U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 leesburg Pike, S11ite 2000 Falls Clrurclr, Virginia 2204/

Gordon, Nicholas D., Esq. DeMott, Mcchesney, Curtright

& Armendariz, LLP 8930 Fourwinds Drive, Suite 106 San Antonio, TX 78239

OHS/ICE Office of Chief Counsel 333 South Miami Ave., Suite 200 Miami, FL 33130

MIA

Immigrant & Refugee Appellate Center | www.irac.net

Name: BRESIAC, CHARLES H

A 091-402-355

Date of this notice: 3/15/2013

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

D CtVVt.J
Donna Carr Chief Clerk

Enclosure
Panel Members:
Guendelsberger, John Mann, Ana Adkins-Blanch, Charles K.

Trane Userteam: Docket

Cite as: Charles H. Bresiac, A091 402 355 (BIA March 15, 2013)

U.S. Department of Justice

Executive Office ror Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:

A091 402 355 - Miami, FL

Date:

MAR 15 2013

In re: CHARLES H. BRESIAC IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Nicholas D. Gordon, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

ORDER: The respondent, a native and citizen of Haiti and lawful permanent resident of the United States, appeals from the Immigration Judge's decision dated January 18, 2012, which denied his motion to reopen removal proceedings. The Department of Homeland Security (DHS) has not replied to the respondent's brief on appeal. The appeal will be sustained, and proceedings will be reopened and terminated. We review Immigration Judges' findings of fact for clear error, but we review questions of law, discretion, and judgment, and all other issues in appeals de novo. 8 C.F.R. 1003. l (d)(3)(i), (ii). The record shows that the DHS charged the respondent as an arriving alien who was inadmissible under section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(2)(A)(i)(II) (controlled substance violation), due to a February 21, 1996, Georgia State conviction for simple possession of cocaine (Exhs. 1, 2). relief abandoned, and ordered the respondent removed. On December 10, 2008, the Immigration Judge found the respondent inadmissible as charged, deemed any application for On January 18, 2012, the respondent filed a motion to reopen and terminate proceedings, providing documentation confirming that his 1996 conviction was vacated based on the determination that his no contest plea was made without being informed of the immigration consequences and was therefore involuntary. Respondent's Motion to Reopen, Tabs K and L. (BIA 2007).

See Matter of Chavez, 24 l&N Dec. 272

respondent is no longer inadmissible as charged. Matter (BIA 2006). terminated.

Thus, the conviction is no longer valid for immigration purposes, and the

of Adamiak,

23 I&N Dec. 878, 879

Accordingly, the appeal is sustained, and these proceedings are reopened and

Cite as: Charles H. Bresiac, A091 402 355 (BIA March 15, 2013)

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT MIAMI, FLORIDA

INRE : Charles Henry BRESIAC A 091 402 355 Lance E. Curtright, Esquire De Mott, McChesney, Curtright & Armendariz 800 Delorosa Suite 100 San Antonio, Texas 78207 Phil D' Adesky, ICE Department of Homeland Security Assistant Chief Counsel 333 S. Miami Ave., Suite 200 Miami, Florida 33130
O RDER ON MOTION TO REOPEN

IN REMOVAL PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

Counsel for respondent files this motion to reopen received today January 18, 2012. The court last entered an order of removal on December 10, 2008, when respondent failed to file any application for relief (Form 42A or Form 1-191) by on or before close of business of October 31, 2008. Present counsel argues the case should be reopened as his client's criminal ground of removal based on a 1996 conviction was vacated on December 6, 2011, and he has further filed an ineffective assistance of counsel complaint regarding his prior immigration attorney. First, the court will note respondent was present with former counsel at the immigration hearing on August 28, 2008, and informed of the importance of the call up date for receipt of application. Secondly, the abandonment order issued by the court on December 10, 2008, was mailed to respondent. He did not timely respond in any fashion to this order. Third, the post conviction remedy entered last month does not cure the plea and existing conviction at time of hearing. Respondent has not exercised due diligence in seeking reopening over three years after he was served the order of removal. The court finds this motion untimely. See section 240(c)(7)(C)(I) of the I&N Act; Matter of Monges-Garcia, 25 l&N Dec. 246, 250 (BIA 2010). chambers this Wednesday January 18, 2012. Accordingly, the motion is dismissed as untimely. A request for stay of removal is denied. DONE and ORDERED in

J Daniel Dowell U.S. Immigration Judge

cc: Assistant Chief Counsel, Mr. D' Adesky Counsel for Respondent, Mr. Curtright Respondent at 1334 Clary Sage Loop Round Rock, Texas 78665 Mailed out

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Cite as: Charles H. Bresiac, A091 402 355 (BIA March 15, 2013)