U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Thompson, Nanya Yoshiko Morinaga OHS/ICE Office of Chief Counsel - SND
Nanya Thompson Law, Inc. 880 Front St., Room 2246
1446 Front St., Ste. 102 San Diego, CA 92101-8834
San Diego, CA 92101

Name: C ,T T A 319

Date of this notice: 6/13/2017

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

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Mann, Ana
Adkins-Blanch, Charles K.
Grant, Edward R.

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Userteam: Docket

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Cite as: T-T-C-, AXXX XXX 319 (BIA June 13, 2017)
,U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 319 - San Diego, CA Date:

JUN 1 3 2017
In re: T C

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Nanya Y. Thompson, Esquire

APPLICATION: Reconsideration

The respondent has appealed from the Immigration Judge's decision dated August 2, 2016,
denying his motion to reconsider. The Immigration Judge previously denied the respondent's
motion to reopen sua sponte and motion to terminate on June 14, 2016. The appeal will be
sustained, proceedings will be reopened, and the record will be remanded.

We review an Immigration Judge's findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R.
1003.1(d)(3)(i), (ii).

The record reflects that on March 9, 2000, the Immigration Judge ordered the respondent
removed from the United States to Vietnam. On May 4, 2016, the respondent filed a motion to
reopen sua sponte and motion to terminate removal proceedings. In his motion, the respondent
stated that on January 10, 2000, he pled guilty to violating Cal. Health and Safety Code 11377,
for possession of metham.phetamines. The respondent indicated that on October 21, 2013, the
Superior Court of California, County of San Diego, granted the respondent's request to dismiss his
criminal case pursuant to Cal. Penal Code 1203.4. See Respondent's Motion, Tab F. The
respondent sought to reopen and terminate his removal proceedings on the ground that he is no
longer removable as charged due to the dismissal/expungement of his conviction. The respondent
argued that his conviction for simple possession of a controlled substance does not constitute a
removable offense because the conviction was expunged by the state court. See Lujan-Armendariz
v. INS, 222 F.3d 728 (9th Cir. 2000), overruled by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir.
2011). The respondent asserts that since he was convicted on January 10, 2000, Lujan-Armendariz
v. INS, supra, still applies to his conviction. Therefore, he argues that the proceedings should be
reopened and terminated since he is no longer removable as determined by the Immigration Judge.

Based on the totality of the circumstances in this case, we will sustain the respondent's appeal,
and will reopen the proceedings pursuant. We find that a remand is warranted for the Immigration
Judge to consider in the first instance whether the expungement of the respondent's conviction
complies with Lujan-Armendariz v. INS, supra, and Nunez-Reyes v. Holder, supra. Accordingly,
the following order will be entered.

Cite as: T-T-C-, AXXX XXX 319 (BIA June 13, 2017)
 'A 319
..

ORDER: The appeal is sustained, the proceedings are reopened, and the record is remanded
for further proceedings consistent with the foregoing opinion.

F RTHE

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2
Cite as: T-T-C-, AXXX XXX 319 (BIA June 13, 2017)
 . -'.
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tiNITED
STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
2500 PASEO INTERNATIONAL, #303
OTAY MESA, CA 92154

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

Nanya Thompson Law, Inc.
Thompson, Nanya Yoshiko Morinaga
1446 Front St., Ste. 102
San Diego, CA 92101

Date: Aug 3, 2016

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File 319

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Immigration Appea s.j :_'.., c osed copies of FORM EOIR 26,
Notice of Appeal, an ORM :OIR 27, Notice of Entry as Attorney or
Representative, pro rly. \e-ecuted, must be filed with the Board of
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Immigration Appeals on or l::iefore
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EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

OFFICE OF THE IMMIGRATION JUDGE
San Diego, California

In the Matter of ) Not Detained

) A 319

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

)
T C , ) [Proposed] ORDER
)
Respondent. )
Post-Decision Motion

The above matter having come before this court, and good cause being shown therefore,

IT IS HEREBY ORDERED that Respondent's motion to reconsider the decision to deny

his motion to reopen and terminate proceedings is GRANTED and that proceedings in the Matter

ofT T C ,A 319 be REOPENED and TERMINATED.

'1' THE MOTION IS HEREBY DENIED for the following reason(s): 'fk_ yY\a{-t o If\
r-ec.o " J...e.r l <'g {o sk a..\I\ e rn:> r i V\. {'A-c..'{
o r l Ae..u) 7

u-t3t:> t.:>"'- C)4oClc,)(C)o'-f.-\.4. -

DATED: Aab- Q !)oleo

I
Signed:

Renee L. Renner
Immigration Judge
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COU,RT
2500 PASEO INTERNATIONAL, #303
OTAY MESA, CA 92154

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

Nanya Thompson Law, Inc.
Thompson, Nanya Yoshiko Morinaga
1446 Front St., Ste. 102
San Diego, CA 92101

Date: Jun 14, 2016

File 319

In the Matter of:

C T T

Attached is a copy of the written decision of the Immigration Judge.

This decision is final unless an appeal is taken to the Board of
Immigration Appeals. The enclosed copies of FORM EOIR 26,
Notice of Appeal, and FORM EOIR 27, Notice of Entry as Attorney or
Representative, properly executed, must be filed with the Board of
Immigration Appeals on or before
The appeal must be accompanied by proof of paid fee ($110.00).

Enclosed is a copy of the oral decision.

, .
Enclosed is a transcript of the testimony of record.

You granted until to submit a brief
to this office in support of your appeal.

osing counsel is granted until to submit a

brief in opposition to the appeal.

- Enclosed is a copy of the order/decision of the Immigration Judge.

All papers filed with the Court shall be accompanied by proof

of service upon opposing counsel.

Sincerely,

Immigration Court Clerk UL

 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
SAN DIEGO, CALIFORNIA

Matter of )

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) File Number: A 319
T T C )
) In Removal Proceedings
Respondent. )

Charges: Section 237(a)( l )(B)(i) of the Immigration and Nationality Act; alien convicted of
a crime related to a controlled substance

Application: Motion to Reopen Sua Sponte andMotion to Terminate

On Behalf of Respondent: On Behalf of the Government:

Nanya Y. Thompson, Esq. Ted Y. Yamada
Nanya Thompson Law Deputy Chief Counsel, ICE
1446 Front Street, Suite I 02 880 Front Street, Suite 2246
San Diego, CA 9210 I San Diego, CA 9210 I

ORDER AND SUMMARY DECISION OF THE IMMIGRATION JUDGE

PROCEDURAL AND FACTUAL HISTORY

Respondent is a native and a citizen of Vietnam, who was admitted into the United States,
at Los Angeles, California, as a lawful permanent resident. On January 10, 2000, Respondent was
convicted in the Superior Court of California for a violation of California Health & Safety Code
11377(a), Possession ofMethamphetamines. On February 16, 2000, the Immigration and
Naturalization Service ("INS") personally served the Respondent with a Notice to Appear
(''NTA'') charging him with removability under 237(a)(l)(B)(i) of the Act.

OnMarch 9, 2000, Respondent appeared before an Immigration Judge. Upon review of the
audio tapes for that hearing, Respondent admitted and conceded all the allegations and charge of
removability, government counsel submitted certified copies of the conviction records, and the
Immigration Judge sustained the allegations and charge, based upon Respondent's pleas and the
conviction documents. The Immigration Judge then inquired about possible relief, and informed
the Respondent he was eligible for cancellation of removal for lawful permanent residents, which
if granted, would allow Respondent to keep his lawful residence. Respondent stated he did not
want to apply for any relief and wanted an order of removal to Vietnam. OnMarch 9, 2000, the
Immigration Judge ordered the Respondent removed to Vietnam, and both sides waived appeal.

OnMay 4, 2016, Respondent filed aMotion to Reopen Sua Sponte andMotion to

Terminate the proceedings, because the Respondent has had his conviction for a violation of
California Health and Safety Code 113377 expunged under California Penal Code 1203.4, and
therefore is no longer removable. ICE Counsel has failed to submit a response to the motion. For
the reasons stated below, the Motion to Reopen and Motion to Terminate are denied.

ANALYSIS

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The Motion to Reopen this unexecuted removal order is untimely under 240(c )(7)(C)(i) of
the Act. Respondent was present when the removal order was issued on March 9, 2000 and since
he waived appeal, it became a final order ofremoval on that date. The documentation filed with
the Motion to Reopen indicates that Respondent's expungement for his conviction for possession
ofmethamphetamines was entered by the criminal courts on October 21, 2013. Respondent waited
until May 4, 2016 to file this Motion to Reopen, more than two and a halfyears after the
expungement was granted, which is the basis for the Motion to Reopen and Terminate.

Respondent requests that the Motion to Reopen be granted sua sponte under Matter ofJ-J-,
21 I&N Dec. 976 (BIA 1997), in which the Board ofImmigration Appeals ("BIA"), stated there is
discretionary power to reopen removal proceedings sua sponte, ifthere are compelling
circumstances to warrant reopening.

Respondent was ordered removed in 2000 at his request, and he indicated he did not want
to apply for cancellation ofremoval at that time. At the time his removal order was issued, the
charge ofremovability was properly sustained. Although Respondent's now expunged conviction
which forms the basis for the charge ofremovability is no longer a conviction for immigration
purposes under Lujan-Armendariz v. INS, 222 F3d 728 (9th Cir. 2000), and Nunez-Reyes v. Holder,
646 F ,3d 684 (9th Cir 20011) does not apply to his case, he waited almost three years from the date
ofthe expungement to request sua sponte reopening ofhis case to terminate the proceedings.
Respondent offers no compelling circumstances in his sparse affidavit filed with the Motion to
Reopen as to why the case should be reopened at this time, particularly after he did not want to
seek cancellation ofremoval during his 2000 removal hearing, which would have most likely been
granted at that time. He offers no compelling circumstances to reopen these proceedings sua
sponte, nor does he offer any explanation why he waited almost three years to file this Motion to
Reopen after his conviction was expunged. The Motion to Reopen sua sponte is denied as a matter
ofdiscretion. Since the Motion to Reopen is denied, the Motion to Terminate the proceedings is
also denied.
ORDER

IT IS ORDERED THAT Respondent's Motions to ReopenSua Sponte and Motion to

Terminate be DENIED.

Date: June 14, 2016

Renee L. Renner
Immigration Judge