d)(3)(ii). Since the respondent's request for relief was filed after May 11, 2005, these proceedings are governed by the provisions of the REAL ID Act of 2005, Division B of Pub. L. No....
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