U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk

5 /07 Leesb11rg Pike. S11ite 2000

Fall.r Church. Virginia 2204 /

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

Singh, Gary G OHS/ICE Office of Chief Counsel - HON
Law Office of Gary Singh 595 Ala Moana Boulevard
700 Bishop Street, #2000 Honolulu, HI 96813-4999
Honolulu, HI 96813

Name: LI, ZHONGEN A 059-930-907

Date of this notice: 2/15/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Guendelsberger, John

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Zhongen Li, A059 930 907 (BIA Feb. 15, 2017)
 f11.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A059 930 907 - Honolulu, HI Date:

In re: ZHONGEN LI FEB 1 5 2017

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

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Gary G. Singh, Esquire

APPLICATION: Reopening

The respondent's case was last before the Board on March 24, 2016, when we dismissed her
appeal from the Immigration Judge's November 30, 2015, decision denying her motion to reopen
and rescind an order of removal entered in absentia on August 31, 2015. On September 30,
2016, the respondent filed the instant untimely motion to reopen seeking remand to the
Immigration Judge. See section 240(c)(7)(C)(i) of the Immigration and Nationality Act,
8 U.S.C. 1229a(c)(7)(C)(i); 8 C.F.R. 1003.2(c)(2). The Department of Homeland Security
has not opposed this motion. The motion will be granted.

With this motion, the respondent has offered evidence that on September 7, 2016, the Circuit
Court of the First Circuit, State of Hawaii, granted her "Petition to Vacate, Set Aside or Correct
Illegal Sentence through a Writ of Habeas Corpus Pursuant to H.R.P.P 40." The decision of the
criminal court permitted the respondent to withdraw the no-contest plea that resulted in the
conviction underlying removability, and set the respondent's criminal case for trial on
January 17, 2017. Inasmuch as the criminal court vacated the respondent's plea due to an
illegality, it appears that the conviction was vacated as the result of a defect in the criminal
proceedings. See Matter of Pickering, 23 I&N Dec. 621 (BIA 2003) (holding that a conviction
that is vacated due to a procedural or substantive defect in the underlying criminal proceedings is
eliminated for immigration purposes). Upon consideration, the Board will exercise its sua sponte
authority to reopen the proceedings, and remand the record to the Immigration Judge for further
proceedings as deemed appropriate. See 8 C.F.R. 1003.2(a). Accordingly, the following
orders will be entered.

ORDER: The motion to reopen is granted.

FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with this decision.

'

Cite as: Zhongen Li, A059 930 907 (BIA Feb. 15, 2017)