U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Qffice of the Clerk

5107 Leesburg Pike, Suile 2000

Falls Church, Virginia 22041

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Hua, Ralph DHS/ICE Office of Chief Counsel - SEA
MacDonald Hoague & Bayless 1000 Second Avenue, Suite 2900
705 Second Avenue, Suite 1500 Seattle, WA 98104
Seattle, WA 98104

Name: CHEN, CHAO XING A 039-001-115

Date of this notice: 8 /2/2017

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:
Kelly, Edward F.
Grant, Edward R.
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Chao Xing Chen, A039 001 115 (BIA Aug. 2, 2017)

U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A039 001 115 - Shelton, WA Date:

AUG - 2 2017
In re: Chao Xing CHEN a.k.a. Chao Chen

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IN REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Ralph Hua, Esquire

ON BEHALF OF DHS: Mark Hardy

Assistant Chief Counsel

APPLICATION: Reopening; termination

The respondent, a native and citizen of the People's Republic of China, who was previously
admitted to the United States as a lawful permanent resident on or about September 7, 1984,
appeals the decision of the Immigration Judge, dated April 12, 2017, denying his motion to reopen.

We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. 1003.1 (d)(3)(i). We review
all other issues, including issues of law, discretion, or judgment, under a de novo
standard. 8 C.F.R. 1003. l(d)(3)(ii).

On April 16, 2002, the respondent was convicted for the offenses of assault in the first degree,
in violation of Washington Revised Code (Wash. Rev. Code) 9A.36.01l(l)(A); possession of a
firearm in the second degree, in violation of Wash. Rev. Code 9.41.040; felony harassment, in
violation of Wash. Rev. Code 9A.46.020; and assault in the fourth degree, in violation of Wash.
Rev. Code 9A.36.04l (IJ at 1-2; Department of Homeland Security's Exhibits filed on June 22,
2010, Tab 2). Based on these convictions, on August 25, 2010, an Immigration Judge found the
respondent to be subject to removal from this country pursuant to sections 237(a)(2)(A)(iii), & (C)
of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii), & (C), and ordered his
removal.

On January 25, 2017, the respondent filed a motion to reopen along with documentary evidene
establishing that on December 20, 2016, he was granted a full and unconditional pardon by the
Governor of the State of Washington for his 2002 offenses (Motion to Reopen, Addendum).

We have considered the totality of the circumstances presented in this case, and find that an
exceptional situation has been demonstrated that warrants sua sponte reopening, and termination
of these proceedings. See 8 C.F.R. 1003.23(b)(l); Matter ofJ-J-, 21 I&N Dec. 976 (BIA 1997).
As a result of the gubernatorial pardon, the respondent is no longer subject to removal under
section 237(a)(2)(A)(iii) of the Act. See section 237(a)(2)(A)(vi) of the Act; see Matter ofSuh,
23 I&N Dec. 626 (BIA 2003) (a gubernatorial pardon waives only the grounds of removal
specifically set forth in section 237(a)(2)(A)(vi) of the Act, and no impiicit waivers may be read
into the statute).
Cite as: Chao Xing Chen, A039 001 115 (BIA Aug. 2, 2017)
..
A039 001 1.15

Furthermore, under current Ninth Circuit case law, the respondent also is no. longer subject to
removal under section 237(a)(2)(C) of the Act. See U.S. v. Aguilera-Rios, 169 F.3d 626,
634 (9th Cir. 2014) (holding that under the Supreme Court's decision in Moncrieffe v. Holder;.
133 S. Ct. 1678 (2013), a state firearm statute lacking an exception for antique firearms is not a
categorical match for the federal firearms ground of removal); Medina-Lara v. Holder,

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771 F.3d 1106 (9th Cir. 2014); see also Wash. Rev. Code 9.41.040(9) (1997) (providing no
exception for an antique firearm).

Accordingly, the following orders will be entered.

ORDER: The appeal is sustained; the removal proceedings are reopened; and the August 25,
2010, _removal order is vacated.

FURTHER ORDER: The proceedings are terminated.

2
Cite as: Chao Xing Chen, A039 001 115 (BIA Aug. 2, 2017)
 ( ( -

UNITED STATS DEPARTMENT OF JUSTICE

EXECUTIVE OFF{CE FOR IMMIGRATION REVIEW
SEATTLE IMMIGRATION COURT
1000 SECOND AVE., SUITE 2500
SEATTLE, WA 98104

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Gibbs Houston Pauw
Hua, Ralph
1000 Second Avenue
Suite 1600
Seattle, WA 98104

IN THE MATTER OF FILE A 039-001-115 DATE: Apr 12, 2017

CHEN, CHAO XING

1
787511

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION

IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT

OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6),
B U.S.C. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:

IMMIGRATION COURT
P.O. BOX 900
SHELTON, WA 98584

OTHER:

WiiRTCLERK
IMMIGRATION COURT FF
CC: MARK HARDY, ASST CHIEF COUNSEL
1000 SECOND AVE., SUITE 2900
SEATTLE, WA 98104
 (

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
SEATTLE IMMIGRATION COURT
SEATTLE, WASHINGTON

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In the Matter of:
File Number: A039-001-115
Chao Xing CHEN

Res ondent. IN REMOVAL PROCEEDINGS

CHARGE: INA 237(a)(2)(A)(iii) - Alien Convicted of an Aggravated

Felony

INA 237(a)(2)(C)-Alien Convicted of a Firearms Offense

APPLICATION: Motion to Reopen

ON BEHALF OF RESPONDENT ON BEHALF OF ICE

Ralph Hua, Esq. Mark Hardy
MacDonald, Hoague & Bayless Assistant Chief Counsel
705 Second Ave, Suite 1500 U.S. Department of Homeland Security
Seattle, WA 98104 U.S. Immigration Customs and Enforcement
1000 Second Avenue, Suite 2900
Seattle, WA 98104

DECISION OF THE IMMIGRATION JUDGE

I. Procedural History

The Department of Homeland Security ("DHS") initiated removal proceedings against

the respondent by filing a Notice to Appear ("NTA'') with the Seattle Immigration Court on
November 30, 2009. The NTA alleges the respondent is a native and citizen of the People's
Republic of China who was admitted to the United States at Seattle, Washington on or about
September 7, 1984 as an immigrant PS-3. Exh. 1. The NTA further alleges that on April 16,
2002, the respondent was convicted in the Washington Superior Court at King County for the
offenses of assault in the first degree - domestic violence, in violation of RCW
9A.36.0ll(l)(A), possession of a firearm in the second degree, in violation of RCW
9A.41.040, and felony harassment - domestic violence, in violation of RCW 9A.46.020, for
which he was sentenced to 180 days imprisonment. Id. On the basis of these allegations, the
DHS charges the respondent as removable under section 237(a)(2)(A)(iii) of the Immigration and
 ( '

Nationality Act ("INA" or the "Act"), as an alien who has been convicted of an aggravated
felony, crime of violence, as defined at INA 10l (a)(43)(F); and (2) INA 237(a)(2)(C), as an
alien who has been convicted under any law of purchasing, selling, offering for sale, exchanging,
using, owning possessing, or carrying, or attempting or conspiring to purchase, sell, offer for
sale, exchange, use, own, possess, or carry any weapon, part or accessory which is a firearm or

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destructive device (as defined in section 921(a) of title 18, United States Code). Id.

The respondent appeared without counsel to an initial master calendar hearing on June 9,
2010. The Court advised the respondent of his rights in removal proceedings and reset the
hearing to allow the respondent time to obtain legal counsel. The respondent appeared with
counsel to a continued master calendar hearing on August 25, 2010. Through counsel, the
respondent admitted all factual allegations contained in the NTA and conceded removability as
charged. The respondent designated China as the prospective country of removal. Counsel for
the respondent informed the court that he was not applying for asylum and withholding of
removal. Counsel for the respondent further confirmed the respondent would accept an order of
removal. The respondent orally expressed his understanding that he will be removed to China.

On January 25, 2017, the respondent filed a motion to reopen proceedings after being
granted a pardon for his 2002 convictions for first degree assault, second degree unlawful
firearm possession, and felony harassment. Motion to Reopen at 17-18 (Jan. 25, 2017)
[hereinafter "MTR"]. The respondent makes two arguments in support of his motion to reopen.
First, the respondent argues that because he was granted a full and unconditional pardon for his
convictions by the Governor of Washington on December 20, 2016, INA 237(a)(2)(A)(vi) of
the Act, authorizes that such pardons waive the charge of removability under section
237(a)(2)(A)(iii) of the Act. Id. at 4, 17-18. Second, the respondent claims that due to a
fundamental change in law, the remaining charge of removability under INA 237(a)(2)(C) can
no longer be sustained. Id. at 5-6. OHS filed its opposition to the respondent's motion on January
31, 2017. Government Response (Jan. 31, 2017) [hereinafter "OHS Opp'n."]. The respondent
filed a reply brief on February 3, 2017. Respondent's Reply to Government's Response (Feb. 3,
2017) [hereinafter "Resp. Reply''].

II. Motion to Reopen

A.. Timeliness

An hnmigration Judge may upon motion of the alien reopen any case in which he has
made a decision, unless jurisdiction is vested with the Board. 8 C.F.R. 1003.23(b)(l). Subject
to certain narrow exceptions, a motion to reopen must be filed within 90 days following entry of
the removal order. Id.; see also 8 C.F.R. 1003.23(b)(4). The Court ordered the respondent
removed to China on August 25, 2010, and he waived appeal. He filed his motion to reopen on
 (

January 25, 2017, over six years after the 90-day filing deadline. See id. 1003.23(b)(l). The
respondent does not argue that the 90-day deadline should be equitable tolled. Rather, the
respondent argues his motion to reopen was timely filed within 90 days of the Governor's pardon
of the respondent's convictions, which is the material and previously unavailable evidence he
submits in support of his motion to reopen. MTR at 4. The Court, however, finds both the INA

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and the regulations clearly state that the 90-day filing deadline for motions to reopen begins on
the date of entry of a final administrative order of removal. INA 240(c)(7); 8 C.F.R.
1003.23(b)(l), not when the evidence becomes available. Because the respondent's order of
removal became final on August 25, 2010 when he waived appeal, the Court finds the
respondent's motion to reopen is timebarred.

B.. Reopening Based on the Court's Sua Sponte Authority

While not clearly argued, the respondent requests in the alternative that the Court
exercise its discretion to reopen his removal proceedings sua sponte. See MTR at 8 C.F.R.
1003.23(b)(1). The Court did not make this motion to reopen, as such it is not a sua sponte
motion. Matter of G-D-, 22 l&N Dec. 1132, 1133-34 (BIA 1999); Matter ofJ-J-, 21 I&N Dec.
976, 984 (BIA 1997) ("The power to reopen on our own motion is not meant to be used as a
general cure for filing defects or to otherwise circumvent the regulations, where enforcing them
might result in hardship.") (emphasis added). The respondent bears the burden to demonstrate
that an "exceptional situation". exists and that there is a "substantial likelihood that the result in
[his] case would be changed if reopening is granted." Matter of Beckford, 22 l&N Dec. 1216,
1219 (BIA 2000).

The Court first agrees that under INA 237(a)(2)(A)(vi), the Governor of Washington's
full and unconditional pardon of the respondent's convictions for assault in the first degree,
possession of a firearm in the second degree, and felony harassment waives the ground of
removability for under INA 237(a)(2)(A)(iii), as an alien convicted of an aggravated felony.
Additionally, had the pardon occurred before the hearing, the Court would not have been able to
rely on the conviction to sustain the charge of removability for under INA 237(a)(2)(A)(iii).
The Court notes the Governor's pardon is an act of clemency and does not change the fact the
respondent committed the crime. Indeed, the pardon clearly states that in 2001, the respondent
confronted his ex-girlfriend with a knife, held her throat, and threatened to kill her; days later, he
approached her with a handgun, and as she drove away, he shot at her, missing her vehicle."
MTR at 17.

However, as DHS correctly points out the aggravated felony charge was not the
respondent's only charge of removability. DHS also charged the respondent with removability
under INA 237(a)(2)(C). Exh. 1. The respondent argues, however, that the Court should reopen
 ( ,

his case because dl:}e to a change in law, the respondent's conviction no longer supports the
charge of removability under INA 237(a)(2)(C).

A fundamental change in law that represents "a departure from established principles" is
as an exceptional situation that may warrant sua sponte reopening. Bonilla v. Lynch, 840 F.3d

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575, 585 (9th Cir. 2016); G-D-, 22 l&N Dec. 1132, 1135-36 (BIA 1999). For instance, a change
by Congress to the refugee definition to include coercive population control constitutes a
fundamental change in law, whereas cases that "involved the application of existing asylum
principles to a specific set of facts" does not. Compare G-D-, 22 I&N Dec. at 1135 with Matter
ofX-G-W-, 22 I&N Dec. 71 (BIA 1998) (overruled on other grounds by G-C-L-, 23 I&N Dec. at
359. An incremental change in law that potentially enhances the respondent's case will not
suffice; the change must be a dramatic departure from the existing law. Id. at 1135. As the Board
has explained, "(i]f each incremental development in the case law were considered to be a
change warranting reopening on the [court's] own motion, the implications for the motions
regulations and for the finality of proceedings would b profound." Id. Additionally, a
fundamental change in law is not an exception to the filing deadlines, but a type of exceptional
situation in which reopening sua sponte serves the interest of justice. See X-G-W-, 22 I&N Dec.
at 73; J-J-, 21 I&N Dec. at 984. Therefore, in order for the Court to reopen due to a fundamental
change in law, the respondent must still a "substantial likelihood" of success on the merits. See
Beckford, 22 l&N Dec. at 1216; see, e.g.,X-G-W-, 22 l&N Dec. at 73-74.

Based on the totality of the facts and circumstances of the respondent's case, the Court
declines to exercise its sua sponte authority to reopen the respondent's case. The respondent
should have been removed to the People's Republic of China in 2010.

ORDER

IT IS.HEREBY ORDERED that the respondent's motion to reopen and rescind the in absentia
order of removal is DENIED.

Date