U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 Leesburg Pike, Suite 2000 Falls Church. Virginia 12041

Vargas-Gonzalez, Jessica, Esq Saenz Rodriguez & Associates 2720 N. Stemmons Freeway, #1200 Dallas, TX 75207

OHS/ICE Office of Chief Counsel DAL 125 E. John Carpenter Fwy, Ste. 500 Irving, TX 75062-2324

Immigrant & Refugee Appellate Center | www.irac.net

Name: ALVARADO MELENDEZ, WILLAI...

A 094-405-564

Date of this notice: 5/10/2013

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

DorutL CtJAAJ
Donna Carr Chief Clerk

Enclosure Panel Members: Creppy, Michael J. Grant, Edward R. Malphrus, Garry D.

Trane Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: William Enrique Alvarado Melendez, A094 405 564 (BIA May 10, 2013)

U.S. Department of Justice

Executive Offic:e for Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:

A094 405 564 - Dallas, TX

Date:

MAY 1 0 l013

In re: WILLIAM ENRIQUE ALVARADO MELENDEZ IN REMOVAL PROCEEDINGS INTERLOCUTORY APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Jessica Vargas-Gonzalez, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Dan Gividen Assistant Chief Counsel

The respondent, a native and citizen of El Salvador, and the Department of Homeland Security ("DHS") have each filed an interlocutory appeal from the Immigration Judge's January 29, 2013, decision denying their joint motion to terminate. Although this Board does not ordinarily entertain interlocutory appeals, we have on occasion ruled on the merits of interlocutory appeals where we deemed it necessary to address important jurisdictional questions regarding the administration of the immigration laws, or to correct recurring problems in the handling of cases by Immigration Judges. See, e.g., Matter of Guevara, 20 I&N Dec. 238 (BIA 1990, 1991); Matter of Dobere, 20 I&N Dec. 188 (BIA 1990). This matter involves a recurring problem in the handling of cases by Immigration Judges. We will therefore accept this case by certification and address the merits of these interlocutory appeals. Matter of Ruiz-Campuzano, 17 I&N Dec. 108 (BIA 1979); Matter of Ku, 15 l&N Dec. 712 (BIA 1976); Matter of Guevara, 20 l&N Dec. 238 (BIA 1990, 1991); Matter ofDobere, 20 I&N Dec. 188 {BIA 1990). The appeals will be sustained. We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. 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. 8 C.F.R. 1003. l (d)(3)(ii). We will sustain the parties' appeals because we agree that the respondent's conviction, which was vacated pursuant to the Supreme Court's decision in Padilla v. Kentucky, 559 U.S. 356 (2010) no longer constitutes a conviction within the meaning of section 101(a)(48)(A) of the Act, 8 U.S.C. 1101(a)(48)(A). Our conclusion in this case is consistent with our decision in Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), in which we concluded that a conviction vacated on the merits because of a legal or constitutional defect is not a conviction under section IO I (a)(48){A) of the Act but a conviction vacated solely because of its immigration consequences remains a conviction under section 10l{a)(48)(A) of the Act. We recognize, however, that while the application of Pickering to this case is urged by both the respondent and the DHS, the rule in Pickering has not been adopted by the United States Court of Appeals for the Fifth Circuit. See Matter ofAnselmo, 20 I&N Dec. 25, 31 (BIA 1989) (explaining that the Board historically follows a court's

Cite as: William Enrique Alvarado Melendez, A094 405 564 (BIA May 10, 2013)

A094 405 564

precedent in cases arising in that circuit). As the Immigration Judge noted, the general rule in the Fifth Circuit is that a conviction falls within the meaning of section 10 l (a)(48)(A) of the Act even if it is subsequently vacated for any reason. See Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002); see also Garcia-Maldonado
v.

Gonzales, 491 F.3d 284, 291 (5th Cir. 2007).

We conclude, however, that in this case the Supreme Court's decision in Padilla precludes strict application of Renteria. In Padilla, the Supreme Court held that an attorney's failure to properly advise an alien of the immigration consequences of a guilty plea constitutes ineffective assistance of counsel in violation of the Sixth Amendment. The respondent's conviction was vacated on this basis. Applying Renteria to the instant case would render the Supreme Court's decision in Padilla meaningless because notwithstanding a judicial determination that the respondent's conviction was constitutionally infirm and that the conviction was indeed vacated, no meaningful remedy would be available to the respondent, contrary to what the Supreme Court contemplated in its decision. Accordingly, we conclude that the respondent's vacated conviction does not constitute a conviction within the meaning of section 101(a)(48)(A) of the Act. In light of our determination that the respondent's conviction does not remain a conviction within the meaning of section 101{a)(48)(A) of the Act, we will sustain the parties' appeals and vacate the Immigration Judge's January 29, 2013, decision. ORDER: The appeals are sustained. FURTHER ORDER: The Immigration Judge's January 29, 2013, order is vacated, and the record is returned to the Immigration Court without further action.

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Cite as: William Enrique Alvarado Melendez, A094 405 564 (BIA May 10, 2013)