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

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

Basaran, Melinda M., Esq. OHS/ICE Office of Chief Counsel - NEW
Basaran Law Office 970 Broad Street, Room 1300
1061 Main Street Newark, NJ 07102
Paterson, NJ 07503

Name: FLORES, MARIO HAROLD A 043-945-828

Date of this notice: 11/29/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Grant, Edward R.

LulseqeS
Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Mario Harold Flores, A043 945 828 (BIA Nov. 29, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A043 945 828 - Newark, NJ Date:

In re: Mario Harold FLORES

NOV 2 9 2D17

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

IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT: Melinda M. Basaran, Esquire

APPLICATION: Reconsideration

ORDER:

. The respondent has filed a motion to reopen his removal proceedings. The record does not

contain a response from the Department of Homeland Security. The respondent's motion

demonstrates that his prosecutions were for disorderly persons offenses which do not qualify as

"convictions" within the meaning of section 101(a)(48)(A) of the Immigration and Nationality

Act, 8 U.S.C. § 1101(a)(48)(A). See Matter of Eslamizar, 23 l&N Dec. 684 (BIA 2004).

Accordingly, he is not removable as charged. Under the totality of the circumstances present in

this particular case, we conclude reopening is warranted under our discretionary authority to

reopen sua sponte to permit termination of these proceedings. 8 C.F.R. § 1003.2(a). Accordingly,

the motion to reopen is hereby granted.

FURTHER ORDER:

Cite as: Mario Harold Flores, A043 945 828 (BIA Nov. 29, 2017)
 U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virgm1a 2204/

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

Basaran, Melinda M., Esq. OHS/ICE Office of Chief Counsel - NEW
Basaran Law Office 970 Broad Street, Room 11048
1061 Main Street Newark, NJ 07102
Paterson, NJ 07503

Name: FLORES, MARIO HAROLD A 043-945-828

Date of this notice: 3/22/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Guendelsberger, John

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Userteam: Docket
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

·File: A043 945 828 - Newark, NJ Date:

MAR 2 2 2017
In re: MARIO HAROLD FLORES

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

IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT: Melinda M. Basaran, Esquire

APPLICATION: Reopening

This matter was last before the Board on July 29, 2002, when we summarily affirmed the
Immigration Judge's removal· order. This motion, submitted on December 9, 2016, is untimely
filed. 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 record does not contain a response from the
Department of Homeland Security. The motion to reopen will be denied.

The respondent argues reopening is warranted based on changed conditions in Peru such that
he is eligible for asylum. 8 C.F.R. § 1003.2(c)(3)(ii). However, the respondent has submitted
evidence only showing current conditions in Peru, and the record contains no evidence of
conditions at the time of his final hearing. See Matter of S-Y-G-, 24 I&N Dec. 247, 253 (BIA
2007) (providing that "[i]n determining whether evidence accompanying a motion to reopen
demonstrates a material change in country conditions that would justify reopening, we compare
the evidence of country conditions submitted with the motion to those that existed at the time of
the merits hearing below"). The submission of current conditions is insufficient to establish a
"change" within the meaning of 8 C.F .R. § 1003.2(c)(3)(ii).

The respondent also argues sua sponte reopening is warranted based on Matter of Eslamizar,
23 I&N Dec. 684 (BIA 2004). 8 C.F.R. § 1003.2(a). Specifically, he argues that under Matter of
Eslamizar his shoplifting offenses do not qualify as "convictions" within the meaning of
section 101(a)(48) of the Act, 8 U.S.C. § 1101(a)(48), and that reopening is warranted based on
this change in law. See Matter of G-D-, 22 I&N Dec. 1132 (BIA 1999) (noting the Board may
reopen sua sponte based on a "fundamental," material change in law). As an initial matter, we
note that this purported change in law occurred over 12 years ago. See Matter of G-C-L-, 23
l&N Dec. 359 (BIA 2002) (setting forth reasons for no longer sua sponte reopening cases where
more than 5 years had passed from fundamental change in law).

Additionally, even if the respondent is correct his shoplifting convictions were "disorderly
persons offenses" which do not qualify as "convictions," the respondent has not established his
finding of guilt under New Jersey Code of Criminal Justice § 2C:20-3A was prosecuted as a
"disorderly persons offense" (Motion at 12, n.1). Unless or until the respondent's conviction
under New Jersey Code of Criminal Justice § 2C:20-3A is vacated due to procedural or
substantive defects in the underlying proceedings, the respondent remains removable as charged.
We are not persuaded that exercise of our discretionary authority to reopen sua sponte is
warranted in this case.
 Immigrant & Refugee Appellate Center, LLC | www.irac.net

2
ORDER: The motion to reopen is denied.
A043 945 828