U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Swensen, Jessica A OHS/ICE Office of Chief Counsel - NYD
The Bronx Defenders 201 Varick, Rm. 1130
360 E. 161st street New York, NY 10014
Bronx, NY 10451

Name: DIAZ VARGAS, ARIEL JONATHAN A 044-480-297

Date of this notice: 9/29/2017

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:
Guendelsberger, John

Smi!hl-\1
Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: Ariel Jonathan Diaz Vargas, A044 480 297 (BIA Sept. 29, 2017)
U.18. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
.

Falls Church, Virginia 2204 l

File: A044 480 297 - New York, NY Date:

SEP 2 9 2017
In re: Ariel Jonathan DIAZ VARGAS a.k.a. Ariel Diaz

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Jessica A. Swensen, Esquire

ON BEHALF OF OHS: Kamephis Perez

Assistant Chief Counsel

APPLICATION: Reconsideration; reopening

The Department of Homeland Security appeals from the Immigration Judge's order of July 27,
2016, in which the Immigration Judge denied the DHS's motion to reconsider a prior decision
terminating proceedings and to reopen removal proceedings in the alternative. The respondent has
filed a brief in opposition to the appeal. The appeal will be dismissed.

The OHS contends it did not waive an argwnent that the respondent is removable based on a
conviction under New York Penal Law 220.31, as an alien convicted of a controlled substance
offense and an alien convicted for an aggravated felony as defined in 10l (a)(43)(B) of the
Immigration and Nationality Act, 8 U.S.C. l 10l (a)(43)(B). See sections 237(a)(2)(B),
(a)(2)(A)(iii) of the Act, 8 U.S.C. 1227(a)(2)(B), (a)(2)(A)(iii). The OHS also argues the
Immigration Judge erred in not reopening proceedings to permit OHS to lodge an additional charge
wider section 237(a)(2)(A)(ii) of the Act.

We need not address whether the OHS waived argwnents regarding the respondent's
removability. Since the time of the Immigration Judge's decision in this case the United States
Court of Appeals for the Second Circuit, in whose jurisdiction this case arises, has concluded that
the New York statute at issue is overbroad as an aggravated felony drug trafficking offense. See
Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017). Specifically, the Second Circuit concluded that
the statute is indivisible and not subject to a modified categorical approach, as New York
criminalizes the sale of substances which are not federally controlled substances and the various
substances constitute means by which the New York statutes can be violated rather than specific
and separate elements of the offense. See also Matter ofChairez, 26 I&N Dec. 819 (BIA 2016).

The same legal reasoning fatally undermines any assertion that the respondent's conviction
constitutes a controlled substance offense within the meaning of section 237(a)(2)(B) of the Act.
Therefore, the appeal from the denial of the DHS's reconsideration request will be dismissed.

We agree with the Immigration Judge that OHS did not establish that reopening was warranted.
A motion to reopen requires the party seeking reopening present new or previously unavailable,
material evidence. 8 C.F.R. 1003.2(c)(l ). The OHS did not present any additional evidence in
company of the motion, instead relying exclusively on documents previously in the record. While
the regulations provide OHS with broad ability to lodge additional charges "at any time during a
Cite as: Ariel Jonathan Diaz Vargas, A044 480 297 (BIA Sept. 29, 2017)
 ... .

J
A044 480 297

hearing," proceedings in this case had ended by the time OHS sought to lodge the charge. See
8 C.F.R. 1240.48(d). As DHS's motion did not meet the basic requirements for a motion to
reopen, we likewise will dismiss the appeal of the denial of the motion to reopen.

ORDER: The DHS's appeal is dismissed.

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Cite as: Ariel Jonathan Diaz Vargas, A044 480 297 (BIA Sept. 29, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
NEW YORK, NEW YORK

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File: A044-480-297 July 27, 2016

In the Matter of

)
ARIEL JONATHAN DIAZ VARGAS ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGE: Section 237(a)(2)(B)(i).

APPLICATIONS: 8 C.F.R. 1239.2(c) (Motion to terminate).

INA Section 240A(a), cancellation of removal for a certain

permanent resident.

ON BEHALF OF RESPONDENT: Karla Marie Ostolaza, esq.

Bronx Defenders
360 E. 161st Street
Bronx, New York 10451

ON BEHALF OF OHS: Kam Perez, esq., assistant chief counsel

201 Varick Street
New York, New York 10014

ORAL DECISION OF THE IMMIGRATION JUDGE

Procedural History. The respondent is a native and citizen of the

Dominican Republic. He entered the United States on March 5th, 1994 at San Juan,

Puerto Rico as a lawful permanent resident (Exhibits 1; 2, tab A). He pied guilty to

Cite as: Ariel Jonathan Diaz Vargas, A044 480 297 (BIA Sept. 29, 2017)
criminal possession of a controlled substance in the seventh degree in violation of New

York Penal Law Section 220.03 on May 11th, 2007. (Exhibit 2, tab B). At the time of

sentencing on June 8th, 2007, he was adjudicated a youthful offender in the Supreme

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Court of New York, Bronx County (Exhibit C, tab 0). On December 10th, 2008, he was

convicted of criminal sale of a controlled substance in the fifth degree in violation of New

York Penal Law Section 220.31. Exhibit 2, tab B.

On February 19th, 2015, OHS served a Notice to Appear charging him

with removability pursuant to Section 237(a)(2)(A)(iii) and 237(a)(2)(B)(i). Asserting that

he was an aggravated felon under Section 101(a)(43)(B) and convicted of a controlled

substance violation of law (Exhibit 1). To support the allegation related to the New York

Penal Law Section 220.03 offense, OHS submitted a misdemeanor complaint and a

certificate of disposition which indicated that he had been convicted of Penal Law

Section 220.03 (Exhibit 2, tab C) .

On March 26th, 2015, respondent filed a motion to terminate, arguing that

the government failed to meet its burden of establishing removability. The court denied

this motion on July 13th, 2015. See decision and order dated July 13th, 2015. The

court found that OHS had established removability under Section 237(a)(2)(B)(i)

(controlled substance) based on the evidence regarding the conviction for Penal Law

Section 220.03. However, the court did not sustain the aggravated felony charge.

Based on this decision and statements by prior counsel that the respondent did not

intend to file any applications for relief, the court ordered him removed to the Dominican

Republic on August 3rd, 2015.

Respondent appealed the decision with the Board of Immigration Appeals

which dismissed the appeal and denied his motion to re-open. The Board also found

that OHS did not properly raise the issue of contesting the finding that respondent was

A044-480-297 2 July 27, 2016

not removable under Section 237(a)(2)(A)(iii). Respondent obtained new counsel and

on April 1st, 2016, the BIA granted his motion to re-open and remanded these

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proceedings to the court to consider his application for cancellation of removal.

On June 2nd, 2016, court held a hearing to consider the cancellation

application. At that hearing, counsel submitted the respondent's sentencing minutes

from June 8th, 2007 (Exhibit C, tab 0), and made an oral motion to terminate these

proceedings. The government argued that he was still removable and that he was also

ineligible for cancellation of removal. The court took testimony from the respondent and

deferred a ruling on his motion to terminate and the application for relief.

After consideration of the entire record of proceedings, the court will now

grant the respondent's motion to terminate. Based upon the recently filed evidence

regarding his Penal Law Section 220.03 youthful offender adjudication, the court finds

that he is no longer removable as charged pertaining to that matter. Accordingly, it is

unnecessary to adjudicate his cancellation of removal application in view of this change

in development and orders these proceedings to be hereby terminated.

Legal Standards and Analysis.

Motion to Terminate.

Here, the government has the burden of establishing removability by clear

and convincing evidence. INA Section 240(c)(3)(A). See also Matter of Guevara, 20

l&N Dec. 238, 242 (BIA 1991). In Guevara, the Board cites would be the INS 385 U.S.

276 (1966) in which the court stated, "Any alien who at any time after admission has

been convicted of a violation or a conspiracy or attempt to violate any law or regulation

of a state, the United States, or foreign country relating to a controlled substance

[indiscernible] is deportable."

Here, OHS initially charged respondent with removability pursuant to

A044-480-297 3 July 27, 2016

Section 237(a)(2)(A)(iii), namely an aggravated felony as defined in 101(a)(43)(8) and

Section 237(a)(2)(8)(i). As the court did not sustain the aggravated felony charge

previously, it now declines to disturb that determination here and notes that OHS waived

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appeal on this issue.

Although OHS does not dispute that the Section 220.03 offense is no

longer a conviction for immigration purposes, it contends that he is still removable under

Section 237(a)(2)(B)(i) because of his conviction under Penal Law Section 220.31.

Nevertheless, the court finds that OHS has not met its burden of proving removability as

charged.

Respondent's Penal Law Section 220.03 youthful offender adjudication.

According to the certificate of disposition submitted by OHS, the

respondent pied guilty to criminal possession of a controlled substance on May 11th,

2007. Exhibit 2, tab C. That certificate also indicates that he was convicted of this

offense and sentenced by Judge Alvarado [phonetic] on June 8th, 2007. It was based

on this certificate and the criminal complaint which indicated that the substance involved

was heroine, that the court sustained the controlled substance ground of removability

because it found that the offense involved the federally controlled substance. See July

13th, 2015 decision. Neither party disputed this finding in the ensuing litigation.

However, at the respondent's June 2nd, 2016 hearing, evidence that was

not previously submitted was submitted by new counsel, i.e. a copy of the sentencing

minutes (Exhibit C, tab 0). That transcript shows clearly that on June 8th, 2007, he was

arraigned for sentence of a plea of guilty to criminal possession of a controlled

substance in the seventh degree. That document further demonstrates that Judge

Alvarado "set aside" the conviction and "afforded youthful offender treatment with

respect to each of the cases." Further, Judge Alvarado imposed "a straight conditional

A044-480-297 4 July 27, 2016

discharge" for this misdemeanor offense.

In a comparison of DHS's records together with this new evidence, the

court finds that the sentencing minutes conclusively establish that the respondent was

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adjudicated as a Y.O. for his controlled substance offense. The docket numbers are the

same for the certificate, the complaint, and sentencing minutes. Th sentencing date

and name of the judge are consistent with the certificate and sentencing minutes, and

both the certificate and sentencing minutes state that he received a conditional

discharge. An adjudication of youthful offender status or juvenile delinquency is not a

conviction for a crime for purposes of immigration law and accordingly this offense

cannot support a charge of removability. Matter Devison, 22 l&N Dec. 1362, 1373 (BIA

2000).

The respondent's Penal Law Section 220.31 conviction.

Respondent pied guilty to criminal sale of a controlled substance in the

fifth degree on December 10th, 2008. In its prior decision, the court found this to be a

divisible statute, which, utilizing the modified categorical approach, permits the court to

consult the record of conviction to determine what substance was involved. The court

found that OHS failed to establish the particular substance involved because the only

evidence indicating a substance, namely the indictment, was outside the record of

conviction. Niihawan v. Holder, 557 U.S. 29, 35 (2009) (indicating that the court should

consult the plea agreement, plea colloquy, or some comparable judicial record of the

factual basis for the plea). Consequently, the court did not sustain the aggravated

felony charge. Court applies the same analysis with regard to the controlled substance

offense removability charge. Model jury instructions for the statute of conviction make

clear that the substance involved is an element, not a means, of the offense. See

Criminal Jury Instructions 2nd, New York, Section 220.31. As OHS failed to submit the

A044-480-297 5 July 27, 2016

appropriate evidence, in the court's view, the court cannot find that the conviction is a

removable offense.

In conclusion, the court finds that the new evidence establishes that the

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respondent was not convicted of Penal Law Section 220.03 but he was adjudicated as a

youthful offender. Thus this offense simply does not render him removable.

Accordingly, OHS has not established by clear and convincing evidence that the

respondent is removable as charged and because of the submission of this new

evidence, the court does not need to adjudicate his application for cancellation of

removal. Court believes that this ruling is consistent with the tenor of the BIA decision.

Accordingly, after careful review of the record, the following order will be

entered.

Order. It is hereby ordered that the respondent's motion to terminate be

granted.

THOMAS J. MULLIGAN
Immigration Judge

A044-480-297 6 July 27, 2016

 CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE THOMAS J.

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MULLIGAN, in the matter of:

ARIEL JONATHAN DIAZ VARGAS

A044-480-297

NEW YORK, NEW YORK

was held as herein appears, and that this is the original transcript thereof for the file of

the Executive Office for Immigration Review.

a.t.r
GABRIELLE ALTMAN (Transcriber)

NATIONAL CAPITOL CONTRACTING

October 21, 2016

(Completion Date)